The Commission on Presidential Debates may have a Gary Johnson problem

The Commission on Presidential Debates has taken control of televised presidential debates over the last twenty years. It is formally a non-partisan organization, but it is in reality a bipartisan organization--its current co-chairs are the former chair of the Republican National Committee and the former press secretary to Democratic president Bill Clinton.

It has long established neutral criteria designed to whittle the candidates who appear in the debate to those who are deemed sufficiently "serious" to merit the debate platform. This caused something of a stir in 1992, with the invitation of independent candidate H. Ross Perot, and the waffling over whether to invite him in 1996.

Recently, the criteria have been more objective than some of the earlier balancing tests--but they are also notoriously challenging for any non-Republican-or-Democrat to achieve. It standards for 2016:

[I]n addition to being Constitutionally eligible, candidates must appear on a sufficient number of state ballots to have a mathematical chance of winning a majority vote in the Electoral College, and have a level of support of at least 15% of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations' most recently publicly-reported results at the time of the determination. The polls to be relied upon will be selected based on the quality of the methodology employed, the reputation of the polling organizations and the frequency of the polling conducted. CPD will identify the selected polling organizations well in advance of the time the criteria are applied.

A serious problem is what the "five selected national public opinion poll[s]" may mean. That's because, to my knowledge, the CPD has never disclosed its results in recent years when concluding that the two major party candidates have met the criteria. (Consider the generic boilerplate language before the first debate in 2012 here.)

Enter Gary Johnson, the former Republican governor, briefly a 2012 Republican presidential primary candidate, the 2012 Libertarian presidential nominee, and the 2016 Libertarian presidential nominee. Many have hyped that he could attract significant support given the sheer unpopularity of Donald Trump and Hillary Clinton. But would he attract the 15% level of support needed to participate in the presidential debates?

If I had to guess, I'd say no. But Mr. Johnson is currently polling at 8.5% in four-way polling (along with Green Party presumptive nominee Jill Stein) in the Real Clear Politics average. But some polls are as high as 13%; others as low as 5%. In the event he drifts upward a few points, the sample of "five selected" polls matters significantly.

Additionally, his average is slightly higher in three-way polling matchups, polls that exclude Ms. Stein (in part, I think, because the Green Party is not expected to secure ballot access in all fifty states and the District of Columbia)--8.9% in a recent average. While four-tenths of a point may not seem like much, his polling has been about half a point better on average for some time now in the three-way race over the four-way race. Use the three-way polling, or the four-way polling?

If Mr. Johnson experiences some modest improvement in the polls, then the CPD will have almost entirely subjective discretion to decide whether to include or exclude him--if it were include to include him, sample his best-performing three-way polls; if it were to exclude him, sample his worst-performing four-way polls. It's a problem that may not come to fruition if Mr. Johnson's support hovers where it is right now--and maybe that's what the CPD is hoping for.

The twenty-two (or twenty-three) law reviews you should follow on Twitter (2016)

While you could follow a pretty sizeable list of law reviews I've maintained on Twitter, there are a handful of law reviews that rise above the rest.

Last year, I listed the twenty-two law reviews to follow on Twitter. I've modified the criteria slightly and updated it. I've mentioned that I find Twitter one of the best places to stumble upon scholarship and engage in a first layer of discussion about new ideas.

In my view, it continues to surprise me how challenging it is to find recently journal content. Many journals don't maintain a Twitter feed, much less a decent web site--most lack an RSS, are updated infrequently at best, and often include stock art (because, apparently, law reviews are into stock art?). Given scarce resources that law schools have today, one might expect schools to find ways of maximizing the value from their investments in their journals. (More on this soon.)

