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 [...]]]> 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.

Not long ago, interdisciplinary research in the social sciences could be a considerable labor. I know from experience. A dozen years ago, even the task of writing a literature review in political science was an undertaking in itself. First, you had to gather up citations from whatever available literature reviews came closest to your topic. Then, it made good sense to head off to the library and look up your topic in the indices for the major journals of the field to copy down any additional sources. Finally, you had to find the hard copies of all your sources in the bound volumes of those journals, skim them quickly, and figure out in the library which ones were worth copying and which weren’t. You had to hand copy the keepers at the library by feeding what seemed like an endless stream of quarters into the nearest photocopy machine. Not hard labor in prison, but several days worth of work, and not terribly accessible to those outside your field.

Today, we have JSTOR, Hein Online, and a bunch of electronic databases that allow you to search and print out from your desktop. Even someone with virtually no knowledge about some other field of social science can dive into the literature within seconds of typing in a text search into one of these databases. And what used to take days, over several trips to the library, now may take less than an hour without leaving your chair. Anyone writing serious scholarship would be a fool not to take advantage of the wealth of information from other fields waiting at your fingertips. When we think about the interdisciplinary trend in law, it’s easy to forget the degree to which these changes in technology, which we now so take for granted, have contributed to interdisciplinary scholarship.

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

In the context of Citizens United, it is unclear to me how shareholders are inappropriately disadvantaged by a prohibition on corporate expenditures. Shareholders aren’t disadvantaged by their decision to incorporate, because they always remain free to make independent expenditures on an unlimited basis in their individual capacity, just like non-shareholders and everyone else. The analysis might be different if shareholders were in a worse position than non-shareholders, but they’re not. Just as non-shareholders can aggregate funds through a PAC or political party, so too can shareholders. Perhaps the government should allow corporate expenditures and simply expect non-shareholders to incorporate as well, but whether the Constitution prohibits the government from refusing to do so is a different matter.

What functional difference does Citizens United achieve by permitting corporations to spend treasury funds on independent expenditures?—a key difference is that shareholders obtain the advantage of streamlined aggregation through the corporation, as opposed to other entities. To aggregate their funds, non-shareholders pool their funds, subject to personal income tax, derived from various sources by contributing individually to a PAC or political party. The PAC or party collects their pooled money, but it does so only subject to applicable restrictions on contributions under campaign finance law. By contrast, the post-Citizens United corporation may serve as both a source of funds and the pooling entity for those funds all at once for its shareholders. It can pool shareholder money simply by retaining earnings, instead of distributing dividends to shareholders who then must aggregate those funds through a separate entity. This streamlined aggregation not only lowers transaction costs, but uses pre-tax dollars (for purposes of personal income tax) and bypasses restrictions on contributions. Aggregation through PACs and parties is quite inefficient by comparison. So, I don’t understand why shareholders should be constitutionally entitled to this advantage. And it is difficult to understand why speech by PACs and political parties, whose First Amendment credentials are at least as strong in this context as for-profit corporations, would receive less constitutional protection.

The justification, according to Citizens United, is doctrinal consistency with Buckley v. Valeo, but the arrogance of Citizens United on this point is awful. Citizens United’s reasoning is that Buckley determined that there is no government interest in limiting independent expenditures. According to Buckley, independent expenditures present no risk of corruption, and therefore government regulation restricting independent expenditures is unconstitutional, regardless of their source. Of course, the Court in Austin v. Michigan Chamber of Commerce had engaged in doctrinal calisthenics to avoid this very conclusion and uphold a prohibition on corporate expenditures. Citizens United overrules Austin for this reason and mocks it as “not well reasoned.” Although this criticism is understandable in certain respects, Citizen United’s overwhelming confidence in the original correctness of Buckley is not. If Austin doesn’t make sense, the same thing can be said about Buckley.

