Two cheers for Florida's Amendment 4

I spend very little time on this blog on matters of policy, or the wisdom of particular laws. I spend almost all of my time discussing what the law, including the Constitution, authorizes or forbids. Occasionally, I dip into practical concerns of changes to laws, but these are Burkean by nature and tend to be contextual, offering some view of the law working with other laws, or how the law fits into a longstanding regime.

Florida enacted Amendment 4, which the people of Florida undoubtedly have a right to enact. I thought I’d dip into policy for a moment: the good of the Amendment and, in my view, the bad. And I thought I’d use the overused expression, two cheers for the amendment.

Amendment 4 amended Article VI, Section 4 of the Florida Constitution as follows (underlined text added):

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

(b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

I have a lot of complicated views of suffrage laws, who ought to be eligible to vote in our democracy. But post-conviction felon disenfranchisement laws are an easier case for me. I don’t understand them and generally oppose them.

The felon (and the criminal more generally) has broken the social compact (the best of a number of imperfect ways of putting it) and merits punishment. Imprisonment is the most common form of that punishment. I think we overuse imprisonment, particularly as we overvalue incapacitation as a reason for punishment. But the release from imprisonment should, I think, mark a return to society, and that includes attempts to reincorporate the ex-felon into the ordinary things of citizenship.

Collateral consequences, then, typically are not the stuff we view as what the felon merits as his just deserts. They are sanctions we attach to the ex-felon as prophylactic stuff of society—don’t work in this job, don’t live near this park, don’t seek a security clearance, don’t vote, because, well, you’re dangerous, or we simply don’t think you ought to really be a part of our society. In a way, the felon has broken the social compact and is permanently barred from certain aspects of society, even after serving time in prison.

It might be that we as a society think that the felon merits these penalties. But, I think, to the extent we desire to restore the felon into the community, I don’t know that long-standing penalties that extend well after imprisonment (again, to the extent we value imprisonment as the primary form of punishment) have much place in a criminal justice regime. I could probably spend much longer thinking and discussing such things, but this is my high-level approach right now.

But a few points about the specifics of this particular amendment.

First, I think those who have been convicted of an election-related felony should be permanently disenfranchised. This is assuredly a very narrow category, and perhaps too narrow for a carve-out in this constitutional amendment. But I do think that if you have tampered with an election—voter fraud, voter intimidation, voter bribery, etc.—you, perhaps, ought to be permanently excluded from participating in future elections. It is a natural consequence for your disruption of democracy that you are no longer allowed to play this part in it. (Of course, you may play many other parts—advocate, campaigner, endorser, opinion-writer, etc.) I think it’s an area where the punishment ought to haunt you the rest of your life, and the punishment feels particularly tethered to the crime committed. But, again, perhaps that’s too narrow and too picky.

Second, the law carves out two easy targets, murderers and sexual offenders. One sad element of these carve-outs is political. The hasty rejoinder from a proposed law that enfranchise ex-felons is, “So if you’re convicted of murder, that person can cancel out your vote?” Of course, murderers spend most, if not all, of their lives in prison (indeed, some in Florida are executed). And perhaps general extension of ex-felon enfranchisement is better than no extension at all.

But worse, I think, are how we treat sexual offenders. Rape and child molestation are two particularly heinous crimes. Others, like statutory offenses in “Romeo and Juliet” cases, far less heinous. But in all of them, we spend little time thinking about the punishment these felons merit, and far more time seeking to maximize punitive consequences as long and as far-reaching as possible.

Disenfranchising murderers or sexual offenders who have served their time of imprisonment does not seem terribly well-fitted to a theory of punishment, except that we strongly dislike their offenses and want to keep them at the periphery of society. Maybe something about their offenses merits it. When it comes to voting, however, I’m not so convinced.

I understand that the perfect cannot be the enemy of the good. But, in some ways, I wish we’d spend more time thinking critically about the nature and purposes of punishment of crimes more generally, and how disenfranchisement fits in that scheme. I think Florida’s new Amendment 4 mostly gets it right.

