A map of the United States according to Supreme Court case citations

Some time ago, I thought about making a map of the United States based on the most significant Supreme Court cases from each state. Specifically, I'd rename the states after the party opponent in which the state was the principal opponent in the case caption.

"Significant" turned out to be a challenge, so I opted for "most cited" according to Westlaw. That led to the results below.

It's worth noting that some of my searches were inconsistent with Westlaw's limited capabilities, and I may well be wrong on some--please correct me if so! I simply sought the most cited cases from each state.

It turns out that there are many cases I imagined were far more significant, but that didn't meet the "most cited" in a state. Those included Alabama (J.E.B., NAACP, & Miller), Arkansas (Epperson), California (Miller), Connecticut (Palko), Florida (Riley), Louisiana (Hans), Michigan (Long), Missouri (Holland), New Jersey (T.L.O.), New York (United States), Ohio (Mapp), Oregon, (Muller & Mitchell), Pennsylvania (Prigg), South Carolina (Katzenbach), South Dakota (Dole), Texas (Johnson), and Virginia (Loving, Black, & Cohen). So while a more intriguing map might have been a kind of public vote about the most significant Supreme Court case to arise out of each state, I opted for the easy way out.

No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.
A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.
. . .
I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

Most law schools have become more affordable in the last three years

It seems like a crazy headline, but it turns out that the decline in supply of prospective law students has yielded the expected decline in cost at most law schools over the last three years.

A few years ago, I noted that 30 law schools had become more affordable over a three-year period. I thought I'd see what might have changed since then.

And before sharing the numbers, It's worth cautioning that these numbers have extremely limited value. The U.S. News & World Report ("USNWR") debt rankings include a number of very obvious faults, including a number of schools reporting more than 100% of graduates who obtained debt:

The embarrassing data collection of USNWR calls into question not just these figures but the totality of the rankings. But let's stick with what we've got for the moment.

I removed all schools that failed to disclose debt figures in either the 2015 rankings or the 2018 rankings. I removed the schools that had reported more than 100% of graduates who took on debt. I also removed the three schools in Puerto Rico. That brought the data set down to 163 schools.

Many schools are unable to read the USNWR forms correctly and only report some of the debt one year and the cumulative debt another year; I don't attempt to determine which schools made that error, but the schools with triple-digit percentage increases in debt loads over three years would probably fall into that category.

I calculated 3.0% inflation between 2013 (the class whose debt load is included in the 2015 rankings) and 2016 (the class whose debt load is included in the 2018 rankings) and adjusted the 2013 figures accordingly. The debt figures listed on the site are an average for those who incurred debt; to arrive at a more accurate picture of the debt load of the class as a whole, I then factored in the percentage of students who graduated without any debt to reach an overall average.

Among the 163 schools, 115 saw a decline in overall debt loads; just 48 saw an inflation-adjusted increase.

Many possible reasons for the changes are possible. As I explained in 2013, students may graduate without debt for many reasons: "That could be because they are independently wealthy or come from a wealthy family willing to finance the education; they could have substantial scholarship assistance; they could earn income during school or during the summers; they could live in a low cost-of-living area, or live frugally; or some combination of these and other factors. It's worth noting that several thousand students graduate each year without any debt."

Scholarship awards may be outpacing tuition hikes. Students are no longer purchasing health care due to the ability to remain on their parents' health insurance under federal law, a significant cost for students a few years ago. Schools have increasingly eased, or abolished, stipulations on scholarships, which means students graduate with less debt. Some schools have slashed tuition prices. We might simply be experiencing the decline of economically poorer law students, resulting in more students who need smaller student loans--or none at all. Students may be taking advantage of accelerated programs that allow them to graduate faster with less debt. Finally, as JD class sizes shrink, it's increasingly apparent that students who would have paid the "sticker" price as increasingly pursuing options at institutions that offer them tuition discounts. (I'll have something more about financial aid figures in the near future.)

Additionally, as I've noted before, the "percentage may be somewhat deceptive, because at a very low-cost school, a modest increase in debt load may appear, on a percentage basis, much higher than comparable increase at a high-cost school.  A $10,000 increase in debt at a school that previously had just $20,000 in debt looks like 50%; at a school with $100,000 in debt, just 10%. But I thought percentage would still be the most useful."

And of course, these debt figures are only an average; they do not include undergraduate debt, credit card debt, or interest accrued on law school loans while in school. And, as I've written, "The averages are not precise, either, for individuals. The average may be artificially high if a few students took out extremely high debt loads that distorted the average, or artificially low if a few students took out nominal debt loads that distorted the average."

It's worth noting that some of these changes are hardly random. Major announcements from institutions like Iowa, Arizona, and Chicago back in 2013 signaled major changes in tuition or scholarship structures.

Finally--and while it should go without saying, I fear I need to say it anyway--this is hardly a statement about whether any particular law school is a "good" value or whether the debt loads are appropriate. It's simply a relative comparison of debt loads over three years.