Buckley is absurd as a matter of political reality in its constitutional assertion that contributions are potentially corrupting, but that independent expenditures are not at all. Citizens United depends on this absurdity from Buckley, without any reservation about its unreality. Notably, Justice Kennedy spends only a single paragraph from his 56-page majority opinion in dismissing the relevance of his majority opinion in Caperton v. Massey, which recognizes the corrupting potential of independent expenditures less than a year ago. Of course, Caperton involved a different remedy than the government sought in Citizens United, as Kennedy notes, but both cases hinged on a critical judgment about the plausibility of corruption from independent expenditures. In Caperton, Kennedy’s answer is basically yes, while his answer in Citizens United is no. There are ways to distinguish the cases, but only members of Justice Kennedy’s immediate family could find his summary dismissal of Caperton in any way convincing. If the payoff from Citizens United is doctrinal consistency with Buckley, there’s no payoff at all.

The inconsistency between Buckley and Austin, now resolved by Citizens United, was a tension intrinsic to campaign finance law, and not necessarily a failing in the actual practice of campaign finance law. Campaign finance law is a compromise in terms of both law and democratic values. It imperfectly expresses tension between abstract notions of liberty and abstract notions of equality. It expressed tension between unease about government restriction of speech on one hand and concern about the influence of economic power on the other hand. The need for campaign finance law to negotiate these tensions, with legal categories that don’t fully capture their nuances, account for many logical failings of Buckley, Austin, and McConnell that are difficult to justify as consistent First Amendment doctrine. However, campaign finance law as a whole, over the course of many cases, arguably strove for some pragmatic balance between these legal and democratic values. Citizens United, by contrast, charts a very different course.

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 [...]]]> 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.

I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.

After hearing the case originally last [...]]]> 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.

After hearing the case originally last spring, the Court ordered supplemental briefing and re-argument to address the specific question whether the Court should overrule Austin, which affirmed the constitutionality of source restrictions on campaign expenditures from corporate treasury funds. This obviously was not a good sign for Austin or supporters of campaign finance restrictions on corporate campaign spending. However, the build-up to Citizens United reminds me of another election law case last Term and therefore gives me pause about expecting the Court to strike down federal restrictions on corporate campaign money that have existed in some form for a century. In NAMUDNO v. Holder, the Court decided against summary affirmance, scheduled arguments on the constitutionality of Section 5 of the Voting Rights Act, and led many to expect a decision striking it down. But the Court then surprised nearly everyone with an incremental ruling that trimmed back Section 5 based on an odd reading of the statutory language but left Section 5 otherwise constitutionally intact for the time being. It was easy to conclude that a Justice or two contemplated a more sweeping decision but ultimately backed away from the political controversy that would have followed a Court decision striking down the revered Voting Rights Act. Similarly here, it’s easy to imagine a Justice or two being deterred by the potential headlines about the Court opening the “floodgates” to corporate money following a decision outright striking down Austin. I cannot claim any particular ability to predict accurately what the Court ever does, but for the reasons above, it wouldn’t be entirely surprising if the Court ultimately produces a more incremental decision than many expect, even if all signs right now point to a sweeping decision against Austin.

Putting Citizens United aside, it seems to me that the larger problem in campaign finance reform has less to do with whether regulation can be characterized as “anything other than an effort to silence contrary views,” as Gerard puts it, and everything to do with what Sam Issacharoff and Pam Karlan call the hydraulics of campaign finance. Although I have written a bit about the ulterior motivations behind some forms of campaign finance regulation, I believe that there are plenty of reasonable arguments that characterize campaign finance regulation as something more than simple viewpoint discrimination. However, in my view and the view of many election law scholars, the practical reality in campaign finance is that money wants to enter the political system and tends to restore its own level in response to almost any constitutionally realistic form of regulation. Of course, the re-direction of money through new channels may be useful and worth the effort. But as an overarching matter, I’m not sure that re-directing money away from candidates and parties, for instance in the form of independent expenditures, is usually a good idea. And as the Court began to suggest in Caperton v. Massey, independent expenditures may not be much less corrupting when we’re talking about significant amounts of money. So far, we have a campaign finance system that is more regulated and transparent than ever before, but it’s not clear that many of us are very happy with the results.

