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A Tale of Two Butthurt Profs

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Two butthurt professors took to the pages of Brian Leiter's blog to talk about just how butthurt they were over all the criticism of Michael Simkovic and Frank McIntyre's article about the economic value of a law degree.

The first butthurt comment comes from Simkovic himself, guest blogging on Leiter's wobsite. He discusses in detail how Above the Law didn't do a good enough job reading and understanding the paper that he and his guest author poured so much time and effort in to. Here's Simkovic's first of six complaints:

ATL Claim: The article doesn’t present any earnings data after 2008 and ignores changes since the financial crisis.

And Simkovic's response:

Facts: We present earnings data from 1996 to 2011.  We also check for trends.  As shown in the figure below, the earnings premiums in recent years are within historical norms. [...]

We note in the article that the most recent college and law graduates in our sample graduated in 2008.  This is because the Census Bureau reports educational attainment at the start of each Panel and the most recent panel started in 2008.  Each panel tracks earnings for several years.

The last class to be studied was the class of 2008, but earnings data continued through 2011, so part of the recession was reflected in the data. Sure looks like ATL's claim that the article didn't present any earnings data after 2008 is flat out wrong.

Yeah, okay. Except that ATL never made that claim. Here is what ATL actually said:

Cutting your study off in 2008, before the market significantly changed, means that your study HAS NO CREDIBILITY. NONE.

ATL's language is a bit ambiguous; it's not clear if they mean the authors didn't look at classes graduating after 2008 (which they didn't) or if they didn't look at salaries after 2008 (which they did). Fortunately, there's this little thing called context. ATL previously quoted a bit from the ABA Journal's coverage of the paper:

The data covers four panels of graduates from 1996 through 2008 and looks at salaries through 2011.

We're pretty sure there some fancy Latin legal phrase used to express the idea that you have to interpret things in context, but we don't have any reference materials within reach, so let's just say dolium volvitur. Here's a screencap of the two sections quoted from the ATL article. A screencap. Singular. Meaning you can see both sections at the same time. That means a reader of ordinary intelligence would understand ATL's complaint to be not that salaries were no looked at post-2008, but that the study did not take into consideration the graduating classes of 2009, 2010, and 2011.

Some of the other criticisms of ATL's piece have more meat to them, but when you title your blog post "Above the Law Needs to Read More," perhaps your first complaint shouldn't be quite so reading impaired.

Before turning to the other butthurt professor, there's one other problem with Simkovic's response we want to point out. This part comes in a discussion about the role of tuition in the article:

Mr. Mystal is correct that the $1 million figure is pre-tax and pre-tuition—the article says as much. However, after deducting taxes, and tuition, and even close to the bottom of the distribution, it appears that a law degree is very often a profitable investment.

How profitable varies from person to person. There are surely a few individuals who do not benefit at all or even do worse. If we had a way to identify these unlucky people before law school we would encourage them to avoid law school. Judging from student loan default rates, this is a relatively rare outcome. Further, income based repayment of loans should substantially mitigate this downside, even as it makes it difficult for us to nail down exactly how much a given person pays for law school.

Simkovic has repeatedly cited law school graduates' low student loan default rates, both to show that they don't struggle as much as other grads with higher default rates, and to argue that law school student loans are a good investment for the federal government (6.8% interest + low default rate = profit! ...plus a very serious question about why the interest rate doesn't reflect the low default rate...).

Simkovic has ignored the very real possibility that law school default rates could be lower because law school grads are more apt to take advantage of deferment, forbearance, and IBR and PAYE programs. Seems pretty reasonable to think law school grads are a bit better at wading through complex contract terms and government regulations, especially when you consider the degree to which law schools are advertising these programs.

When it comes to student loans being profitable for the federal government, again the story doesn't end at default. If you graduate with the average debt of $100,000 at 6.8% interest, you need to earn $156,000 to not be classified as being in "partial financial hardship" and being eligible for PAYE. At $150,000 in law school debt, a grad needs to earn $225,000 a year. Even at the low end, with just $50,000 in debt, a salary less than $87,000 makes you eligible for monthly payments. The default rate might be low, but so is the number of people the government is collecting 6.8% interest from.

A law school grad with $100,000 in debt needs to earn $59,000 a year just to pay the interest on the loan. Below that amount, the principle is never touched. So what happens at the end of 20 years if you're right at that threshold? The government collects it's 6.8%, which comes out to a total of $83,000. It then forgives the principal of $100,000. Doesn't look like such a good investment now, but please Mr. Simkovic, tell us more about how important the low default rate is.

 

Moving on, the second butthurt professor is the philosophy professor of law himself, Brian Leiter. He complains that The New Republic ran an article about how to fix law schools without consulting any real experts. The six people TNR talked to here, as Leiter describes them:

[O]ne gossip columnist who went to law school, one longtime law professor, two journalists who went to law school, one "journalist moonlighting as a law professor", and one in-house counsel. In short, they asked no experts on legal pedagogy, the economics of legal education, or the legal profession, just a group of pontificators (plus one lawyer) with varying degrees of familiarity with law schools.

The "gossip columnist who went to law school," is ATL's David Lat. Leiter leaves out of his description that Lat also worked at a clerk for a judge on the Ninth Circuit Court of Appeals, as an associate at Wachtell, and as a federal prosecutor.

The longtime law professor is Alan Derschowitz. He was a clerk to the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, then to SCOTUS Justice Goldberg (yeah, never heard of him either, but whatever). After clerking, he went into academia, but has also practiced law off and on (seems to be mostly off), working as a criminal appellate lawyer on some high profile cases.

The "two journalists who went to law school," are Mike Kinsley, TNR's editor-at-large, and Dahlia Lithwick, a senior editor and legal correspondent for Slate. Kinsley graduated from Harvard Law in the 1970s and has been in journalism ever since. Lithwick clerked for a judge on the Ninth Circuit, and also practiced family law for a short time (her bio isn't clear on for how long, but likely no more than 4 years).

The "journalist moonlighting as a law professor," is Paul Campos, and the "moonlighting" bit is supposed to be a dig at Campos for having a blog.

Lastly, the in-house counsel is Mark Chandler of Cisco Systems. Leiter fails to mention that he is on the Dean's Advisory Committee at Stanford Law School.

The "varying degrees of familiarity with law schools" includes for each of the "pontificators" having actually attended law school. And while he doesn't like that "journalist moonlighting as a law professor," Leiter himself isn't even a real law professor. He is a philosophy professor who happens to work at a law school and teaches Evidence for two months of the year. His CV is filled with publications on Neitzche, Legal Realism, and Legal Positivism, but light on law (his writing on Evidence is more about epistemology). He is nothing more than a very highly paid pontificator, and one that isn't even recognized by other pontificators (ie: philosophy professors) as being particularly good at what he does.

[Editor's Note: An earlier version mistakenly said Leiter had no legal education and does not teach law. He holds a JD from Michigan, regularly teaches Evidence during Chicago's 2 month Winter term.]


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