Legal employment outcomes in California in 2013

The ink is hardly dry on the 2015 U.S. News & World Report rankings--which, for branding purposes, are for 2015, but, for data purposes, include the Class of 2012 employment data--and they're already obsolete. That's because the Class of 2013 employment data has been released for most schools.

Some deans at California schools have complained bitterly about how USNWR calculates its employment formula. They argue it penalizes California schools, because the economy in California has recovered at a slower rate than the rest of the country. What do the new figures show about California in 2013?

The USNWR methodology gives "full weight" to "graduates who had a full-time job lasting at least a year where bar passage was required or a J.D. degree was an advantage." They also use this figure in the ranking tables. They give other positions lower weight, but these positions are not included in the ranking tables.

Imperfect a measure as it may be, I took this metric and calculated the differences in 2012 and 2013 data for 18 of the 19 California ABA-approved schools and 2 California provisionally-accredited schools. Here's what the data show.

(Note: Berkeley has not released its data as of March 30, 2014, so figures are for all California schools except Berkeley. Figures may be updated when Berkeley discloses. SEE UPDATE BELOW.)

First, there were more graduates. Total graduates from these 20 schools increased 1.7%, from 4802 graduates in 2012 to 4884 graduates in 2013.

Second, more graduates obtained full-time, long-term, bar passage-required or J.D.-advantage positions. In 2012, there were 2575 who obtained such employment, for a 53.6% employment rate. In 2013, there was a 4% increase, with 2679 who obtained such employment for a 54.9% employment rate. (Of course, this does not indicate where such positions existed, in California or elsewhere in the country; it only indicates the rate of placement for the California schools, regardless of where the employment took place.)

Third, law school funding for these types of positions tripled. There were 24 school-funded full-time, long-term bar passage-required or J.D.-advantage positions in 2012; that number jumped to 75 in 2013. Leading the way were UCLA (from 9 to 34), USC (from 0 to 12), and UC-Davis (from 2 to 10), which accounted for virtually all of the increase. The USNWR rankings consider gives these positions full weight in its employment report, but recently NPR (via The Faculty Lounge) has noted this factor.

Below is a chart reflecting the 2012 and 2013 data, with links to the school's underlying data. It includes the 2015 USNWR peer score, the 2013 full-time, long-term, bar passage-required and J.D.-advantage positions, along with the year-over-year increase or decline in points from the 2012 rate. It then lists the raw number of students who obtained such positions, along with a parenthetical notation of how many of those positions were school-funded. The same is listed for 2012. (Due to the format of some schools' disclosures, the nature of school-funded positions was not always entirely clear, and I did the best I could to ascertain which funded positions to include in the count.)

