Author: Michael Kang

5

More Sophisticated Than What the Clientele Wants

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 More

1

The Partisan Foundations of Judicial Campaign Finance

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.

5

Farewell to the Fall Submission?

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.

7

College Football, Inc.

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.

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1

JSTOR and Interdisciplinary Research

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.

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0

The Partisan Price of Judicial Elections

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.

6

The Value of Law School “Eliteness”

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.

3

Victoria Nourse and the 7th Circuit

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.

3

More Citizens United

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.

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Voting as Veto

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.