Useless information about the 2020 presidential election

Baseball writer Jayson Stark regularly writes articles from the “Useless Information Department,” filled with interesting, odd, bizarre, coincidental, or just plain silly statistics or factoids from the world of baseball. With a 120-year-plus history, a 162-game season, 250-plus pitches per game, and a lot more, there’s always some interesting connections to make.

I’ve occasionally tweeted out some of my own useless information from the 2020 presidential campaign, and I thought I’d turn that into a long form blog post. Hang on…

* * *

Joe Biden ran—and won—as a vice presidential candidate in 2008 and 2012. But he opted not to run for president in 2016, choosing instead to run in 2020. Typically, a vice president who runs for president (and wasn’t elevated to the office of president due to a vacancy) runs either after his president stops running (e.g., Al Gore in 2000) or runs for the term immediately after losing an election seeking the office of vice president (e.g., Walter Mondale in 1984, who lost on the VP ticket in 1980).

Just four vice presidents have won a presidential election while serving as vice president—John Adams in 1796, Thomas Jefferson in 1800, Martin Van Buren in 1836, and George H.W. Bush in 1988.

So have any vice presidents skipped at least one term, then become president? Just one—Richard Nixon. Nixon was Eisenhower’s vice president and won the 1952 and 1956 elections. He ran for president in 1960 and lost. He then took 1964 off before running (and winning) in 1968. But Nixon’s case also differs, because he did try in 1960 immediately after serving eight years as Dwight Eisenhower’s vice president—but Nixon lost in 1960 and tried again later in 1968. Nonetheless, Nixon is the only vice president to later serve as a president, who was not serving as vice president when he won.

If Biden wins the 2020 presidential election, then, he’d be just the second vice president since Nixon to win a presidential election while not serving as vice president. And unlike Nixon, it’d be his first attempt to run for president after serving as vice president.

* * *

Websites like FiveThirtyEight and 270toWin remind us that presidential candidates must secure a majority of votes in the Electoral College to win the presidential election. Obviously, Donald Trump won a bunch of electoral votes in 2016 (304 of them, to be exact). Joe Biden also won a bunch of electoral votes, 365 in 2008 and 332 in 2012, both vice presidential votes. But they’re not alone.

Elizabeth Warren received two vice presidential electoral votes in 2016, one in Hawaii and one in Washington. And Bernie Sanders received one presidential electoral vote in 2016, in Hawaii. Both came from “faithless” electors, presidential electors ostensibly committed to support Hillary Clinton when the Electoral College convened in December 2016 but who ultimately cast votes for these candidates.

* * *

The last Democratic presidential nominee who attended neither Yale nor Harvard was Walter Mondale in 1984. (Yes, that means Michael Dukakis, Bill Clinton, Al Gore, John Kerry, Barack Obama, and Hillary Clinton all have ties to this sliver of the Ivy League.)

But none of the Democratic presidential frontrunners attended either. Joe Biden went to Delaware and Syracuse Law; Bernie Sanders went to Brooklyn College and Chicago. Dipping a little deeper into the candidates, Elizabeth Warren attended George Washington University, Houston, and Rutgers Law (although she did teach at Harvard Law). Kamala Harris went to Howard before attending Hastings Law. Of course, there’s a chance a candidate like Pete Buttigieg (Harvard/Oxford) or Cory Booker (Stanford/Oxford/Yale) pulls through and keeps the Harvard-Yale streak alive.

* * *

Democrats may also keep another education streak alive. Since 1984, every Democratic presidential and vice presidential nominee has attended law school—Walter Mondale, Geraldine Ferraro, Michael Dukakis, Lloyd Bentsen, Bill Clinton, Al Gore, Joe Lieberman, John Kerry, John Edwards, Barack Obama, Joe Biden, Hillary Clinton, and Tim Kaine.

Attended—all but one received a law degree, the exception being Gore, who dropped out of Vanderbilt Law School before completing his Juris Doctor.

The frontrunners are a mixture of lawyers (Biden, Elizabeth Warren, Kamala Harris, Cory Booker, Amy Klobuchar) and non-lawyers (Bernie Sanders, Pete Buttigieg, Beto O’Rourke)—but the safe money may be on the lawyers, and it may rest with a vice presidential nominee to break the streak.*

* * *

Before Trump, Ronald Reagan was the only 70-something to win a presidential election. That took place in his second term, and he was 73 when sworn in. Trump became the first 70-something to win a first term.

But we’re seeing a surge of septuagenarian candidates and may see that age record fall. The age of some candidates as of the next inauguration day, January 20, 2021: Bernie Sanders, 79; Joe Biden, 78; Donald Trump, 74; Elizabeth Warren 71.

For the record, Reagan was 77 years, 349 days when leaving office. The next-oldest president upon leaving office stands to be Trump—but if he completes a second term, he’d be 78 years, 221 days to edge out Reagan. And the only other 70-something to ever serve in office was Dwight Eisenhower, who left office at 70 years, 98 days.

The election of either Sanders (79 years, 134 days as of January 20, 2021) or Biden (78 years, 61 days) would immediately make that candidate the oldest person to ever serve in as president. Both are older than each of the last five Democratic presidential candidates—older than Hillary Clinton, Barack Obama, John Kerry, Al Gore, and Bill Clinton. (But younger than 1988 Democratic nominee Michael Dukakis.)

Compared to recent presidential candidates popularly considered “old”? John McCain would have been 72 years, 144 days on January 20, 2009; Bob Dole would have been 73 years, 182 days on January 20, 1997.

And the combined Election Day ages of Trump-Sanders (153), Trump-Biden (152—Biden turns 78 after Election Day), or Trump-Warren (145) easily make them the oldest major party opponents in history. Reagan-Mondale, 1984 (129); Van Buren-Harrison, 1840 (124); and Dole-Clinton, 1996 (123) are among the oldest pairs of major party opponents.

* * *

But Democrats are on pace to help break a different record. Three of the last four presidents were each born in the same year, 1946. That’s right, Bill Clinton, George W. Bush, and Donald Trump were all born in 1946, in that first year of the “Baby Boom” after World War II. Sanders (1941), Biden (1942), and Warren (1949) all missed that birth year. So did Hillary Clinton, narrowly (1947).

Of course, there have been other 1946 presidential candidates. To name a few: 2000 Republican candidate Gary Bauer, 2004 and 2008 Democratic candidate Dennis Kucinich, 2012 Constitution Party presidential nominee Virgil Goode, and 2016 Democratic candidate Jim Webb.

* * *

There are a number of Democratic candidates vying for the title of the youngest president. That’s currently held by Teddy Roosevelt (42 years, 322 days when he took office). Roosevelt became president after William McKinley died. For the youngest elected candidate, that goes to John F. Kennedy (43 years, 236 days).

Several candidates, including Pete Buttigieg (39 as of January 20, 2021), Tulsi Gabbard (39), Seth Moulton (42), and Eric Swalwell (40), could eclipse these marks. But they’d hardly be the youngest major party candidates in history. That belongs to Wiliam Jennings Bryan, who was just 36 when he secured the Democratic Party nomination in 1896.

Not only that, but one of these candidates might eclipse the age gap between major party opponents set by 72-year-old John McCain and 47-year-old Barack Obama in 2008, a 25-year gap. Trump will be 74 on Election Day, so anyone under 49 would set the record.

* * *

Alexandria Ocasio-Cortez is a useful foil for age comparisons. Elected to the House of Representatives in 2018, she was born October 13, 1989 and is just 29 years old—but she has an outsized influence on social media and in the Democratic Party.

This is Joe Biden's third presidential run after failed campaigns for the 1988 and 2008 Democratic Party nominations. Biden’s first run ended in September 1987... more than two years before Ocasio-Cortez was even born.

Bernie Sanders was born 24 years after John F. Kennedy. He was also born 48 years before Ocasio-Cortez.

* * *

By my count, 88 members of the Senate of the 93rd Congress as of January 3, 1973 have died. Of the 12 remaining, two are former presidential candidates (Walter Mondale and Bob Dole), & two are running this year (Joe Biden and Mike Gravel).

