Visualizing legal employment outcomes in Illinois in 2019

This is the fourth in a series of visualizations on legal employment outcomes for the Class of 2019. Following posts on outcomes in Pennsylvania, Ohio, and Texas, here is a visualization for legal employment outcomes of graduates of Illinois law schools for the Class of 2019. (More about the methodology is available at the Pennsylvania post.) Last year's Illinois post is here.

The market appears to be flat to slightly declining for Illinois law schools, in contrast to other states so far. Graduates fell from 1696 to 1604, and placement in bar passage-required jobs was essentially unchanged from 1162 positions to 1158. But J.D.-advantage placement and law school-funded jobs dropped off a bit, for a slight overall placement rate improvement from 82% to 84%.

As always, please notify me of any corrections or errata.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
4.6	University of Chicago	97.5%	-0.5	189	2	6	202	98.1%	188	4	10	206
4.2	Northwestern University (Pritzker)	95.8%	-1.1	208	22	0	240	96.9%	205	12	5	229
3.2	University of Illinois-Urbana-Champaign	94.3%	2.3	107	8	0	122	91.9%	118	19	0	149
1.7	Northern Illinois University	86.7%	20.5	65	5	2	83	66.2%	43	8	0	77
2.6	Loyola University Chicago	84.3%	-1.2	140	26	0	197	85.5%	119	46	0	193
2.3	DePaul University	79.8%	6.4	120	50	0	213	73.5%	126	40	0	226
2.6	Illinois Institute of Technology (Chicago-Kent)	78.9%	-2.2	157	26	0	232	81.0%	149	39	0	232
2.1	UIC - John Marshall	67.1%	-0.4	120	35	0	231	67.5%	151	33	1	274
1.6	Southern Illinois University-Carbondale	66.7%	-0.6	52	4	0	84	67.3%	63	11	0	110

Eight questions I have about the summer/fall 2020 bar exam

In the midst of the many changes to the bar exam this summer or fall, here are eight things I’m watching with some interest and some open questions.

1. Online security and reliability. Some states have announced the move to an online test. I’m pretty skeptical that such plans can be built in such a short time (so is Professor Josh Blackman, and the authors of a white paper on the bar exam describe an online exam as “very risky”). The botched AP test administration this spring is just the latest confirmation of my skepticism. I hope states will be able to build something secure and reliable, but we’ll have to wait and see.

2. A new format for test-takers to learn. I think it’s fair to say that bar exam test preparation providers have crafted study programs designed to assist learning in a particular format: in virtually all states, essays and multiple choice covering particular topics. Now, some state bar exams are literally creating a new exam they’ve never administered before out of thin air, whole cloth, or whatever metaphor comes to mind—short essay, short answer, no multiple choice, etc. Indiana, for instance, now will create “short answer questions” on MBE topics. It remains to be seen how students will study for this new test, what materials will be provided to them ahead of time to understand for the format of the test, and whether test-prep companies can accommodate in a timely and effective fashion.

3. Scaling, equating, and pass rates. In most states that administer the Multistate Bar Exam, licensing authorities scale essay exam answers to the equated MBE results. To greatly simplify, it ensures that the test is measuring the same things year after year. But some states are creating their own tests this year. It will be impossible to do that, and I haven’t seen any good statements about what states plan to do except generic claims that they’ll ensure comparable scoring. Michigan, for instance, announced, “Experts will work with the BLE to determine an appropriate passing score based on results from previous July exams.” Nevada “will take all reasonable measures to address the reliability of an essay only exam.” It might be something as crude as making sure the pass rate this year looks similar to past years. Or it might result in a dramatic fluctuation in pass rates. It’s hard to say without seeing more.

4. Out-of-state bias. New York and Massachusetts have announced rules prioritizing in-state ABA law school graduates over others. (Utah accommodated a number of out-of-state law schools, but not all, in its “diploma privilege-plus” model.) It’s not clear whether litigation will follow, whether alternative accommodations will be provided, or whether other states will follow suit.

5. The limitations of the UBE and questions about reciprocity. As UBE states move away from administering a UBE exam this term, students who have increasingly relied on the UBE as a way of improving portability of their license or ensuring licensure in multiple jurisdictions will face a setback. It might be that some states will soften reciprocity requirements (which, I think, seems unlikely)—but, more likely, a cohort of graduates will simply be out of luck.