Peer score	School	2013	YoY%	raw		2012	raw
4.7	STANFORD UNIVERSITY	92.8%	-3.9	180	(5)	96.7%	175	(4)
4.4	CALIFORNIA-BERKELEY, UNIVERSITY OF	90.4%	2.3	272	(25)	88.1%	275	(0)
3.9	CALIFORNIA-LOS ANGELES, UNIVERSITY OF	82.2%	5.1	273	(34)	77.2%	257	(9)
3.4	CALIFORNIA-DAVIS, UNIVERSITY OF	73.5%	5.6	144	(10)	67.8%	137	(2)
3.5	SOUTHERN CALIFORNIA, UNIVERSITY OF	71.0%	-1.4	169	(12)	72.4%	160	(0)
nr	CALIFORNIA-IRVINE, UNIVERSITY OF	66.7%	-19	56	(0)	85.7%	48	(0)
2.6	PEPPERDINE UNIVERSITY	64.8%	6.6	138	(0)	58.2%	124	(1)
2.7	SAN DIEGO, UNIVERSITY OF	60.1%	8.4	191	(0)	51.7%	169	(0)
2.6	LOYOLA MARYMOUNT UNIVERSITY-LOS ANGELES	59.1%	10.4	230	(5)	48.7%	200	(5)
2.4	SANTA CLARA UNIVERSITY	56.2%	-0.2	181	(1)	56.4%	168	(1)
1.9	SOUTHWESTERN LAW SCHOOL	52.0%	-4.5	156	(0)	56.5%	183	(1)
2.1	SAN FRANCISCO, UNIVERSITY OF	47.5%	14.9	95	(1)	32.6%	72	(1)
3.1	CALIFORNIA-HASTINGS, UNIVERSITY OF	47.2%	-4.5	176	(2)	51.7%	229	(0)
1.9	MCGEORGE SCHOOL OF LAW	46.9%	3.1	149	(3)	43.8%	134	(0)
1.8	CHAPMAN UNIVERSITY	45.7%	-2.1	85	(0)	47.8%	85	(0)
1.2	WESTERN STATE COLLEGE OF LAW	43.9%	4.1	54	(0)	39.8%	33	(0)
1.6	CALIFORNIA WESTERN SCHOOL OF LAW	41.6%	-7.8	117	(0)	49.5%	140	(0)
1.3	THOMAS JEFFERSON SCHOOL OF LAW	41.0%	4.8	120	(0)	36.2%	94	(0)
nr	LA VERNE, UNIVERSITY OF	40.7%	4.2	35	(1)	36.5%	38	(0)
1.4	WHITTIER LAW SCHOOL	30.5%	-15.4	64	(0)	45.9%	78	(0)
1.6	GOLDEN GATE UNIVERSITY	28.9%	1.8	66	(1)	27.1%	51	(0)

UPDATE: I've discovered that some of these 2012 figures do not perfectly align with the actual figures reported on USNWR. For a few schools where the numbers differed, I used the actual ABA data on the linked forms.

UPDATE 2: I have added Berkeley. With their 25 school-funded positions (up from zero last year), such positions have now quadrupled among California schools over the last year. Graduates increased from 5114 to 5185, a 1.4% increase. The employment rate increased from 55.7% to 56.9%.

Fictional Attorney of the Month: Willie Stark

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All the King's Men is an extraordinary novel. Robert Penn Warren is one of the very best writers of the twentieth century, and his prose in this work earned him the 1947 Pulitzer. He wrote this great Southern novel about Willie Stark, a politician inspired by the life of Louisiana's Huey Long. Stark is a gifted speaker whose righteous indignation and populist outrage inspires broad political support among the people of Louisiana. He climbs from a lowly local office to the governor's mansion. (The novel has twice been adapted to film--the actor portraying Stark in the 1949 version was Broderick Crawford.)

The story is narrated by Jack Burden, a law school drop-out turned journalist who becomes a part of Stark's machine. There are a number of legal themes throughout the work, ranging from a corrupt judge to commentary on the bar exam. And the implications of lawlessness are thought-provoking for anyone with an inclination to law.

There are too many good things to discuss in this book for a small Fictional Attorney of the Month post. But allow me to share one of my favorite quotations in the book, Stark's description of what law is and its perceived underinclusiveness:

"No," the Boss corrected, "I'm not a lawyer. I know some law. In fact, I know a lot of law. And I made me some money out of law. But I'm not a lawyer. That's why I can see what the law is like. It's like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling, and somebody is always going to nigh catch pneumonia. Hell, the law is like pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbone's to the breeze. The law is always too short and too tight for growing humankind. The best you can do is do something and then make up some law to fit and by the time that law gets on the books you would have done something different."

National Popular Vote passed in New York legislature

After perceived shortcomings in the electoral college in the 2000 election, and after Bush v. Gore, the National Popular Vote ("NPV") was introduced as a mechanism to convert the election of the president from the electoral college to popular vote. The goal was to avoid federal involvement: rather than enact a constitutional amendment, the NPV could garner support from individual states to give their electoral votes to the winner of the national popular vote, rather than the winner of their own state's popular vote.

Such unilateral disarmament would not be politically feasible, so the NPV included a trigger that conditioned it taking effect only when states comprising a majority of the electoral college's votes (at least 270) had enacted the legislation.