As a final note, the amendment is the latest of a number of remarkable decisions of the people of the several states to dilute their own voting power, from enfranchising the freedman to enfranchising women to enfranchising 18-year-olds. It’s a remarkable and rather selfless decision of the people, not foisted on the people through a judicial construction. Every decision to broaden the franchise dilutes the voters’ votes who’ve approved that broadening. It’s probably a topic worth exploring another day, but I close on that thought.

Law school JD enrollment inches upward as non-JD enrollment continues to soar

The 2018 law school enrollment figures have been released. They show a slightly improved picture in JD enrollment and continued soaring growth in non-JD enrollment. About 14% of law school enrollees, 1 in 7, are not enrolled in a JD program.

This is the fourth consecutive year of growth in the incoming 1L class, but a bit larger than the last few years’ growth: there were 38,390 new 1L enrollees, about 900 more students over the incoming class in 2017. It’s the largest 1L class since 2013’s 39,675. (The 2010 peak was 52,488 1Ls.) This is despite the fact that two schools—Valparaiso and Whittier—admitted zero first-year students.

Despite much heralded promises of a “Trump bump” in law school enrollment, my earlier posts on the subject proved true: a modest increase in 1L enrollment of 2.6%, as I projected in December 2017, despite 19% increases in LSAT test-takers (because many were repeaters, not all translate into applicants let alone enrollees, and quality of scores matters) and despite 8% applicant spikes. Part of it reflects some of the concerns I raised earlier, but it appears most schools were more cautious this cycle, choosing to improve class quality (likely a good move given persistently low bar exam scores).

Total JD law school enrollment also ticked up slightly to 111,561 (still well off the peak of 2010-2011 with 147,525).

Non-JD enrollment continues to climb. The ABA changed its definitions a couple of years ago, which resulted in a spike in reported non-JD enrollment, but the steady climb continues. 18,523 were enrolled in non-JD programs, a 1,400-student jump over last year.

Now over 14% of all students enrolled in law school are not a part of a JD program, about 1 in 7 students.

Growth in non-JD online enrollment as a part of overall non-JD enrollment continues, too, with much faster growth than when I first looked at trends two years ago.

This is overall modestly good news for law schools. I continue to wonder about the sustainability and value proposition of non-JD legal education, but perhaps my concerns are overblown.

That said, more information about the kinds of degrees and the outcomes of those who secure these degrees would be welcome information, if the kind that is unavailable at this time.

Finally, we see some continued growth in LSAT test-takers again this cycle. We may see 1L enrollment creep up again, perhaps surpassing 40,000 students next year. For law schools, a robust and valuable JD program is essential, and that would be a good step toward restoring some of the losses suffered after the recession. Below I highlight a handful of schools with the highest non-JD enrollment as a percentage of total law school enrollment.

How changes to the Democratic presidential primaries may affect 2020 voting

One common phrase I’ve heard at conferences discussing proposed reforms to presidential primaries is something along the lines of, “Reformers are always targeting last cycle’s election.” That is, sometimes reformers are too myopic in trying to fix last cycle’s changes and fail to recognize the unintended consequences it could have on the next cycle—or that changes in events may alter how we view the next cycle.

I want to focus on two items for consideration well ahead of the 2020 Democratic presidential primaries. The first are changes to the Iowa caucuses. The second are changes to the primary calendar. Some speculation follows the observations of each change, with an assumption that a significant number of Democratic candidates (say, at least 10 and probably more than 15 viable candidates) will run, similar to the number in the 2016 Republican presidential nominating contest.

Iowa Caucuses

The Democratic caucuses in Iowa have long had distinctive features. Democratic voters show up at precinct caucus sites and publicly express support for one candidate or another. They group together in wings of the precinct site. Then there’s a period of “realignment,” where supporters of non-viable candidates (those with few supporters) throw their support behind another, more viable candidate. The caucus site names a winner; no popular vote is taken. Those caucus site winners are compiled into an overall distribution of delegates.

