Some evidence that big firm law jobs have not "dried up" for top law school graduates

Today's New York Times includes a story about challenges confronting legal education with a specific emphasis on the situation at Valparaiso. There are many points raised throughout the article, including various problems facing schools and their graduates. I do not want to spend much time (yet!) on most of the details--undoubtedly, schools and graduates continue to face mounting challenges have not received sufficient remedies. But one purported cause of the current crisis struck me as rather curious:

A decade ago, a large majority of graduates from the top 10 to 15 law schools who wanted full-time work at a big law firm could get it, said Paul F. Campos, a law professor at the University of Colorado at Boulder, who has written extensively [Ed.: link to a story from 2011 omitted] about the economic prospects of recent law school graduates.

With big-firm jobs drying up, however, many of these graduates began competing for lower-paying spots at midsize firms, which also downsized, and certain government jobs they wouldn’t have sought in an earlier era.

“That takes those jobs off the table,” Mr. Campos said. “It has ripple effects all the way throughout the profession, so that a small law firm in northwest Indiana can say to recent grads: ‘We want you to work for free. We won’t pay you.’”

Law schools, for their part, seem strangely oblivious to all this.

This didn't strike me as accurately describing the situation confronting law schools in the year 2016. So I did a little digging into the ABA's Employment Statistics database.

As background, there is no question that the economic recession dramatically impacted the legal profession as a whole. Early 2009 was particularly brutal--from a "black Thursday" in February to massive layoffs at some of the largest firms in the country. This undoubtedly had trickle-down effects to summer associate and entry-level hiring for the classes graduating at and shortly after this time. But did such a bleak picture permanently alter elite hiring from elite schools?

I drew from the ABA data about the Classes of 2011 through 2015. (The Class of 2010 data is not reported in a similar format, and the Class of 2016 data will not be released until next spring.) I looked at the outcomes of thirteen "elite" schools over that time--Berkeley, Chicago, Columbia, Cornell, Duke, Harvard, Michigan, NYU, Northwestern, Penn, Stanford, Virginia, and Yale. (One can quibble about whether the list should be more or less inclusive, of course, but I thought this would fit in the range of the "top 10 to 15.")

I used four categories of jobs: full-time, long-term positions at firms with 101 to 250 attorneys, 251 to 500 attorneys, and 501 or more attorneys, as well as full-time, long-term (which includes one-year terms) federal judicial clerkships, a rough category of "elite" placement. There are, of course, caveats to all these categories. "Full-time, long-term" positions at firms may include project or staff attorneys rather than associate-level positions--which may mask some numbers if such positions have disproportionately increased in recent years. Federal judicial clerkships may not include equally "elite" value in the perception of graduates and employers. They are, admittedly, rough categories.

  101-250 251-500 501+ Clerkships Elite jobs Total Grads Percentage
Class of 2011 157 270 1473 512 2412 4140 58.3%
Class of 2012 159 312 1769 515 2755 4203 65.5%
Class of 2013 146 261 1902 506 2815 4205 66.9%
Class of 2014 150 279 1939 522 2890 4161 69.5%
Class of 2015 130 332 1866 511 2839 4015 70.7%

We can see that the total numbers of graduates have been fairly stable, but are at a lower ebb at the moment. Job placement as a percentage of the graduating class, however, continues in what I might call the "large majority" of graduates, most recently over 70%. Things have improved since the Class of 2011 (which was engaged in on-campus interviewing in the Fall of 2009, shortly after the brunt of layoffs hit law firms). These figures aren't masked by federal judicial clerkship placement, either, which has held remarkably steads at slightly over 500 clerks per graduating class. (And this category excludes "J.D. advantage" positions, which might be of dubious value, but perhaps have more value at these elite schools--consider the volume of placement of Harvard graduates into coveted positions at places like McKinsey and Bain.)

To show the relative improvement in both raw positions and in percentage placement, consider the charts visualizing those figures below. (Please note that they are non-zero y-axes to illustrate relative change rather than absolute performance.)

