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posted by Michael Kang
While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics. First, something about Paul’s post. Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.” He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship. Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.
I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field. In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase. According to Zaller, “Every professional group wishes, if possible to have as much business as possible. Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”
As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand. Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition. Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.” In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.
You can see how Zaller’s ideas generalize to academic scholarship. Read the rest of this post »
posted by Michael Kang
The Center for American Progress has just issued a report on judicial campaign finance that documents the increasing costs of campaigning in judicial elections and raises alarm that “[i]nstead of serving as a last resort for Americans seeking justice, judges are bending the law to satisfy the concerns of their corporate donors.” Jeffrey Toobin followed up in the New Yorker that “the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. . . . [b]ut it’s clear now that in many states you should worry—a lot.”
My colleague Joanna Shepherd and I study judicial campaign finance and argue that what is regularly missed in this simple narrative is the crucial role of the major parties. In our empirical work, we find a very real relationship between contributions to judges and judicial decisions favorable to contributors, but the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger realities of modern judicial elections. The Republican and Democratic Parties broker connections between contributors and their candidates, and we argue that parties, not elections, seem to be the key to money’s influence on judges.
In a new paper still in progress, The Partisan Foundations of Judicial Campaign Finance, we identify broad left- and right-leaning political coalitions, allied with the Democratic and Republican Parties, whose collective contributions exercise systematic influence across the range of decisions by judges who receive their money. The parties appear to coordinate judicial campaign finance under partisan elections where their investment and involvement is greatest, and what is more, we find that the robust relationship between money and judicial decisions largely disappeared in our data for judges elected in nonpartisan elections where parties are relatively less involved.
In addition, we go on to find a striking partisan asymmetry between Republicans and Democrats in judicial campaign finance. Money from conservative groups in the Republican coalition, as well as from the party itself, is associated with more conservative judicial decisionmaking by Republican judges, even controlling for individual ideology. However, decisionmaking by Republican judges is not responsive to money from liberal sources. Decisionmaking by Democratic judges, by contrast, is influenced by campaign support from both liberal and conservative sources and thus cross pressured in opposite directions. The result is that judicial campaign finance reinforces party cohesion for Republicans while undermining it for Democrats. Campaign finance thus predicts judicial decisionmaking by judges from both parties in some sense, but is much more successful in serving partisan ends for Republicans, netting out in a conservative direction between the two parties.
posted by Michael Kang
Not long ago, the busy month for law review submissions was August, not March. As anyone who has been teaching law for more than six or seven years can confirm, law faculty worked on their manuscripts during summer break and had shiny new articles to send off as the fall semester approached. There was a spring cycle as well, with law journal submissions and publication offers split reasonably evenly between the spring and fall cycles, but at one point, the fall was probably the busier one.
It’s not quite yet time to declare the death of the fall cycle for law journal submissions—many journals still will receive and accept a number of articles this month—but we’re getting close. A nontrivial number of flagship journals didn’t open for business this fall—e.g., Duke Law Journal, Indiana Law Journal, University of Illinois Law Review, and Utah Law Review—each noting on ExpressO that they’ll begin looking at articles next in the spring. What’s more, many of the journals open for business reserved only a handful of publication slots for this fall from last spring. Demand during the fall for articles appears to be shrinking.
Why did this apparent shift from fall to spring cycle occur? My guess begins with the fact that the business of legal scholarship is increasingly competitive on all ends, and after boards turn over during the spring, there are more high-quality articles than ever pouring into journal offices. So many high-quality articles, in fact, that a top journal finds it difficult to resist filling their entire volume just from the spring submissions alone. Of course, top journals could resist the temptation, but they may not see the point once they’ve already invested the time to read and decide on a sufficient mass of articles. They may also fixate on the pieces in front of them rather than assume that stronger pieces will be available in the fall. This is just a version of the “unraveling of the market” that Dave Hoffman cited to explain why the spring cycle itself seemed to be creeping up earlier and earlier. All this hinges, of course, on the quantity and quality of spring submissions hitting a critical threshold such that journals tipped from saving slots for the fall to consuming almost all of them in the spring. By the fall, however, journals feel constrained not to steal even more spots from the subsequent spring, because it would be taking them away from the next board of editors and next volume.
There are at least two significant costs of the migration of publication slots from fall to spring. The first is that we may, before long, have only one cycle for submissions per calendar year—the spring. Spring versus fall as a matter of timing isn’t a big deal, but having two cycles per year for submissions versus only one is a big deal. If you have an article that isn’t quite ready for the spring cycle, then you would need to wait a full year for the next spring cycle to submit it. The result is increased turnaround time between completion of the average article and its publication date. Articles therefore become less timely on average, and scholarship takes longer to become widely disseminated in finished form. This development would cede one relative advantage of student-run law journals over academic peer review journals—speed.
