Category: Behavioral Law and Economics

12

Law School Admissions Standards As Law

Harvard’s decision to end its early admission program was the big story early week. As President Bok explained, the university worried about the social consequences of its admissions process:

“Students from more sophisticated backgrounds and affluent high schools often apply early to increase their chances of admission, while minority students and students from rural areas, other countries, and high schools with fewer resources miss out . . . . Others who apply early and gain admission to the college of their choice have less reason to work hard at their studies during their final year of high school.”

Harvard’s decision got me to thinking about the relationship between admissions standards at high-prestige universities and legal rules.

Both legal rules and admissions standards are conduct shaping regulations. When you set admissions standards to select for trait behavior X, the prevalence of X in the applicant universe will increase. Such an increase will not be uniform, for the reasons that Bok gives, and there will be further distortions depending on individual (or mass) psychology. But there are reasons to believe that law school admissions address a particularly sophisticated and resource-rich audience, who are well suited to governance. Thus, law school admissions are ripe for evaluation as a form of law itself.

I thought about this after talking with a friend last night who told me about business schools’ strong emphasis on community service as a part of the application of a well-rounded applicant. This probably creates a class of business school students who are more likely to be civic-minded after graduation. But it also (and more simply) results in a great deal of public service by pre-MBA types in the world. The question is: why don’t law schools use the application process to improve the world too?

You might object: “this is paternalistic social engineering.” Yes, yes it is. But law schools, like HLS, already require onerous mandatory pro bono commitments during school. The problem with such programs is that the incentives are all wrong – toward clock management instead of results. But if you made pro bono service an important part of the admissions decision, and suggested that particularly effective public service would be highly weighted, then you’d set folks incentives well to achieve good. Elite schools might collude to create a list of potential law-related public work that candidates would be “well-advised” to perform in order to increase their chances of admission: volunteering for a public interest firm or tax law clinic; working for the PD or DA as a part-time investigator; assisting social security ALJs as a paralegal, etc.

To be clear, I don’t mean to say that admissions committees aren’t already considering public service. Surely, they are. But they aren’t communicating the idea that public service counts in a meaningful way. Check out HLS’ admissions FAQ, and note the silence on this point. The silence is shared by other top schools. The point is that law faculties (at least those I’ve seen) have traditionally seen the admissions committee as wearing a judicial, rather than legislative, hat. As a result, faculty might tend to think of admissions as a necessary chore accomplished by the folks who run the operations side of the school, instead of an extension of the pedagogical mission. [Update: Even the affirmative action debate, which is a policy choice effectuated through admissions, isn’t intended to shape the conduct of pre-law students.] Perhaps its time to rethink that model.

4

Eating Away the iPOD Brand

ipod.jpgThe Guardian (UK) offers this gloomy report on the iPOD’s future:

Industry-watchers warn that the iPod could soon be regarded by teenage cynics as their ‘parents’ player’ because a mass-market product rarely equates with edgy fashionability . . . The Zandl Group, a New York-based trends forecaster which regularly interviews a panel of 3,000 consumers aged 25-35, recently picked up its first significant criticisms. ‘The iPod is far and away the most popular tech gadget with our panellists – however, for the first time we are hearing negative feedback about the iPod from some panellists,’ said the organisation’s spokeswoman, Carla Avruch. ‘Panellists cite that the batteries are not replaceable, so when they die the entire player must be replaced,’ she said. ‘We have heard from some conspiracy theorists that the batteries are made to die soon after the warranty ends.

‘Other complaints are that iTunes [Apple’s online music store] is overpriced and the format is not easily transferred on to other players. In our ethnography interviews, some long-time iPod-users told us that they have stopped updating their iPods because it’s too much work, while other consumers who had bought iPods more recently had not even taken theirs out of the package to set it up.’

She added that the iPod is in danger of becoming a victim of its own success: ‘Some backlash is against the ubiquity of the iPod – everyone has those white headphones on the train.’. . . Wall Street is reportedly starting to worry that the bubble will burst.