It might be that law schools are "strangely oblivious" to this trend because the trend, in ll likelihood, doesn't exist. There are undoubtedly many challenges facing "non-elite" law schools (and even "elite" law schools), ranging from indebtedness of graduates, to bar passage rates of those with declining predictors, to securing meaningful employment for graduates. But the notion that a principal cause of the crisis facing schools like Valparaiso and others is a result of a loss of placement of elite law school graduates into elite big law firm positions resulting in increased competition at "lower-paying spots at midsize firms . . . and certain government jobs they wouldn't have sought in an earlier era" is, I think, from my examination of the evidence, not accurate.

Tenth Circuit reverses course, finds no standing for legislators in Guarantee Clause challenge

It's been quiet in the ongoing saga of Kerr v. Hickenlooper, a Guarantee Clause challenge to Colorado's requirement that legislative tax increases be approved by popular vote. The United States Supreme Court remanded the case in light of Arizona State Legislature v. Arizona Independent Redistricting Commission, which concluded that the state legislature of Arizona did have standing to bring a challenge to the authority of an independent redistricting commission. As I noted a year ago, "This, I think, portends poorly for the legislators" bringing the claim here, because they brought their claim as individual legislators, not as the institution of the state legislature.

Sure enough, on remand, the Tenth Circuit concluded the same on Friday. "We now conclude that these individual legislators lack standing because they assert only an institutional injury." The opinion tracks the argument in Arizona State Legislature--and, in my view, the argument that should have been successful even before that case.

"Awarding presidential delegates by congressional district is unfair"

I have a new op-ed in today's Sacramento Bee, "Awarding presidential delegates by congressional district is unfair." It opens:

This year’s presidential primaries have exposed problems in the nomination process, and they’re highlighted by California’s uneven method of awarding its delegates.

And it explains:

The 13th District in San Francisco has about 260,000 registered Democrats and gets eight delegates, or one delegate per 32,500 voters. But there are just 86,000 registered Democrats in the 42nd and 50th districts, and they each will award five delegates, or one delegate per 17,200 voters. It doesn’t take a math degree to recognize that Democrats in San Francisco will have less power than Democrats elsewhere in the state.

For Republicans, it’s far worse.

There are just 27,000 registered Republicans in the 13th District, or one delegate for every 9,000 voters. But the 48th District in Orange County has more than 155,000 registered Republicans and the same three delegates, or one delegate per 51,000 voters.

"The Case for More Money in Politics"

I have a new piece at the Library of Law & Liberty, which responds to the following prompt:

Should a democracy, in the name of combating political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society?

And I frame the issue as follows:

The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.”

Consider, though, that there isn’t a problem with “money in politics” unless there is something bad that “money in politics” does. Rather than assuming a premise of reform, we ought to step back and consider whether or not campaign finance needs reforming. As we evaluate competing justifications for reform, we should be mindful, as citizens of a nation built upon regular and meaningful elections, that these be regulated to do the least damage to our constitutionally guaranteed rights, that is, to the open exchange of political views. As we will see, this priority is largely lacking in today’s reforms, whether existing or proposed.

Fictional Attorney of the Month: Paul Biegler

Anatomy of the Murder is one of the very best courtroom dramas ever filmed. It concerns a homicide in Michigan's rural Upper Peninsula, an Army Lieutenant accused of killing an innkeeper. The defendant's wife contacts Paul Biegler, played by Jimmy Stewart, to represent her husband.

Biegler faces off against the sophisticated prosecutor Claude Dancer, portrayed by George C. Scott, called in to help the small-town case. Dancer and Biegler are formidable foes for one another.

The film is notable not simply for its dramatic courtroom scenes but also for the charged topics it deftly introduces, especially a rape allegation that provides the bulk of the defense's case. Biegler perhaps stretches his ethical bounds in an attempt to zealously represent his client in a case that takes him in directions he'd never have anticipated.

It's a phenomenal script for a film beautifully shot with a stellar cast, but a movie often forgotten today. But Biegler's memorable role make him this month's Fictional Attorney of the Month.