* * *

I know, the post has focused a lot on age. But there’s so much to do with it! And maybe it’s only fitting that the oldest living former president ever is still with us (Jimmy Carter, who turns 95 in October 2019), and the one who’s lived the longest after leaving office (39 years and counting).

 * * *

*Special thanks to Brian Kalt for this detail.
Please notify me if you find any errors I ought to correct or ambiguities I ought to clarify.

Significant one-year peer USNWR survey score drops, their apparent causes, and their longevity

The peer score from USNWR’s annual law school rankings consists of the results of a survey it sends out to around 800 voters. Those voters are the dean, the associate dean for academics, the chair of the hiring committee, and the most recently tenured faculty member at each law school. Response rates tend to be fairly high, usually around 70%. Voters are asked to evaluate schools on a scale of 1 (marginal) to 5 (outstanding), or N/A if a voter doesn’t have enough information. Those results are averaged into each school’s “peer score.”

These results have been remarkably stagnant for decades for most schools. [###]

Of course, I can only guess as to why there were these drops, but, for most schools, we have pretty good contemporaneous evidence of (negative) newsworthy events that likely prompted the drop.

(Please note, I use the year the ranking is published. USNWR calls the rankings published in 2019 as the “2020 rankings,” but I use the date 2019 instead. The survey is sent out in the fall of the year before, so a survey for 2019 is sent out around November 1, 2018.)

Rutgers-Camden, 2002, 2.8 to 2.5. This may be the only truly fluctuation due (mis)fortune or chance. In the three previous surveys, Rutgers-Camden had a 2.7, 2.6, and 2.6 score. In 2001, it rose to 2.8. In 2002, it dropped to 2.5, where it remained in the 2.5 to 2.6 range for the next decade, settling later at 2.4.

There’s no particular scandal or controversy that arose. Instead, the 2.8 just might’ve been the fortune of one year, and the following 2.5 the misfortune of another. (Rutgers-Camden later merged with Rutgers-Newark.)

Loyola Law School, 2009, 2.6 to 2.3. By far the most inexplicable drop turned out to be attributable to a USNWR error. Loyola had long held a 2.5 to 2.6 peer score in the decade before 2009. But in 2009, its peer score abruptly plummeted 0.3 to 2.3. The reason? USNWR renamed Loyola as “Loyola Marymount University” in the poll. While long affiliated with LMU, the law school’s brand had developed around a different name, which suddenly changed for one year.

The following year, Loyola’s name returned “Loyola Law School,” its peer score rebounded to 2.6, and it’s remained around there ever since. (It’s also the only time a school has risen 0.3, or higher, in a single year in the entire history of USNWR’s peer surveys.)

Illinois, 2012, 3.5 to 3.1. Illinois consistently held a peer score for 3.4 to 3.6 for a decade. In 2011, a story broke that an admissions dean single-handedly inflated median LSAT scores at Illinois in six of the previous 10 years. Illinois was fined $250,000 and censured. In the 2012 rankings, Illinois’s peer score plunged from 3.5 to 3.1.

The Illinois drop was significant because of how high Illinois used to be. And it’s significant because it makes it that much harder to climb back. Illinois rose to a 3.3 one year but hasn’t gotten past that, at 3.2 in the most recent survey. The residual impact from an event a decade ago remains (in my view, an unjustifiable result).

Villanova, 2012, 2.6 to 2.2. For a decade, Villanova’s scores hovered between 2.5 and 2.7. But in a different scandal in 2011, the news broke that Villanova “knowingly” reported inaccurate LSAT & UGPA data. It was censured by the ABA.

Villanova has mostly recovered, steadily rising back to a 2.5, but it has yet to return to 2.6. Like Illinois, the impact in the peer score has far outlasted any formal ABA sanction.

St. Louis University, 2013, 2.4 to 2.0. One of the more notorious drops in peer score arose after a series of controversies—the law school dean resigned in protest in August 2012, with noted disputes about university leadership prominent that fall. It’s one of just 3 times that a school has dropped 0.4 in the peer score, assuredly in part because the news remained fresh close in time to circulation of the survey.

St. Louis has never returned to a 2.4, but it has slowly improved since the drop and has stood at a 2.3 for the last few surveys.

Albany, 2015, 2.0 to 1.7. For years, Albany had held a 2.1 or 2.2 peer score. In 2013, that score settled to a 2.0 and remained there in 2014. That isn’t remarkable, because [scores lower]. But in 2015, the score dropped 0.3 to 1.7. In early 2014, the school made headlines for buyout proposals amidst financial exigency and faculty backlash. These were some of the first public signs of financial strain at U.S. law schools after the economic downturn—recall that enrollment jumped for the Class of 2012 dropped ever since. While many schools felt financial strains, few made it public—today, of course, many more have had their financial struggles made public.

The impact didn’t last long. By 2016 the school returned to a 1.9, and in 2017 a 2.0 again, which is its score this year, too.

Vermont Law School, 2.2 to 1.9, 2019. The most recent drop took place in the most recent rankings. In the summer of 2018, Vermont announced that 14 of its 19 tenured professors would lose tenure, an announcement just a few months before ballots went out. Time will tell what happens next year, but we should expect a small bounce back up.


This post isn’t really to shame any particular school or approve of how the peer rankings have reacted to scandals. It’s simply to note that some strong reactions do exist.

It also highlights the stickiness of the rankings. The cohort of voters can change fairly frequently. Voters include the dean, the associate dean of academics, the chair of faculty appointments, and the most recently tenured faculty member. Those positions change with some frequency—the typical dean’s tenure is 3 years, new faculty hires mean a steady stream of tenure grants, different appointment chairs as service commitments rotate, and so on. Nevertheless, the peer score remains tough to move. Smaller controversies, a USNWR mistake, or apparent randomness appear to have little staying power. But bigger scandals have prevented scores from ever returning to where they were before the scandal—even if the school has faced appropriate sanction and all the people involved have moved on. Whether it’s inertia or long punitive (and vindictive?) memories, the peer scores can remain depressed.

Importantly, I hope some law professors might reconsider why they may be voting the way they are. Are they voting because of the present state of the law school—its student body quality, its student outcomes, its faculty quality, its administrators, etc.—or because of some past act of the law school? By reflecting on why voters vote the way they do, we may see less (arguably) punitive voting.

Law school median and mean debt loads, 2015-2017

The Department of Education has been releasing more disclosures to the public concerning higher education. Its most recent data disclosures include preliminary student loan debt loads over a two-year period, 2015-2017.

One useful piece of information is the median debt loads of students who incurred debt. USNWR discloses schools’ self-reported mean debt loads, although those figures are sometimes less than helpful due to school disclosure irregularities. But the mean may distort what a typical student’s loans look like, if a large batch of students borrow just a few dollars to cover perhaps the end of law school. That could artificially lower the mean, whereas the median law student may have much higher debt loads. (It could also work the other way.)

The Department of Education tables include both median and mean debt loads. Granted, this data, while better than the self-reported USNWR data, still has its share of flaws. I looked up every “law” program—many reported the degrees differently, usually “Doctoral Degree” or “First Professional Degree,” but I removed every self-described “Master’s Degree” program. I sorts the schools by median debt load. Included are the school types (public, private, and “proprietary” i.e., for-profit). Also included are the “count” of individuals in the two-year cohort (and you can view more about how the “count” and other terms are defined). The count includes those who completed the program in that time period. (Some were listed as “Privacy Suppressed,” which I converted to “n/a.”) Recall, too, that these are only those who incurred debt; a good number of students graduate each year without incurring law schools. (For a sense of those figures, check out the latest USNWR disclosures. Many schools report that at least 20% of their graduates, sometimes more, incur no debt.)

I’ll start with the top 20 schools in median debt.