Inflation-Adjusted Average Law School Debt Incurred by All Law Students Between 2013 & 2016
School 2013 2016 Dollar diff Pct diff
University of Iowa $87,669 $51,890 -$35,780 -40.8%
University of Chicago $134,795 $83,609 -$51,186 -38.0%
Washington University in St. Louis $84,863 $54,352 -$30,511 -36.0%
University of New Hampshire School of Law $115,056 $74,969 -$40,087 -34.8%
Seton Hall University $109,285 $71,692 -$37,592 -34.4%
North Carolina Central University $81,333 $55,012 -$26,321 -32.4%
University of Arizona (Rogers) $76,545 $52,534 -$24,010 -31.4%
University of Kentucky $59,654 $41,857 -$17,797 -29.8%
George Mason University $104,601 $74,427 -$30,175 -28.8%
University of San Diego $115,809 $85,818 -$29,991 -25.9%
University of St. Thomas $99,886 $74,177 -$25,709 -25.7%
University of Massachusetts--Dartmouth $110,454 $82,275 -$28,179 -25.5%
The Catholic University of America $128,016 $96,071 -$31,945 -25.0%
Northeastern University $115,860 $87,079 -$28,781 -24.8%
Liberty University $74,403 $56,029 -$18,373 -24.7%
University of Idaho $78,515 $59,140 -$19,375 -24.7%
Villanova University $93,686 $70,818 -$22,867 -24.4%
Wake Forest University $104,101 $79,389 -$24,712 -23.7%
Indiana University--Bloomington (Maurer) $96,491 $73,744 -$22,747 -23.6%
University of Nebraska--Lincoln $59,015 $45,301 -$13,714 -23.2%
Ohio State University (Moritz) $87,593 $67,697 -$19,895 -22.7%
Florida Coastal School of Law $141,667 $111,048 -$30,619 -21.6%
Boston University $88,279 $69,681 -$18,598 -21.1%
University of Nevada--Las Vegas $90,288 $71,342 -$18,946 -21.0%
University of North Dakota $57,763 $45,785 -$11,978 -20.7%
University of Southern California (Gould) $121,836 $97,114 -$24,722 -20.3%
University of Toledo $90,339 $72,023 -$18,316 -20.3%
University of Minnesota--Twin Cities $91,079 $73,256 -$17,824 -19.6%
University of California--Irvine $96,855 $78,284 -$18,571 -19.2%
Syracuse University $116,006 $93,843 -$22,163 -19.1%
Georgia State University $60,752 $49,160 -$11,592 -19.1%
Samford University (Cumberland) $125,495 $101,585 -$23,910 -19.1%
Northwestern University $124,857 $101,200 -$23,658 -18.9%
Case Western Reserve University $90,292 $73,417 -$16,875 -18.7%
Charleston School of Law $134,372 $109,876 -$24,496 -18.2%
University of Detroit Mercy $103,572 $85,370 -$18,202 -17.6%
University of Wisconsin--Madison $67,065 $55,337 -$11,729 -17.5%
Washington and Lee University $102,537 $85,021 -$17,516 -17.1%
Temple University (Beasley) $78,069 $64,988 -$13,082 -16.8%
Brigham Young University (Clark) $48,309 $40,246 -$8,063 -16.7%
American University (Washington) $143,815 $119,881 -$23,933 -16.6%
University of Connecticut $59,395 $49,618 -$9,777 -16.5%
Fordham University $106,142 $88,759 -$17,383 -16.4%
University of Colorado--Boulder $91,541 $76,597 -$14,944 -16.3%
Stetson University $122,032 $102,875 -$19,157 -15.7%
Emory University $104,926 $88,590 -$16,336 -15.6%
University of Miami $120,596 $102,344 -$18,252 -15.1%
Wayne State University $71,209 $60,524 -$10,686 -15.0%
Drexel University (Kline) $95,292 $81,319 -$13,974 -14.7%
Gonzaga University $101,819 $87,166 -$14,654 -14.4%
University of Missouri $74,941 $64,384 -$10,557 -14.1%
University of Florida (Levin) $67,802 $58,732 -$9,071 -13.4%
University of Maine $80,478 $69,864 -$10,614 -13.2%
University of Houston $72,802 $63,210 -$9,592 -13.2%
Oklahoma City University $95,186 $82,802 -$12,384 -13.0%
Yeshiva University (Cardozo) $87,532 $76,248 -$11,284 -12.9%
Creighton University $120,432 $104,923 -$15,509 -12.9%
University of California--Berkeley $119,993 $104,570 -$15,424 -12.9%
New York University $121,522 $106,810 -$14,713 -12.1%
University of California--Los Angeles $99,152 $87,221 -$11,931 -12.0%
University of Richmond $99,634 $87,658 -$11,976 -12.0%
Albany Law School $94,539 $83,760 -$10,779 -11.4%
University of Dayton $104,519 $92,813 -$11,706 -11.2%
Washburn University $70,625 $62,777 -$7,849 -11.1%
University of Pittsburgh $94,198 $83,786 -$10,412 -11.1%
Boston College $84,593 $75,300 -$9,293 -11.0%
Loyola Marymount University $120,118 $106,990 -$13,128 -10.9%
Illinois Institute of Technology (Chicago-Kent) $93,842 $83,658 -$10,184 -10.9%
Western State College of Law at Argosy University $106,909 $95,768 -$11,141 -10.4%
California Western School of Law $145,771 $131,115 -$14,656 -10.1%
New York Law School $142,206 $128,024 -$14,182 -10.0%
Yale University $92,597 $83,410 -$9,186 -9.9%
George Washington University $96,784 $87,667 -$9,117 -9.4%
University of Baltimore $97,943 $88,914 -$9,029 -9.2%
University of California--Davis $80,310 $72,969 -$7,341 -9.1%
DePaul University $115,365 $104,923 -$10,441 -9.1%
University of Mississippi $55,440 $50,512 -$4,928 -8.9%
St. Louis University $106,066 $96,677 -$9,388 -8.9%
CUNY $66,173 $60,402 -$5,770 -8.7%