6. What will “supervised practice” really look like. Utah has the most at stake with supervised practiced as it transitions to a type of “diploma privilege-plus” model, where recent graduates at a number of law schools. But many other jurisdictions, like Ohio and New York, are also allowing graduates to engage in supervised practices. Experience in Canada and elsewhere suggests that such proposals tend to disadvantage first-generation attorneys (i.e., those without a family support structure to help supervise practice) and those with limited socioeconomic means. It remains to be seen how this plays out in practice. It’s also not clear how many graduates take advantage of them, or simply extend their bar exam study periods longer as the bar exam is pushed later.

7. Discipline rates. We know that attorneys tend to be disciplined later in their careers. We also have some evidence that lower bar exam scores correlate with higher ultimate discipline rates. To the extent that alternative exams or admissions practices are adopted, we wouldn’t expect to see much for a decade at least in terms of attorney discipline rates. So we can revisit this in, maybe, 2035 (!) to see if the standards this year changed anything.

8. USNWR fallout. While some have worried about whether law schools will meet their ultimate 75% pass rate for graduates within two years, I think that’s less of a concern—failing to meet the 75% ultimate pass rate means schools must justify to the ABA why they’ve fallen below and what steps they’re taking, and, if in 2022 some schools fall below and can point to the circumstances of the summer/fall 2020 bar exam, I think it would be a small problem for schools to explain non-compliance.

A bigger problem, I think, is the USNWR rankings. USNWR includes as one of its twelve components how a school did in its pass rate compared to the overall pass rate for the modal jurisdiction of its graduates taking the bar exam. It remains unclear how Utah’s new proposal, how novel scoring systems, how pass-fail policies in the last semester, or how increased disruption that may particularly affect law school graduates in, say, New York City will affect pass rates.

To be fair, bar passage rates are a very small portion of the overall formula. But another and larger component is employment statistics. As bar exam grading gets pushed back several weeks (in California, the goal will be to complete it by December 31!), it remains to be seen if a softer employment market coupled with delayed bar exam grading leads to weaker job figures for some schools as of March 15, 2021, the 10-month employment figure date.

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?

A pair of faithless electors cases from 2016 have made their way to the Supreme Court. (Disclosure: I filed an amicus brief on behalf of myself in support of neither party here.) SCOTUSblog posts for Chiafalo v. Washington and Colorado Department of State v. Baca are here and here.

The Tenth Amendment argument unfolded in a curious way because of the Court’s new format of oral argument, where justices asked questions one by one.

The framing here is important before we get to the questions. In 1995, the Supreme Court decided U.S. Term Limits v. Thornton. That case held that states cannot add to the qualifications enumerated in the Constitution for members of Congress, because the Constitution fixes the qualifications and states have no power to add to them.

It was a 5-4 decision (written by Justice Stevens, joined by, among others, Justice Kennedy). Among the arguments rejected by the majority was that the Tenth Amendment empowered states to add qualifications. The majority, relying on the work of Justice Story and others, argued that the states had no reserved powers over federal elections, because there were no federal elections prior to the enactment of the Constitution. Instead, all state power over federal elections must come from an affirmative grant in the Constitution. I think that’s the right argument, as I lay out, in part, in Weaponizing the Ballot.

Justice Thomas dissented on behalf of four justices. He argued that the Tenth Amendment did include such a power. He lost, but still—he had four justices who agreed with him.

Fast forward to today. Justice Thomas asked Professor Larry Lessig, who represented petitioner Chiafalo in the first argument, about a reserved powers of the states claim. Washington did not raise a Tenth Amendment, Professor Lessig notes, but regardless the Constitution empowers electors to have certain discretion, which states cannot take away.

Questions when down the line until it reached Justice Kavanaugh, the most junior justice. He also raised the Tenth Amendment argument with Professor Lessig. Professor Lessig notes that Washington didn’t raise it, and there’s no tradition of state power to control presidential electors.

Now, this is a moment. Justice Kennedy had rejected the Tenth Amendment argument in Thornton. Justice Kavanaugh has replaced him and seemed receptive to the Tenth Amendment.

So, oral argument goes back to the top, to the Solicitor General of Washington. And on down the line until it comes to Justice Sotomayor, who takes the opportunity to push back on the Tenth Amendment claim. In a real-time argument, this would probably have happened when Justice Kavanaugh spoke. But she emphasized, “two of my colleagues” raised it, but Washington never did, and it seems a strange reserved power when states never knew they had it.