There was a flurry of enactments several years ago, but the pace slowed. That said, progress continues. Yesterday, New York's assembly joined its senate in supporting the interstate compact. The NPV is halfway toward taking effect; 136 electoral votes' worth of states have passed it. If signed by Governor Andrew Cuomo, it would push up to 165 votes.

As the proposal has been more popular in Democratic-controlled state legislatures, there are few big prizes left for NPV supporters, as California (55 electoral votes) and Illinois (20) have already enacted it. It has made progress previously in Pennsylvania (20). This year, it remains actively pending in Arizona (11), Connecticut (7), Nebraska (5), and Oklahoma (7). (The Wikipedia entry has excellent citations to the pending legislation.)

I've written extensively about the electoral college. I've concluded that the NPV likely fails absent congressional consent because it runs afoul of the Compact Clause, which prohibits states from entering agreements with each other that shift the balance of political power toward compacting states. I've also written about the "invisible federalism" undergirding presidential elections and explained that complications would arise should we decide to have 50 states' individual elections commingled into a single nationwide election.

Several more states would need to enact the compact before it takes effect, but New York's support shows that the issue is not over yet.

DOJ says if there were an abortion mandate, corporations couldn't object

During today's oral argument in Sebelius v. Hobby Lobby, Solicitor General Donald Verrilli conceded that under the Department of Justice's interpretation of the Religious Freedom Restoration Act, a hypothetical "abortion mandate" could apply to all for-profit corporations (and non-profit non-religious corporations), without any ability to object. (In this case, abortion is not covered, but contraceptives are covered. The plaintiffs in this case were challenging the contraceptives that thin the uterine lining and make it more difficult for a fertilized egg to implant, which they believe terminates a human life.)

JUSTICE KENNEDY: Under your view, a profit corporation could be forced--in principle, there are some statutes on the books now which would prevent it, but--could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now--the law now is to the contrary.

JUSTICE KENNEDY: Bur your reasoning would permit that.

GENERAL VERRILLI: Well, I think that--you know, I don't think that that's--I think it would depend on the law and it would depend on the entity. It certainly wouldn't be true, I think, for religious nonprofits. It certainly wouldn't be true for a church.

JUSTICE KENNEDY: I'm talking about a profit corporation. You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.

GENERAL VERRILLI: Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory that the for-profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.

CHIEF JUSTICE ROBERTS: I'm sorry, I lost track of that. There is no law on the books that does what?

GENERAL VERRILLI: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

CHIEF JUSTICE ROBERTS: Well, flesh it out a little more. What--there is no law on the books that does what?

GENERAL VERRILLI: That requires for-profit corporations to provide abortions.

JUSTICE KENNEDY: What if a law like that--

CHIEF JUSTICE ROBERTS: Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that's what we had before us.

GENERAL VERRILLI: It is their sincere belief and we don't question that. But I will say, and I do think this is important and I say it with all respect, that that is how they--that is the judgment that they make. It is not the judgment that Federal law or State law reflects. Federal law and State law which does--which do preclude funding for abortions don't consider these particular forms of contraception to abortion.

Preliminary three-year average and 2013 federal clerkship graduate placement figures

Law schools were required to report their nine-month employment figures for the Class of 2013 on March 15, 2014. Many schools have already disclosed that data individually on their own sites. Some places have begun to aggregate that data. Unfortunately, the data is fairly inaccessible: it is in PDF format in idiosyncratic on individual law school websites, and the ABA will not provide access to the data in a meaningful format for a few months.

But I went ahead and gleaned the data for placement in federal judicial clerkships among law school graduates for schools that had disclosed data on their sites as of March 19. (A handful of schools, including Berkeley, Texas, Georgia, and Irvine, had not yet disclosed their data.)

Below is a chart ranking the schools based upon the three-year average of their federal judicial clerkship placement, using data from the classes of 2011, 2012, and 2013. It also breaks out the 2013 figures separately. Schools with at least an average 5% placement over the last 3 years were included. It includes only full-time, long-term federal clerkships. Schools that had not disclosed their 2013 data as of March 19, 2014 were excluded.