University of North Carolina--Chapel Hill $77,793 $71,316 -$6,476 -8.3%
Roger Williams University $118,650 $109,387 -$9,263 -7.8%
Brooklyn Law School $85,974 $79,447 -$6,528 -7.6%
Chapman University (Fowler) $117,418 $108,764 -$8,654 -7.4%
Columbia University $109,443 $101,447 -$7,996 -7.3%
Florida International University $88,654 $82,185 -$6,469 -7.3%
University of Virginia $112,565 $104,392 -$8,173 -7.3%
St. John's University $96,421 $89,625 -$6,796 -7.0%
Regent University $113,814 $105,870 -$7,944 -7.0%
Florida State University $73,251 $68,255 -$4,996 -6.8%
Ohio Northern University (Pettit) $99,625 $93,010 -$6,615 -6.6%
Ave Maria School of Law $114,724 $107,426 -$7,298 -6.4%
Arizona State University (O'Connor) $83,282 $78,224 -$5,058 -6.1%
Michigan State University $75,946 $71,335 -$4,610 -6.1%
University of Memphis (Humphreys) $61,945 $58,518 -$3,428 -5.5%
University of the Pacific (McGeorge) $134,118 $126,767 -$7,351 -5.5%
Louisiana State University--Baton Rouge (Hebert) $67,490 $63,872 -$3,619 -5.4%
Tulane University $104,968 $99,548 -$5,420 -5.2%
University of Montana $70,292 $66,762 -$3,530 -5.0%
University of Illinois--Urbana-Champaign $75,125 $71,530 -$3,594 -4.8%
Quinnipiac University $90,272 $86,699 -$3,573 -4.0%
Thomas Jefferson School of Law $171,394 $165,039 -$6,356 -3.7%
University of Missouri--Kansas City $88,788 $85,705 -$3,082 -3.5%
University of Akron $73,126 $70,601 -$2,525 -3.5%
Vanderbilt University $84,664 $81,922 -$2,742 -3.2%
Texas A&M University $96,410 $93,556 -$2,854 -3.0%
Suffolk University $103,229 $100,223 -$3,006 -2.9%
Mississippi College $99,442 $97,285 -$2,157 -2.2%
Seattle University $119,276 $116,749 -$2,527 -2.1%
Pepperdine University $120,639 $118,630 -$2,009 -1.7%
University of Georgia $65,799 $65,178 -$621 -0.9%
Mercer University (George) $115,767 $114,800 -$967 -0.8%
Golden Gate University $142,731 $141,583 -$1,149 -0.8%
Hofstra University (Deane) $110,562 $109,929 -$633 -0.6%
Lewis & Clark College (Northwestern) $108,995 $108,596 -$399 -0.4%
University of Utah (Quinney) $76,501 $76,404 -$97 -0.1%
University of Maryland (Carey) $83,258 $83,439 $182 0.2%
University of San Francisco $134,845 $136,532 $1,687 1.3%
Drake University $97,706 $99,304 $1,598 1.6%
Georgetown University $120,788 $123,165 $2,376 2.0%
Southern Methodist University (Dedman) $83,491 $85,193 $1,702 2.0%
University of Texas--Austin $67,567 $69,040 $1,473 2.2%
University of South Carolina $70,531 $72,251 $1,721 2.4%
University of Alabama $50,428 $51,765 $1,337 2.7%
University of South Dakota $52,915 $54,473 $1,558 2.9%
University of Kansas $65,458 $67,625 $2,167 3.3%
University of Oklahoma $60,954 $63,012 $2,058 3.4%
University of Louisville (Brandeis) $76,274 $79,341 $3,067 4.0%
West Virginia University $61,954 $64,551 $2,597 4.2%
Northern Illinois University $70,109 $73,074 $2,965 4.2%
University of Washington $82,201 $86,673 $4,472 5.4%
University of California (Hastings) $107,817 $113,918 $6,101 5.7%
University of Cincinnati $60,144 $63,782 $3,638 6.0%
Southern University Law Center $79,135 $84,049 $4,914 6.2%
St. Mary's University $102,398 $108,783 $6,385 6.2%
Valparaiso University $120,524 $129,422 $8,898 7.4%
Duquesne University $85,985 $92,676 $6,692 7.8%
University of Arkansas--Fayetteville $50,464 $54,728 $4,264 8.4%
Whittier College $146,796 $159,920 $13,124 8.9%
Willamette University (Collins) $113,222 $123,472 $10,250 9.1%
Texas Tech University $61,998 $67,766 $5,768 9.3%
Indiana University--Indianapolis (McKinney) $87,785 $96,023 $8,238 9.4%
Stanford University $93,803 $103,031 $9,228 9.8%
University of Michigan--Ann Arbor $95,992 $106,163 $10,171 10.6%
University of Pennsylvania $100,435 $111,165 $10,730 10.7%
Nova Southeastern University (Broad) $115,989 $128,617 $12,628 10.9%
Marquette University $110,158 $122,443 $12,285 11.2%
University of Denver (Sturm) $109,551 $121,955 $12,403 11.3%
University of Notre Dame $82,649 $93,122 $10,473 12.7%
University of Wyoming $63,254 $72,723 $9,470 15.0%
University of Tennessee--Knoxville $55,743 $64,661 $8,918 16.0%
Harvard University $100,937 $117,568 $16,632 16.5%
Pace University $84,579 $100,326 $15,747 18.6%
University of Arkansas--Little Rock (Bowen) $42,867 $52,131 $9,265 21.6%
SUNY Buffalo Law School $60,841 $74,481 $13,640 22.4%
University of Tulsa $72,600 $89,046 $16,447 22.7%
University of New Mexico $53,638 $66,617 $12,979 24.2%
Southern Illinois University--Carbondale $57,523 $73,403 $15,879 27.6%
Duke University $77,184 $98,715 $21,531 27.9%
Elon University $99,653 $134,811 $35,157 35.3%
Baylor University $77,304 $106,693 $29,389 38.0%
The John Marshall Law School $91,830 $132,586 $40,755 44.4%
University of the District of Columbia (Clarke) $33,454 $90,116 $56,662 169.4%
Barry University $43,354 $141,667 $98,312 226.8%