Multiple reforms appear to be shaping up for 2020. The caucus will resemble more of a traditional primary, if all the changes are approved. There will be absentee voting, which should dramatically increase popular participation. Raw vote totals will be released.

But it also means that this “realignment” may disappear. This was a potentially crucial opportunity for insurgent candidate Barack Obama in 2008. Reports widely circulated before the Iowa caucuses in 2008 that Bill Richardson, a second-tier candidate, had urged his supporters to throw their support behind Mr. Obama in the event of realignment (the same was true for marginal candidate Dennis Kucinich). The realignment period offered a kind of ranked choice voting. It also prevent too much fragmentation: three candidates—Mr. Obama, John Edwards, and Hillary Clinton—secured about 97% of precincts.

The Iowa caucus changes haven’t been finalized yet, but if the Iowa caucuses look more like a traditional primary, or the Republican caucuses in Iowa in 2016, we would expect to see more fracturing (no candidate broke 30% of the popular vote), more delegates awarded to more candidates, and, potentially, less opportunities for the kind of second-choice realignment that Mr. Obama benefited from in 2008.

2020 Calendar

Many states jockey for an early position in the primaries to exert their influence in the process. Iowa, New Hampshire, Nevada, and South Carolina have received privileged status in recent years. But by the first Tuesday in March, other states may follow suit with primaries.

In 2016, Alabama, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Virginia, and Vermont held Democratic primaries or caucuses on the first Tuesday. In 2020, Arkansas has likely moved its primary back to May; California and North Carolina have moved their primaries up to the first Tuesday in March.

For candidates who survive the early stages, viability may come through home-state advantages, particularly among delegate-rich pools of states. Prospective candidates Elizabeth Warren (Massachusetts), Beto O’Rourke (Texas), and Julian Castro (Texas) all may find strength on this dates; so too would Kamala Harris (California), after California moves up its primary.

It’s worth noting that among the most viable challenger to Donald Trump for the Republican nomination after Super Tuesday appeared to be Ted Cruz—in part because he secured over 200 delegates that day, but largely because Texas’s primary (and 104 delegates of its 155 possible delegates he won) came on that day.

The fortune of the calendar, then, might provide added strength for certain candidates.

Speculation from procedural changes

Yes, much of this is speculative. But it’s worth considering that we often look back at a presidential primary and note certain things that occurred because of the procedures in place. The changes in this cycle will undoubtedly have some impact on the Democratic presidential primaries. We won’t really know what those look like until after the fact, but I hope thinking structurally and drawing some recent comparisons offers some useful perspective ahead of the 2020 presidential primaries.

Comparing Google Scholar's H5 index to Sisk-Leiter citations

After the latest release of Professor Greg Sisk’s scholarly impact measure for law school faculties, Professor Brian Leiter blogged a series of smaller rankings of individual faculty members in different scholarly areas. I thought I’d use the data for a quick look at the difference between measures of scholarly activity. The Sisk-Leiter method is this longstanding project; I thought I’d compare it to Google’s H5 index.

One major barrier to using Google Scholar is that it only works for those who create an account (absent using a time consuming back channel like Publish or Perish). But the two measures do different things.

Google Scholar index covers more works, including far more non-law-related works, than the Sisk-Leiter methodology. Google Scholar includes a number of non-legal and interdisciplinary works. It's a value judgment as to which metric ought to matter--or, perhaps, it's a reason to consider both and acknowledge they measure different things!

Google Scholar gives "credit" for an author being cited multiple times in a single piece; Sisk-Leiter only gives "credit" for one mention. The downside for Sisk-Leiter is that an author who has 12 of her articles published would receive credit in Google Scholar for 12 citations, but only 1 in Sisk-Leiter. On the flip side, an author who cites himself 12 times in a single piece would receive credit in Google Scholar for 12 citations, but only 1 in Sisk-Leiter--and, I think, self-citations are, on the whole, less valuable when measuring "impact."