Law School School Type Count Median Debt
Florida Coastal School Of Law Proprietary 476 $198,655
Whittier College Private 237 $196,008
Thomas Jefferson School Of Law Private 337 $195,892
University Of San Francisco Private n/a $195,820
Southwestern Law School Private 540 $193,653
Charlotte School Of Law Proprietary n/a $188,985
Arizona Summit Law School Proprietary 272 $188,191
New York University Private 570 $183,857
Atlanta's John Marshall Law School Proprietary 287 $177,854
American University (The) Private 588 $177,157
Barry University Private 365 $168,309
New York Law School Private 414 $167,078
Golden Gate University Private 166 $166,264
Columbia University Private 513 $165,314
Georgetown University Private 937 $163,688
George Washington University Private 804 $163,300
Thomas M. Cooley Law School Private 641 $161,986
Pepperdine University Private n/a $161,300
Nova Southeastern University Private 133 $161,219
Santa Clara University Private 231 $160,558

Four for-profit schools are in the top 20. The remainder are in California (7), New York (3), the DC area (3), and Florida (2), along with Thomas M. Cooley Law School. (It’s also worth noting that Whittier, Charlotte, and Arizona Summit have announced their closures.)

Now for the bottom 20 schools, the ones with the lowest median debt among those who incurred debt:

Law School School Type Count Median Debt
Texas Tech University Public 185 $70,006
University Of Kentucky Public 194 $69,860
Temple University Public 308 $69,583
Georgia State University Public 293 $69,200
University Of Connecticut Public 214 $69,085
University Of Alabama Public 174 $68,992
Wayne State University Public 175 $67,640
University Of Kansas Public 170 $66,415
Mitchell Hamline School Of Law Private 409 $64,429
University Of Mississippi Public 167 $64,300
University Of Iowa Public 167 $62,249
University Of Arkansas Public 178 $61,500
University Of North Dakota Public 90 $61,500
University Of Tennessee Public 191 $61,500
University Of Wisconsin - Madison Public 263 $61,500
Taft University System (The) Proprietary 27 $61,500
Indiana Institute Of Technology Private 26 $59,650
University Of Nebraska Public 159 $59,124
Brigham Young University Private n/a $51,250
Santa Barbara And Ventura Colleges Of Law Private 36 $20,500

Unsurprisingly, most are public schools, many in lower cost-of-living locations. But near the bottom of the list are a pair of non-ABA-accredited law schools in California (Taft, and Santa Barbara and Ventura Colleges of Law), with relatively (in one case, quite) low reported debt loads. At the bottom of the list among ABA-accredited schools is the private BYU, at just $51,250 median debt load.

The entire table is below the jump. Additionally, I included the same table with the mean debt, too. Of course, recall that any data like this, particularly “preliminary,” may have inaccuracies, and some of the coding may mean that I’m inadvertently including or excluding certain institutions.

UPDATE: At least one school was incorrectly reported as “private” when it is “public.” I have made that change.


Law School School Type Count Median Debt
Florida Coastal School Of Law Proprietary 476 $198,655
Whittier College Private 237 $196,008
Thomas Jefferson School Of Law Private 337 $195,892
University Of San Francisco Private n/a $195,820
Southwestern Law School Private 540 $193,653
Charlotte School Of Law Proprietary n/a $188,985
Arizona Summit Law School Proprietary 272 $188,191
New York University Private 570 $183,857
Atlanta's John Marshall Law School Proprietary 287 $177,854
American University (The) Private 588 $177,157
Barry University Private 365 $168,309
New York Law School Private 414 $167,078
Golden Gate University Private 166 $166,264
Columbia University Private 513 $165,314
Georgetown University Private 937 $163,688
George Washington University Private 804 $163,300
Thomas M. Cooley Law School Private 641 $161,986
Pepperdine University Private n/a $161,300
Nova Southeastern University Private 133 $161,219
Santa Clara University Private 231 $160,558
Elon University Private 77 $160,285
University Of The Pacific Private 244 $158,437
University Of Virginia Public 386 $158,376
Ave Maria School Of Law Private 115 $158,206
Howard University Private 219 $156,563
Northwestern University Private 329 $156,418
Seattle University Private 375 $155,575
Charleston School Of Law Proprietary 206 $154,378
Willamette University Private 182 $154,190
Marquette University Private 322 $154,154
John Marshall Law School (The) Private n/a $154,079
Cornell University Private n/a $153,937
Fordham University Private 428 $151,250
University Of California, Berkeley Public 433 $150,862
Touro College Private 228 $150,767
University Of Miami Private 388 $150,659
University Of Detroit Mercy Private 119 $149,993
University Of Pennsylvania Private 331 $149,729
Saint Thomas University Private n/a $149,322
California Western School Of Law Private 331 $149,246
Chapman University Private n/a $148,852
Hofstra University Private 328 $148,342
University Of Chicago (The) Private 268 $146,806
University Of Michigan - Ann Arbor Public 457 $145,182
Campbell University Private 196 $144,330
Loyola Marymount University Private 466 $144,200
University Of Denver Private 396 $143,237
Catholic University Of America (The) Private 195 $141,718
Loyola University Chicago Private 318 $141,244
Mercer University Private n/a $140,818
University Of La Verne Private 78 $140,182
Valparaiso University Private 241 $139,821
Duke University Private n/a $138,000
University Of California, Hastings College Of The Public 454 $137,787
Stetson University Private 444 $137,217
Samford University Private n/a $135,438
Southern Methodist University Private 283 $134,484
University Of San Diego Private 313 $134,348
Widener University Private 342 $134,228
Trinity International University Private n/a $133,925
Lewis & Clark College Private n/a $133,785
Harvard University Private 815 $133,617
Depaul University Private 363 $132,803
Creighton University Private 181 $132,800
Oklahoma City University Private n/a $132,586
South Texas College Of Law Houston Private 469 $132,415
Emory University Private 391 $131,738
University Of Notre Dame Private 279 $130,589
Loyola University New Orleans Private n/a $130,522
Western New England University Private n/a $129,662
University Of Southern California Private 283 $129,223
Capital University Private 172 $129,089
Vanderbilt University Private 235 $129,030
Suffolk University Private n/a $128,897
Mississippi College Private 196 $128,722
Yale University Private n/a $126,398
Seton Hall University Private 242 $126,050
Roger Williams University Private 169 $123,384
Tulane University Private 256 $121,757
University Of California, Los Angeles Public 469 $121,453
Belmont University Private n/a $120,498
Stanford University Private 250 $120,410
University Of Dayton Private n/a $120,274
University Of California, Irvine Public 67 $119,986
Texas A&M University Public 301 $119,803
Brooklyn Law School Private 544 $119,445
Regent University Private 134 $118,275
University Of Maryland, Baltimore Public 279 $118,155
Appalachian School Of Law Private 75 $117,964
Texas Southern University Public 249 $117,935
Drake University Private 76 $116,863
John F. Kennedy University Private n/a $116,722
Argosy University Proprietary 134 $114,795
George Mason University Public 174 $114,383
Wake Forest University Private 268 $113,656
Saint John's University Private 321 $112,662
University Of Minnesota - Twin Cities Public 315 $111,766
Yeshiva University Private 388 $111,031
Boston University Private 308 $110,891
Albany Law School Of Union University Private n/a $110,549
University Of Baltimore Public 363 $109,510
Indiana University - Purdue University Indianapoli Public 122 $109,422
New England Law | Boston Private n/a $109,422
University Of Washington - Seattle Public 210 $109,405
Gonzaga University Private 176 $109,362
University Of North Carolina - Chapel Hill Public 302 $107,059
Saint Louis University Private n/a $106,638
University Of Texas At Austin Public 460 $106,283
Syracuse University Private 247 $106,000
Florida Agricultural & Mechanical University Public 150 $105,703
Northeastern University Private 231 $105,639
Florida International University Public n/a $104,971
Illinois Institute Of Technology Private 319 $104,921
Pace University Private 267 $102,821
University Of Massachusetts - Dartmouth Public n/a $102,500
St. Mary's University Private 341 $102,500
University Of South Carolina - Columbia Public 319 $102,007
University Of Colorado Boulder Public 268 $101,626
University Of Pittsburgh - Pittsburgh Public 247 $101,186
Boston College Private 306 $100,594
Ohio Northern University Private n/a $100,224
Inter American University Of Puerto Rico - School Private 325 $99,403
College Of William & Mary Public 309 $98,700
University Of Missouri - Kansas City Public 235 $98,511
University Of California, Davis Public 209 $98,403
Southern Illinois University At Carbondale Public 201 $98,215
University Of Richmond Private 230 $97,625
Washington And Lee University Private 146 $97,276
Pontifical Catholic University Of Puerto Rico Private 278 $97,269
Ohio State University (The) Public 264 $97,238
University Of The District Of Columbia Public 60 $96,992
Pennsylvania State University (The) Public 243 $96,321
Southern University And Agricultural & Mechanical Public 187 $95,437
University Of Louisville Public 156 $94,503
University Of Southern Maine Public 132 $94,364
North Carolina Central University Public 316 $94,358
Arizona State University Public n/a $94,325
University Of Nevada - Las Vegas Public 184 $94,197
Concordia University Private 43 $93,755
University Of Houston Public 302 $92,067
Baylor University Private n/a $91,401
Lincoln Memorial University Private n/a $91,323
University Of Illinois At Urbana-Champaign Public n/a $90,928
State University Of New York At Buffalo Public 259 $90,928
Michigan State University College Of Law Private 425 $90,674
University Of New Hampshire Public n/a $89,700
Humphreys University Private 25 $89,317
University Of Oregon Public 180 $88,306
Drexel University Private 222 $87,864
University Of Idaho Public 193 $85,550
Indiana University - Bloomington Public 248 $85,162
University Of Florida Public 463 $84,508
Duquesne University Private 210 $84,428
University Of Saint Thomas Private 160 $84,261
West Virginia University Public 169 $84,227
University Of Wyoming Public 104 $84,032
University Of New Mexico Public n/a $83,999
Cleveland State University Public 179 $83,868
Villanova University Private 203 $83,761
Northern Illinois University Public 121 $83,660
Case Western Reserve University Private 171 $82,570
University Of Georgia Public 284 $82,480
Washburn University - Topeka Public 148 $82,194
Quinnipiac University Private 115 $82,000
Rutgers, The State University Of New Jersey Public n/a $82,000
University Of Toledo Public 142 $81,546
Washington University In St. Louis Private 269 $81,500
University Of Arizona (The) Public 162 $81,178
Florida State University Public 294 $81,159
Northern Kentucky University Public 136 $79,951
University Of Utah Public 187 $79,768
University Of South Dakota Public 109 $79,143
Cuny School Of Law '(The)' Public 151 $78,224
University Of Hawaii At Manoa Public 127 $77,849
University Of Arkansas At Little Rock Public 116 $77,208
University Of Montana (The) Public 134 $76,666
University Of Memphis (The) Public 159 $76,622
Purdue University Global Public 74 $76,508
University Of Cincinnati Public 140 $76,173
Massachusetts School Of Law At Andover Private n/a $75,467
University Of Tulsa (The) Private 116 $75,326
University Of Oklahoma Public n/a $74,250
University Of Akron (The) Public 184 $73,756
University Of Missouri - Columbia Public 168 $71,603
Louisiana State University Public 258 $71,422
Texas Tech University Public 185 $70,006
University Of Kentucky Public 194 $69,860
Temple University Public 308 $69,583
Georgia State University Public 293 $69,200
University Of Connecticut Public 214 $69,085
University Of Alabama Public 174 $68,992
Wayne State University Public 175 $67,640
University Of Kansas Public 170 $66,415
Mitchell Hamline School Of Law Private 409 $64,429
University Of Mississippi Public 167 $64,300
University Of Iowa Public 167 $62,249
University Of Arkansas Public 178 $61,500
University Of North Dakota Public 90 $61,500
University Of Tennessee Public 191 $61,500
University Of Wisconsin - Madison Public 263 $61,500
Taft University System (The) Proprietary 27 $61,500
Indiana Institute Of Technology Private 26 $59,650
University Of Nebraska Public 159 $59,124
Brigham Young University Private n/a $51,250
Santa Barbara And Ventura Colleges Of Law Private 36 $20,500
 