Would doubling the size of the House affected the Electoral College outcome in 2016?

A common mantra after the presidential election sounded something like this: "California is so much larger than Wyoming, but a vote cast in California has only a third of the value of a vote cast in Wyoming in the presidential election." Or something like that. This, in turn, is often a proxy for criticizing the Electoral College.

The Electoral College allocates electors based on the total number of members of the House and Senate each State has--and, as each State is guaranteed at least one House representative, no matter how small, and exactly two Senators, no matter the size, each state will receive at least three electoral votes. With a House of 435 members, a Senate of 100 members, and 3 votes for the District of Columbia, we get 538 electoral votes, 270 needed to win.

In the 2016 presidential election, that looked something like this: Californians cast over 14 million votes for president. Given California's 55 electoral votes, that works out to about257,847 votes cast per electoral vote. In Wyoming, there were 255,849 total votes cast for president. That works out to about 85,283 votes cast per electoral vote. And that's just about a 3:1 ratio. (Granted, the House is apportioned based on total population, not ballots cast, but let's stick with this metric for now. And, of course, this is a rather crude approximation of how to "weigh" votes, considering that these are winner-take-all states rather than votes-per-elector, but it has an understandable simplicity and rhetorical appeal.)

(Here, too, it may be worth noting that this fairly grossly overstates a single voter's power. Put in reverse, a California voter is providing 0.0000039 of the total value of a single electoral vote; a Wyoming voter is providing 0.0000117.)

In some ways, the real problem people have with this disparity is the United States Senate itself. But much of the reason that this disparity exists is because the size of the House of Representatives has not increased since 1929. The Reapportionment Act of 1929 capped the size of the House at 435 members--and, as a result, capped the size of the Electoral College. It meant that disparities in the Electoral College would increase as populations shifted.

Roughly doubling the size of the House to 871 members would give better representation based on total population. And it would do so without any need for a constitutional amendment--a simple statute from Congress could help equalize this spread. But would it have changed anything in the 2016 presidential outcome? Not really-it would smooth out some of the disparities but have no meaningful effect on the outcome (except to actually widen the margin of Donald Trump's victory).

Using the Equal Proportions Method, we can fairly quickly calculate how these 871 seats would be allocated based on the 2010 census. The smallest state in this scenario receives two House members. We'd then add in 100 electors for the Senate, another 4 electors for the District of Columbia, and come to a nice round 975 electoral votes: 488 votes to win. And like the five fictional Electoral College outcomes I provided recently, we can recalculate the 2016 election after our newly-constructed House.

By giving California a whopping 104 members in the House--and 106 electoral votes--we'd see the 2016 totals drop to 133,788 votes cast per electoral vote. In Wyoming, which would get a second member in the House and 4 electoral votes, it would have 63,962 votes cast per electoral vote. The California:Wyoming ratio would drop from 3:1 to 2:1. That would certainly improve the disparity, but hardly cure it.

