California's leak of bar exam topics should have little if any impact on likelihood of passing

The California State Bar made a big mistake with a lot of questions that remain to be answered. Fortunately, the mistake should have little, if any, impact on anyone’s likelihood of passing the July 2019 bar exam.

From the scant details we know so far, the Bar disclosed to a “number of deans of law schools” the topics that will be tested in the essay portion of the bar exam. That leak took place Thursday, July 25. Late Saturday, July 27, the Bar said it only recen0tly discovered this and emailed all test-takers the same information.

It’s not clear how the leak occurred. It’s also not clear who received the information or what they did with it. Law deans who received this information could have (1) not read the email; (2) read it, but kept its contents confidential; or (3) read it, and shared that information with some test-takers. (3) is the obvious problem. It’s also possible they forwarded the email along to other law school administrators with (1) or (2) in mind, but someone else did (3). (It’s also unclear how the error came to the attention to the Bar or whether any deans revealed this information to the Bar.)

But the obvious concern among test-takers is how this affects their chances of passing the bar. Fortunately, it won’t affect just about anyone’s odds, with a possible exception I’ll get to near the end.

The bar exam is equated and scaled. The essays are scaled to the multistate bar exam (“MBE”), the multiple choice component. I’ve written about what equating and scaling looks like. What it means very roughly is this: there is an opportunity to account for the difficulty or ease of the test itself, and for the higher or lower quality of test-takers, by looking at how those test-takers have done compared to other test-takers on previous administrations of the exam. It’s all anchored to the MBE.

Let me make up a few numbers for the hypotheticals. Suppose there are three bar exam test-takers who get a 150, 140, and 130 on the MBE. Now suppose on the essays they get a 151, 141, and 131. The bar associates the 151 with the 150, the 141 with the 140, and the 131 with the 130, to help scale the scores in recognition that maybe these essays were a bit easier than usual. If the essay scores were 149, 139, and 129, they’d scale them to account for the fact that the essays were a bit tougher than usual.

Suppose that the essays instead are 160, 158, and 156. High compression now—but no difference. They’re still scaled back to the MBE and turn into the equivalent of 150, 140, and 130. These numbers could be 8,000,000,000, 17, and -216: the importance is the relative rank of test-takers against one another, then scaling it back to the MBE.

Revealing the topics of the essays gives everyone two advantages. The first is common (assuming everyone opens the email more than a few hours before the essays Tuesday, July 30.) You know that Question 1 is about Civil Procedure. Everyone knows that and can start from word go addressing Civil Procedure and only Civil Procedure on Question 1. So everyone’s scores may go up a bit.

I say “may,” because what this really does is help the students with the very lowest scores who may have missed the fact that it was a Civil Procedure question in the first place. I think most test-takers know what the call of the question is about. The very lowest scoring test-takers may not. So it may help their scores. But, again, if the scores shift from, say, 151, 141, and 91 to 152, 142, and 97 (disproportionately helping the very lowest scores), it won’t really matter—they’ll still be scaled back to the MBE.

The second advantage is that students can stop studying other, irrelevant topics like Wills & Trusts and focus exclusively on these areas. Again, it should have the same effect: everyone studies the same set of topics, everyone knows them a bit better, everyone scores a bit better. It probably helps the more marginal test-takers over the highest scoring test-takers, but, again, scaling accounts for that if all the boats are rising.

The problem may arise in a narrow set of circumstances. First, suppose the leak did make its way to some (likely very small set of) test-takers, and say it did so very promptly—perhaps as early as 120 hours before the bar exam. Those test-takers immediately stop preparing for irrelevant essays and focus only on relevant essay topics (and the MBE).

Other students only get the information when the Bar emails them, about 58 hours before the essays.

So we have to assume that the three years of legal education, the two months of bar exam preparation, and so on fall to the wayside, and the definitive change in knowledge and understanding occurs in a 62-hour head-start on eliminating some irrelevant subject of study. And in that 62 hours, the students effectively gain additional knowledge to help them for the essays that their peers did not have.

All possible (but, I think, pretty marginal). But it also has to have another effect. It doesn’t really matter if you were a test-taker who was going to get a 157 but for the head start and now gets a 158; it doesn’t really matter if you were a test-taker who was going to get a 92 but for the head start and now gets a 93. In both cases, you’d pass or fail regardless, and it’d have no impact on anyone around you.