Then, on back to Colorado’s oral argument. Colorado did raise a Tenth Amendment claim. Justice Kagan pressed, “Why doesn’t Thornton foreclose that argument?”

So Justices Sotomayor and Kagan, in my view, were very much pushing back against the concerns raised by Justices Thomas and Kavanaugh (and, speaking with more speculation, specifically Justice Kavanaugh) on the Tenth Amendment.

Justice Gorsuch didn’t weigh in on the Tenth Amendment piece, but I want to highlight n.60 of a law review article he wrote in 1991 on term limits, expressly reserving addressing the Tenth Amendment question that would later be address in Thornton. Not that his former views would offer any insight, but, there, he did believe that term limits are a “manner” of holding elections and within state power. It’s unclear whether his views (or reserved views) from that day would carry over here.

A few other highlights from oral argument.

Limiting principles. It’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want? Both sides continued to exert fairly maximalist interpretations, in my view, rather than a claim more closely hewing to the facts presented. That said, it’s in part because the justices are looking for larger principles. But the frustration was palpable. Chief Justice Roberts asked about casting a vote for a giraffe, and Justice Thomas about a vote for Frodo Baggins. Pressing Washington about the limits of its power, claims like “the Equal Protection Clause” and the like were the boundaries. It’s hard to know if either side made much headway here.

Bribery. Professor Lessig made an important—and, I’m not sure entirely necessary—claim during argument, one that multiple justices later seized upon. If an elector was bribed, could that elector be removed? Only after a criminal conviction, Professor Lessig noted. That seemed a bridge too far for many members of the court, who seemed concerned that a bribed elector could still vote if the wheels of justice hadn’t moved swiftly enough.

Manufactured case. The justices at a few points wondered about Baca in particular as a manufactured case. Justice Breyer pressed both sides on the claim that Section 1983 did not allow a state to be sued, so why should a court hear the case? Both sides argued it was non-jurisdictional and how they wanted to strategically present the case. Justice Alito went a step farther, questioning Professor Lessig’s motivations in helping invite chaos in the 2016 presidential election.

Pragmatism. Many justices—particularly Justices Breyer, Alito, and Kavanaugh, but also in strains of Justices Kagan and Gorsuch—echoed practical concerns of two kinds. First, if a judicial decision would render significant uncertainty or unpredictability, perhaps that decision should not be issued—as Justice Kavanaugh put it, the “avoid chaos” theory of judging. Second, in the absence of very clear guidelines from the Constitution, perhaps the courts should just defer to the state judgment, which sometimes binds electors and sometimes doesn’t. Justice Kagan openly floated this possibility, as she seemed unconvinced by either textual or historical arguments, suggesting deference would be warranted.

In the end, there’s plenty of uncertainty in the two cases. And the justices have… six or seven weeks to sort it all out….

A quick look at the draft election law ACCESS Act, a part of the draft HEROES Act

H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions Act, or HEROES Act, was recently posted. It includes the American Coronavirus/COVID-19 Election Safety and Security Act, or ACCESS Act. (That’s separate and apart from the $3.6 billion in funding for elections given to states.) I thought I’d break down its initial draft provisions relating to federal elections.

Section 160002: Requirements for Federal Election Contingency Plans in Response to Natural Disasters and Emergencies

States have 30 days to develop contingency election plans for natural disasters or infectious diseases, including providing equipment to protect the health and safety of poll works and voters, and to recruit poll workers from “resilient or unaffected populations.” That includes recruiting government employees, or high school or college students.

It includes a private right of action in addition to Department of Justice oversight, which invites individual litigation instead of, say, lodging review exclusively in a federal agency.

Quick take: On the whole, this is a fairly modest requirement that states should be thinking about anyway. I’m not sure allowing individual litigation is the best mechanism for enforcement, but maybe it won’t be significant, and maybe I’m wrong.

Section 160003: Early Voting and Voting By Mail

This section updates the Help America Vote Act of 2002 by requiring early voting at least 15 consecutive days before Election Day, including weekends. It anticipates this will look like in-person voting. It adds some details, like polling places should be “within walking distance of a stop on a public transportation route” where “practicable,” or in areas that “ensure” “residents of rural areas” have access.

