Annual Statement, 2016

Site disclosures

Total operating cost: $192

Total content acquisition costs: $0

Total site visits: 121,781* (+11% over 2015)

Total unique visitors: 107,194 (+16% over 2015)

Total pageviews: 142,077 (+4% over 2015)

Top referrers:
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Most popular content (by pageviews):
Hillary Clinton's popular vote margin is meaningless in every way (except pithy tweets) (Nov. 10, 2016) (46,429)
Ranking the most liberal and conservative law firms (July 16, 2013) (11,676)
The best prospective law students read Homer (Apr. 7, 2014) (5236)
Here we go again: February 2015 bar pass rates down over last year (Apr. 10, 2015) (5001)
July 2015 bar exam results again show declining pass rates almost everywhere: outliers, or a sign of more carnage? (Sept. 11, 2015) (4822)
February 2016 MBE bar exam scores drop to lowest point since 1983 (Apr. 1, 2016) (3924)
Status of pending "natural born citizen" challenges and litigation in 2016 presidential election (Feb. 9, 2016) (3880)
No, the MBE was not "harder" than usual (Sept. 28, 2015) (3348)

Most popular search results (when disclosed by search engine; 98% of search results not disclosed by search engine):

 

excess of democracy (43)
2015 bar passage rates (23)
excess of democracy blog (15)
conservative law firms (14)
lionel hutz (12)

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Privacy disclosures

External trackers: one (Google Analytics)

Individuals with internal access to site at any time in 2016: one (Derek Muller)

*Over the course of a year, various spam bots from sites like Semalt, Adfly, Snip.to, and others may begin to visit the site at a high rate. As they did so, I added them to a referral exclusion list, but their initial visits are not disaggregated from the overall totals. These sites are also excluded from the top referrers list. Additionally, all visits from my own computers are excluded.

My favorite Excess of Democracy posts from 2016

What I enjoy writing here at Excess of Democracy does not always correlate with what others enjoy reading. I'll soon post my year-end report with the most popular posts, but I thought I'd offer a few of my favorite posts from Excess of Democracy in 2016, as I did in 2015. (For my academic work, my SSRN page is a good place to start--articles were published in the Florida State University Law Review, the Arizona Law Review, the Fordham Law Review, the Harvard Journal of Law & Public Policy, the Ohio State Law Journal Furthermore, and the George Washington Law Review On the Docket. Any my favorite content published elsewhere--Wall Street Journal opinion pieces on the third-party ballot and campaign finance outcomes, and faithless electors; a Washington Post piece on the Electoral College; a St. Louis Post-Dispatch piece on Judge Raymond W. Gruender, for whom I clerked; and a piece at the Online Library of Law and Liberty about campaign finance law--are also not listed below. A more complete list can be found on my CV.)

Status of "natural born citizen" challenges and litigation in 2016 presidential election (Feb. 9, 2016)

Legal employment outcomes in California, DC-Maryland-Virginia, New York, Ohio, Texas, and Florida in 2015 (Apr. 2016)

Visualizing federal judicial clerkship placement, 2013-2015 (May 2, 2016)

Jefferson v. Hamilton and House of Representatives v. Burwell (May 12, 2016)

The twenty-two (or twenty-three) law reviews you should follow on Twitter (July 5, 2016)

Why is the ABA still accrediting law schools? (Oct. 28, 2016)

The collapse of bar pass rates in California (Dec. 14, 2016)

Electoral College posts (miscellaneous topic)

Fictional Attorney of the Month: Frank Galvin

Frank Galvin is a miserable and unhappy attorney in The Verdict. Played by Paul Newman, his personal life and his professional life have fallen apart. But in a beautiful film directed by Sidney Lumet and written by David Mamet, Galvin finds redemption in, of all things, a medical malpractice case.

Galvin is tempted to take a large settlement but rejects it in pursuit of the chance to do something right. The case goes to trial, where the evidence is on Galvin's side, but, as with all trials, things never go smoothly in the courtroom.

Galvin's restoration through the film, culminating before the jury during closing argument, are good enough to make him the Fictional Attorney of the Month.

2016 Fictional Attorneys of the Month

January: Mitch Grinder

February: Troy

March: Herr Huld

April: J.J. Ford

May: Paul Biegler

June: The Blue-Haired Lawyer

July: Mr. Briggs

August: Sally Carrera

September: Abraham Haphazard

October: Jackie Chiles

November: Fred Gailey

2015 Fictional Attorneys of the Month

2014 Fictional Attorneys of the Month

2013 Fictional Attorneys of the Month

After blogging about more than forty fictional attorneys on a monthly basis, I've decided to put FAotM on hiatus indefinitely. It was a delightful effort for many years. But there's a grind to a monthly format, and I've been a bit picky in my selection of lawyers, which dramatically reduces the pool of opportunities to blog and makes next year's efforts fairly daunting. There are, of course, many, many more fictional attorneys out there, and perhaps I'll launch back into the project sometime in the future. But for now, a chapter is closing.