Alas, I'll settle for the occasional tweet on the subject. I looked at the flagship law reviews at the 106 law schools with a U.S. News & World Report peer score of 2.2 or higher.  If I found their Twitter accounts, I included them. I then examined how many tweets they had, how many followers they had, and when their last tweet (not a retweet) took place. I then created a benchmark, modified slightly from last year: the law reviews "worth following" are those with at least 200 tweets, at least 200 followers, and at least one tweet (not a retweet or direct reply) in the last 45 days (as of July 1, 2016). I thought that would be a pretty minimal standard for level of engagement and recency of engagement. This 200/200/45 standard reduces the list to 23 accounts worth following (UPDATE: the original list was just 22, but I found one more thanks to Elli Olson):

Harvard Law Review

Yale Law Journal

University of Chicago Law Review

NYU Law Review

California Law Review

Penn Law Review

Michigan Law Review

Northwestern University Law Review

Georgetown Law Journal

UCLA Law Review

George Washington Law Review

Ohio State Law Journal

Iowa Law Review

University of Illinois Law Review

Hastings Law Journal

Washington & Lee Law Review

Connecticut Law Review

Case Western Reserve Law Review

Georgia State University Law Review

Nebraska Law Review

St. Louis University Law Journal

Syracuse Law Review

Michigan State Law Review

It's fairly notable, I think, that a majority of the schools on this list have a top-30 peer reputation score. Indeed, follower count is highly correlated with peer score (0.59)! There is also a high degree of continuity between last year's list and this year's list, showing, I think, that continuity matters for many of these journals' social media presence--and, perhaps, that it's harder for many journals to get anything started with a lasting institutional memory.

Below is the complete list of these journals, with 200/200/45 law reviews highlighted. If you see a journal not listed, tweet me about it @derektmuller.

Peer score Journal Tweets Followers Last tweet (not RT)
4.8 @HarvLRev 850 18900 June 23, 2016
4.8 @YaleLJournal 792 8676 June 23, 2016
4.8 @StanLRev 458 5722 April 29, 2016
4.6 @UChiLRev 349 4666 June 27, 2016
4.6 @ColumLRev 294 3747 October 31, 2015
4.5 @nyulawreview 1415 6390 June 29, 2016
4.5 @CalifLRev 398 2918 May 20, 2016
4.4 @PennLawReview 413 2837 May 21, 2016
4.4 @michlawreview 265 2254 June 21, 2016
4.3 @VirginiaLawRev 42 670 June 1, 2016
4.2 @NULRev 241 1015 June 30, 2016
4.2 @DukeLawJournal 66 1172 June 13, 2016
4.2 @CornellLRev 0 11 n/a
4.1 @GeorgetownLJ 325 1080 June 23, 2016
4.0 @TexasLRev 458 2059 April 28, 2016
3.9 @UCLALawReview 223 2332 June 23, 2016
3.9 Vanderbilt  
3.6 @emorylawjournal 85 211 June 28, 2016
3.5 @MinnesotaLawRev 112 625 June 29, 2016
3.5 Washington (St. Louis)  
3.4 @BULawReview 530 1232 October 19, 2015
3.4 @nclrev 76 160 March 28, 2016
3.4 @NotreDameLawRev 52 532 April 22, 2016
3.4 @SCalLRev 11 108 May 3, 2016
3.4 Wisconsin  
3.3 @GWLawReview 670 710 June 15, 2016
3.3 @OhioStateLJ 627 1486 June 29, 2016
3.3 @IowaLawReview 273 1196 May 16, 2016
3.3 @UCDavisLawRev 166 430 January 29, 2016
3.3 Indiana (Bloomington)  
3.2 @BCLawReview 372 1439 April 4, 2016
3.2 @WashLawReview 126 1175 May 21, 2015
3.2 @AlaLawReview 44 633 March 28, 2016
3.2 @GaLRev 32 411 April 4, 2016
3.2 Irvine  
3.2 William & Mary  
3.1 @fordhamlrev 381 2010 May 2, 2016
3.1 @UIllLRev 259 1202 May 29, 2016
3.1 @HastingsLJ 207 518 June 29, 2016
3.1 @FloridaLawRev 122 306 June 28, 2016
3.1 @arizlrev 32 242 July 1, 2015
3.1 @ArizStLJ 29 10 April 18, 2016
3.1 Colorado  
3.0 @WFULawReview 793 694 April 23, 2016
3.0 @WLU_LawReview 279 225 June 28, 2016
3.0 @TulaneLawReview 40 611 March 6, 2015
3.0 Maryland  
2.9 Florida State  
2.8 @BYULRev 42 103 May 11, 2016
2.8 @UtahLawReview 0 6 n/a
2.7 @ConnLRev 854 1188 May 25, 2016
2.7 @AmULRev 356 935 November 13, 2015
2.7 @geomasonlrev 219 258 February 18, 2016
2.7 @UMLawReview 193 946 June 3, 2016
2.7 @denverlawreview 153 686 April 26, 2016
2.7 @CardozoLRev 118 1079 June 28, 2016
2.7 @ukanlrev 105 528 September 25, 2014
2.7 @OregonLawReview 7 372 April 7, 2015
2.7 Tennessee  
2.6 @CaseWResLRev 821 840 June 23, 2016
2.6 @GSULawReview 646 268 June 29, 2016
2.6 @PeppLawReview 604 751 April 1, 2016
2.6 @TempleLawReview 38 67 May 18, 2016
2.6 @KYLawJournal 17 157 March 20, 2012
2.6 @LLSlawreview 11 25 March 23, 2016
2.6 @MoLawRev 11 42 June 7, 2016
2.6 @Houston_L_Rev 5 35 April 28, 2016
2.6 @PittLawReview 0 15 n/a
2.6 San Diego  
2.6 SMU  
2.5 @NebLRev 253 258 June 23, 2016
2.5 @LUCLawJournal 169 131 May 21, 2014
2.5 Chicago-Kent  
2.5 Hawaii  
2.4 @SCLawReview 541 892 April 14, 2016
2.4 @NevLawJournal 70 145 May 22, 2016
2.4 @RutgersLRev 63 631 April 3, 2015
2.4 @nuljournal 47 346 June 22, 2016
2.4 @RutgersLJ 12 526 May 2, 2014
2.4 @BrookLRev 0 4 n/a
2.4 Baylor  
2.4 Cincinnati  
2.4 Indiana (Indianapolis)  
2.4 Lewis & Clark  
2.4 Oklahoma  
2.4 Richmond  
2.4 Santa Clara  
2.3 @SLULawJournal 639 558 June 7, 2016
2.3 @SyracuseLRev 538 946 June 26, 2016
2.3 @HULawJournal 532 715 November 4, 2015
2.3 @MichStLRev 402 780 June 11, 2016
2.3 @SULawRev 53 91 February 20, 2016
2.3 @VillanovaLawRev 44 150 June 25, 2016
2.3 @SHULawReview 22 203 January 28, 2014
2.3 Marquette  
2.3 New Mexico  
2.2 @arklawrev 165 1839 February 15, 2016
2.2 @MaineLawReview 103 650 December 3, 2015
2.2 @lalawreview 95 910 March 24, 2016
2.2 @MSLawJournal 70 223 April 13, 2016
2.2 @UofL_Law_Review 16 46 March 31, 2016
2.2 @UMKCLawReview 5 91 April 22, 2016
2.2 @WVU_Law_Rev 4 26 Jule 28, 2013
2.2 DePaul  
2.2 Hofstra  
2.2 SUNY (Buffalo)      