The second cost is that the spring cycle, as the only cycle, would become even more chaotic and random. I don’t know whether authors have fully adjusted to the shift from fall to spring, but if they do, authors might submit all their work during the spring. The obvious result is that virtually all article selection for top journals would occur in basically a couple months. The volume of submissions would place additional stress on articles editors, and time pressures on both articles editors and authors in the competition for articles would speed up. More articles, more decisions, compressed into a shorter period of time.
posted by Michael Kang
With the start of the college football season this weekend, a columnist for CNNSI.com has called for college football players to be paid by the universities they attend. He argues that “[t]hese colleges are acting like big businesses. Well, big businesses pay their talent.” Certainly college athletic departments pay their administrators and coaches very well, with more than two dozen college football head coaches making more than $2 million last year. Even some top assistant coaches make nearly half a million a year. So, if the administrators and coaches get rich off college football, why not pay the players as well? It’s an intuitive argument, one that you hear a lot if you follow college athletics. But without defending the eye-popping salaries prevailing these days in college sports, I think the case for paying college football players usually rests on a false premise.
The fallacy often underlying the argument is an assumption that universities make a great deal of money off athletics. That’s not necessarily true at all. The NCAA reported last week that the athletic departments of only 14 out of 120 schools that play in the Football Bowl Subdivision (the highest level of college football—once known as Division I) actually made money off college athletics during fiscal year 2009. What’s more, the profits of the athletic departments at even those 14 schools are not that likely to flow out of the athletic department and back in the university budget. Sure, there are exceptions, and the University of Georgia recently announced that the UGA athletic department would donate $2 million to the university last year, but it’s just as or more likely in the run of cases that the university subsidizes the athletic department in a significant way through shared or subsidized expenses such as facilities and physical plant, academic tutoring, admissions concessions, and general maintenance. In short, only a handful of universities actually make a profit from college athletics from year to year, and only a relatively small amount of money finds its way back to the larger university.
posted by Michael Kang
The degree of interdisciplinarity in legal scholarship these days is staggering. Not long ago, it was common for professors in social science disciplines to find themselves surprised by the insularity of legal scholarship on a subject that seemed out of touch with state-of-the-art research in specialized disciplines on the same subject. Today, even law students draw heavily from social science in writing their journal comments, and it is routine for work by JD-only academics to be filled with citations to social science research and engage empirical work from multiple disciplines.
Why the dramatic change? Of course, the answer is multi-faceted, and a very important factor is the changing composition of law faculties. The number of faculty with Ph.D. backgrounds has increased a great deal, bringing with them social science-oriented research and expertises that have changed the way everyone conducts legal scholarship. But there is a much simpler factor that is easy to overlook, but I’d argue is equally important—searchable Internet databases like JSTOR.
posted by Michael Kang
A major study of judicial elections released today reports that campaign spending in judicial elections doubled over the past decade and that “judicial elections are increasingly focusing not on competence and fairness but on promising results in the courtroom after election day.” The report was authored by the Justice at Stake Campaign, the Brennan Center for Justice, and the National Institute on Money in State Politics, with a foreword by Sandra Day O’Connor. It has already received extensive press coverage as the fall cycle begins to heat up.
My forthcoming article in N.Y.U. Law Review with my co-author Joanna Shepherd offers some important insights regarding the influence of campaign money on judicial decisions. Using a dataset of virtually every state supreme court decision in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with a statistically significant increase in the probability that the judges will vote for business litigants. Although Joanna and I study the period preceding this decade, from 1996 through 1998, our finding helps substantiate the concerns articulated by the Brennan Center report released today.
What is more, we find that this association between dollars and decisions disappears when we look at only retiring judges in their final term. Those judges, unburdened by campaign considerations for the future, seem not to decide in favor of their business contributors’ interests to the same degree. Although we offer only very tentative conclusions in this direction, this latter finding suggests that the association between dollars and decisions is the result of more than a mere selection effect in the election of judges, but instead hints at a potential biasing of incumbent judges by the expected need for campaign money in the future.
However, Joanna and I also find that holding nonpartisan elections, instead of partisan ones, seems to make a significant difference when it comes to the relationship between campaign contributions and later decisions. At least over our period of study, we find a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Numerous commentators have suggested that nonpartisan judicial elections are partisan in all but name, but our findings point to an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections that appears not the same under nonpartisan ones. Of course, there are many reasons to choose between nonpartisan and partisan elections on other grounds, but when it comes to an uncomfortably tight relationship between campaign money and judicial decisions, our article concludes that nonpartisan elections likely present fewer concerns.