Law School School Type Count Mean Debt
Thomas Jefferson School Of Law Private 337 $190,263
Southwestern Law School Private 540 $187,494
Whittier College Private 237 $186,978
Florida Coastal School Of Law Proprietary 476 $182,215
Touro College Private n/a $178,607
University Of San Francisco Private n/a $176,289
Arizona Summit Law School Proprietary 272 $175,459
Charlotte School Of Law Proprietary n/a $172,517
New York University Private 570 $170,700
American University (The) Private 588 $166,187
Atlanta's John Marshall Law School Proprietary 287 $164,577
Georgetown University Private 937 $160,905
New York Law School Private 414 $160,222
Barry University Private 365 $156,543
Elon University Private 77 $155,958
Faulkner University Private 10 $154,834
Thomas M. Cooley Law School Private 641 $153,258
Golden Gate University Private 166 $153,104
Pepperdine University Private n/a $152,712
Columbia University Private 513 $151,400
Nova Southeastern University Private 133 $150,527
Ave Maria School Of Law Private 115 $150,525
John Marshall Law School (The) Private n/a $150,306
Howard University Private 219 $149,946
George Washington University Private 804 $149,904
University Of Virginia Public 386 $149,871
Willamette University Private 182 $148,864
Santa Clara University Private 231 $148,759
Saint Thomas University Private n/a $147,706
Touro College Private 228 $147,305
Fordham University Private 428 $147,020
Northwestern University Private 329 $146,926
University Of Miami Private 388 $146,684
California Western School Of Law Private 331 $146,536
University Of Pennsylvania Private 331 $146,402
Loyola Marymount University Private 466 $146,358
Charleston School Of Law Proprietary 206 $145,354
University Of The Pacific Private 244 $144,881
Seattle University Private 375 $143,904
University Of Denver Private 396 $143,871
University Of California, Berkeley Public 433 $143,418
Cornell University Private n/a $143,335
Marquette University Private 322 $142,402
Hofstra University Private 328 $140,548
Chapman University Private n/a $140,055
University Of La Verne Private 78 $139,824
Catholic University Of America (The) Private 195 $139,404
Mercer University Private n/a $138,036
Harvard University Private 815 $136,746
University Of Detroit Mercy Private 119 $135,700
University Of Chicago (The) Private 268 $134,795
University Of Michigan - Ann Arbor Public 457 $134,538
Duke University Private n/a $133,131
Lewis & Clark College Private n/a $132,824
Campbell University Private 196 $131,858
Valparaiso University Private 241 $131,103
Loyola University Chicago Private 318 $130,973
Widener University Private 342 $130,489
Trinity International University Private n/a $130,446
Southern Methodist University Private 283 $129,977
Stetson University Private 444 $129,753
University Of San Diego Private 313 $129,427
Creighton University Private 181 $129,223
Suffolk University Private n/a $128,405
Samford University Private n/a $126,954
Seton Hall University Private 242 $126,918
Tulane University Private 256 $125,898
Loyola University New Orleans Private n/a $125,774
University Of California, Hastings College Of The Public 454 $125,545
Mississippi College Private 196 $125,458
Western New England University Private n/a $125,446
University Of Southern California Private 283 $124,796
Depaul University Private 363 $124,285
Oklahoma City University Private n/a $124,005
South Texas College Of Law Houston Private 469 $122,530
Capital University Private 172 $122,388
University Of Notre Dame Private 279 $120,935
Baylor University Private n/a $120,798
University Of California, Irvine Public 67 $120,742
Belmont University Private n/a $120,657
Stanford University Private 250 $119,935
Vanderbilt University Private 235 $119,460
Yale University Private n/a $119,139
Argosy University Proprietary 134 $119,071
Regent University Private 134 $118,765
New England Law | Boston Private n/a $118,727
Emory University Private 391 $118,187
Drake University Private 76 $117,875
John F. Kennedy University Private n/a $117,788
Roger Williams University Private 169 $117,507
University Of California, Los Angeles Public 469 $117,431
Texas A&M University Public 301 $116,569
Brooklyn Law School Private 544 $115,290
University Of Maryland, Baltimore Public 279 $115,234
Saint John's University Private 321 $114,793
Yeshiva University Private 388 $113,065
University Of Dayton Private n/a $111,690
University Of Baltimore Public 363 $111,218
Syracuse University Private 247 $110,287
St. Mary's University Private 341 $110,159
George Mason University Public 174 $110,086
Wake Forest University Private 268 $109,384
Texas Southern University Public 249 $109,359
Pace University Private 267 $108,729
Indiana University - Purdue University Indianapoli Public 122 $107,843
Northeastern University Private 231 $107,260
Saint Louis University Private n/a $106,453
University Of Minnesota - Twin Cities Public 315 $105,304
Illinois Institute Of Technology Private 319 $105,102
University Of Washington - Seattle Public 210 $104,816
Appalachian School Of Law Private 75 $104,751
Gonzaga University Private 176 $104,061
Florida International University Public n/a $103,805
Hamline University Private n/a $103,549
Boston University Private 308 $103,412
Boston College Private 306 $103,300
Stetson University Private n/a $103,025
Albany Law School Of Union University Private n/a $102,647
University Of Massachusetts - Dartmouth Public n/a $102,166
University Of North Carolina - Chapel Hill Public 302 $102,039
University Of Pittsburgh - Pittsburgh Public 247 $100,937
University Of Colorado Boulder Public 268 $100,687
University Of Texas At Austin Public 460 $100,120
Washington And Lee University Private 146 $99,743
North Carolina Central University Public 316 $99,397
Ohio Northern University Private n/a $99,364
Florida Agricultural & Mechanical University Public 150 $99,241
University Of The District Of Columbia Public 60 $99,053
University Of Richmond Private 230 $98,256
Southern University And Agricultural & Mechanical Public 187 $97,877
University Of South Carolina - Columbia Public 319 $97,758
Duquesne University Private 210 $97,599
Pontifical Catholic University Of Puerto Ric Private 278 $97,174
Arizona State University Public n/a $96,920
University Of Illinois At Urbana-Champaign Public n/a $96,195
Pennsylvania State University (The) Public 243 $96,103
Villanova University Private 203 $95,946
University Of New Hampshire Public n/a $95,723
College Of William & Mary Public 309 $95,654
Inter American University Of Puerto Rico - School Private 325 $95,175
University Of Houston Public 302 $94,515
Drexel University Private 222 $94,453
Ohio State University (The) Public 264 $94,210
University Of Nevada - Las Vegas Public 184 $93,899
Humphreys University Private 25 $93,865
Quinnipiac University Private 115 $93,726
University Of California, Davis Public 209 $93,667
University Of Louisville Public 156 $93,612
Indiana University - Bloomington Public 248 $93,379
University Of Missouri - Kansas City Public 235 $93,104
Michigan State University College Of Law Private 425 $92,924
State University Of New York At Buffalo Public 259 $92,108
University Of Southern Maine Public 132 $91,522
Concordia University Private 43 $90,995
Washington University In St. Louis Private 269 $90,881
Southern Illinois University At Carbondale Public 201 $90,584
Lincoln Memorial University Private n/a $89,830
Case Western Reserve University Private 171 $89,821
University Of Oregon Public 180 $88,748
University Of Idaho Public 193 $88,218
University Of Saint Thomas Private 160 $87,679
University Of Utah Public 187 $87,311
University Of Wyoming Public 104 $87,084
Cleveland State University Public 179 $87,010
Northern Illinois University Public 121 $86,582
University Of Hawaii At Manoa Public 127 $85,910
Rutgers, The State University Of New Jersey Public n/a $85,182
Florida State University Public 294 $84,310
University Of Florida Public 463 $84,052
West Virginia University Public 169 $83,920
University Of Arizona (The) Public 162 $83,884
University Of South Dakota Public 109 $83,322
University Of Tulsa (The) Private 116 $83,107
Louisiana State University Public 258 $82,907
University Of Georgia Public 284 $82,605
Washburn University - Topeka Public 148 $81,972
University Of Oklahoma Public n/a $81,629
Alliant International University Proprietary n/a $81,410
University Of Memphis (The) Public 159 $81,224
Northern Kentucky University Public 136 $81,164
University Of Toledo Public 142 $81,143
University Of New Mexico Public n/a $80,068
Concordia University Private n/a $79,498
Texas Tech University Public 185 $79,436
University Of Kentucky Public 194 $79,160
University Of Akron (The) Public 184 $78,953
Temple University Public 308 $78,731
Massachusetts School Of Law At Andover Private n/a $78,433
Wayne State University Public 175 $78,042
Liberty University Private n/a $77,218
University Of Montana (The) Public 134 $76,804
University Of Alabama Public 174 $76,753
University Of Kansas Public 170 $76,195
Mitchell Hamline School Of Law Private 409 $74,963
University Of Tennessee Public 191 $74,744
Cuny School Of Law '(The)' Public 151 $74,724
Purdue University Global Public 74 $72,513
University Of Cincinnati Public 140 $72,453
University Of Arkansas At Little Rock Public 116 $72,079
University Of Iowa Public 167 $71,536
University Of Wisconsin - Madison Public 263 $71,525
University Of Connecticut Public 214 $70,787
University Of Missouri - Columbia Public 168 $70,657
Georgia State University Public 293 $69,753
University Of Arkansas Public 178 $67,448
University Of Mississippi Public 167 $66,247
Indiana Institute Of Technology Private 26 $65,639
University Of Nebraska Public 159 $62,485
University Of North Dakota Public 90 $62,151
Taft University System (The) Proprietary 27 $60,581
Brigham Young University Private n/a $51,245
Santa Barbara And Ventura Colleges Of Law Private 36 $30,506