Fictional Attorney of the Month: The Blue-Haired Lawyer

He's no Lionel Hutz. Instead, he's the recurring character on The Simpsons with a high degree of competence, known only as "The Blue-Haired Lawyer," or sometimes "Mr. Burns's Lawyer."

The Blue-Haired Lawyer has a whiny New York accent who provides some combination of dry humor and clever legal argumentation. In one episode defending Mr. Burns, he reminds the court, "Your Honor, my client has instructed me to remind the court how rich and important he is, and that he is not like other men."

He crops up at inopportune moments to impart legal advice. When the Simpsons' principal makes a Disneyland reference, the lawyer chimes in, "Principal Skinner, "The Happiest Place on Earth" is a registered Disneyland copyright." Principal Skinner assures, "Oh now, gentlemen, it's just a small school carnival." To which the attorney answers, "And it's heading for a great big lawsuit."

A nameless recurring cartoon character--good enough for the Fictional Attorney of the Month.

Some on FEC apparently sought to punish media entity for its 2016 GOP debate format

We'll have all the details tomorrow, but an early report from Fox News discloses that there was an FEC complaint filed against Fox last year for its debate criteria. Three FEC commissioners supposedly viewed it as an unlawful contribution to some of the Republican presidential candidates who benefited from the rule change; two commissioners supposedly went so far as to vote to penalize Fox. (UPDATE: apparently these facts are contested; we'll know more shortly.)