And despite improving the disparity, we see little change in the overall outcome. (I assumed a winner-take-all in each state, despite Maine's and Nebraska's systems.) It yielded 547 electoral votes for Mr. Trump to 428 for Hillary Clinton--a comfortable margin of victory, and by raw pledged electors much larger than his actual 2016 victory. So while it might help reduce some of the rhetoric regarding disparities in vote power across states--and improve some of the actual voting power--it wouldn't offer any dramatic change to our system.

I have the complete breakdown of electoral votes below. If you'd like to reverse-engineer the House figures, simply subtract two from each state.

Size of House of Representatives Doubled, Winner-Take-All
  Clinton Trump
Alabama   16
Alaska 4
Arizona   18
Arkansas 10
California 106  
Colorado 15  
Connecticut 13  
Delaware 4  
District of Columbia 4  
Florida 51
Georgia   27
Hawaii 6  
Idaho   6
Illinois 40  
Indiana   21
Iowa 11
Kansas   10
Kentucky 14
Louisiana   16
Maine 6  
Maryland 18  
Massachusetts 22  
Michigan   33
Minnesota 17  
Mississippi   11
Missouri 19
Montana   5
Nebraska 7
Nevada 8  
New Hampshire 6  
New Jersey 28  
New Mexico 8  
New York 61  
North Carolina 30
North Dakota   4
Ohio 37
Oklahoma   13
Oregon 13  
Pennsylvania   40
Rhode Island 5  
South Carolina   14
South Dakota 4
Tennessee   20
Texas 66
Utah   9
Vermont 4  
Virginia 24  
Washington 20  
West Virginia   8
Wisconsin 19
Wyoming   4
Totals 428 547

The coming battle over election system security in the United States

What's the best way to protect election systems in the United States? Is it a good thing that we have a decentralized federalist system, where the states vary, and even the counties within states vary, to some degree, preventing easy singular takeover or attack of our election systems? Or should we strive for greater oversight and best practices through more uniform standards that can be implemented across the country at the federal level?

The battle is fascinating because it eschews typical partisan lines and instead reflects deep concerns from two different groups--state secretaries of state who run elections, worried about needless cost, unnecessary regulations, and changing standards outside of their control; and federal security officials, who view different, sometimes international, threats as an essential reason for greater federal control of our elections infrastructure.

On January 6, 2017, a lame-duck Secretary of the Department of Homeland Security, Jeh Johnson, declared that election systems in the United States would be "critical infrastructure." DHS emphasized that this is not a "federal takeover, regulation, oversight or intrusion" for elections. Instead, it is designed to provide state and local officials with better assistance from DHS.

The next day, a member of the Election Assistance Commission, Christy McCormick, quickly fired back with a sharp critique of the designation, identifying problems with the scope of the designation. Compliance is purportedly "voluntary," but it appears that DHS may withhold certain information that would otherwise be available if states fail to comply. The scope of the order is unknown--indeed, it appeared to Ms. McCormick that the new things provided from the order were already available to state and local officials who requested it of DHS. And she suggested that political partisanship was involved.

This might have all the trappings of a Democrats-want-more-federal-oversight-Republicans-don't type of battle.

But soon, state secretaries of state, regardless of their partisan affiliation, began to express concern. Consider Alex Padilla of California: it "raises important questions.," and the limits are "unclear," particularly given a new incoming administration.

Soon, the National Association of Secretaries of State ("NASS") would adopt a resolution formally opposing the designation, noting problems arising from the designation, such as oversight of items that are not subject to cybersecurity threats; political opposition to the designation in Congress; and unanswered questions.

When NASS pressed DHS regarding the designation, the new administration expressed that it would continue to support the designation. Members of the Georgia legislature have already introduced a resolution calling for redesignation.

It remains to be seen what this designation actually does. As the DHS letter notes, much information was shared between DHS and the states. The designation allows from more "detail" and "tailoring," DHS explains--what value that is, I think, remains to be seen.

But NASS is concerned, understandably, that these "voluntary" commitments may no longer look so voluntary. And is that a good thing? It's easy to consider the benefits to greater federal oversight, and its significant costs. And we're observing the key stakeholders on each side of this debate preparing for a longer battle over the future of election system security.

So, in a only-somewhat-false dichotomy, what's better? A future of state-controlled, decentralized systems difficult for any single cyber threat, but potentially at greater risk in individual jurisdictions that fail to maintain sufficient standards? Or a future of federal oversight of election systems designed to provide the best practices and standards with superior procedures and oversight, but with likely higher costs, uniform standards offering less local control and flexibility, potentially increased politicization of federal standards, and greater nationwide vulnerability? I certainly can't answer it (although I think Zip disks aren't a part of future election systems security), and it'll take time to see how this relationship between DHS and NASS plays out. Let's hope the battle between them yields the best possible result for keeping our election systems safe.

Do law professors generally think most other law schools are pretty awful?

The U.S. News & World Report ("USNWR") law school rankings include a number of illuminating bits of information and some weaknesses, as I displayed yesterday. But a cursory look at Paul Caron's display of the peer reputation scores displays, perhaps, a startling truth: law professors generally think most other law schools are pretty awful. (I qualify that with "other" because I think most law professors generally think their own schools are probably pretty good.)