It gives the Election Assistance Commission (“EAC”) new power: to “issue standards for the administration of voting prior to the day scheduled for a Federal election,” including “nondiscriminatory geographic placement of polling places.”

It also requires states to begin “processing and scanning ballots cast during the early voting period” before Election Day, but does not compel states “to tabulate ballots in an election before the closing of the polls on the date of the election.”

It would also expand absentee voting. State could not “impose any additional conditions or requirements on the eligibility to cast the vote in such election by absentee ballot by mail”—essentially, no-excuse absentee ballots everywhere. It forbids states from using identification requirements (photo or non-photo), and from requiring notarization or a witness signature for requesting a ballot or casting it. It includes a “due process” requirement in the event of a signature mismatch of an absentee ballot, giving a 10-day window to cure the problem—interestingly, to cure such discrepancy, either in person, by telephone, or by electronic methods.” A similar opportunity extends for lack of signature. States must also provide absentee ballots to be requested online.

In the event of a declared “emergency or disasters,” election officials must mail absentee ballots “to all individuals who are registered to vote in such election.” This rule would extend to the November 2020 election (by statute, independent of any declared emergency or disaster, due to the coronavirus).

Absentee ballots would need to be accepted by any state as long as they were postmarked on or before Election Day and received within 10 days after the election. It would also allow unlimited “ballot harvesting.” States would also need to institute a ballot tracking program.

It also adds a private right of action.

Quick take: Several states do not have early in-person voting. Many others do not have it for 15 consecutive days before the election. This would change how voting works in a number of states. It would also be interesting to see how the EAC would go about issuing early in-person voting standards—how broad or narrow, for instance, in scope. The EAC is a commission consisting of four members, two Republicans and two Democrats, so it requires bipartisan consensus to develop such standards.

It would also rather dramatically expand absentee voting opportunities and alter verification procedures, and it would turn an election into an effectively all-mail election during disasters (including all 50 states in 2020). It would expand ballot harvesting. These are non-trivial changes that, I think, will require some more refinement before a nationwide consensus could be reached—given that it would effectively override at least some election rules in the vast majority of jurisdictions.

Section 160004: Permitting Use of Sworn Written Statement to Meet Identification Requirements for Voting

Well, the title says it all. It preserves the requirement under HAVA that first-time voters who registered by mail must present identification.

Quick take: Many states have some form of identification requirement. Some that do also have a similar requirement as this proposed section. But, again, it would be a fairly significant change in a number of states. I should add that a statute like this (and a similar requirement up in Section 160003) might run afoul of the Elections Clause. States have the power to determine the qualifications of voters; there’s a plausible argument that includes the power to enforce qualifications, as the Supreme Court suggested in Arizona v. Inter Tribal Council of Arizona. In my view, laws like voter identification requirements and voter registration requirements likely pass constitutional muster as a component of the “manner” of holding elections, but I toss it out there as a potential complicating factor.

Section 160005: Voting Materials Postage

This section requires states to prepay postage for absentee ballots and include a self-sealing (i.e., one you don’t have to lick!) envelope.

Section 160006: Requiring Transmission of Blank Absentee Ballots Under UOCAVA to Certain Voters

Certain voters may request an electronically-delivered blank ballot (for an idea of what that “federal write-i absentee ballot” (FWAB ) looks like, see here). That includes those who haven’t received a ballot within two days of the election after requesting one, lives in a jurisdiction with an emergency declaration within 5 days of the election, excepts to be absent to help with an emergency, is or expects to be hospitalized, or has a disability in a state without remote ballot marking.

Quick take: While this expands some emergency voting opportunities, the FWAB is basically a blank piece of paper, and I wonder about expanding its use in these circumstances.

Section 160007: Voter Registration

This Section requires states to offer online voter registration (most do). It requires that the application “does not seek to influence an applicant’s political preference or party registration.” The Section also requires states to have “same day registration” and prohibits them from using more than the last 4 digits of a Social Security Number

Quick take: Again, the bill is a fairly large change for many states—about 21 states have same-day registration.

Section 160008: Accommodations for Voters Residing in Indian Lands

“Given the widespread lack of residential mail delivery in Indian Country,” this Section provides extra locations to pickup and return ballots and to register without a residential mailing address.