Instead, assuming this did confer an advantage (again, possible, but pretty marginal), let’s look at the test-taker on the outside. That test-taker got a 143.9, the closest cut score to passing, but failed. She then looks at the test-taker who got a 144.0 and passed, or maybe a couple who did so (or even those who got a much higher or lower scores)—and these are test-takers who got a 62-hour head-start and eked out a higher score because of that advantage. And they specifically leap-frogged the 143.9—that is, their essay scores in particular would have been lower for the 143.9 but for the 62-hour head start, but they received higher scores, which were then scaled higher. Only for those students whose essay scores improved at a higher rate than others, in a way that affected those at or near the cut score, would experience any material change. (Of course, part of this is context: rather than thinking of a 62-hour head start, it might be useful to say that the person spent only ~1300 hours instead of ~1362 hours thinking about irrelevant topics, assuming two months’ preparation for the bar exam….)

Realize that a lot of things have to happen for this scenario to occur. It’s narrow, sure. But it’s certainly possible. It’s a reason I say “little, if any” impact—this is the scenario where it could change, but it requires a lot to align.

Undoubtedly, test-takers are understandably worried and anxious about any change in information about the bar exam, or any even potential inequities. Law deans will no doubt use this to highlight the incompetence of the Bar and call for an overhaul, perhaps a temporary reduction of the cut score to account for these inadequacies. (What the right solution is, I don’t know. Whether scoring changes come remains to be seen.)

But for the vast majority of law students, the leak should not affect them at all. I hope this gives a small comfort to the thousands of test-takers ahead of Tuesday’s test—you have worked very hard for many long hours, and it is that that will overwhelmingly determine your performance. Hang in there.

I have been lightly updating this post for clarity.

UPDATE, 7-28: Joan Howarth and Rob Anderson have helpfully pointed out that scores might actually increase. By eliminating some subjects, test-takers can now focus on the MBE all the more, too. If that increases MBE scores on Wednesday, then it lifts essay scores that are scaled to those MBE scores, and the overall pass rate could rise. Again, it may be marginal in these last few hours, but it remains possible.

UPDATE, 7-29: I’ve received some thoughtful emails about impact that the disclose may have that I didn’t consider (or didn’t adequately consider) in this post—the mental impact on subgroups, the effect on accommodated test-takers or non-native English speakers, the number of test-takers who have digitally “shut down” and may not learn of this information, and so on. It’s true that all these could have an impact in a way that wouldn’t be reflected in equating and scaling. And these are things very difficult to identify after the fact. Of course, a death in the family or a virus contracted shortly before the exam could have a similar impact—except, of course, (1) this affects all test-takers, and (2) it’s caused by an error from the bar. I appreciate people carefully thinking through the potential effects.

Do state bar licensing authorities distrust law schools?

It’s late July, so it’s time for another round of op-eds and blog posts about the bar exam—it doesn’t test the things that are required of legal practice, the cut score is unjustifiably high, it’s a costly and burdensome process for law students, etc.

Granted, these arguments have may varying degrees of truth, but, as any reader of this blog is no doubt familiar, I am pretty skeptical of these claims—and I say that as one who, as a law professor, in my own self-interest, would subjectively like to see an easier bar exam for law school graduates. But graduates have had persistently low scores for coming up on half a decade, mostly attributable to the decline in admissions practices at many law schools. And I think we too quickly conflate a lot of arguments about the bar exam.

But I’ve long had an uncomfortable thought about the bar exam as I’ve read the claims of legal educators (often law school deans) over the last several years. Law schools complain that their students have invested three years of their lives, plus tuition, plus the effort to pass the bar exam, and many fail—only, of course, to retake at still more invested time and cost before ultimately passing (or maybe never passing). Isn’t it unfair to these graduates?

Maybe, of course, depending on the “right” cut score in a jurisdiction. But… what about the opposite perspective? That is, are law schools graduating students who are not qualified to engage in the practice of law?

That’s a very cold question to ask. The ABA’s (new, slightly higher) standard for accrediting law schools is that at least 75% of its graduates should pass the bar exam within two years—it’s long had an outcome-oriented element to accrediting law schools. So the ABA admits that law schools can graduate a significant cohort who are never able to pass the bar.

Now, getting 100% first-time bar passage rate is pretty challenging—there are usually at least a couple of students at even the most elite law schools in even the biggest boom-times of legal education who’d fail the bar exam on the first attempt, for lack of effort or personal circumstances even if not for lack of ability.