In today's WSJ: "Faithless Electors: Now It’s Up to Congress"

In today's Wall Street Journal, I have an opinion piece entitled, "Faithless Electors: Now It's Up to Congress." It begins:

The 538 members of the Electoral College convened Monday and cast a majority of their votes for Donald Trump for president and Mike Pence for vice president. When Congress convenes on Jan. 6 to count the votes, it will mostly be a formality. But its decision to count or exclude the votes of some “faithless electors” will set a precedent for future elections.

And it concludes:

These are challenging questions that cannot be answered by a judge or a court. Only Congress decides what to count. And while it won’t change the outcome of this election, its decisions will affect how states handle faithless electors in the 2020 election and beyond.

California's move to a two-day bar exam might affect some schools more than others

I was among the first to discuss California's planned move from a three-day bar exam to a two-day bar exam. The first two-day exam will occur in the July 2017 administration.

The old three-day model weighted the Multistate Bar Exam component (the 6-hour multiple choice test) at about 1/3 of the overall score, and the other two days of essays as about 2/3 of the overall score. When the bar studied the issues, it found little difference in assessing aptitute or in scoring between a 1/3-2/3 model and a two-day bar where both sections would be weighted roughly equally (as most states do).

That's true at the macro level. For individual test-takers, of course, that can vary wildly. And even at the school level, we may see somewhat noticeable differences between the MBE scores and the essay scores.

Thanks to a pretty sizeable disclosure from the California bar, we can assess how individual schools fared on the bar, and what their scores would look like if scored under the July 2017 1/2-1/2 model.

This, of course, has many limitations, which I'll start listing here. First, these are the mean scores; they correlate highly with pass rates, but not perfectly. Note that Stanford's mean score blows all other schools out of the water, but its first-time pass rate is only a few percentage points better than others. That means movement up or down in the mean scores would likely improve or worsen the pass rate, but in measures not immediately ascertainable. Second, just because the bar was scored this way in July 2016 does not mean we would expect graduates of these schools to perform similarly in 2017. Indeed, evidence like this would probably drive a change in bar study habits! Graduates would be inclined to focus more attention on the MBE and less attention on the essays, which would change the scores in unknown ways.

The chart at the right shows in red circles what schools' mean scores were this July under the 1/3-2/3 scoring model. The blue circles are what the scores would have been under the 1/2-1/2 model. (Recall that a passing score in California is a 1440.) As you can see, there is almost no difference for most schools. I flagged four schools that might see the biggest changes--San Diego's for the better; and Irvine, San Francisco, and Thomas Jefferson for the worse.

And recall the caveats above--this does not mean it will translate into demonstrable differences in the pass rate, and pass performance is not an indicator of future success. This is particularly school for the three schools I identified that might expect lower means--Irvine is well above the passing score, and San Francisco and Thomas Jefferson are well below it, meaning marginal differences in the mean score would probably affect very few. (For schools closer to the 1440 score, we might expect slightly larger differences, again with the significant caveats listed above about the limited value of using the means.) But it should certainly shift attention in graduate preparation next summer--and whether that changes scores remains to be seen.

As 1L class sizes stabilize, one in nine law school enrollees are not a part of a JD program

The ABA Standard 509 data has been released for 2016. It includes data about the size of incoming law school classes.

Incoming 1L class sizes have stabilized over the last few years, hovering just over 37,000 new 1Ls.

As a result, the overall enrollment in in JD programs is starting to stabilize--not entirely, as the larger incoming classes work their way through the system and are replaced with smaller incoming classes. But total JD enrollment is now at a 42-year low, at 110,951. In 1974-1975, it was at 105,708.

In contrast, non-JD legal enrollment continues to grow steadily. It's up to 13,677 total enrolled in non-JD programs, up about 600 from 13,086 last year.

As a percentage of total enrollment, however, it continues to climb. Non-JD enrollment is no 11% of a law school's total enrollment, or just about 1 in 9 students enrolled in a law school is a part of a non-JD program. (It was about 1 in 10 last year.)

Note: non-JD enrollment was not disclosed for 2014-2015. Some charts begin at a non-zero Y-axis to display relative changes over time.