Has Congress been improperly counting prisoners in the Census since 1790?

Following up on yesterday's take on the Rhode Island "prison gerrymandering" case, a few more thoughts come to mind.

The district court linked apportionment to redistricting (as the Supreme Court in Evenwel did), identifying women, children, slaves, and other non-voters as appropriately included within the apportionment base. The court went on

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

The Census Bureau has, since 1790, counted prisoners as residents of the place where they are incarcerated. When Congress apportions members of Congress to the states, it includes those prison populations--even if a number of the prisoners come from out-of-state.

Does this mean Congress has been unconstitutionally apportioning members of Congress since 1790? That prisoners should have been counted as residents of their home states for the last 220 years, and Congress has simply got it wrong this whole time?

Surely, the swift rejoinder to this claim is that very few long-term prisoners were included in a Census, much less out-of-state prisoners, until recently. But this was the same claim raised by the plaintiffs in Evenwel--that the United States had a very small non-citizen population until recently, a claim that was soundly rejected.

Further, the analogy of apportionment to redistricting grows even worse when one considers redistricting itself--where should prisoners be included for redistricting purposes?

Suppose one makes the claim that prisoners should be located as residents of the address they resided at before being incarcerated. Does this somehow cure the concerns raised by the district court? Suppose you are an incarcerated prisoner in Cranston who was originally residing in Providence. Do you suddenly "have a stake in the Providence public school system"? Do you "receiv[e] constituent services"?

The dangerously overbroad language from the district court would effectively make prisoners invisible! If they are constitutionally forbidden from being considered members of the political community where they are incarcerated, surely considering them members of the political community where they last resided is even more attenuated. It risks making prisoners invisible, uncounted members of any political community.

Instead, the better claim--and it is not a terribly good constitutional claim at that--is that this artificial concentration of non-voters into a single location is suboptimal for other voters in adjacent districts, and an attempt should be made to more naturally redistribute those non-voters in some way.

But this is not a constitutional claim. It is simply a way--perhaps a better way--of drawing districts. But the Supreme Court's decision in the "one person, one vote" cases imposed a one-size-fits-all requirement to redistricting. And rhetoric in cases like this Rhode Island prison gerrymandering case further complicate any meaningful understanding of what that mantra means.

The revival of the Three-Fifths Clause in a Rhode Island prison gerrymandering case

A federal district court handed down a memorandum and order for summary judgment in Davidson v. City of Cranston, a case concerning "prison gerrymandering" in Rhode Island. The court concluded that the city improperly drew districts that included all of the incarcerated individuals in a prison into a single district, distorting representation and voting strength in other districts.

One might have concluded that the Supreme Court's recent decision in Evenwel v. Abbott mandated this case come out the other way. There, the Court permitted Texas to use total population in drawing its districts, even if it included non-citizens (i.e., non-voters) in its population base. Had the case come out the other way and some voter- or citizen-based measure been required for drawing districts, prison gerrymandering may well have ended.

As Adam Liptak and others noted, a win for Texas in Evenwel would deeply undermine constitutional arguments against prison gerrymandering. After all, prisoners are people ineligible, just like non-citizens or children. They're drawn into districts with the rest of the total population. Instead, one must come up with a political theory for excluding this set of non-voters from redistricting, but not other sets of non-voters.

In a recently-published article in the Harvard Journal of Law & Public Policy, Perpetuating "One Person, One Vote" Errors, I highlight the deep problems that arise when courts attempt to insert ever more-detailed theories of political representation into the constitutional doctrine of "one person, one vote." Mercifully, I remarked, the decision in Evenwel leaves some discretion to the states (and cities) in redistricting.

But the decision in Davidson takes away some of this discretion. And it does so using bizarre support from the Three-Fifths Clause. It even suggests prisoners are less worthy of representation than slaves.