Note: This is obviously a preliminary chart; only once I have the comprehensive data from all 202 law schools could I evaluate all schools.

Three-Year Average Federal Clerkship Graduate Placement from excessofdemocracy.com
	Three-year	Three-year	2013	2013
School	Percentage	Placement	Percentage	Placement
YALE UNIVERSITY	34.3%	216	35.0%	71
STANFORD UNIVERSITY	27.0%	153	29.4%	57
HARVARD UNIVERSITY	17.0%	298	17.0%	98
VIRGINIA, UNIVERSITY OF	11.9%	132	12.9%	47
CHICAGO, UNIVERSITY OF	11.4%	72	10.2%	22
DUKE UNIVERSITY	10.8%	73	8.7%	21
VANDERBILT UNIVERSITY	9.8%	59	9.2%	19
PENNSYLVANIA, UNIVERSITY OF	9.6%	77	9.3%	24
ALABAMA, UNIVERSITY OF	9.4%	47	10.2%	17
MICHIGAN, UNIVERSITY OF	8.9%	104	7.8%	31
NEW YORK UNIVERSITY	8.4%	125	8.8%	47
CORNELL UNIVERSITY	8.4%	49	10.9%	21
NORTHWESTERN UNIVERSITY	7.4%	64	7.7%	22
COLUMBIA UNIVERSITY	7.0%	95	4.8%	21
NOTRE DAME, UNIVERSITY OF	6.7%	38	5.4%	10
WILLIAM AND MARY LAW SCHOOL	5.6%	35	3.7%	8
CALIFORNIA-LOS ANGELES, UNIVERSITY OF	5.4%	54	6.9%	23
WASHINGTON AND LEE UNIVERSITY	5.2%	21	3.5%	5
KENTUCKY, UNIVERSITY OF	5.1%	21	5.3%	7
IOWA, UNIVERSITY OF	5.0%	28	6.3%	12
SOUTHERN CALIFORNIA, UNIVERSITY OF	5.0%	33	3.8%	9
Chart includes data for schools with at least 5% graduate placement in full-time, long-term federal judicial clerkships averaged over 2011, 2012, and 2013. Schools that had not disclosed 2013 employment data as of March 19, 2014 were excluded.

"Necessary" voter eligibility enforcement under Kobach v. EAC

After the Court's decision in Arizona v. Inter Tribal Council last year, I noted the unusual breadth of the Court's language concerning the state's interest in enforcing (and not merely establishing) voter qualifications. (I anticipate having some comments on this unusual language in a forthcoming article.) But in the sequel to this case, Kobach v. EAC, a federal court has issued an opinion (PDF) with a disconcerting turn of logic.

I previously highlighted expansive language from the Court:

In case you're still not convinced, n.10 is also significant: if a court cannot compel the Election Assistance Commission to act on Arizona's request, "Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form" (emphasis added).

I think the "might" in that sentence is not that there "might" be a constitutional right; instead, it is that Arizona "might" have established, factually, that a "mere oath" will not suffice (slip op. at 17). Consistent with the earlier progression I described, I wonder if the Court now assumes that there is a "constitutional right" of the state to not simply proscribe  voter qualifications, but to enforce  them absent federal interference.

Sure enough, the court in Kobach highlighted this exact language. It begins (p. 26):

The EAC decision provides no citation or analysis of how ITCA leads to [the] conclusion that the EAC has the authority to decide what is necessary. Nor is there express language in the NVRA or in the ITCA opinion granting the EAC such broad authority to determining what information is necessary. . . .

Further, the U.S. Supreme Court characterizes the EAC as having "a nondiscretionary duty" to include Arizona's proof-of-citizenship requirement in the instructions if Arizona can establish in this Court "that a mere oath will not suffice to effectuate its citizenship requirement." So, at the least, the ITCA opinion establishes that there is a point at which the EAC loses whatever discretion it possesses to determine the contents of the state-specific instructions.

There are two independent holdings. The first is a question of statutory interpretation; that is, it might be the case that the NVRA does not give the EAC the power to determine what information is "necessary" to enforce voter qualifications. The second is a question of the power the EAC holds; that is, at some point, a state "can establish" that its own enforcement procedures are "necessary."