The collapse of bar passage rates in California

My colleague Paul Caron has helpfully displayed the data of the performance of California law schools in the July 2016 California bar exam. It's worth noting that the results aren't simply bad for many law schools; they represent a complete collapse of scores in the last three years.

The chart here shows the performance of first-time California bar test-takers who graduated from California's 22 ABA-accredited law schools in the July 2013, 2014, 2015, and 2016 administrations of the exam. The blue line in the middle is the statewide average among California's ABA-accredited law schools. (The overall passage rate among all ABA-accredited law schools is usually a point or two lower than this average.)

The top performers are mostly unchanged from their position a few years ago. The middle performers decline at roughly the rate of the statewide average. But the bottom performers show dramatic declines: from 65% to 22%, and from 75% to 36%, to identify two of the most dramatic declines.

It's true that changes to the applicant pool have dramatically impacted law schools, as I identified three years ago and as continues to hold true. There have been fewer applicants for law schools; those applicants are often less qualified applicants--those with lower LSAT scores and UGPAs than previous classes; and schools are not shrinking their class sizes quickly enough to respond to the decline in quality. For some of the more at-risk schools, they face significant attrition each year as their very best students are transferring to higher-ranked institutions, further diluting the quality of the graduating classes. (I've also occasionally read critiques that law schools are not "doing enough to prepare" students to take the bar exam, but I highly doubt law schools have dramatically changed their pedagogy over the last few years to cause such a decline.)

And the decline in bar pass rates in 2014 was the first in a longer stage of declining scores, as I explained back then. And it's not even clear that pass rates have reached bottom.

I noted earlier this year that the new mandate from the ABA that 75% of graduates of law schools must pass the bar exam within two years of graduation will uniquely impact California--despite bar test-takers being far more able in California, they fail at much higher rates. Whether bar pass rates will improve for some of these schools in the future, or whether the state bar intervenes to ease its scorning practices, remains a matter to be seen.

Note: I did not start my Y-axis at 0% to avoid unnecessary white space at the bottom of the graph, and it is designed to show relative performance rather than absolute performance.

The Electoral College won't stop Trump--but it may change how political parties pick electors in 2020

The presidential election is quickly approaching--on December 19, in state capitals around the country, presidential electors will assemble and vote overwhelmingly for Donald Trump and for Hillary Clinton. It is almost guaranteed that Mr. Trump will secure at least 270 electoral votes, the minimum necessary, and probably something close to the 306 electoral votes he is presumed to receive. And while there have been discussions among "Hamilton Electors" to vote for someone else, the Constitution is designed to thwart such conspiracies across states, and Mr. Trump's presumptive lead is all but insurmountable. (Please note that while the Electoral College can elect someone other than Mr. Trump, or can elect no one at all, I am simply describing, as the links above suggest, why it is, among other things, a lead that is "all but insurmountable.")

Last week, five presidential electors in three states have filed lawsuits in federal courts seeking to strike down laws that purport to bind electors to vote for the candidates they are pledged to support. They seek to ensure that they have the right to vote for whomever they wish, regardless of the candidate they are supposed to support, and to have a court conclude that such laws instituting criminal or civil penalties are unconstitutional. (For the record, I agree that such laws are unconstitutional.) The litigation seeks to limit the scope of Ray v. Blair, the 1952 Supreme Court decision that affirmed the ability of states to impose (non-binding) pledges on presidential electors. (The enforceability of such pledges was left for another day.)

But litigation occurs in a particular context, and there are significant procedural problems to these claims. Those problems may prevent courts from reaching the merits of such claims. These claims all seriously struggle from the likely defense of laches, as the electors have brought claims just days before the Electoral College is scheduled to meet--when they have been nominees for many months, and when they knew they would be called to serve as of November 9. It is not immediately obvious that the state laws in California and Colorado empower state election officials to remove "faithless" electors from their offices, which suggests that abstention might apply, or simply the application of a canon of statutory interpretation that invokes the constitutional avoidance doctrine. The pleadings of some do not make it obvious that the electors intend to violate their pledge, only that they want to liberty to do so, which may (perhaps) lead to ripeness issues or even the failure to state a claim.

But even setting these procedural issues aside, the curious nature of these claims is where they have been filed. They are purporting to be an "anti-Trump" movement. But, these are Clinton electors in states carried by Mrs. Clinton! That is, their movement would undermine the Democratic candidate's ability to succeed in the Electoral College! And even total victory in these states would yield a grand total of zero Trump electors voting for someone other than Mr. Trump!