To start, one has to make a pair of logical inferences to get from the Court's theoretical findings in Evenwel (and its predecessors) to this case. As I explained at the George Washington Law Review Docket, the Court linked the theory of apportionment of congressional representatives to the reason for drawing equal numbers of people in congressional districts, and then linked that finding to the reason for drawing equal numbers of people in other non-federal districts. It opens with this theory of apportionment--how many congressional representatives should each state get? As the Davidson court explained:

In its review of the drafting history of the Constitution and later the Fourteenth Amendment, the Supreme Court repeatedly stresses the prevailing view that women, children, slaves, tax-paying Indians, and non-land-holding men (in some areas) all deserved representation - though none of these groups could vote.

That syncs with the Court's holding in Evenwel:

In other words, the basis of representation in the House was to include all inhabitants - although slaves were counted as only three-fifths of a person - even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. Endorsing apportionment based on total population, Alexander Hamilton declared: "There can be no truer principle than this - that every individual of the community at large has an equal right to the protection of the government."

One must appreciate a serious concern here--the Three-Fifths Clause. By including slaves (albeit fractionally) in the apportionment base, the South would receive dramatically more political power in the House than if slaves counted as zero-fifths.

But one should not seriously claim that the Three-Fifths Clause somehow means that slaves were virtually represented by their masters--that voters in the South somehow were protecting slaves through their votes! Instead, as I've pointed out in another piece, one justification commonly raised by the Founders for including slaves in the apportionment base was a notion that it was a proxy for wealth. Population (and slave total) meant roughly the wealth in an area; and more wealthy (or more "productive") areas should have more political power.

Such political theory likely would not garner much support today--indeed, it has been expressly rejected in the "one person, one vote" line of cases. (This is also a major reason Justice Alito wrote separately in Evenwel--he viewed the apportionment question as distinct from the question of drawing districts.) But the only way for "one person, one vote" to work is if one adopts a kind of theory of "virtual representation," where the elected representatives serve the entire population of the region, regardless of whether they are eligible to vote. (Indeed, the Court in Evenwel expressly made this point concerning children.)

The district court's next findings, then, are fairly breathtaking:

The inmates . . . share none of the characteristics of the constituencies described by the Supreme Court. They don't have a stake in the Cranston public school system and they are not receiving constituent services, such as help with public-benefits bureaucracies. They are not making requests of and suggestions to Cranston elected officials (or if they are, they are receiving no response), nor are they receiving "the protection of government," at least not from Cranston elected officials.

Really? First, descriptively, this is false at almost all levels. A quick look at Kramer v. Union Free School District No. 15 offers myriad ways (in the right-to-vote context) someone can "have a stake" in the public school system--merely being "interested in" the school board as a resident may be enough, or the note that "[a]ll members of the community have an interest in the quality and structure of public education," which may have "grave consequences to the entire population." Prisoners may write letters to representatives--even if they are not, they are able to do so. It may well be that these are still pretty weak reasons for including prisoners in a district; but that is a far cry from saying that they are constitutionally forbidden from being included in a district.

Second, it rather brazenly suggests that eighteen-century slaves were better represented, and better deserving of representation, than twenty first-century prisoners. How else is one supposed to construe the phrase that "the inmates . . . share none of the characteristics" of "slaves"? It turns the Three-Fifths Clause into a rather favorable view of representation. Justice Alito's concurring opinion in Evenwel is perhaps wise guidance on the Three-Fifths Clause. But its failure to carry a majority of the Court leads to curious decisions such as this.

It may well be the case that Rhode Island and other states should include incarcerated persons in the districts where they last resided. It makes sense to me, as a political matter. As an administrative matter, it also seems to be sensible to include the easy total of the prisoners in the prison where they reside. Indeed, that's how the Census counted them in 2010! It becomes a fairly significant task, then, to create a new population total for redistricting, one that the Census Bureau does not provide. (Indeed, this was a major claim raised in Evenwel.)

But for a federal court to make the claim that slaves were favorably represented in apportionment while prisoners ought never be included in redistricting is a deeply problematic claim. The "one person, one vote" line of cases cannot sustain such decisions of representation equality or political theory, which are best left to the political process.