Section 160009: Payments by Election Assistance Commission to States to Assist with Costs of Compliance

Detailing how the $3.6 billion will be used.

Section 160010: Grants to States for Conducting Risk-Limiting Audits of Results of Elections

This is an interesting little section—it authorizes $20 million right now and more in the future to repay states if they conduct risk-limiting audits. It doesn’t compel states to do so, but allows them to receive money if they do.

Section 160011: Additional Appropriations for the Election Assistance Commission

Section 160012: Definition

This would define “Federal office” in the Help America Vote Act as “a general, special, primary, or runoff election for the office of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress.”

Quick take: I’ve seen this language elsewhere in the statute. It’s not clear to me how far federal power can necessarily extend in primary elections for President, but my assumption is this definition is designed to ensure U.S. territories must comply and can receive funding.

*

In short, there aren’t too many constitutional red flags to me in reviewing this legislation (exception potentially its application to presidential primaries and any overlap it may have with voter qualifications). But it does fairly dramatically alter a number of state practices, including practices that most states currently reject. Maybe it’s time for such a dramatic overhaul of elections—and to implement those new changes this November. But I think, if the ACCESS Act as a part of the HEROES Act becomes law, it will likely undergo some serious revisions to secure support of both houses of Congress and the President’s signature.

Visualizing legal employment outcomes in Texas in 2019

This is the third in a series of visualizations on legal employment outcomes for the Class of 2019. Following posts on outcomes in Pennsylvania and Ohio, here is a visualization for legal employment outcomes of graduates of Texas law schools for the Class of 2019. (More about the methodology is available at the Pennsylvania post.) Last year's Texas post is here.

Total jobs, including bar passage-required jobs, improved significantly. Bar passage require jobs rose from 1366 to 1430, while J.D. advantage positions fell slightly. Total graduates also declined slightly. Job placement improved from 76% to 80%, including a few law school-funded jobs.

I typically don’t comment on particular school performances, but I imagine this one may receive some attention. I don’t make any assessment as to the quality of positions. Read the methodology for more—I use the employment placement figures that USNWR adopts, with some different ways of visualizing the data. Texas, for instance, placed 122 graduates into law firms with more than 100 attorneys, and another 34 into federal clerkships. Baylor is less than half the size and placed 16 & 9, respectively. Texas A&M is half the size and placed 10 & 4, respectively. And SMU is slightly smaller but placed 81 & 3, respectively. Again, this is one of many metrics one can use.

As always, please notify me of any corrections or errata.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
2.4	Baylor University	93.7%	4.7	116	2	1	127	89.0%	100	5	0	118
2.4	Texas A&M University	92.3%	10.4	107	13	0	130	81.9%	93	20	0	138
4.1	University of Texas-Austin	89.9%	-2.9	255	6	6	297	92.8%	238	15	6	279
2.7	Southern Methodist University	89.1%	2.0	233	12	0	275	87.1%	192	17	0	240
1.9	Texas Tech University	82.2%	-3.6	103	8	0	135	85.8%	125	8	0	155
2.7	University of Houston	81.0%	-4.4	163	24	0	231	85.4%	171	22	0	226
1.6	South Texas College of Law Houston	72.9%	5.1	173	17	1	262	67.8%	160	24	1	273
1.6	St. Mary's University	72.9%	10.4	131	22	0	210	62.5%	129	11	0	224
nr	University of North Texas Dallas	59.3%	1.4	56	11	0	113	57.9%	76	8	0	145
1.4	Texas Southern University	57.8%	9.2	93	7	0	173	48.6%	82	6	0	181

Visualizing legal employment outcomes in Ohio in 2019

This is the second in a series of visualizations on legal employment outcomes for the Class of 2019. Following a post on outcomes in Pennsylvania, here is a visualization for legal employment outcomes of graduates of Ohio law schools for the Class of 2019. (More about the methodology is available at the Pennsylvania post.) Last year's Ohio post is here.

Total jobs, including bar passage-required jobs, improved significantly. Those bar passage-required jobs rose from 571 to 662. Total graduates also rose from 888 to 961. Job placement improved even with total graduates rising, increasing the placement weight in all these areas of employment from 76% to 81%. Four of Ohio’s nine law schools still graduated fewer than 100 students.