August 16, 2010 at 3:23 pm Posted in: Constitutional Law, Current Events, Economic Analysis of Law, Election Law, Empirical Analysis of Law, First Amendment, Law and Inequality, Politics Print This Post No Comments
posted by Michael Kang
A paper recently circulated by Richard Sander and Jane Yakowitz finds that “performance in law school—as measured by law school grades—is the most important predictor of career success” and is “decisively more important than law school ‘eliteness.’” The conclusion drawn from Sander and Yakowitz’s paper, at least by the ABA Journal, is that prospective students would be badly served by the “standard advice” of attending the best school that will accept you.
Sander and Yakowitz’s paper seems to support this conclusion because it finds that better academic performance at a lower ranked school can offset the prestige advantage of a higher ranked school, at least when it comes to predicted salary later as a firm lawyer. Of course, this assumes that a particular individual would perform better at a lower ranked school than a higher ranked school, where the peer competition would be more intense. The paper is consistent with Sander’s earlier work on affirmative action and the mismatch hypothesis, which suggested that certain beneficiaries of affirmative action would be better off if they attended lower ranked schools rather than higher ranked schools where their incoming numerical credentials would be mismatched with the prestige of their law school. (For more about this earlier work, see Albert Yoon & Jesse Rothstein’s and Dan Ho’s responses.)
No doubt, Sander and Yakowitz’s paper helps bolster the recruiting pitches of lower ranked schools. To use Sander and Yakowitz’s example from the paper, a prospective student can be better off attending law school at Florida instead of George Washington University, or even Boalt Hall, provided that she gets much better grades at Florida than she would have at GW or Boalt. This makes sense—elite law firms, at least ones in the big cities, collect the best students from law schools across the country and pay them all well (they just hire more from the top ranked schools).
However, I don’t think Sander and Yakowitz’s paper goes so far as to disprove the standard advice of attending a top school. First, Sander and Yakowitz’s paper still finds large advantages in salary for graduates of top ten law schools even controlling for law school GPA. That is, even if there is less of an advantage in attending GW instead of Florida, there remains a very significant advantage in attending a top ten school. This is what Paul Oyer and Scott Schaefer found earlier as well. Just as important, this prestige advantage is certain and known from the moment the student decides to attend a top ranked law school.
Second, the decision to attend a lower ranked school pays off only if the underlying assumption is correct—the student will get appreciably better grades at the lower ranked school than the higher ranked school. This assumption is often correct, and Sander and Yakowitz support it with their data, but it is uncertain to be sure at the individual level. Exam taking, as law professors often observe, is a specialized skill. Scoring well on law school exams doesn’t flow so directly from native intelligence such that anyone smart enough in some general sense to be admitted to Boalt can be sure they would get top grades at Florida. It’s still a bet, though perhaps a good one. But if I’m the prospective student that Sander and Yakowitz imagine, I wouldn’t be as sure as they are that I’d have a GPA in the 3.25-3.5 range at Florida but only in the 2.5-2.75 range at Boalt. In fact, even if Sander and Yakowitz are right about the GPA comparability, this estimation pushes me to attend Boalt, not Florida. I can average a C+ to B- at Boalt and get roughly the same predicted salary as a B+ to A- GPA would get me at Florida.
I think that probably sounds like an attractive deal to many students, particularly if they have any measure of risk averseness, to say nothing of a taste for “eliteness” for its own sake.
posted by Michael Kang
Thanks to Danielle, Dan, and our friends at Concurring Opinions for having me back as a guest blogger. I just returned from the SEALS conference in Palm Beach and now am thrilled to blog again. I thought I’d use my first post to share about my former Emory colleague Victoria Nourse, who was recently nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit. As a former clerk on that court, and someone who knows Victoria well, I couldn’t be happier with the nomination.
Victoria was a fantastic colleague, friend, and fellow academic in her time at Emory. She spent the last three years as the L.Q.C. Lamar Professor of Law here at Emory, while maintaining her appointment at the University of Wisconsin. During that time, Victoria managed to publish her award-winning book In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of Eugenics, in addition to a series of wonderful articles spinning off from her book research. Without any exaggeration, Victoria is a truly spectacular scholar, armed with a CV that nearly anyone would envy. I’m only sorry that I didn’t have a chance to learn even more from her while she was here.