Washington State Supreme Court upholds fines for 2016 faithless electors

In the latest of a string of litigation surrounding faithless electors, the Washington State Supreme Court has issued its decision in In re Guerra, here. Four electors cast votes for candidates other than Hillary Clinton and Tim Kaine; all four were fined $1000 each pursuant to state law. Three appealed the decision. In an 8-1 decision, the Court upheld the fines.

The Court opens by acknowledging that presidential electors perform a “federal function.” The electors argued that if they are performing a federal function, there is ample case law that suggests that Congress cannot interfere with that activity. But the Court noted that states may still holds power over them under Article II of the Constitution. And while states might not be able to interfere with certain federal functions, the Court understood the precedent of cases like Ray v. Blair and McPherson v. Blacker that the state’s power included “broad authority.” Language from Supreme Court precedent suggested that the role of the elector is to “transmit the vote of the State for president,” (In re Green) “suggesting that the Electoral College vote belongs to the State, not the individual elector.” (p. 17)

Unfortunately, the Court’s interpretation of precedent does not rely as heavily on the text of the Constitution, which states that the electors “shall make distinct lists . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States.” (Amend. XII.) It’s certainly plausible to argue that the state has the power over the electors, but it is a harder textual claim to say that the votes “belong[] to the state,” whatever Supreme Court precedent may say.

But, the Court also finds that the Twelfth Amendment ensures that electors meet at a time and place, cast votes for two qualified candidates, and that the Amendment “does not limit a state’s authority in adding requirements to presidential electors.” (p. 18) The Court goes on to find that cases like U.S. Term Limits v. Thornton and Powell v. McCormack, which concluded that qualifications could not be added to congressional candidates, do not extend to presidential electors. (There is ample historical support for this practice, as qualifications have regularly been added to electors, including district residency restrictions, which were raised at length in U.S. Term Limits.)