Now, I suppose there are two long-game purposes in this effort. The first is for these electors to force a kind of "national conversation" about the independent judgment of electors and to (quite publicly) encourage Trump electors to join them and vote for someone other than Mr. Trump. (Of course, they were already voting for someone other than Mr. Trump.) While freeing Clinton electors from their pledge has zero impact on the bottom line--if every Clinton elector voted for, say, John Kasich, then Trump still wins with 306 electoral votes--it could spark discussion with other electors.

The second is that a ruling in one court, perhaps appealed to a circuit court or even the Supreme Court, would have a ripple effect in other jurisdictions with Trump electors. Given the procedural hurdles already in place, it is unlikely that this could happen, but remains a possibility.

Of course, further buried within these electors' lawsuits is that they have largely been filed by former (and, perhaps, current) supporters of Bernie Sanders, some of whom before even Election Day expressed public displeasure at the prospect of casting votes for Mrs. Clinton. While the salutary effort is something in the vein of "anti-Trump," in reality it seems to be driven more by anti... well, Democratic establishment, at least for these particular Colorado and Washington electors.

(It's also worth noting that multiple Trump electors have expressed opposition to Mr. Trump--two electors, one from Georgia and another from Texas, intend to resign when the Electoral College meets by refusing to show; a third, from Texas, once supported Mr. Trump but has since written a piece published in the New York Times opposing him.)

So these lawsuits are not really designed to stop Mr. Trump from securing 306 electoral votes (or, really, the 270 electoral votes he needs to win). But it has created some rather curious alliances. For instance, the Republican elected officials called to defend the law in Colorado have come out quite strongly against the plaintiffs--that is, these Republicans are aggressively defending Mrs. Clinton's electoral vote total in Colorado. And the Colorado Republican Party has intervened in the case--and the Colorado Democratic Party has not.

That said, it is, I think, less curious than one might expect, at least the behavior of Republicans and when viewed through a (perhaps) Rawlsian framework. One might take the myopic view and claim that Colorado Republicans are trying to defend Mr. Trump's election, but that strikes me fairly unlikely--consider the two long-game purposes I enumerated above, which are exceedingly remote; and consider that the direct impact of the litigation would undermine Mrs. Clinton's position far more than Mr. Trump's.

Instead, consider what it would mean in a state--any state, regardless of your partisan preference--if you had fairly settled expectations of the roles of electors, and even a law that carried some generic threat against electors who acted against their pledge, and those settled expectations were called into question. As a member of a political party or a loyal partisan official, such a result would be fairly horrifying. After all, it would mean that your formerly-loyal slate of electors would now be open to influence; and even if your party's slate of electors did not win this particular election, it would also affect your slate of electors in future elections when you did win.

Despite the fact that electors may prefer independence (and that the Constitution, in my view, mandates it!), parties certainly do not prefer it. It is a reason they are empowered in most states to choose the slates of presidential electors. And it is a terrific loss of power if those electors now expect to act freely--indeed, so freely that they may undermine the party's nominee. The rational behavior of partisan officials, then, would be to defend such laws quite vigorously, regardless of partisan affiliation.

I expect, then, that this behavior of presidential electors will fairly significantly alter the behavior of political parties selecting slates of presidential electors in 2020, particularly if parties are worried that the legal pledges and settled expectations from previous elections have been called into grave doubt. Party reforms are some of the easiest reforms, because they require no new laws. But I would expect, at least in some jurisdictions, to see to following changes.

First, I would expect to see delays in the selection of slates of electors. Parties typically nominate slates of electors in the spring or summer, often before the parties' nominating conventions (and sometimes even before the parties' nominees are known). But in most states, such slates need not be submitted until just weeks before the November election date.

Second, parties are likely to engage in far greater vetting of such nominees. By postponing the selection process, parties might be more inclined to choose electors who have already gone on record expressing support of the party's presumptive nominee.

Third, parties might institute more control over who qualifies as electors for their party. They often include rules that one must be a member of that party, such as someone who voted in that party's primary. But they may require longer periods of party affiliationor greater demonstration of loyalty before qualifying as an elector.

Fourth, parties may defer to the presumptive nominee in selecting slates of electors. It's understandable why Bill Clinton was an elector in New York, of course! And greater control to candidates would ensure greater loyalty for nominees.

It is the case, I think, that the Constitution requires independence of electors; that these electors' efforts to sue to undo state pledges will likely fail; and that even in success the Electoral College will not meaningfully affect the settled expectations of the outcome of this election. But after all this, when the dust settles, I anticipate some significant change in behavior from political parties to fend off future efforts from electors to undermine their own preferences.