Google Scholar covers all authors; Sisk-Leiter excludes names omitted in et al. There is a method to help mitigate this concern, but, again, this tends to benefit interdisciplinary scholars in Google Scholar, and tends to benefit (through omission) the more typical sole-author law pieces in Sisk-Leiter. That said, Professor Leiter updated his blog’s rankings with some corrections from Professor Ted Sichelman.

Google Scholar includes references to indexed recognized scholarship; Sisk-Leiter extends to all mentions, including blog posts or opinion pieces typically not indexed in Google Scholar. It's another value judgment as to which metric ought to matter. In this dimension, Sisk-Leiter can be broader than Google Scholar might be.

Sisk-Leiter offers a greater reward for a few highly-cited works; H5 offers a greater reward for breadth and depth of citations. This is a specific measure for H5 in Google Scholar as opposed to Google Scholar more generally. Google Scholar also measures citations in the last five years. But I chose to compare Sisk-Leiter to the Google H5 index instead of the C5 (citations in the last five years) index. H5 measures how many (X) pieces have received at least X citations in the last 5 years. So if you have 10 articles that have each received at least 10 citations since 2013, your H5 index is 10. It doesn’t matter if your 11th piece has 9 citations; it doesn’t matter if one of your 10 pieces has 10,000 citations. It’s a measure of depth and breadth, different in kind than total citations.

In the chart below, I logged the Sisk-Leiter citations and compared them to the Google H5 index. I drew from about 85 scholars who both appeared in a Leiter rankings and had a public Google Scholar profile, and I looked at their Google Scholar profiles this fall (which may mean that figures are slightly off from today’s figures). Google Scholar is also only as good as the profiles are, so if scholars have failed to maintain their profile with recent publications, it may understate their citations. I highlighted in blue circles those identified in the Leiter rankings as age 50 and under.

I included a trendline to show the relationship between the two sets of citations. Those “above” the line are those with higher Sisk-Leiter scores than Google H5 index scores and “benefit", in a sense from the use of this metric over Google H5. Those “below” the line, in contrast, are those who would “benefit” more from the use of Google H5. At a glance, it’s worth considering that perhaps more “pure law” scholars are above the line and more interdisciplinary scholars below it—not a judgment about one or the other, and only a great generalization, but one way of thinking about how we measure scholarly impact, and perhaps reflects a benefit of thinking more broadly about faculty impact. Recall, too, that this chart selectively includes faculty, and that some citation totals vary wildly due to the particular fields scholars write in. The usual caveats about the data apply—there are weaknesses to every citation metric, and this is just a way of comparing a couple of them.

Election counts and recounts

I’ve occasionally tweeted about election margins and recounts. Given a number of (relatively) close elections, refusals to concede, and retracted concessions, I thought I’d offer a little perspective (and a very little math).

All (or, at this point, nearly all) of the change in the margin between candidates in Florida’s Senate, Governor, and Commission of Agriculture races, and Georgia’s Governor race, have arisen because of mere counting of the ballots. There are lots of (here I’ll focus on legitimate, by far the more common) reasons for late-added votes. Provisional ballots could be deemed valid or cured. Vote-by-mail ballots might permissibly arrive after Election Day in some jurisdictions. But these are typically smaller figures. Slow or inefficient counting, or simply more general administrative failures, by election officials might result in added later totals.

To put it obviously, only after the votes have been counted can there be a recount. It’s there that many hold great interest, but it’s there that little changes.

I draw on a few rough figures form past recounts. Minnesota’s Al Franken netted 527 votes in a recount in 2008 in an election with about 2,885,555 votes cast. That turned his 215-vote deficit into a 312-vote victory (post recount and post litigation). The 527-vote change was just 0.018% of all votes cast. (Note that this reflects a percentage of this change compared to all ballots cast. It is not that there were 527 votes that were added for Mr. Franken; votes were added for Mr. Franken and for Norm Coleman, but Mr. Franken gained 527 votes relative to Mr. Coleman.)