As a textual matter, the court in n.8 rejects the notion that the word “ballot” implies “personal, secret ballot.” It points out that historically, the fact that “faithless electors” can be identified suggests the practice of casting ballots has not always been in secret. I think that’s an accurate understanding of the word “ballot,” a project I’m working on.

The Court rejects a First Amendment claim once it finds that there is no personal right of the elector.

A brief dissent argues that the “power to appoint” is not the “power to control.,” and it cites Justice Jackson’s concerns in his dissent in Ray v. Blair.

In short, it’s a fairly unsurprising outcome, but it leaves some deep uncertainty, I think, about how the United States Supreme Court’s precedents in this area harmonize with the text of the Constitution. For instance, some precedent—and this court’s opinion—conflate “state” with “legislature,” where the “legislature” is the entity empowered to “direct” the “manner” of “appoint[ing]” electors.

If the case is appealed to the United States Supreme Court, it also presents an interesting wrinkle—the electors here are not forbidden from casting “faithless votes,” but are only fined if they do so. That’s a less onerous (but still significant) consequence than replacing faithless electors, like what occurred in Colorado.

Assessing the effect of the ABA's new ultimate bar passage requirement

The ABA, after years of wrestling with the idea, finally approved a requirement that ”at least 75% of a law school’s graduates who sat for a bar exam must pass within two years of graduation.” Here’s a Q&A on some of the likely effect—at least, answering questions I’ve thought about for the last few years!

How many law schools could face accreditation risks?

There are several ways of looking at this question. You can look at all of the law schools’ ultimate bar passage rates for 2015 and 2016, but the rule only formally takes effect for the Class of 2017 (that is, bar passage attempts through 2019). We can look to past law school activity, which gives us a good starting place. But we can also be skeptical of these lists for several reasons—we should anticipate law school behavior will change, and so on.

Let’s start with the schools likely in the most dire shape: 7 of them. While the proposal undoubtedly may impact far more, I decided to look at schools that failed to meet the standard in both 2015 and 2016; and I pulled out schools that were already closing, schools in Puerto Rico (we could see Puerto Rico move from 3 schools to 1 school, or perhaps 0 schools, in short order), and schools that appeared on a list due to data reporting errors. Finally, I removed South Dakota, which saw its bar passage rate drop when the bar exam cut score was raised, but that cut score has been lowered and it appears to be in good shape.

  1L Class Size 2018 Attrition Bar Cut score
2012 2018 Delta
Atl's John Marshall 181 108 -40.3% 9.0% GA 135
Barry 293 255 -13.0% 3.0% FL 136
UDC 125 64 -48.8% 2.8% DC 133
Florida Coastal 580 60 -89.7% 3.3% FL 136
Golden Gate 227 237 4.4% 3.1% CA 144
New England 450 185 -58.9% 0.8% MA 135
Cooley 897 541 -39.7% 2.3% MI/FL 135/136

These schools represent just about 3% of law schools and just over 3% of 1Ls in 2018.

Undoubtedly, other law schools that are at or near the cutoff that are probably going to be watching their admissions, retention, and bar preparation more closely, but these are, I think, the ones most likely to face a direct effect.

Will law schools institute more selective admissions procedures?

It could be. For the most at-risk law schools, however, it’s not clear they can be much more selective absent significant financial investment (which they may lack). The alternative is for the most at-risk schools to shrink their class sizes. But some (not all) have had dramatic cuts already, as seen above. If schools can sustain bigger cuts, they may do so—but it’s not clear how sustainable that is.

For schools not directly affected but facing the heat of the new standard, they may have to begin reconsidering admissions strategies that value chasing USNWR rankings over selecting a higher quality incoming class.

Will law schools increase the number of academic dismissals?

It’s possible. From the chart above, most of these schools have fairly low dismissal rates. There’s room for higher non-transfer (academic + “other”) attrition. But ABA Standard 501(b) requires “law school shall only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar,” and Interpretation 501-3 provides, “A law school having a cumulative non-transfer attrition rate above 20 percent for a class creates a rebuttable presumption that the law school is not in compliance with the Standard.” So schools can increase dismissals, but not too much.

Will this proposal disproportionately affect schools in California, HBCUs, or for-profit schools?

Despite the fact that California has one of the highest cut scores at 144, only one school failed to meet the standard in both 2015 and 2016 (while another, not listed, is closing). California law school graduates typically score much higher on the bar exam than test-takers nationwide. A 75% pass rate within two years of graduation is therefore fairly attainable, even as first-time bar pass rates remain low. But even in California, the overall first-time pass rate among graduates of California’s ABA-accredited law schools in July 2018 was 64%, meaning many schools exceed 75% on the first attempt, and many more quickly cross 75% on students’ second attempt. That said, several California law schools failed to meet the standard in at least one of 2015 or 2016.

Only one HBCU law school is on the list. (Another missed the cutoff in 1 of 2 years.) Two for-profit law schools are in the list (others have closed recently as their numbers dwindle).

Perhaps unsurprisingly, most of the at-risk schools are in jurisdictions with relatively higher cut scores (135 and up). (The median bar exam cut score is around 133-135 in most jurisdictions.)

Will state bars lower their cut scores in response?

It’s possible. Several state bars (like South Dakota as mentioned above) have lowered their cut scores in recent years when bar passage rates dropped. If states like California and Florida look at the risk of losing accredited law schools under the new proposal, they may lower their cut scores, as I suggested back in 2016. If the state bar views it as important to protect their in-state law schools, they may choose the tradeoff of lowering cut scores (or they may add it to their calculus about what the score should be). Of course, lowering cut scores may have downsides, too, but that’s another matter….

Could schools encourage their graduate to take an “easier” bar or skip the bar exam altogether?

It’s possible. But discouraging students from taking the bar exam strikes me as an unrealistic proposition—there’s little incentive for a JD not to at least try, and the law school has few mechanisms except maybe pleading with students not to take the bar.

Taking an “easier” bar is a likelier proposition, but, again, if students are dead set on taking a “hard” bar, there is little school can do—a student who wants to practice in California not Alabama may simply be unpersuadable. The rise of the Uniform Bar Exam, however, makes this a much more promising possibility for some. A school worried about graduate passing the Oregon (137) or Colorado (138) could encourage the graduate to sit for the North Dakota (130) bar—all are the UBE, after all. If the student passes the ND bar, great! If they pass, and get a high enough score to waive into OR or CO, all the better! The only downside is convincing the student to go sit in ND for the bar exam if they don’t want to, and potentially pay for two state bar admissions if they pass, but schools might find modest funds to offset those costs.

Additionally, schools might find additional resources to subsidize students who fail the bar to retake it. Taking the bar is an expensive proposition, and students may be discouraged after a failure (or two, or three) from retaking it. To prevent those students from dropping off, schools might increasingly subsidize repeat efforts. That’s good for graduates, if it happens.

Will law schools invest in bar prep courses or change their curriculum?

Assuredly yes. But that’s not the right question [ed.: who’s writing these questions!]. Instead, will those actually help any students? The answer, in all likelihood, is no.

First, schools likely have been implementing bar passage improvement programs for several years, given that bar passage rates have been in decline for several years. But the sad evidence is that, so far, they don’t appear to be improving bar passage results. Worse, a recent California bar study specifically examining programs at several law schools found no relationship between bar prep programs at law schools and bar passage results.

Schools might be tempted to tweak their curriculum—require more bar-related courses or expand coverage of content in the first year—but that, too, seems unhelpful. There’s no evidence that performance in a given substantive law school course relates to performance on that topic on the bar exam.

Undoubtedly, the response for many law schools will be, “Don’t just stand there, do something!” But it remains highly contested, in my view, about whether the “do something” will lead to improvement.

All in all, is the new standard a good thing?

Well, maybe? (A great answer of an academic, I know.) Tightening admissions and increasing academic dismissals certainly improve the likelihood that graduates ultimately pass the bar exam, which puts them in compliance with the standard. But it is only a likelihood—schools may not take risks on certain bands of students who might ultimately succeed even if their predictors don’t show it. Then again, if massive debt loads, an uncertain job market for marginal law school graduates, and still a high risk of failure are put into the equation, maybe we want more risk-averse decisionmaking at law schools.