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 [...]]]> 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.

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 [...]]]> 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.

So, the familiar Moneyball theme of Beane outsmarting the league by finding great talents invisible to other teams clouded by their prejudices is largely overstated by Lewis. Not even the most committed Moneyball devotee would argue that the heroes of the book—Scott Hatteberg, Chad Bradford, Ricardo Rincon, Jeremy Brown—were star players. They were role players, and it’s in finding role players at a bargain where Moneyball was most useful. The advantage of Moneyball methods was not that they were so superior per se to traditional approaches in identifying top talent, or that traditional approaches were as wrongheaded as Lewis depicts. Moneyball, by offering a different playbook than other teams followed at the time, rarely identified star players with any more accuracy than traditional methods, but instead represented an alternate strategy that helped Oakland maximize the return from the pile of cheaper, marginal players that other teams did not covet. Moneyball was most valuable for finding cheaper players, not better ones. Finding cheaper is different from finding better, and Moneyball gave Oakland an advantage mainly at the former rather than the latter.

The best way to explain this lesson is by carefully assessing Oakland’s 2002 June amateur draft. Lewis documents this draft minute-by-minute in the book to illustrate Beane’s methods. And for good reason. Oakland held seven first-round picks (including sandwich picks), and seven of the first thirty-nine picks overall—a historic opportunity for Beane and his team. However, judged seven years later, Oakland’s results from the draft appear unremarkable. Among Oakland’s seven first-rounders, only three had more than a cup of coffee in the major leagues—Nick Swisher, Joe Blanton, and Mark Teahen—though none is too much more than an average player and all three were traded away by Oakland. As a Bay Area sportswriter summarized, “Basically, Moneyball happened, and it didn’t change the course of the A’s. Nice story. Good book. Not a lot of history made by those seven players.”

My point is not that Oakland’s 2002 draft was a failure, as some suggest, or decisively undercuts Moneyball as baseball philosophy. Neither is quite right in my view. But Beane and the Oakland braintrust, at least in Lewis’s account, dramatically overrate ex ante the success of their draft. Oakland’s draft is not just good in their view at the time, but “unfair,” nearly otherworldly. “It counted as one of the happiest days of Billy Beane’s career,” according to Lewis, and Beane warned “[t]his doesn’t happen. Don’t think this is normal.”

Thanks to the book, we have Beane’s internal ranking of the top twenty players available for the 2002 draft and can judge Beane’s skills at player evaluation with rare insight. Beane’s list, as documented by Lewis, were the “twenty players they’d draft in a perfect world” if “money were no object and twenty-nine other teams were not also vying to draft the best amateur players.” As a first cut, only ten of the twenty players on Beane’s list ever appeared in even a regular major league game. Although the major league draft is a “f_cking crapshoot” in Beane’s words, his list’s 50 percent success rate is less than the 60 percent rate for first rounders from 2000 to 2005. When compared to the first twenty players selected in the 2002 draft (as opposed to the entire first round), Beane’s list looks even worse by comparison. Ninety percent, eighteen of the first twenty picks in the 2002 draft reached the majors, including five all-stars.

To compare Beane’s acumen against the rest of the majors yet more precisely, we can focus on only the twelve players on his list who were not first-round picks of, nor likely considered first-round talents by other teams—Ben Fritz, Stephen Obenchain, John McCurdy, Jeremy Brown, Bill Murphy, Steve Stanley, John Baker, Mark Kiger, Brian Stavinsky, Shaun Larkin, Brant Colamarino, Mark Teahen. None of these players were ranked among Baseball America’s top forty prospects in the 2002 draft, but Beane staked his draft on them by drafting all but one of them. Mark Teahen was a nice find who has enjoyed a solid if unspectacular career with Kansas City. John Baker, who was released by Oakland, eventually caught on with Florida. But unfortunately for Oakland fans, Beane selected Fritz, Obenchain, McCurdy, and Brown with first-round picks, and took Murphy, Stanley, Kiger, Stavinsky and Colamarino later. Those nine players combined to appear in just twenty-three major league games total among them over eight seasons.