As always, please notify me of any corrections or errata.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
3.3	Ohio State University	87.5%	-2.4	132	13	2	168	89.9%	134	14	3	168
1.7	University of Dayton	83.3%	7.7	58	12	0	84	75.6%	46	13	0	78
1.5	Ohio Northern University	83.0%	15.2	38	1	0	47	67.8%	34	6	0	59
1.8	University of Akron	82.2%	12.2	82	24	0	129	70.0%	65	19	0	120
2.4	University of Cincinnati	81.0%	1.0	86	12	0	121	80.0%	58	14	0	90
1.8	Cleveland-Marshall College of Law	80.7%	-1.1	55	16	0	88	81.8%	65	7	0	88
1.9	University of Toledo	80.0%	5.9	49	15	0	80	74.1%	31	12	0	58
2.6	Case Western Reserve University	78.3%	5.3	99	12	1	143	73.0%	83	9	0	126
1.4	Capital University	67.3%	5.9	63	5	0	101	61.4%	55	7	0	101

Visualizing legal employment outcomes in Pennsylvania in 2019

Following up on a series of posts last year (and previous years), this is the first in a series visualizing employment outcomes of law school graduates from the Class of 2019. The U.S. News & World Report ("USNWR") rankings recently released include data for the Class of 2018, which are already obsolete. The ABA will release the information soon, but individualized employment reports are available on schools' websites.

The USNWR prints the "employed" rate as "all jobs, excluding positions funded by the law school or university that are full-time and long-term and for which a J.D. and bar passage are necessary or advantageous." It does not give "full weight" in its metrics to jobs that were funded by the law school. USNWR gives other positions lower weight, but these positions are not included in the ranking tables. And while it includes J.D. advantage positions, there remain disputes about whether those positions are actually as valuable as bar passage required jobs. (Some have also critiqued sole practitioners being included in the bar passage required statistics.) Nonetheless, as a top-level category, I looked at these “full weight” positions.

The top chart is sorted by non-school-funded jobs (or "full weight" positions). The visualization breaks out full-time, long-term, bar passage required positions (not funded by the school); full-time, long term, J.D.-advantage positions (not funded by the school); school funded positions (full-time, long-term, bar passage required or J.D.-advantage positions); and all other outcomes. I included a breakdown in the visualization slightly distinguishing bar passage required positions from J.D.-advantage positions, even thoug both are included in "full weight" for USNWR purposes (and I still sort the chart by "full weight" positions).

The table below the chart breaks down the raw data values for the Classes of 2018 and 2019, with relative overall changes year-over-year. Here, I used the employment rate including school-funded positions, which USNWR used to print but no longer does; nevertheless, because there are good-faith disputes, I think, about the value of school-funded positions, I split the difference—I excluded them in the sorting of the bar graphs, and included them comparatively in the tables. The columns beside each year break out the three categories in the total placement: FTLT unfunded bar passage required ("BPR"), FTLT unfunded J.D. advantage ("JDA"), and FTLT law school funded BPR & JDA positions ("LSF"). This year, I also added the total graduates. (My visualization is limited because the bar widths for each school are the same, even though schools vary greatly in size, and that means raw placement might be more impressive considering class size.)

Let me finally add that there are many other, and probably better, ways of looking at this data, including qualitative assessment of the types of jobs in each category. This is only a high-level look at eight select regions and the state of the entry-level legal employment market.

The first state is Pennsylvania (last year's visualization here). There were 1316 statewide graduates, a 6% increase over last year's class. The total placement rate among the graduates was over 90% (including a few school-funded jobs), a big jump over last year’s 82% despite a larger graduating class. Placement in bar passage required jobs jumped from 939 to 1082.

As always, if I made a mistake, please feel free to email me or comment; I confess there are always risks in data translation, and I am happy to make corrections.

UPDATE: Some figures incorrectly included both bar passage-required and J.D.-advantage jobs when they should have been separate categories. Those figures and the table below have been updated.