Law professors at each school--about 800 in total--are given the peer reputation survey. This is a paper ballot mailed to a number of faculty. Those surveyed include the dean, the academic dean, the faculty appointments chair, and the most recently tenured faculty member. The response rate tends to be fairly high, and understandably so--this survey accounts for 25% of the total USNWR ranking.

The survey asks faculty to rate schools on a scale of 5 (outstanding) to 1 (marginal). At times, other clarifications for these numbers are offered, a 3 being "good," or a 2 being "adequate." (And "adequate" is widely regarded as a fairly poor and back-handed remark.)

One might expect to see a fairly ordinary distribution between 5 and 1, perhaps a bell curve with a bulk of schools in the range of 3 in the middle. But it turns out law professors think little of other schools.

Just 47 schools exceed the middling score of 3.0. Nearly 80 schools score a 2.0 or below. The median score is a dismal 2.3. And over the years, law professors' peer scores have slightly declined on the whole--meaning they think schools are getting worse.

The visualization of the distribution rather vividly displays this point.

Now, perhaps my asking-a-question-as-a-headline is all clickbait [ed.: on my ad-free blog!], and I'm burying the lede--that is, the alternative factors contributing to these results. (But, it remains quite possible that law professors actually do believe that most schools are quite poor.)

First, the USNWR survey itself may be flawed. It may be gamed (see below), but also because the survey asks fairly generic overall question about the school's quality and offers fairly generic categories for ranking. It's hard to know whether professors are judging schools based on scholarly output, graduate outcomes, or, perhaps, simply echoing last year's USNWR rankings.

Second, law professors may be gaming the rankings. They very well know that giving a 5 to a school increases that school's score--and increases that school's chance that it surpass one's home institution in the rankings. That creates a pressure for ratings deflation. Further, a large number of 4s can be offset by a much smaller number of 1s.

Third, law professors may be expressing their ignorance of schools. If they're not aware of a school's quality, or if they are only marginally aware, they may simply default to a "1" and drive down a school's ranking. Even though the survey expressly permits professors to refuse to rank a school if they lack sufficient information, the temptation to rate a school (particularly for gaming purposes) may simply be too great.

Furthermore, these concerns may be overblown anyway! Even if the peer ratings are artificially low, they still highly correlate with ranked choice preferences of law school surveys conducted by Brian Leiter.

It's probably best, then, to conclude that the peer reputation scores are to be taken, to borrow a phrase, seriously but not literally. They're best understood as relative preferences of schools, not absolute ratings of school quality.

Taken that way, it demonstrates that the opinion of most law professors is that most law schools are clumped together. 27 schools have a score between 3.1 and 3.5, followed by an obvious gap of just 5 schools with a score between 2.8 and 3.0. 59 schools have a peer reputation score between 2.2 and 2.7; in an overlapping set, 63 schools have a peer reputation score between 1.9 and 2.4.

Perhaps there's a better way for USNWR to conduct the survey, or to report the results, to alleviate some of the problems. (Not that it would change its methodology if such an alternative were available--e.g., a digital ballot with ranked-choice voting.) But without that, it's worth thinking about how to best construe these survey results. And it's probably best not to think of the survey in absolute terms, but in relative terms--a few elite schools, a handful of good schools, and significant clumps of other schools.

Visualizing the 2018 U.S. News law school rankings--the way they should be presented

The U.S. News & World Report ("USNWR") rankings have been released. Like most, I've long been a critic of much that USNWR does, from how it distorts law school admissions practices, to its deeply delayed reporting of relevant data. I've also critiqued how USNWR chooses to display information in its rankings, often displaying information it doesn't use in its ranking or failing to display (or even share) relevant data.

The ordinal ranking at the heart of the USNWR rankings is perhaps its greatest deceptions. It crunches its formula and spits out a score. That score is normalized to give the top-scoring school (Yale) a score of 100, and it scales the rest of the scores off that.

But the magazine then chooses to display rank order of each school--even if there are significant gaps between the scores. To highlight one such example this year, Berkeley has a score of 82, Cornell has a score of 81, and Texas has a score of 75--suggesting that Berkeley and Cornell are quite close, and Texas is somewhat farther behind those two (even if in overall elite company!). But the magazine displays this as Berkeley 12, Cornell 13, Texas 14--distorting the narrow gap between Berkeley and Cornell, and the much wider gap between Cornell and Texas. And even though the magazine displays the overall score, the ordinal ranking drowns out these scores. Indeed, as the rankings are ordinal, there is no space from one school to the next, suggesting that they are placed along an equal line.

This plays out elsewhere in the rankings, as law students agonize over small differences in ordinal ranking that belie fairly distinct clumpings of schools that suggest little difference--indeed, in many cases, differences likely only the result of rounding the raw score up or down to the next whole number.

Assuming one takes the USNWR formula seriously--which it doesn't even appear USNWR does, given its choice to rank--a better way would be to visualize the relative performance of each school based on the score, not assigning each school an ordinal rank. That provides better context about the relative position of schools to one another. And that can help illustrate sharp differences in the overall score, or groupings that illustrate a high degree of similarity between a number of schools.