Just as important, Victoria immediately emerged a leader on our faculty, well respected by colleagues across the political spectrum. I was very impressed how she handled sensitive issues of promotion and tenure while serving on the relevant committee. On a faculty that generally gets along but divides on a few important issues, Victoria earned the trust and confidence of her colleagues, and I know that she would quickly do the same on the Seventh Circuit if she is confirmed. She would bring a healthy pragmatism to that court, as well as a deep respect for the political process. Both are signatures of her scholarship and flow directly from her career experiences. Victoria has drafted legislation herself, worked in the Senate and at Justice, and has thought a great deal about the relationship between the political process and courts. The confirmation process can be a tangled mess, particularly during an election year, but Victoria Nourse’s confirmation to the Seventh Circuit should be an easy decision.
posted by Michael Kang
Thanks to Danielle Citron for giving me the chance to share a few quick thoughts about Citizens United v. FEC. In that decision, as you probably know, the Supreme Court struck down federal campaign finance laws that prohibited corporations from making independent expenditures in connection with federal elections.
Justice Kennedy frames his majority opinion in Citizens United around the basic issue whether “the Government may impose restrictions on certain disfavored speakers,” namely corporations, but in so doing, Justice Kennedy asks the wrong set of questions. Corporations aren’t the relevant actors whose rights we ought to be concerned about. Corporations are not people, nor entitled to all the constitutional rights of individual citizens. But as many supporters of Citizens United argue correctly, we nonetheless invest institutions, such as corporations and political parties, with constitutional entitlements when it appropriately serves the rights of individuals who constitute those institutions. And yes, corporate expenditures would be a more efficient way for shareholders to convert treasury funds into political speech. However, there’s lots of campaign finance regulation that complicates the ability of shareholders or other individuals to direct funds to political speech. For instance, contribution limits restrict the ability of all individuals to deploy their funds to maximum advantage, but the Court (at least so far) permits the government to restrict contributions anyway. In other words, the fact that a government restriction makes shareholder speech more difficult is obviously insufficient by itself to justify a constitutional prohibition of that restriction—we need to know a lot more about how shareholders’ expressive interests are compromised, if at all, to a degree that requires the Court to intervene.
posted by Michael Kang
It’s been great to guest blog at Concurring Opinions, but unfortunately for me, my stint here has come to a close. I’ve enjoyed it. Thanks to Dan Solove, Danielle Citron, and their colleagues for hosting me during the last couple months.
I thought that I would use my last post to introduce a work-in-progress, titled Voting as Veto (forthcoming early next year in the Mich. L. Rev.). The article began long ago with a simple observation: When my wife and I (pre-baby) had to decide where to go out for dinner, I realized that I rarely had an affirmative preference for a particular restaurant or type of food on a given night. Instead, I found myself acting almost exclusively on what I call “negative preferences,” or preferences against certain outcomes. I mainly preferred not to visit a particular restaurant or have a particular type of food on a given night. Besides the desire to reserve a veto against certain outcomes, I was reasonably indifferent most of the time about where to go otherwise. It struck me that this type of negative preference was probably common in more formal, less mundane contexts for voting that I study in my research. Although there are many forms of voting that implicitly account for negative preferences in various ways, I found very little in the legal and political science literature developing the notion of negative preferences, or systematically assessing a conception of voting as veto. Voting as Veto is my attempt at both.
In addition, I am currently working on a related essay that applies the insights of Voting as Veto to corporate shareholder voting, the subject of public attention in recent months. Unfortunately, I haven’t posted a draft of either piece on SSRN quite yet. Voting as Veto is further along and currently in the middle of the citechecking process, but as a result, it is in many pieces at the moment. However, I plan to post drafts as soon as I can, so please feel free to email me if you have any questions or comments. Thanks again.
posted by Michael Kang
A major cheating scandal has erupted at the highest level of international auto racing. After an investigation by the Federation Internationale de l’Automobile (FIA), the ING Renault Formula One Team announced it does not dispute the FIA’s charge that the team illegally conspired with its driver Nelson Piquet, Jr. to aid his teammate Fernando Alonso’s victory at last year’s Singapore Grand Prix by crashing intentionally during the race. Piquet crashed on lap fourteen of the race, ending his day and requiring deployment of a safety car (race cars stack up in order, with passing prohibited) while stewards cleaned up the course. Piquet’s crash was incredibly well-timed for his teammate Alonso and vaulted Alonso to a race lead that he would never relinquish. Alonso had mechanical problems during qualifying and started the race in fifteenth position on a narrow street circuit where overtaking is difficult. Piquet’s crash came immediately after Alonso had pitted for fuel, but before the rest of the field had done so, and as a result, Alonso promptly assumed the race lead as the other cars pitted in turn during the caution period. The perfect timing of Piquet’s crash for another Renault driver was suspicious from the start: Safety cars are somewhat rare in Formula One, but Piquet’s crash occurred where the stewards couldn’t quickly remove his car, and what is more, Alonso’s race strategy to pit so early was unusual—most cars starting at the back of the field load up on fuel and pit as late as possible, while Alonso did the opposite in the improbable hope of exactly what happened.