But nevertheless, why do state bar licensing authorities—which also have a role in the accreditation of schools in the state (even if they mostly outsource it to the ABA)—require graduates of in-state law schools to take the bar exam? Does it reflect a distrust of those in-state law schools?

There’s only one state now with “diploma privilege,” Wisconsin. That is, graduates of law schools at the University of Wisconsin or Marquette University are automatically admitted to the bar. Many more states had diploma privilege several decades ago, but those have gradually been replaced until just Wisconsin remains.

Some complain about Wisconsin’s diploma privilege in the vein of, “Does it seem like Wisconsin’s law schools are really teaching sufficiently Wisconsin-centric law to preclude the need to take the bar exam?” But I think that mistakes what may be a driving force in these discussions (and the barrier that’s happened in jurisdictions considering reinstating diploma privilege).

In short, the bar exam is essentially a licensing authority’s way of verifying that the law schools are graduating qualified practitioners of law. Yes, the bar exam may be an imperfect way of doing it. But given that the bar exam highly correlates with law school grade point average, one can’t say it’s particularly irrelevant (unless law professors make the same claim about law school grades!).

Now imagine you’re the bar licensing authority in Wisconsin. You look at what’s happening at Wisconsin and at Marquette. And you’re satisfied—these two schools admit a good batch of students each year; their academic dismissal and transfer acceptance rules are sound; they graduate qualified students each year. Yes, maybe a few would fail the bar exam in Wisconsin each year—but we know there can be some randomness, or some cost of retaking for candidates who’ll ultimately pass, and the like. But the licensing authority trusts the law schools in the state. The law schools are consistently graduating students who, on the whole, are capable of practicing law in the state.

That’s a really good relationship between the state bar licensing authority and the law schools in the state, no?

So… what does that tell us about the other 49 states and the District of Columbia? (Although Alaska doesn’t have a law school….)

It may tell us that state bar licensing authorities do not have the same faith in these in-state law schools. That is, they believe law schools are not consistently graduating students capable of practicing law in the state. And that’s a cold truth for law schools to consider.

Of course, state bar licensing authorities may also have idiosyncratic reasons for preserving the bar exam (e.g., “We took the bar, so kids these days have to take the bar!”). And it might also be the case that many law schools or bar licensing authorities haven’t seriously considered trying to reinstate diploma privilege.

But I wonder about three persuasive reasons—which should cover the ideological spectrum!—for law schools in a few jurisdictions to consider pressing for diploma privilege. I look at the upper Midwest, the Great Plains, and northern New England in particular.

First, it encourages greater diversity in the legal profession. These arguments are consistently raised in California among other places—law schools are simply more diverse than the legal profession as a whole (due largely in recent years to changes in demographics), and reducing a barrier to the bar would immediately lift the diversity of the legal profession. (It would also encourage increased residence in state of those graduates, as the third point below indicates.)

Second, it reduces state regulatory occupational licensing authority burdens. We’ve seen a small revolution in states from Arizona to Pennsylvania to try to reduce the amount of occupational licensing burdens, from reducing the kinds of positions that need licensing to allowing interstate recognition of occupational licenses. Allowing a reduction in the burdens of occupational licensing would be consistent with that trend—even if it’s of a long-regulated profession like law.

Third, in these jurisdictions I named, states can offer a competitive advantage against other states where demographics favor more rapid population growth. Declining birth rates, aging populations, migration patterns, whatever it may be—there is simply less growth in the upper Midwest, Great Plains, and northern New England than other areas of the country. By offering in-state graduates the guarantee of bar admission, there is a greater incentive for these younger attorneys to stay in the state and practice locally rather than migrate elsewhere.

I also mention these jurisdictions because many have just one or two law schools, similar to Wisconsin, and therefore relatively easy for the schools to act together (or as one institution!) to meet the standards that would satisfy the state bar licensing authority.

The tradeoff for law schools? All the law schools in the state have to admit and graduate students who consistently appear able to pass the bar exam and practice law—a particularly high first-time pass rate and a near-100% ultimate pass rate.

As law schools for a few years have reduced admissions standards to preserve revenue, this is a particularly challenging prospect. State bar licensing authorities often appear increasingly distrustful of law school behavior, just as law schools often appear increasingly distrustful of state bar licensing authority behavior.