That said, I continue to wonder about why the ABA is accrediting law schools as it increasingly obsesses over bar passage rates. Barry Currier has written to defend that we ought to require a bar exam and that ABA law school accreditation standards should have a bar passage standard. But it’s not clear to me why bar passage is tied in most jurisdictions to attending an ABA-accredited school. And it strikes me that if the ABA is insisting that good law schools are (among other things) the ones where most of the graduates pass the bar exam, it’s not clear that ABA accreditation is doing much value-added except telling us what the bar exam is already telling us.

What’s the bottom line here?

Oh, I digress. In short, I think a few law schools will face intense pressure in the short-term future, and a few may close. Many others will consider some structural changes in admissions and retention practices (which should improve rates), and curricular and bar prep changes (which likely won’t improve rates), to the extent those schools can afford to do so. But I won’t expect anything too dire. While it’s safe to say that 30 or so law schools have something to worry about, a much smaller number are facing existential threats to their schools.

In Memoriam: Professor John Copeland Nagle

With John Nagle at the Notre Dame Law School Commencement, May 20, 2007

I had John as a first-year student in Property in the Fall of 2005. But in my first year of law school, he was more than that. He was the advisor to the Christian Legal Society, a small group of students at Notre Dame, and he hosted occasional gatherings at his home. At an early September 2004 barbeque, he’d run the grill and host dozens of students, the first of my many visits to his home.

In Property, he’d bring in his daughters’ stuffed animals as props on the day we covered animals as property—cheesy, maybe, but a student couldn’t help but smile. He was self-deprecating in the best way—he was one four co-authors on a casebook, and he said he was only put on it to “do one chapter on environmental law and submit pictures to accompany the other cases.” (And how he loved pictures to accompany the law!)

On top of that, he told us that his daughters (Laura and Julia) picked out who’d be called upon each class, defining the cold call roster and ensuring that he could remain blameless (or, so he believed). It’s a small and amusing choice that I adopted in my own teaching for first-year courses.

In the upper division, the least likely elective I took was Biodiversity & the Law, because John taught it. His exam was, in a way, miserable, in the sense that it was a 24 hour take-home on some fairly open-ended questions about how one would go about protecting an animal species in a fragile ecosystem given existing law and competing concerns. But talking the exam over with Emily, my wife, after the fact, she reflected, “It sounded like a genuine question, and he’s really interested in hearing what you think about it.” And it’s true. It’s the kind of exam I’m not sure I’d ever be capable of writing. But he wrote an exam that showed a love of the material and a genuine open interest in seeing how we handled a situation that he himself may have well viewed as uncertain. He wanted to see what we’d do with it. Miserable, maybe. But the rare exam that felt like it was helping the professor think through the world and the law.

John gave me my Note topic—out of his own curiosity. He wondered why “public necessity” would allow destruction of property for the public benefit, but that the property owner wouldn’t receive compensation. It was a topic that took me deep into 17th century original sources and admiralty law. It was also my first opportunity to learn that I liked writing legal scholarship enough to pursue academia one day.

John was also a deeply valued mentor for me in my path into academic. He had a somewhat unorthodox entry into law teaching, and he was extraordinarily supportive as I made my way to the market (particularly as only a few from Notre Dame go on to teach). But my biggest encouragement came in an exchange, one he maybe never knew how powerful it was. As one still unsure whether I’d make it on the hiring market but with some modest publications and work in progress, he invited me to a dinner with a couple of other law professors at a conference. They asked me about my work, and I described one recent project, to which John responded to the others, casually but sincerely, in the middle of a bite of food, “You should read it, it’s really good.” That’s when I felt like I might be able to make it—if John could read it and share, so genuinely and spontaneously, that sentiment with others, I could do okay.

It helped, too, that my first year at Pepperdine was also the first year of Dean Deanell Reece Tacha—for whom John clerked on the Tenth Circuit. He fondly recalled his clerkship with her and held her in the highest esteem. It made his visits to Pepperdine to present papers or participate in a conference all the better.

John’s scholarship was remarkable for reasons I may dive into at depth another time. But I’ll reflect on this small thought now: he was a man who had ideas and wrote about them, ideas that reflected a deep interest across disciplines and that drew comparisons across things. That sounds simple, but it’s something that is all too rare.

His primary research was in environmental law, and he had a number of terrific pieces in election law, too. But how to come up with the piece Pornography as Pollution, taking a very environmental law-centered concept and applying it to the pervasive problem of sexually explicit material? Or merging environmental law and election law, Corruption, Pollution, and Politics, using the old metaphor of “pollution” for political corruption and using it within the environmental law framework for addressing campaign finance regulation? Or A Twentieth Amendment Parable, which opens with the avowedly biblical allusion and offers in its second footnote to the statement, “The definitive law review article on the Amendment had yet to be written,” this sentence: “This isn’t it.”

These are some (I’ve already gone on too long) of the articles of John’s I remember. I often feel like I barely remember some of my own, much less others’. And in the months ahead, I’ll dig into some of his other work I don’t remember. But these, among others, were wonderful because they said something interesting. They were—are—memorable. They drew comparisons I hadn’t thought about before—and assuredly never would have.

This whole reflection is a bit surreal to write. I suppose that’s what happens when someone young passes away unexpectedly. But more to the point, I’m visiting at Notre Dame in the Spring 2020 term and looked forward to spending time with John in particular, in part because I hadn’t seen him much in the last couple of years. I’d already been in contact with him about possible housing options in the region.

Not long ago, I recently asked if he was going to be at AALS, my usual opportunity to try to catch up with people. But he wasn’t, as usual. He wrote in this email, “I've gone from missing the AALS because of Laura's basketball schedule to missing the AALS because the girls are home from college.” We’d just have to connect another time.

I am tearing up as I write about this. John loved his family and knew how to dedicate time to spend with them. I’m so glad he did. And I’m confident he was glad he did. It’s also a reminder to myself to carve out the time needed with loved ones.

To close what’s already starting to feel like my rambling thoughts: a big reason I valued John so greatly as a friend and mentor was that he was a Christian. It’s sometimes hard to think about how faith and vocation fit together for a Christian in any given discipline. But John lived a life committed to his faith and his God, and he thrived in his work. He saw God’s glory in all the world—it’s impossible to separate John’s passion for visiting national parks, for writing about the wilderness and rare animal species and protection of nature, unless one looks at his heart rejoicing in the beauty and awe of creation.

I recall pointed questions in Biodiversity & the Law about why we like the “wilderness,” a term that’s usual fraught with danger; or why we’d protect endangered species, perhaps something beyond aesthetic enjoyment (given we may never see them) or utility (given we may not find the “use” of all animals). In both—and it’s a reason I chose to attend Notre Dame—he gently suggested that perhaps our faith, and specifically the Christian faith, could provide answers. That maybe the wilderness, while often a biblical place to be cast out into, is also a place of spiritual retreat and prayer. That animals are all a part of God’s creation, and our dominion and stewardship over them should include their protection regardless of any utility.

John helped me recognize that my Christian faith—importantly, a good, deep faith—of necessity extends beyond the personal life, and even beyond thinking about a moral code of right and wrong, into reflecting on just about anything in the world around us. I admit, I’m still not great at it. But he was very good at it—although I imagine, in characteristic humility, he’d say he was only struggling to figure it out, too. It encourages me as I write this to go deeper still.

My heart aches for Lisa, Laura, and Julia as they mourn a devoted husband and a loving father who has passed away. But with John, may we find comfort in the assurance that nothing “in all creation will be able to separate us from the love of God in Christ Jesus our Lord.” We await the new heaven and the new earth, where God “will wipe away every tear from their eyes, and death shall be no more.” Rest in peace.