Nothing would have come of suspicions about Alonso’s victory, except that Renault fired Piquet as a driver this August, about a year after the race. Immediately following his dismissal, Piquet launched a public campaign against Renault managing director Flavio Briatore and then confessed to the FIA that he had crashed intentionally at Renault’s direction. Piquet claims, and Renault no longer denies, that Briatore and Renault director of engineering Pat Symonds approached him before the race about whether he would be willing to crash intentionally early in the race. Piquet explains that he “was in a very fragile and emotional state of mind . . . brought about by intense stress due to the fact that Mr. Briatore had refused to inform [him] of whether or not [his] driver’s contract would be renewed.” As a result of this developing scandal, Briatore and Symonds have resigned, and it isn’t clear what penalties the FIA will apply against Renault and the various parties involved. The FIA disqualified McLaren-Mercedes outright from the constructor’s championship and levied a $100 million penalty following a similarly appalling scandal two years ago.
The additional wrinkle here is that the scandal features an astounding conflict of interest at its heart. Briatore, while acting as managing director of Renault, served also as Piquet’s professional manager through a separate company. In other words, Briatore sat on both sides of the table in Piquet’s dealings with Renault. To be candid, Piquet has always struck me as an immature, unsympathetic character living a charmed life in no small part because his father is a three-time Formula One champion as a driver. But a driver’s seat in Formula One is incredibly difficult to secure, and it isn’t surprising that even Piquet may have felt overwhelming pressure to compromise himself (as well as risk serious injury) for someone serving as both his personal representative and his boss at the same time. Indeed, Briatore’s conflict of interest is not unusual in the incestuous world of Formula One. Briatore’s company actually has a similar arrangement with Piquet’s replacement, Romain Grosjean, as well as some type of management relationship with virtually every F1 driver employed by Renault during the last decade, including Alonso. As far as I know, neither the FIA nor the Grand Prix Drivers’ Association requires certification for driver’s managers or representatives anywhere comparable to the standards set by the unions for professional athletes in American sports leagues. It appears that the Renault scandal may finally prod the FIA or World Motor Sports Council to action on the issue.
posted by Michael Kang
It’s not often that I hear about a new Hollywood movie based on the facts of a case that I first encountered while clerking, but The Informant!, directed by Steven Soderbergh and starring Matt Damon, is just such a film. It tells the story of Mark Whitacre, a central actor in a case decided while I was clerking for my judge on the Seventh Circuit. Whitacre served as the key informant in a successful FBI investigation into price-fixing charges against Archer Daniels Midland Co. that sent top executives to prison. As my co-clerk Kevin Metz observed, the case featured the type of direct evidence of an agreement to fix prices that antitrust professors explain is almost never available in antitrust prosecution. Whitacre secretly recorded many hours of conversations with co-conspirators in the lysine industry over three years, all while bragging carelessly to others about his role as an FBI informant and embezzling millions from ADM under the FBI’s nose. During my clerkship year, we worked on a number of memorable cases, but United States v. Andreas probably featured the most colorful facts. Whitacre was a very odd and unpredictable personality who suffered from bipolar disorder, which Matt Damon plays up for comic effect in the movie.
posted by Michael Kang
As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.
I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.
posted by Michael Kang
My colleague Joanna Shepherd and I are working on a project analyzing judicial voting on election law cases in state court. Although there is a sophisticated literature about judicial politics and political influences on judges, there actually is little quantitative work looking at political influences on judges in explicitly political cases, such as election contests, redistricting, and ballot access questions. Thinking generally about judicial politics for this project gives me a different perspective on the state court review of the NFL suspensions of two players from the Minnesota Vikings.
Last September, the NFL suspended Kevin Williams and Pat Williams of the Minnesota Vikings for four games each after they failed drug tests. The two star defensive tackles, who together comprise Minnesota’s “Williams Wall,” tested positive for bumetanide, a prescription diuretic banned under the NFL collective bargaining agreement as a masking agent for steroids. After exhausting the appeals process with the NFL, the two Williams’ and the NFL Players Association challenged the suspensions in Minnesota state court.