But developing a local community of trust between the state bar and in-state law schools could redound to significant benefits for all parties in short order. Whether that claim can be made persuasively, and whether law schools could alter their behavior in the short term for a potential long-term improvement of both their graduates’ positions and their state bar’s position, remains to be seen.

Maine, ranked choice voting, and the National Popular Vote Compact

Maine recently enacted ranked choice voting (“RCV”) for most of its elections. Very briefly, it allows voters to rank the preference of candidates instead of just picking one.

The original Maine bill excluded presidential elections from RCV. But the legislature recently approved expanding that to presidential elections (only later to be hung up and carried over to a later legislative session).

The new 21-A Maine Rev. Stat. Ann. § 805, sub-§2, if approved in the future, would be amended to read: “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State according to the ranked-choice method of counting votes described in section 723-A. The presidential electors of each congressional district shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in each respective congressional district according to the ranked-choice method of counting votes described in section 723-A.”

Here’s how RCV looks in 723-A:

Except as provided in subsections 3 and 4, the following procedures are used to determine the winner in an election determined by ranked-choice voting. Tabulation must proceed in rounds. In each round, the number of votes for each continuing candidate must be counted. Each continuing ballot counts as one vote for its highest-ranked continuing candidate for that round. Exhausted ballots are not counted for any continuing candidate. The round then ends with one of the following 2 potential outcomes.

A. If there are 2 or fewer continuing candidates, the candidate with the most votes is declared the winner of the election.

B. If there are more than 2 continuing candidates, the last-place candidate is defeated and a new round begins.

Whew. What that means is, candidates are ranked. The top-ranked candidates on each ballot are tallied. The candidate with the fewest top-ranked votes is eliminated. The ballots are retallied, this time as if that eliminate candidate weren’t there, and voters who’d cast their first-place votes for that eliminated candidate now have their second choice counted as the first choice. This proceeds in rounds until there are 2 candidates, and the candidate with the higher vote is the winner.

All well and good for the State of Maine, which may “appoint” presidential electors in the “manner” that the legislature may “direct,” and RCV certainly falls within that.

But how might this interact with a national tally of the popular vote for presidential elections—and, specifically, the National Popular Vote Compact (“NPV”)?

While Maine is not (yet?) a member to the NPV, many states are [###

Here’s the relevant text of typical common language from the NPV:

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.

(One important caveat from reading this text: in the event a state chooses not to hold a popular election for president—say, as Colorado did in 1876, when the legislature simply chose presidential electors—those states would not be included in a national popular vote total.)

So, what happens in Maine if RCV takes place? How would Maine’s vote be totaled in the national popular vote?

If there are, say, five candidates on the ballot, the popular vote total couldn’t really be the votes for those five candidates. RCV suggests paring them down until you get to two, then you name the winner. And voters cast votes understanding that their choices will be eliminated if they fail to advance in the next round. An advantage of RCV for independent or minor party candidates is that voters can vote for them without “wasting” a vote.

So RCV would then narrow down the votes of Mainers to two candidates. Those two candidates would then appear to be the only “votes” for a “presidential slate” in the State of Maine—that is, the tally after the final round of RCV. It would empower Maine voters over national voters—after all, the people of Maine would typically have all of their votes allocated to a Republican candidate or a Democratic candidate, as opposed to voters in other states that may scatter some number of voters among independent or minor party candidates.

But it could produce an alternative wrinkle. In 1992, Ross Perot received slightly more votes than George H.W. Bush to place second in the statewide vote. It’s not clear how RCV would have played out. But suppose that in the penultimate round of RCV Mr. Bush was eliminated, and the final round of RCV voting included just Bill Clinton and Mr. Perot. In the national popular vote total, the Republican candidate would receive zero votes from Maine—a small state, sure, but a significant cost to a major party candidate.

In short, I think inserting RCV in Maine is fine for Maine if it’s what Maine wants to do. But it’s precisely a reason why we cannot think of a “national popular vote” total by adding up the aggregate votes cast in 51 jurisdiction. This “invisible federalism” typicall operates in a way we don’t notice—we might simply look at each state’s votes and assume we can add them together for a single popular vote total. But the decisions of individual states, like a potential RCV in Maine, could have unforeseen consequences that undermine how we think about a national popular vote total. It’s a reason why Electoral College reform to make the presidential election truly national must occur at the federal level and not at the state level.

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.