Washington’s Christine Gregoire recount netted 390 votes in a 2004 gubernatorial recount in an election with 2,810,058 votes cast. Her opponent Dino Rossi originally held a 261-vote lead, but after two rounds of recounts Ms. Gregoire was declared the winner by 129 votes. The 390-vote change was just 0.014% of all votes cast. (Again, both Mr. Rossi and Ms. Gregoire increased their vote totals in the recount, but Ms. Gregoire increased them at a faster rate than Mr. Rossi, and that 390-vote difference was this percentage.)

Finally, Donald Trump won Wisconsin’s electoral votes over Hillary Clinton by a reported margin of 22,617 votes in 2016. Green Party candidate Jill Stein demanded a recount, which netted Mr. Trump 131 votes and increased his margin of victory to 22,748 among 2,976,150 votes cast. That 131-vote margin reflected 0.0044% of all votes cast. (This was a much more mundane recount in some respects because neither candidate formally challenged the results.)

The long and short of this is, recounts rarely change much in absolute terms. Even in elections with millions of votes cast, the relative change in the margin of victory is extremely low. It was enough to give Mr. Franken and Ms. Gregoire victories, but it was still very little that changed.

One basic reason that’s the case? Recounts recount every ballot—an obvious proposition, of course. But that means a challenging candidate picks up votes as well as his opponent. To successfully change the outcome of an election during a recount, then, you need either extraordinary luck, or you need to establish that there are systematically more votes for your candidate that were “missed” during the first count—mismarked ballots, hanging chads, provisional ballots that were deemed invalid, and so forth.

That can be a high bar. Typically, we’d expect errors like this to be randomly distributed. But as Florida’s 2000 election showed, one county’s procedures (e.g., the use of punch card ballots and a butterfly ballot design) might differ from another’s, which may disproportionately impact one candidate over another to the extent that one candidate’s support resides more heavily in that county. And as some observers of the 2004 Washington race and the 2008 Minnesota race might argue, out-lawyering your opponent can help net a few more votes, too.

Nonetheless, absent evidence like that, or in the event that there is offsetting evidence that may have disadvantaged candidates relatively equally, we would expect little to change in a recount.

Consider Minnesota again. Mr. Franken netted 1 vote for every 5,475 votes ultimate counted, that 0.018% margin. To win, he had to not simply gain votes; he had to gain votes faster than his opponent. And he did so.

And to Washington, Ms. Gregoire fared even worse. She managed to net just 1 vote for every 7,205 ultimately counted.

For both of them, despite these overwhelming odds, the extraordinarily narrow margins of victory—low three-digit margins—helped.

So where do things stand today?

The last update in Florida’s Senate election shows Rick Scott leading Bill Nelson by 12,562 votes among 8,184,631 votes cast. That’s 0.15%, or about 10 times the gains that Mr. Franken and Ms. Gregoire ultimately made—and that would just pull Mr. Nelson into a tie. (Again, however, recall how I opened this post—much depends on whether this is even the final count, as opposed to gains being made in the recount.)

In Florida’s gubernatorial race, among 8,218,682 votes cast, Ron DeSantis leads Andrew Gillum by a margin of 33,684. That’s 0.41%, or would require Mr. Gillum to net 1 vote for roughly every 244 votes cast. (And, of course, this is a rough figure—more ballots would likely be added to the overall total votes cast as “undervotes,” those that failed to register for any candidate, were added to the totals in a recount.)

Florida’s Commissioner of Agriculture, assuredly less watched, may still be instructive once the recount dust settles. Nikki Fried leads Matt Caldwell by 5,326 votes among 8,055,348 votes cast, or a margin of 0.066%.

In Georgia, Brian Kemp needed to secure more than 50% of the vote to avoid a run-off and win outright, and 3,929,937 votes cast, or about 10,875 votes to spare, a margin of 0.28%. (The math looks a little different when looking at a 50% cut-off rather than his position relative to challenger Stacey Abrams, but this works well enough for now.)