Here’s the judicial politics angle: The Minnesota district court that heard the Williams’ claims issued a temporary restraining order last December immediately after the Williams’ final internal appeals with the NFL were rejected. The TRO postponed any suspension until the end of the 2008 season, which kept both Williams’ on the field and helped ensure Minnesota a playoff spot last year. The NFL removed the case to federal court, which then dismissed all but two state law claims and remanded those two claims back to state court. This summer, on remand, the Minnesota district court issued another TRO, blocking the NFL from enforcing its suspensions of the Williams’ until after the upcoming 2009 season. I don’t know enough about Minnesota labor law, the NFL collective bargaining agreement, or the relevant preemption issues to assess the state court TROs that helped both Williams’ postpone their suspensions for almost two full seasons, but one commentator who considered these issues noted that even the issuing judge expressed doubts about the likelihood that the Williams’ claims would prevail on the merits, and at least one Vikings blogger suspected a home-court advantage for the Williams’ on their legal claims.
Of course, I have no real idea whether the Minnesota judge in this case was consciously or subconsciously affected by the possible political consequences of denying the TROs. I have little reason to doubt the integrity of this judge in particular, who I assume has nothing but the best intentions. But it might be reasonable to wonder whether a state judge in his position, who must run for re-election to keep his job, could be influenced by the prospect of hometown football fans unhappy that a judge has effectively sidelined their star players for a quarter of a season. My colleague Joanna Shepherd concludes from her research that state judges are routinely re-elected unless they risk doing something controversial and attract negative publicity. Whether or not this particular judge was consciously affected by the possibility, there’s no doubt that denying the latest TRO and putting Kevin and Pat Williams on the sideline for the beginning of the season, right after the Vikings stirred up fan excitement by signing Brett Favre as their new quarterback, would’ve attracted lots of negative attention. If nothing else, this case offers fed courts professors a very salient example for discussing the risk of a home-court advantage in state court and a foreign defendant’s interest in removal to federal court.
Thinking along the same lines, Gregg Easterbrook, an astute NFL commentator (and brother of Frank), suggested that former NFL wide receiver Plaxico Burress might have fared better in his recent gun possession case, if he had rallied local football support to his side by re-signing with the New York Giants immediately before trial. As Easterbrook put it, “Had Burress remained a Giant, he would have had the most popular organization between Washington and Boston in his corner, and it’s simply human nature that prosecutors and judges might have looked sympathetically upon his case.” Instead, Burress received two years in prison for violating New York’s gun permit law. Football matters intensely to many people, which surely has political consequences. One study finds that public universities with Division I-A football programs receive about six percent more in state appropriations than public universities without football programs, and for those football universities, a victory over an in-state rival is correlated with an additional increase in appropriations the following year. Maybe football shouldn’t matter so much to courts and legislatures, but it seems that sometimes it really does.
posted by Michael Kang
About a week ago, the New York Daily News reported a happy tale of Dr. Roxanne Shante, a former rapper who won a legal battle to have her record label pay for a Ph.D. education at Cornell University. Deven blogged briefly about the story here at Concurring Opinions, and the blogosphere was generally pleased by the notion of a young artist winning her fight for an education against a corporate bully. But now Slate is reporting that Shante by her own admission never received a Ph.D. from Cornell and that many other important elements of the story are untrue. Too bad. It was a great story but apparently one full of factual inaccuracies that undercut it completely.
posted by Michael Kang
James Surowiecki describes an interesting recent shift in public opinion about the health care system in the United States. Last year, polling found that only 29 percent of Americans rated the health care system as “good” or “excellent,” but when asked the same question today, the percentage of the public giving the same answer now has jumped up to 48 percent. Why the sudden increase given that, as Surowiecki notes, “[t]he American health-care system didn’t suddenly improve over the past eleven months”? Surowiecki attributes the rapid increase to the endowment effect. Now that health care reform is actively under consideration, people are focused on “what we might lose rather than on what we might get.” When people encounter uncertainty about trading what they already have for something else, psychologists have shown that people tend to overvalue what they already have and gravitate toward a natural instinct to keep things as they are.
The endowment effect is a plausible explanation for the suddenness of the shift in public opinion, but I have a different intuition than Surowiecki. Although I have not studied public opinion these days with respect to the current debate on health care reform, I have done empirical research about public opinion during the health care reform debates of the early 1990s that could be relevant. Political scientists find generally that people do not normally infer about national conditions directly from their own personal situations. For instance, people who are struggling financially do not assume that their personal situation indicates that the national economy is doing poorly overall as a more general matter. Just so, during the late 1980s and early 1990s, people who had undergone unpleasant experiences with their personal health care did not necessarily assume that the health care system was in bad shape. Their evaluations of the health care system as a whole did not vary from everyone else’s nearly as much as you might expect. However, when Democrats began championing health care reform during the early 1990s and arguing that there was an unaddressed crisis in American health care, people who had undergone negative experiences in their personal health care suddenly began to credit those negative experiences as a source of information for evaluating the system overall. Accordingly, compared to their fellow citizens, their overall views of the system changed very abruptly in a negative direction once political leaders substantiated the perceived reasonableness of that inference.