Below is my attempt to visualize the rankings in that fashion. (Please note that this may look best on a desktop browser due to the size of the chart.)

Score USNWR 2018 Rankings, Visualized by Overall Score
100 Yale
98 Stanford
96 Harvard
94 Chicago
93 Columbia
90 NYU
88 Penn
85 Michigan | Virginia
84 Duke | Northwestern
82 Berkeley
81 Cornell
75 Texas
74 Georgetown | UCLA
73 Vanderbilt
72 Washington University
70 USC
67 Iowa | Notre Dame
66 Emory
65 Boston University | Minnesota
64 Arizona State
63 Alabama | Boston College
62 Irvine | Washington & Lee
61 George Washington | Georgia | Indiana-Bloomington | Ohio State | Washington | Wisconsin
60 Colorado | Fordham | Wake Forest
58 Davis | North Carolina
57 Florida | George Mason | William & Mary
56 Illinois | Utah
55 BYU | Southern Methodist
54 Arizona | Florida State | Maryland
53 Baylor | Tulane
52 Temple
50 Connecticut | Hastings | Houston
49 Kentucky | Nebraska | Richmond | Seton Hall | Tennessee
48 Case Western | Rutgers | UNLV
47 Cardozo | Georgia State | Kansas | Loyola LA | Missouri | Northeastern | Penn State Dickinson
46 Cincinnati | Oklahoma | Pepperdine | St. John's
45 Denver
44 Arkansas | Miami | New Mexico | San Diego | Villanova
43 Loyola Chicago | Penn State University Park | Pittsburgh | Tulsa
42 American | Oregon
41 Brooklyn | Indiana-Indianapolis | South Carolina | St. Louis
40 Chicago-Kent | Louisville | Syracuse | Texas A&M
39 Louisiana State | Michigan State | Stetson | West Virginia
38 Florida International | Hawaii | Lewis & Clark | Marquette | New Hampshire | Wayne State
37 Catholic | Drake | SUNY-Buffalo
36 Albany | Idaho | Mississippi
35 Baltimore | Drexel | Gonzaga | New York Law School | UMKC | Wyoming
34 Hofstra | Texas Tech
33 Creighton | DePaul | Howard | Montana | Pace | Seattle | St. Thomas (Minnesota)
32 Cleveland State | CUNY | Duquesne | Quinnipiac | Washburn
31 Santa Clara | Toledo
29 Akron | Arkansas-Little Rock | Chapman | Mercer | Vermont
28 Maine
27 Memphis | Suffolk
26 Loyola New Orleans | McGeorge | North Dakota | South Dakota | Willamette
25 Samford
24 Northern Illinois | Widener

Should legal education adjust its commitments during the Trump administration?

My glib reaction after reading this tweet from Northwestern Dean Dan Rodriguez, quoting Harvard Dean Martha Minnow, was, "I confess that I find reconsideration of a law school's commitments because of a presidential election to be a bit shortsighted." I thought I'd expand on my concerns about law schools adjusting their commitments based on the outcome of a presidential election.

It’s worthwhile to determine, ex ante, what law school commitments ought to look like. There are any number of responses to this. Law schools ought to be training lawyers how to engage in the critical thinking, problem solving, and writing necessary for success in the legal profession. Law schools ought to be transmitting some basic knowledge of the law to students, helping them understand why the law is what is and how it got there. Law schools ought to be equipping students for post-graduate activities, including meaningful career opportunities and professional development. Law schools ought to be engaging in academic scholarship to further knowledge and understanding about the law. (A good vision for a law school would then provide some fairly specific details on these or other commitments.)

There are things that law schools ought to also be doing to maximize some of these commitments (and perhaps they’re simply good things for law schools to be doing, anyway). For instance, keeping tuition affordable and debt loads low can increase opportunities for students to pursue meaningful career opportunities. So, too, can providing assistance for at-risk students who might not graduate or be able to pass the bar exam. Different modes of education, from externships to mid-semester assessment opportunities, might increase opportunities to understand the law more deeply.

Here we open with a couple of fairly basic items. First, law schools should identify what the commitments are; second, law schools should identify what means law schools can implement to best achieve the goals articulated in those commitments. Hardly remarkable stuff.

Understandably, the legal profession changes, and culture changes. As these changes arise, so, too, should those commitments be reexamined and, if appropriate, altered.

But there are other places where changes to the legal profession or the culture might not particularly call upon law schools to do terribly much to these ex ante commitments. The most common place to respond to those changes is not in the commitments of the law schools themselves, but within the academic events that are occurring within the classroom. It might be the case that, in the exercise of legitimate academic freedom, law professors may choose to emphasize certain elements of courses or add new courses on content they believe to be particularly relevant. Or it might be the case that law professors choose to emphasize particular areas of scholarly activity in response to current events. This happens all the time.