Lewis carelessly attributes the other teams’ disinterest in players like Brown and Colamarino, as two examples, to an irrational prejudice that they “do not look the way a young baseball player is meant to look.” But many teams weren’t interested for the simpler, less interesting reason that Brown and Colamarino just weren’t very good. In the end, Lewis was wrong to crow about how smart Beane was not to share other teams’ bias against Jeremy Brown’s lack of athleticism and defensive ineptitude—the very characteristics that killed his major-league prospects. Jeremy Brown, cited by Ian Ayres and Sunstein and Thaler among others as the poster child for Moneyball’s value, washed out of baseball not long after the book’s publication.

One aspect of Oakland’s 2002 draft truly was not “normal”—the Athletics took a college player with their first 23 picks and drafted 25 collegians among their first 28 picks. The 2002 draft turned out to be an unfortunate moment to be so strongly biased against high school players. Eight of the eleven players signed from the richly talented 2002 draft who were eventually selected as a major-league all-star came right out of high school: Zack Greinke, Prince Fielder, Scott Kazmir, Cole Hamels, Matt Cain, Jonathan Broxton, Brian McCann, and Josh Johnson. All but Johnson (fourth round) were taken in the first two rounds. Only three players signed out of college from the 2002 draft have been chosen as an all-star so far—Joe Saunders (first round), Curtis Granderson (third round), and Russell Martin (seventeenth round). It is worthwhile to point out as well that not a single one of these eleven all-star players was on Beane’s list of the top twenty players in the 2002 draft. As Beane admitted to Baseball Prospectus in a recent interview, “That list would look very different today.”

Oakland’s focus on college players was clearly by design, as Lewis colorfully explained by reference to Beane’s view of one particular high schooler in the draft. Lewis noted that Beane had no interest in Scott Kazmir, a high school pitcher coveted by Detroit and Milwaukee (though drafted by the New York Mets). As Lewis explained, “[P]icking a high school pitcher like Kazmir is exactly the sort of not-so-bright decision both franchises had a knack for making.” Yet Kazmir was one of six high school pitchers from that draft to become a major league all-star, as well as one of the first 2002 draftees to reach the majors.

The cost of dismissing high school players illustrates a tension in Lewis’s presentation of the Moneyball philosophy. Lewis explains that the Moneyball insight is that “when you rule out an entire class of people from doing a job simply by their appearance, you are less likely to find the best person for the job.” However, Oakland ruled out as a practical matter an entire class of prospects from consideration in the draft—high schoolers. As Lewis admitted, “[W]ith rare exceptions the new scouting directors toss all high school players immediately onto the dumping ground.” Oakland has backed away from this attitude since 2002, but it is revealing that the supposedly clear-eyed Moneyballers possessed a clear bias at the time that might have proved as costly to them as more familiar biases, criticized in the book, were for traditionally-oriented teams. Those teams correctly passed on busts like Jeremy Brown for their biases, while Beane’s own bias cost Oakland the chance to draft any of the eight all-stars who signed out of high school in the draft. In other words, it is not clear from Moneyball that Oakland managed to do a better job of identifying the best talent or was much less affected by inaccurate prejudices of its own.