The Electoral College prevents electing a vice presidential candidate separate from a presidential candidate

Recently, news about a startup campaign to elect the vice president separately from electing the president has popped up. As the vice.run movement describes itself, its goal is to “reinstate the vice presidency as a democratically elected position. Vice.run’s goal is to create a vice presidential ballot line in the 2020 election in all 50 states.”

It sounds like a fascinating idea. But under any scrutiny, it just won’t work. That’s because the Electoral College doesn’t function this way.

To begin, it’s entirely correct to say that states don’t have to list a particular president-vice president combination unless they seek ballot access for that combination, and it’s possible to think about alternative arrangements to how we typically look at elections. A couple of historic examples come to mind. In 1836, the Virginia Democratic Party despised Martin Van Buren’s running mate Richard Mentor Johnson. While most states’ electors ultimately voted for Van Buren and Johnson, Virginia’s electors voted for Van Buren and William Smith. That prevented Johnson from receiving a majority of electoral votes, so the election was sent to the Senate, which elected Johnson over runner-up Whig Francis Granger.

In the same election, Whigs chose not to field a single candidate, but fielded multiple candidates that they hoped each would receive sufficient support over the Democratic candidate, prevent the Democratic candidate from securing a majority of electors, and send the race to the House of Representatives to choose among the top three vote-getters, potentially yielding a Whig candidate.

All this is to say we’ve seen some interesting and creative attempts to use the Electoral College framework to achieve particular ends. But what about a separate vice presidential candidate?

The logic (although there isn’t much law) spelled out on the vice.run site goes as follows: a vice presidential candidate could be a separate line on the ballot. The people could then choose to vote for a particular presidential candidate and an entirely different vice presidential candidate. Particularly attractive independent vice presidential candidates may force presidential candidates to choose them as their running mates.

All interesting ideas. But utterly unworkable due to the Electoral College.

Each state receives presidential electors equal to the number of senators and representatives they receive—say, Vermont receives three. On Election Day, the first Tuesday after the first Monday in November, when voters cast a vote for Clinton-Kaine or Trump-Pence, they are actually casting a vote for three electors pledged to support Clinton-Kaine or Trump-Pence. (“Pledged” I use very loosely—some states have formal pledges, some are legally binding, others are mere informalities or general expectations.)

Then, on the first Monday after the second Wednesday in December, Vermont’s three presidential electors meet in the state, along with electors from the other states in their respective states. The electors cast two votes: one for president, and on a distinct ballot, one for vice president. (The headline of my post is a bit misleading—in fact, presidential electors are required to vote for a separate president and vice president. This post is about the people voting via ballot separately.)

Suppose now there is an election with a separate line item for president and vice president. How would we choose the electors? We simply couldn’t. We can’t pick three electors for president and another three electors for vice president; that would require a state to choose six electors, which it couldn’t do. So we’d need the same electors for president and vice president—which means we couldn’t have separate lines unless the electors were the same, or aligned with one another, which would seem to defeat the purpose of having separate lines.

Instead, the only feasible opportunity to have presidential and vice presidential candidates elected separately would look as follows: the state legislature chooses three electors; it designates that those electors must be bound to vote in accordance with the popular vote of a presidential candidate and a vice presidential candidate; then, those electors would have to vote for whichever presidential and vice presidential candidate were selected.

It’s not clear that this is permissible. Federal law requires that the electors be appointed on the first Tuesday after the first Monday in November. It’s not a straw poll to bind existing electors. So it’s unclear to me that a state could appoint its electors before the election. Additionally, if Election Day is about the appointment of electors, then there has to be a fixed number equal to the state’s total, which means you need a president-vice president slate of electors, not independent lines.

There are other confusing ways to think through this problem, like assuming there’s just one slate of electors representing all the names on the ballot, but I’m not sure these are feasible, either. And I’m also assuming the state can compel the electors to vote for the candidate they’re pledged to support—something I think is right, but certainly not uncontested. (Of course, faithless electors are a common problem in any Electoral College reform scenario, so I don’t dwell on that.) It also increases the likelihood that voters in a state choose a president and a vice president from their own state, if there are pluralities or tradeoffs in voting, which is impermissible under the Constitution—electors must vote for at least one candidate who is not an inhabitant of their state, and a president-vice president slate usually avoids this.

Unless I’m missing something—correct me if I am!—this scheme simply can’t work absent the legislature wholesale taking over the choosing of electors and having a straw poll of the people sometime before Election Day. The Electoral College anticipates one set of electors chosen on Election Day. That set of electors can exist however one sees fit, of course. But if voters have to make a choice of a president and a vice president on separate lines, there’s no feasible way to pick one common slate of electors like the Constitution demands.

Overall legal employment for the Class of 2018 improved somewhat

Despite poor, and in some cases declining, bar passage rates in many jurisdictions over the last four years, we’ve seen steady overall improvement in the market for law school graduates, and the Class of 2018 is no exception. All trends are fairly positive, even if small, and even if some of those are driven by shrinking class sizes. Below are figures for the ABA-disclosed data (excluding Puerto Rico’s three law schools).

  Graduates FTLT BPR Placement FTLT JDA
Class of 2012 45,751 25,503 55.7% 4,218
Class of 2013 46,112 25,787 55.9% 4,550
Class of 2014 43,195 25,348 58.7% 4,774
Class of 2015 40,205 23,895 59.4% 4,416
Class of 2016 36,654 22,874 62.4% 3,948
Class of 2017 34,428 23,078 67.0% 3,121
Class of 2018 33,633 23,314 69.3% 3,123

Placement in bar passage-required jobs continued to improve, and graduates shrank. That put placement in full-time, long-term, bar passage-required jobs up to 69.3% (excluding school-funded positions). Unlike recent years, we also saw a small increase in J.D.-advantage position placement.

We can also compare the Class of 2018 to the Class of 2013—a recent high-water mark in total graduates and bar passage-required jobs (even if the percentage placed in those jobs was relatively low). We can look at placement by firm size, and by industry.

FTLT Class of 2013 Class of 2018 Net Delta
Solo 926 313 -613 -66.2%
2-10 6,947 4,999 -1948 -28.0%
11-25 1,842 1,689 -153 -8.3%
26-50 1,045 1,020 -25 -2.4%
51-100 846 821 -25 -3.0%
101-205 1,027 1,002 -25 -2.4%
251-500 1,041 949 -92 -8.8%
501+ 3,978 4,749 771 19.4%
Business/Industry 5,494 3,085 -2409 -43.8%
Government 4,360 3,860 -500 -11.5%
Public Interest 1,665 1,504 -161 -9.7%
Federal Clerk 1,259 1,174 -85 -6.8%
State Clerk 2,043 2,075 32 1.6%
Academia/Education 490 302 -188 -38.4%

The sharp demise of sole practitioners and small law firm placement is significant. Last year, I noted that placement in these positions might be the most at-risk when bar passage rates decline. Also of note is the decline in “business” jobs, which were typically J.D.-advantage positions and less desirable for graduates. Note, too, the continued rise of big law jobs—up nearly 800 placements since the Class of 2013. There had been some speculation during the recession that those jobs might be disappearing and that alternative positions would be needed for future classes, but this seems to be the healthiest market.

We can also compare the year-over-year placement in these job types, which are perhaps more volatile but still illuminating.

FTLT Class of 2017 Class of 2018 Net Delta
Solo 392 313 -79 -20.2%
2-10 5,145 4,999 -146 -2.8%
11-25 1,628 1,689 61 3.7%
26-50 953 1,020 67 7.0%
51-100 779 821 42 5.4%
101-205 956 1,002 46 4.8%
251-500 983 949 -34 -3.5%
501+ 4,569 4,749 180 3.9%
Business/Industry 3,241 3,085 -156 -4.8%
Government 3,812 3,860 48 1.3%
Public Interest 1,419 1,504 85 6.0%
Federal Clerk 1,151 1,174 23 2.0%
State Clerk 1,984 2,075 91 4.6%
Education 303 302 -1 -0.3%

Even year over year, we saw placement in large firms increase 180 positions, while solo and firms of 10 or fewer attorneys decline by over 220 positions.