Sometimes it is direct response to current events, such as courses on executive war power or habeas corpus that bloomed between 2002 and 2008. At other times it is in response to a changing legal profession, such as courses concerning ethical lawyering and social media, e-discovery, or the law of autonomous vehicles. Some arise from perceived or actual needs for students, such as increased offerings or requirements of statutory interpretation or administrative law. And, I imagine, law professors’ course content coverage ebbs and flows with trends in case law, such as some recent bursts (and perhaps fizzles) in constitutional law on the Commerce Clause, the Takings Clause, the Second Amendment, and impeachment.

And, of course, there will likely be more “politicized” reactions by some law professors in some courses. Some of these reactions might be the typical kinds of reactions that would occur had any Republican won the presidency, and others might be the kinds of reactions particular to the election of Donald Trump. The reactions might be based in rather concrete promises he made, such as border security; others might respond to specific acts, such as an executive order; while still others might verge on the more abstract, even hyperbolic, projections of his presidency. (I confess I am not a great fan of this last strain of changes, regardless of the political environment, because it strikes me as somewhat near-sighted and reactionary.)

But what might it look like for a law school to reexamine its commitments in light of a presidential election? This is a much weightier prospect than the prospect of a few professors tweaking a few elements of their courses or their research in light of changed circumstances. Instead, it suggests that something fundamental has occurred in the world that compels law schools to change what they are doing.

Such events have occurred. Consider the fallout from Watergate, as law schools (or, perhaps, the accrediting arm of the American Bar Association) concluded that schools were insufficiently equipping students to handle the ethical dilemmas facing attorneys. Law schools introduced new commitments to that end throughout the law school curriculum. That was a response not to Watergate generally, but to the fact that lawyers in particular were involved in Watergate. The nexus between the practice of law and the training of future law students was fairly evident. While law schools and the legal profession had some understanding of ethics prior to Watergate, they sharpened their ethics codes and increased teaching surrounding those codes.

But the election of a new president is a political issue. It may result in particular legal issues that arise from a new administration. Even then, however, [ed.: in prophetic words sure to go wrong] it is unlikely that the legal issues will drive the legal profession to a crisis along the lines of Watergate. So any response from a law school is not to the specific needs of the legal profession, or even to legal issues generally, but truly to a political issue. And that is true even if one characterized the election of Mr. Trump has some extraordinary political event and not “politics as usual.”

Still, one might push back against my conclusion and say that changes to the political environment do require some law schools to take certain steps in response, and law schools might look at the election of Mr. Trump and choose to change. I worry, however, that such efforts, even if styled in neutral terms, fairly quickly illustrate that these newly-valued short-term goals do not address the major ex ante commitments that have been identified by schools in a more thorough and comprehensive consideration of commitments; and that such efforts may also provide rather clumsy efforts toward such short-term ends.

If a law school, for instance, articulates its need to shift commitments to teaching about the “rule of law,” however capacious that phrase might be understood today, does that mean law schools were not committed to teaching students about the “rule of law” before? That they were insufficiently committed? That there was little need for a serious commitment to teaching about the “rule of law” under the presidency of Barack Obama or George W. Bush?

Or consider changes to curriculum--if there are ideological commitments made in a new curriculum in reaction to decisions in the Trump Administration, would this diminish the ideological diversity that should be pursued in legal education? Might it drive the remainder of the legal education curriculum toward a singular ideological commitment historically typified in clinical education?

Now, it might be the case that such expressions of new commitments would attract 20-year-old humanities majors in college who are considering whether or not to take the Law School Admissions Test. But that, I think, is a fairly thin reason for pursuing such a recentering of a law school's commitments.

But, still, it may be that some would press back on the notion of law school as a fairly non-ideological endeavor. If law schools are merely tools of social change, an instrument of administrators, this analysis would surely look quite different. There may be a notion that law schools are a kind of catapult. Their students are some sort of ammunition, and law schools are pointing these students at targets in society and hurtling them at great speed toward them in an effect to smash those walls of, err, injustice (to belabor the metaphor).

This yields a great question about the purpose of legal education, which is a return to the questions outlined at the beginning of these thoughts. Are law schools about those things I listed at the outset of this essay, with fairly generic and neutral commitments that are often concerned with student outcomes and the increase of legal knowledge? Are they fundamentally about equipping students to do whatever such students want to do upon graduation, and about a broad commitment to the pursuit of knowledge in academic scholarship? Or are they instruments of social change in a particular fashion?

Granted, some students might choose to attend a particular law school because it is a kind of a catapult—the law school has had tremendous success in placing its graduates in Vault 100 law firms or the ACLU or judicial clerkships or investment banking or the Department of Justice. But a decision to reorient a law school's commitments toward a particular ideological commitment are, I think, something else--and something quite significant.

In the end, I expect that at least some law schools will change their commitments in light of the Trump administration. I also expect most of them will be fairly short-sighted and rather narrow in their responses. But I offer these thoughts as a more comprehensive way of thinking through law school commitments more generally. I think law schools too rarely consider the vision of their institutions and develop a purposeful plan toward achieving that vision. The fact that some schools are openly considering what their commitments ought to be is something of value--and it may result in serious reflection of commitments, and changes to commitments, unrelated to the present administration that may have prompted such reflection. What these discussions yield, of course, remains to be seen.