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Peer Score	School	2019	YoY%	BPR	JDA	LSF	Grads	2018	BPR	JDA	LSF	Grads
4.4	University of Pennsylvania	97.6%	-0.3	229	8	7	250	97.9%	216	12	10	243
2.5	Villanova University	93.8%	5.6	181	17	0	211	88.2%	127	15	0	161
2.2	Pennsylvania State - Dickinson Law	91.2%	3.9	45	7	0	57	87.3%	51	4	0	63
2.7	Temple University	90.7%	7.5	174	22	0	216	83.3%	161	13	0	209
2.2	Drexel University	88.8%	5.1	119	11	0	134	83.7%	95	13	0	129
1.8	Duquesne University	86.2%	6.2	78	16	0	109	80.0%	86	13	0	120
2.7	University of Pittsburgh	85.8%	14.0	89	14	0	120	71.9%	85	12	0	135
1.5	Widener Commonwealth	85.5%	23.3	60	5	0	76	62.3%	32	1	0	53
2.4	Penn State Law	80.4%	0.4	107	8	0	143	80.0%	86	13	1	125

Washington Post significantly overstates Supreme Court's role in RNC v. DNC absentee ballot dispute

The headline at the Washington Post in the aftermath of the Wisconsin presidential primary election (and, among other elections, state supreme court election) is a bit curious: “Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions.” Why “unexpected”? Well, unexpected if you didn’t read what the lower courts were doing and only focused on certain opposition to the Supreme Court’s decision in RNC v. DNC.

A three-journalist by-line offer some of these takes:

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

…

The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

…

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order.

…

In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by Election Day.

…

The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by Election Day — effectively imposing a new standard.

…

When Republicans appealed to the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

In bold, in the last portion of my excerpt, is a line that appears in the 45th paragraph of the piece.

What’s “surprising,” “unexamined,” and so on is because the obsessive focus was never on the lower courts’ proceedings, but instead on one aspect of the Supreme Court’s decision (highlighted by the dissenting justices, which cued how many journalists framed the litigation).

The Supreme Court concluded that an April 2 District Court order, effectively extending the election from April 7 to April 13 (refusing to count ballots until then, counting all ballots received until then, and so on), was too dramatic a departure too late in the election process. Four dissenting justices focused on disenfranchised voters—i.e., those who wanted to vote by mail but would have difficulty doing so by April 7. That’s what many journalists “examined.”

But the District Court did extend the deadline for receiving absentee ballots. Some states authorize jurisdictions to count ballots received days after Election Day, as long as they were postmarked by Election Day. Other states, like Wisconsin, require absentee ballots to arrive by Election Day to count. The District Court, as a part of the litigation, determine that the present circumstances required extending the absentee ballot deadline beyond Election Day, as long as it was postmarked by then. (It made other changes, too, like extending the deadline to require absentee ballots.)

Republicans expressly opted not to challenge this portion on appeal. Indeed, while the Washington Post’s 45th paragraph says that Republicans “did not explicitly seek a postmark deadline” (which, I think, means “did not seek to challenge the postmark deadline rules”), it’s actually more than tacit acquiescence: Republicans expressly did not appeal that part of the order. From its emergency application in the Supreme Court:

The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such as its extension of the deadlines to remotely register to vote and to request an absentee ballot. And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.

Republicans affirmatively did not appeal this aspect of the District Court’s order. They wanted modest relief. They acknowledged remaining disputes on the facts but also acknowledged the tradeoffs of changing rules prior to the election (essentially, an inversion of the Purcell principle).

Additionally, the Washington Post is overstating it to say that the Supreme Court “effectively impos[ed] a new standard.” It did no such thing. The standard was one created by the District Court. And it was one the parties never litigated, from the very opening of the the Supreme Court’s opinion:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.

One more line later in the opinion:

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

In short, the Supreme Court never examined the extended absentee ballot receipt deadline. While it’s “important[]” that that issue was not appealed, that’s because it makes its per curiam decision not effectively extend Election Day to April 13, as it opens, a “narrow, technical” question.

It would be remarkable if the Supreme Court overturns a lower court decision that neither party challenges on appeal. To say that failure to do so is “effectively impos[ing] a new standard” is something of an overstatement.

Now, I don’t doubt that litigants will seize on the District Court’s action to seek opportunities—frankly, on thin records at the moment ahead of the November election—to claim that absentee ballots received after Election Day but postmarked by then should be counted in those states that require receipt by Election Day. The NCSL reports that 42 states and DC require mail-in ballots to be received by Election Day. So it would be a fairly significant departure for district courts to start revising election laws right now—particularly given that (1) legislatures have ample opportunity to address the matter ahead of November, and (2) there is deep uncertainty about what voting in November 2020 looks like. That said, there will undoubtedly be increased requests for vote-by-mail opportunities, increased snafus in trying to meet demand, and increased challenges in the Post Office trying to deliver ballots by Election Day. How individual district court judges handle these requests—how quickly, and with what kinds of appeals—remains deeply uncertain.