Although I cannot say definitively, it’s worth considering whether the abrupt shift in public opinion today that Surowiecki identifies is actually a mirror image of what happened during the early 1990s. Remember that, as I mentioned in an earlier post, the American public by and large report positive feelings about their personal health care today. Surowiecki, in fact, observes in the article that a clear majority of the public reports satisfaction with their insurance coverage, and public satisfaction with health care costs in particular has increased from the early 1990s into this decade. A year ago, Democratic supporters of reform probably had the edge in leading public perceptions about the system as a whole in a negative direction. But now with Republican opponents of health care reform touting the virtues of the American health care system, people who are happy with their health care situation now may be crediting their personal situation as a source of information about the system overall in a positive direction. The abrupt shift in public opinion may be less about the endowment effect than a portion of the public suddenly drawing stronger connections between their good personal experiences with health care and their sociotropic evaluations of the system as a whole. Such inferences from personal experience could explain not only the direction of the shift in public opinion about the health care system, but also the speed with which it occurred.
posted by Michael Kang
In my previous post, I argued that Michael Lewis’s influential bestseller Moneyball, widely cited in academia, ultimately relies too much on hyperbole to make its claims about the superiority of Billy Beane’s statistical methods in managing the Oakland Athletics baseball team. In this post, I assess the value of those Moneyball methods by examining the results of Oakland’s 2002 draft, a central event glamorized in the book as a showcase of Beane’s “scientific selection of amateur baseball players.”
This is a long, baseball-heavy post, so let me cut to the chase at the outset. Oakland’s Moneyball draft of 2002 was not the smash success that Lewis’s book forecasted. The seven years since the draft bear that out. Beane had seven first-round picks that year but drafted none of the eleven all-stars signed from the 2002 draft, despite exercising almost twenty percent of all first-round choices in the draft. In fact, only half the players on Beane’s wish list of the top twenty players in the draft ended up playing even a game in the major leagues. To tell a compelling story of Beane’s superiority, Lewis overstates what Cass Sunstein and Richard Thaler call the “blunders and the confusions of those who run baseball teams.” It turns out that other teams do a pretty good job of identifying talent too. In the 2002 draft, Oakland did not draft the best players available, while other teams using traditional methods did equally well or better.
So, what is the lesson for Moneyball? Lewis describes how Beane imported quantitative methods from the academic and financial worlds to identify assets, in this case baseball players, undervalued by the market. The modest notion that statistical methods can be invaluable in the search for these undervalued assets, particularly in an industry so obsessively numbers-oriented as baseball, is unassailable. But Lewis’s claims that Moneyball demonstrates the outright superiority of Beane’s quantitative methods in identifying the best talent are much more difficult to sustain, and Moneyball does not convincingly establish the backwardness of other teams, which had already begun erasing whatever advantages Oakland possessed by the time of Moneyball’s publication.
Instead, Moneyball demonstrates a slightly but importantly different lesson about Oakland’s successes during the early 2000s.
posted by Michael Kang
Michael Lewis’s bestselling book Moneyball occupies a unique convergence of academic, sports, and popular fascination. Moneyball profiles Billy Beane and his management of the Oakland Athletics baseball team, with particular attention to Beane’s use of cutting-edge quantitative analysis in an industry portrayed as bound by tradition and decisionmaking by anecdote. Moneyball garnered recent attention again after the movie version of Moneyball, starring Brad Pitt, suddenly halted production just five days before shooting was to begin in July. The event, or nonevent, brought forth several commentaries on Moneyball’s legacy, six years after its publication. Today’s post begins to explain my ambivalence about Moneyball’s place in the academic imagination; my next post continues by arguing that, perhaps to the surprise of its academic enthusiasts, Moneyball actually gets a good chunk of its baseball wrong and in the end, may tell a slightly different story than usually thought.
Baseball fans from outside academia would be shocked how influential and popular the book Moneyball has been within academic circles. Cass Sunstein and Richard Thaler wrote a book review of Moneyball for the Michigan Law Review, and professors have cited Moneyball as inspiration for new approaches to everything from faculty hiring to election administration to health care reform. There’s even a Moneyball-inspired blawg called Moneylaw. The great contribution of Moneyball was to puncture a certain overconfidence in untested conventional wisdom based on unsystematic anecdotal information. Moneyball offered a colorful example from baseball, now widely cited in academia, of how inefficiencies in markets can be exploited by canny operators who identify objective metrics of value underappreciated by traditional practices. As Sunstein and Thaler note, “If Lewis is right about the blunders and the confusions of those who run baseball teams, then his tale has a lot to tell us about blunders and confusions in many other domains.”