In short—the final count matters a great deal for each of these races. Under almost no recount scenario would anyone other than the projected winners win the recount, if recent history is any guide. Only significant election administration errors—failure to count large quantities of votes in select counties, for instance—would be these margins by overcome by challengers, because they’re the kinds of things that were omitted from the count in the first place. That said, there’s a first time for everything, which is probably the news that keeps hope alive for challengers in these races.

"Cyber Interference in Elections and Federal Agency Action"

I have this piece up at the Harvard Law Review Blog, Cyber Interference in Elections and Federal Agency Action. It begins:

Pop quiz: which part of the federal government is tasked with preventing cyber interference in our elections?

Congress has refused to say. We have reached a point of a significant gap between an important federal need and existing federal power. And in the absence of that federal power, federal agencies have stepped into the gap and extended their authority into domains unanticipated by Congress.

Where are they now? Supreme Court clerks, OT 2008

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003, October Term 2004, October Term 2005, October Term 2006, and October Term 2007, here's what the clerks from October Term 2008 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links admittedly often aren't the best source material). As always, please let me know of any errors or corrections.

Chief Justice John G. Roberts

William P. Baude (Yale 2007 / McConnell), law professor at Chicago

Jeffrey M. Harris (Harvard 2006 / Sentelle / Silberman), partner at Consovoy McCarthy Park

Erin E. Murphy (Georgetown 2006 / Sykes), partner at Kirkland & Ellis

Porter N. Wilkinson (Virginia 2007 / Kavanaugh), chief of staff to regents of the Smithsonian


Justice John Paul Stevens

Jessica Bulman-Pozen (Yale 2007 / Garland), law professor at Columbia

Cecilia M. Klingele (Wisconsin 2005 / Black / Crabb (W.D. Wis.)), law professor at Wisconsin

Lindsey Powell (Stanford 2007 / Garland), DOJ

A. Damian Williams (Yale 2007 / Garland), AUSA, S.D.N.Y.


Justice Antonin Scalia

Jameson R. Jones (Stanford 2007 / Sutton), partner at Bartlit Beck

Yaakov M. Roth (Harvard 2007 / Boudin), partner at Jones Day

Moshe Y. Spinowitz (Harvard 2006 / Boudin), partner at Skadden

David C. Thompson (Stanford 2007 / Kozinski), general counsel & chief privacy officer, Grand Rounds


Justice Anthony Kennedy

Ashley C. Keller (Chicago 2007 / Posner), partner at Keller Lenkner

Travis D. Lenkner (Kansas 2005 / Kavanaugh), partner at Keller Lenkner

Steven M. Shepard (Yale 2007 / Kozinski), partner at Susman Godfrey

Christopher J. Walker (Stanford 2006 / Kozinski), professor at Ohio State

Justice David H. Souter

Erin F. Delaney (NYU 2007 / Calabresi), professor at Northwestern

Michael Gerber (Yale 2005 / Leval), AUSA, S.D.N.Y.

Warren D. Postman (Harvard 2007 / W. Fletcher), partner at Keller Lenkner

Noah Purcell (Harvard 2007 / Tatel), Solicitor General of Washington

Justice Clarence Thomas

William S. Consovoy (George Mason 2001 / E. Jones), partner at Consovoy McCarthy Park

Claire J. Evans (Rutgers-Camden 2002 / Sentelle / Chertoff / Simandle (D.N.J.)), partner at Wiley Rein

Jennifer L. Mascott (George Washington 2006 / Kavanaugh), professor at George Mason

Patrick N. Strawbridge (Creighton 2004 / H. Dana (Maine) / M. Arnold), partner at Consovoy McCarthy Park


Justice Ruth Bader Ginsburg

Sue-Yun Ahn (Columbia 2006 / Tatel / Cote (S.D.N.Y.)), senior counsel, Consumer Financial Protection Bureau