That said, I don’t think RNC v. DNC tells us very much, if anything, about these matters. It’s hardly a “game-changing precedent.” If anything, it indicates that, with a thin record, a decision close to the election, and a properly-framed appeal, the Supreme Court would find such a judicial order unwarranted. But we’ll see how the litigation unfolds in the months ahead.

Note: I’m fairly sloppy with my use of “absentee” and “vote-by-mail” in blog posts, often using them interchangeably, so please forgive me!

Interstate agreement to develop a regional supply chain for personal protective equipment may violate Compact Clause without congressional consent

Previously, I expressed skepticism that interstate regional “pacts” or “agreements” to coordinate reopening the economy required congressional consent under the Compact Clause. Those agreements seemed like little more than information-sharing groups and conscious parallelism. Indeed, watching how states have behaved, they’ve continued to act primarily state-by-state, even as members of these “regional” groups.

But there’s a new proposal out of the northeast:

Amid the ongoing COVID-19 pandemic, Delaware Governor John Carney, New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Rhode Island Governor Gina Raimondo and Massachusetts Governor Charlie Baker today announced a joint multi-state agreement to develop a regional supply chain for personal protective equipment, other medical equipment and testing.

While the states will continue to partner with the federal government during this global and national public health crisis, they will also work together to identify the entire region’s needs for these products, aggregate demand among the states, reduce costs and stabilize the supply chain. The states will also coordinate policies regarding the inventory of PPE each state’s health care infrastructure should have to be prepared for a possible second wave of COVID-19. The states will also coordinate policies on what supplies local governments should have on hand for their First Responders, and if any requirements regarding PPE for the non-for-profit and private sector are needed.

The states will then seek to identify suppliers within the country, region or state who can scale to meet the demand of the entire region over the next three months. The goal of this approach is to decrease the potential for disruptions in the supply chain for PPE and medical equipment, including sanitizer and ventilators, and testing, and promote regional economic development.

…

Governor Cuomo said, “The COVID-19 pandemic created a mad scramble for medical equipment across the entire nation – there was competition among states, private entities and the federal government and we were driving up the prices of these critical resources. As a state and as a nation we can’t go through that again. We’re going to form a regional state purchasing consortium with our seven northeast partner states to increase our market power when we’re buying supplies and help us actually get the equipment at a better price.

The devil is in the details of an agreement like this, and, of course, press releases are perilously short on details. But this agreement starts to look like the kind of thing the Compact Clause cares about.

Start with some common definitions of a “compact,” “mutual declarations [that may be] reasonably treated as made upon mutual considerations,” or “reciprocity.” Here, it sounds like these states are agreeing to stop bidding individually for medical equipment and to start bidding collectively. They agree to divide the equipment based upon their internal criteria they share and pay based upon internal criteria they share.

It’s also expressly designed to leverage these states at the expense of other states, and even potentially at the expense of the federal government. That is, these governors (and I only quote Governor Andrew Cuomo, but you can read others) expressly want to increase the ability of this consortium to succeed at the expense of other states and the federal government.

Now, to be frank, my analysis may mean little—the Compact Clause has been construed exceedingly narrowly in the last two hundred years, and one is hard-pressed to find many cases where an interstate compact has been deemed to require congressional consent. And, of course, even if I’m right, Congress can always consent to the compact. But this strikes me as precisely the type of factionalism the Compact Clause is designed to prevent: if the problem is an ineffective federal coordination or excessive state squabbling, groups of states can’t team up to cure the problem for themselves at the expense of others.

Still, I wouldn’t be surprised to see some non-compacting states challenge the decisions of these compacting states. What appears to be an attempt to improve state relationships among some may well worsen those relationships among others.

Finally, one nice thing about this blog is an opportunity to throw out a possibility like this and open up for feedback. Are there purchasing power arrangements between states, like this one, that exist? Or, even better, that have faced litigation in the past? Professor James Coleman suggested that the Regional Greenhouse Gas Initiative, which includes bidding and auctions, is a possibility, and one that doesn’t have congressional consent. If anyone has others, feel free to post in the comments (which may take some time to appear).