Instead, the great value of Moneyball methods was not better prediction or fewer mistakes, but finding cheaper, though not necessarily better players, and making cheaper mistakes when they occur. Beane’s insight, which Lewis perhaps misidentifies, is not that Moneyball methods find more or better major league players than conventional approaches used by other teams. Each approach finds players that the other misses. And it isn’t clear whether Beane ended up finding more production among players that other teams ruled out, or whether other teams end up finding more production among players that he ruled out. Beane’s insight, instead, was to locate a different set of good players, and miss on a different set of good players, than most of the other teams do, and thereby avoid competing for the same talent and driving up his costs. Although the book emphasizes the supposed superiority of Beane’s methods, it’s the cost-effectiveness of asymmetry that is the more compelling point to take away from Moneyball.

In the end, Oakland’s decline on the field might be understood in part as a combination of two trends. First, as many note, other teams learned to co-opt the Moneyball playbook and negate some advantages Oakland enjoyed early on. But this is only a part of the story, and it is important to note that Oakland has gravitated nearly as much in the direction of traditional approaches since Moneyball’s publication.

Second, Moneyball methods proved somewhat limited over the longer run for Oakland. Moneyball has been insufficient help, at least thus far, for replacing the star players lost over time to free agency. If Moneyball provided a great advantage for finding top talent, Beane should have been able to draft replacements for Barry Zito, Miguel Tejada, Jason Giambi, and other departed all-stars. As Lewis explained, the 2002 draft was “the best chance [Oakland] might ever have to find several Barry Zito’s.” However, as effective as Moneyball proved for finding cheap complementary players like Hatteberg, Moneyball wasn’t as helpful for finding the next set of star players like Zito. Other teams, with their traditional methods, proved very likely to find those star players just as well as Oakland.

Lewis’s thesis of Moneyball superiority assumed the “blunders and the confusions” of other teams, but it turns out other teams aren’t usually so stupid—in fact, Kenny Williams, the White Sox general manager repeatedly mocked in the book, won a World Series only a couple years after the book’s publication. Oakland today still has nice role players discarded by other teams, such as Brad Ziegler and Justin Duchscherer, but it hasn’t been able so far to adapt Moneyball methods to outperform other teams in locating the critical new stars to lead them. Borrowing the words of one baseball scout, Moneyball helped Oakland find “a bunch of safe players,” but “it gets you a losing team” without the star players for them to support. Over the longer run, the greatest beneficiaries of Moneyball seem to be teams, like the Red Sox, that have nicely blended some Moneyball methods with traditional ones, rather than choosing one side or the other in what Lewis depicts too starkly as a baseball culture war.

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 [...]]]> 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.

On the more dramatic end, law firms that have frozen recruiting at law schools at the moment might decide not to run summer programs even after they begin to ramp up hiring once again. Hiring 3Ls, or recent graduates on the spot market, would offer law firms a longer track record for each student on which base hiring decisions and save the expense of sponsoring a summer program. Summer programs were a way for law students to acclimate to a firm’s culture and practices, while allowing the firm a chance to observe and get to know law students without formally committing a permanent offer to them. However, summer programs were famously expensive, produced less real work than firms might have liked, and as a practical matter, resulted in most or all summer associates receiving permanent offers anyway. If enough law firms decide summer programs aren’t worthwhile anymore, then firms that try to hire all or most of their entry-level associates as 3Ls or recent graduates, without running them first through a summer program, won’t suffer a competitive disadvantage in recruiting talent.

At minimum, even law firms that continue to recruit 2Ls into summer programs will curtail the lavishness, size, and duration of those programs on a permanent basis compared to what they were during the past twenty years. Boston firms have long limited the duration of their summer programs from May through July, but firms in other big cities, at least when I was a law student, typically didn’t cap the number of weeks that summer associates could work. During my 2L summer (in 1998), I worked and was paid for seventeen weeks as a summer associate, almost to the end of September. This summer, however, I understand that at least one major firm closed its program by July 4. I would be shocked if limits on when and how long summer associates can work aren’t made permanent at big firms across the country, in addition to lower summer salaries and higher expectations going forward.