Miriam L. Seifter (Harvard 2007 / Garland), professor at Wisconsin

Kevin S. Schwartz (Yale 2006 / Calabresi), partner at Wachtell

Robert M. Yablon (Yale 2006 / W. Fletcher), professor at Wisconsin

Justice Stephen Breyer

Brianne J. Gorod (Yale 2005 / Katzmann / Rakoff (S.D.N.Y.)), chief counsel, Constitutional Accountability Center

Seth Grossman (Yale 2005 / Calabresi / Reinhardt), chief of staff to the President of the University of California

Aileen M. McGrath (Harvard 2007 / Boudin), deputy city attorney, City of San Francisco

Matthew E. Price (Harvard 2006 / Boudin), partner, Jenner & Block

Justice Samuel Alito

Dana Remus (Yale 2002 / Scirica), general counsel, Obama Foundation

Andy Oldham (Harvard 2005 / Sentelle), judge, United States Court of Appeals for the Fifth Circuit

Michael H. Park (Yale 2001 / Alito), partner at Consovoy McCarthy Park

Jack L. White (Pepperdine 2003 / Alito), partner at FH+H


Justice Sandra Day O'Connor

Isaac Lidsky (Harvard 2004 / Ambro, shared with Ginsburg), CEO, ODC Construction

This is by far the most close-knit class of clerks we’ve come across. To wit:

-Three teach at the University of Wisconsin, and two of them, Ginsburg co-clerks, are married to each other. (UPDATE: Two other clerks from OT08, Erin Delaney and Travis Lenkner, are also married to each other.)

-Two Thomas clerks, one Roberts clerk, and one Alito clerk are partners at a boutique founded by at least some of them.

-Two Kennedy and one Souter clerk are also partners at the same boutique founded by at least some of them.

Otherwise, it’s a typical mix of mostly law firm partners, public servants, (including a state SG and a federal appellate judge), and law professors.

MBE scores drop to 34-year low as bar pass rates decline again

On the heels of some good news in recent administrations of the July bar exam comes tough news from the National Conference of Bar Examiners: the Multistate Bar Exam (MBE) scores have dropped to a 34-year low, their lowest point since 1984.

For perspective, California's "cut score" is 144, Virginia 140, Texas 135, New York 133. A bar score of 139.5 is comparable to 2015 (139.9) in recent years. One would have to go back to the 80s to see comparable scores: 1982 (139.7), 1984 (139.2), & 1988 (139.8).

I’d hoped that perhaps qualifications of students have rebounded a bit as schools improved their incoming classes a few years ago; perhaps students are putting more effort into the bar than previous years; or other factors. That appears to not be the case this year.

That said, MBE scores may be slightly less predictive of what will happen with actual bar pass rates. the NCBE has pointed out that the rise of the Uniform Bar Exam has led to a number of test-takers transferring scores to new jurisdictions rather than taking a second jurisdiction’s bar—and, presumably, those who pass in one jurisdiction are much more likely to pass in another jurisdiction (accepting that cut scores can vary in some jurisdictions). The UBE points to a few thousand such transfers last year, at least some of whom may have taken the bar exam. But put against more than 40,000 MBE test-takers, the effect, while real, may be small.

Instead, we’re left to watch as results come in state by state. Tracking first-time pass rates (from jurisdictions that share them so far—ideally, ABA graduates would be a better measure, but this works reasonably well for now), declines have been pretty consistent: New Mexico (-14 points), Indiana (-3), North Carolina (+1), Oklahoma (-8), Missouri (-7), Iowa (-3), Washington (-3), and Florida (-4). But in many of these jurisdiction, pass rates were worse in, say, 2015 or 2016.

We’ll know more in the months to come, but it looks like another year of decline will cause some continued anguish in legal education. The increased quality of law school applicants this year will help the July 2021 bar exam look much better.

Note: I chose a non-zero Y-axis to show relative performance.