Tomi Ahonen, a technology brand expert and author, said: ‘For the first time the iPod has had two consecutive falls after 17 quarters of growth. If I were the manager, I would be wanting my people to explain what is going on. The iPod is wilting away before our eyes.’ . . .

Ahonen, author of Communities Dominate Brands, predicted that in the long term the iPod will have only a narrow audience. ‘It will continue to dominate a niche at the top end: if you’re a musician or a DJ you’ll use it because it’s the best, like a photographer with his Nikon camera. But the average mobile phone user gets a new handset every 18 months, and a quarter of mobile phones sold this year will have an MP3 player. In the same way as camera phones have pushed cameras to one side, this is an automatic replacement.’

Interesting. I’ve previously written (see below) on the topic of the interaction between individual experiences with the device’s poor lifespan, optimism, and iPOD’s market share. I’ve suggested that Apple has erected brand- and network-based barriers to erosion of its sales. A notable piece of evidence in my favor: notwithstanding the “backlash” against the iPOD and the reported “wilting” of Apple’s brand, its share price has been on a strong run since mid-July.

Other Posts on the Topic of iPODs:

1. Christine Hurt, Apple, iPods, Network Effects & Interoperability

2. Frank Pasquale, Single-Payer Music Care?

3. Hoffman, Is Apple Exploiting Consumer Irrationality?

4. Hoffman, (Will) iPod (and Ford) Kill the Radio Star?

5. Josh Wright (at ToTM), Paternalism and the iPod, Part II: The Behavioral Economics of Apple?

13

Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

Read More

12

Why Do We Sign Letters?

signature.jpgI have spent some time recently signing hundreds of clerkship recommendation letters. In itself, the process is a minor irritant, which I’m happy to do to help deserving students obtain jobs with judges after graduation. But, like many tedious things, the process inspires thoughts about what I could do to shortcut it.

Not signing letters isn’t an option. (Unless OSCAR sweeps the world of state courts too). In thinking about why, I’ve come to conclude, with no scholarly studies to back me up, that there is something interestingly persuasive about a signature.

Anecdotal evidence for the point comes every day in the mail. Not a day passes without receipt of “signed” letters from various selling agents (goods, services, political ideologies). Those agents have invested capital in an autopen, or in time, but either way they’ve put their money behind the persuasive force of a writing.

But this is strange. We all know that sales documents received in the mail, like clerkship letters, aren’t individualized. Signatures are rote (at best) or robotic (at worst). Rational buyers, and judges, ought to be indifferent between an inked signature and a “/s/electronic/s/” version. But inked signatures persist, despite their inefficiency. Why do they work?

I have a theory. I think that when we see a signature, we associate it with a contract, and our totemic beliefs (exposed in the beginning of every contract law class) in the ritual power of writing things down and signing them. In popular culture, contracts exist when they are signed (and, less frequently, sealed). So when we see a signature on a letter, I think it suggests a sort of warranty.

What is the content of the warranty? I bet it looks something like this:


My name is Dave Hoffman, and I endorse this message.

Even though you don’t know me from Adam, you can’t help but rely on that ritually-created warranty a little in deciding whether to buy what I’m selling. That is, signatures help bridge the gap between purely impersonal sales (the internet is the paradigm, surely) and the door-to-door salesmen of the past. By signing a letter to a judge, I’m associating myself with the message, making it marginally harder to ignore. (Any effect is smaller for my signature than for a professor that the judge has heard of, no doubt.)

In arriving on this explanation, I reject two other stories. It can’t be the identity-assuring role, because (1) we don’t know these agents’ handwriting; and (2) in the case of recommendation letters, the court can more cheaply rely on other proxies (letterhead) to serve that purpose. I also don’t think that inked John Hancocks are really analogous to the “signatures” on emails – the persistence of that convention is just habit, reinforced by moribund cultural norms.

Are there other theories?