The problem with Moneyball is the hyperbole deployed to construct Lewis’s lesson of absolute quantitative triumph. A key element of Moneyball’s influence is the vividness and persuasiveness of Lewis’s account of the Oakland Athletics’ success, but it is so vivid and persuasive at least in part because it exaggerates the brilliance of Billy Beane and his quantitative approach to baseball.
posted by Michael Kang
On-campus interviewing is already underway at many law schools, and law students are obviously worried about their job prospects this fall. According to NALP, law firms had already cut back their hiring dramatically last year compared to the year before. Based on early feedback from law students and firms so far, as well as the number of firms that are forgoing summer programs altogether for 2010, it doesn’t look good for 2Ls interviewing on campus right now.
Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to the hiring system that has been in place for decades now—heavy recruiting of 2L students into lavish summer programs, with a high percentage of those students receiving permanent offers during the following fall of their 3L year. Right now, some firms are simply doing away with summer programs for the time being and freezing entry-level hiring out of law schools. Almost all big law firms are limiting the size and duration of their summer programs, and many are deferring the start date by six months to a year for new permanent associates who receive offers out of their summer programs.
I wonder how many of the new changes to law firm recruiting and summer programs will be permanent and remain after the economy bounces back.
posted by Michael Kang
Washington is giving national health care reform its most serious attention since 1994, when the Clintons’ Health Security Act went down in flames. Gordon Smith highlights a salient political consideration in the political debate over the years—high levels of personal satisfaction with one’s own doctors and other providers. There’s no question that Gordon is right that a major obstacle to reform has been that “[p]eople in the middle class tend to be more or less satisfied with their own health care.” From my research on public opinion about health care reform, I can vouch that the public has reported satisfaction with surprising consistency over the years about their personal health care. Surveys over the last thirty years through today find that roughly four out of five Americans are satisfied with the quality of their medical care. Given that the middle class has been reasonably happy with many aspects of their health care, it has a lot to lose, and as Gordon summarizes from his personal perspective, “reformers have not made a case that health care reform will do anything other than make my life worse.”
A problem for Obama and Democrats in favor of health care reform is that Gordon’s view is not only winning out right now, but it assumes away one of the strongest arguments for reform of some form—that health care costs are increasing at unsustainable rates. In other words, part of the pro-reform response ought to be that doing nothing is also likely to make Gordon’s life worse. The main reason that increased government involvement in health care has gained new support from business groups is that their health care costs are rising rapidly, with little reason to expect any improvement in the absence of reform. Insurance premiums for family coverage have already more than doubled on average over the last decade, and the Congressional Budget Office projects that total spending on health care will account for almost 40 percent of the national GDP by 2050. In other words, if Gordon thinks his health care is manageably expensive today, any successful argument for reform may depend on convincing him that it will be unmanageably so before too long.
It is worth noting that Gordon’s view won the public’s collective mind in 1994. The Clinton initiative was doomed when the middle class, though unhappy with certain aspects of the health care system, decided that reform would give them rationing of care and less freedom of choice over providers. What happened in the absence of reform? Using managed care to slow down cost increases, private insurers instead of government restricted choice to the point that a political backlash ensued and inspired HMO legislation to curb unpopular, at times unethical insurance practices. Once insurers squeezed the cost savings they could find through managed care, costs resumed steep annual increases. Today, fifteen years later, the public finds itself worried again about spiraling costs and the uninsured, with the middle class again worried about government restrictions on choice. The pro-reform argument might be that if reform fails again, we’ll end up in an even worse place in another fifteen years. My point is not a partisan one that any particular plan will or will not limit per capita costs over the next fifteen years, but a short-term framing of the issue might doom even a plan that would.
Of course, even if doing nothing is bad, there’s no guarantee that current proposals for reform actually offer an improvement over doing nothing. As its critics allege, reform could be even worse. A criticism of these proposals is that they would exacerbate, not limit the annual increases in health care spending. Arguments matter about how much health care reform might increase total spending on health care, how well it would limit per capita costs, the value of universal coverage, and so on. These are the fine points of a debate that is getting increasingly heated. But if Obama and Democrats in favor of reform hope to fare better than their counterparts from 1994, then they’ll need to persuade the middle class that the status quo will be really bad in another fifteen years and that health care reform therefore offers something “in it for them” over the longer term.