It seems absurd to justify--penalizing Fox for inviting more candidates (in the end, 17 candidates) to participate in a pair of debates? But, again, we lack the details. The terms are opaque, but we can pretty easily reconstruct the details.

The seventeen candidates invited to the August 6, 2015 presidential debates included just about everyone--including folks like George Pataki and Jim Gilmore. But the complaint had to have been filed by some other candidate who was left out--some mysterious eighteenth candidate.

It's likely Mark Everson. You may not have heard of him, as his campaign did not last long.

There were reports of him filing such a complaint last August. Here's the text of the complaint. The heart of the claim is this: Fox had "pre-determined" and "objective" criteria for debate participation, consistent with FEC rules--after all, networks aren't permitted to invite just the candidates they like, or else it's essentially a campaign contribution to that candidate. (More on this in a moment.) Top 10 candidates in the five most recent polls get in. Other chances for others, it explains, with details later. That was provided on May 20.

Fox later realized that the field was much bigger and much more uncertain than others had anticipated. So they changed the rules: anyone achieving at least 1% in the five most recent national polls; top 10 participate in the "primetime" debate, and others in a debate earlier in the evening. That came June 11.

Then about 10 days before the debate, Fox dropped the 1% threshold and permitted anyone whose names were being "consistently" included in national polls to participate in the debates. That opened up the earlier debate from what might have been just three candidates to six (and later seven) participants, including adding Carly Fiorina, Jim Gilmore, Lindsay Graham, and George Pataki. Mark Everson was not on the list.

Mr. Everson has a point, to a degree. But it's hard to say that "pre-determined" precludes networks from responding to changes at later points in time when conditions warrant--as, perhaps, conditions suggested that the May 20 and June 11 criteria were insufficient, and that a modification July 27 was appropriate. Granted, it takes some teeth out of "pre-determined." But it was also intended to accommodate more, not fewer, candidates. And the "objective" criteria of those "consistently" included in national polls sounds not terribly objective, until one considers the previous "objective" criteria: candidates with at least 1% in the five most recent national polls... as recognized by Fox News. This is a standard term that gives media outlets flexibility to exclude fly-by-night pollsters touting themselves as "national" pollsters.

One can sympathize, I think, with Mr. Everson's concerns. But one can also understand, I think, why Fox kept modifying its standards in a fairly unusual time before the election. Was it designed to favor these four candidates over Mr. Everson? In a sense, of course it favored them--they got to appear in the debate, and Mr. Everson didn't! Was Fox giving a campaign contribution to these candidates over Mr. Everson?

This is a much stickier issue. Turning the issue around, would the American public have been better off with Mr. Everson, or without Mrs. Fiorina and Messrs. Gilmore, Graham, and Pataki, as the two choices before Fox, rather than the debate format FOX selected?

For the FEC to punish Fox for altering its debate criteria is serious stuff. It's akin to saying the network had the design of manipulating criteria to help a few favored candidates over others, so much so that it ought to be penalized.

But this is the kind of activity that, while on the (admittedly) fringes of "pre-determined objective" criteria, threatens a dramatic chilling of debates in the future. How is a network supposed to respond to early-established debate criteria that appear obviously flawed shortly before the debate, having relied on premises that turned out to be false?

This might simply be one of the gray areas in an unusual year where a single candidate suffered from a maladjusted modification in a condensed period of time. But for the FEC to decide to punish that media entity is fairly strong stuff, in my view.

That said, much of this is speculation building upon some history. When the FEC file is disclosed Thursday, we'll see if this speculation has any basis in the facts of the case.

UPDATE: The FEC file, MUR 6952, has been released. The First General Counsel's report, finding that Fox News violated federal law, is here (PDF). Some of the process, however, is not exactly as described. Two of the commissioners agreed with this report; a third dissented not on the merits but as a matter of prosecutorial discretion (that is, the case simply should not proceed). Three other commissioners joined a statement (PDF) that the FEC even lacked the power to investigate Fox for its debate criteria because the First Amendment precluded such investigation; on this, there was divided 3-3 vote.

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.