The first is an interesting proposition about the scope of the statute, but I'll set that aside for the moment. The more problematic portion of the court's opinion comes when it addresses how states may establish certain information as "necessary" (p. 27):

Here, Arizona and Kansas have established that their state laws require their election officials to assess the eligibility of voters by examining proof of their U.S. citizenship beyond a mere oath. The EAC decision makes the case that the states have other means available to enforce the citizenship requirement. But the Arizona and Kansas legislatures have decided that a mere oath is not sufficient to effectuate their citizenship requirements and that concrete proof of citizenship is required to register to vote. Because the Constitution gives the states exclusive authority to set voter qualifications under the Qualifications Clause, and because no clear congressional enactment attempts to preempt this authority, the Court finds that the states' determination that a mere oath is not sufficient is all the states are required to establish.

Therefore, the Court finds that Congress has not preempted state laws requiring proof of citizenship through the NVRA. This interpretation is not "plainly contrary to the intent of Congress" because the NVRA is silent as to the issue. Consistent with ITCA, because the states have established that a mere oath will not sufficient to effectuate their citizenship requirement, "the EAC is therefore under a nondiscretionary duty" to include the states' concrete evidence requirement in the state-specific instructions on the federal form.

This cannot be correct.

First, if the states have "exclusive" authority to set voter qualifications, then Congress could not "preempt" this authority. Under the Times, Places and Manner Clause, Congress and the states have concurrent power--it resides in the states until Congress preempts it. But to the extent one is solely discussing qualifications (as the broad language of Inter Tribal suggests), that power is not one Congress may preempt. Further, it is not a power in dispute in this case; it is the enforcement power over qualifications that is in dispute.

Second, the states must "establish" that "a mere oath will not suffice to effectuate its citizenship requirement." The court's analysis makes no such finding. Its sole finding on the issue is ipse dixit: "their state laws require their election officials to assess the eligibility"; "the Arizona and Kansas legislatures have decided that a mere oath is not sufficient." That is not a finding that it is not sufficient; that is a restatement of the law.

Now, it may be that the NVRA is "silent" on this issue, in which case this analysis is truly dicta. But, in the event the NVRA is not silent, or in the event Congress wants to make the NVRA speak on the issue of enforcement, this analysis matters a great deal. Or, it may be that Arizona and Kansas have created a record that "establishes" that a "mere oath will not suffice," and the Court did not speak to that issue.

But the language from Inter Tribal has effectively limited the Times, Places and Manner Clause power of Congress (as the court in Kobach explains earlier in the opinion). And the fallout continues in confusion in this case.

LSAT takers declined this year, but not as rapidly as you might expect

Earlier this year, I blogged about the "sharp" decline in LSAT takes for the fourth year. But by the end of the cycle, with the February 2014 results just released, LSAC actually saw a small year-over-year increase in February tests administered. LSATs administered are down to 105,532, down 6.2% over last year and down 38.5% over the 2009-2010 test-taking cycle (which was the record high). An updated chart from by previous blog is posted below.

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Admittedly, LSATs are down. But the decline is not as sharp as one might expect--particularly given that the October tests were down 10.9% over the previous year and 45% over October 2009. I had earlier projected about 101,000 LSATs administered if we followed last year's trends, which suggests that there was a slowing of the decline by the end of the cycle. But whether the more modest decline in LSAT takers also translates to a more modest decline in matriculants, as discussed earlier, is another matter.

The irony of Ben & Jerry's opposition to Citizens United should not go unnoticed

A public radio station recently announced that Ben & Jerry have started a movement against Citizens United. (I obtained the story from Rick Hasen's Election Law Blog.) The irony should not go unnoticed.

First, their movement is a corporate movement speaking out against other corporations speaking. "The Stamp Stampede" is a project of "Power People Initiatives," a Vermont nonprofit corporation, funded by the "International Forum on Globalization," a California nonprofit corporation. These corporations are speaking out in support of a political movement against corporations who want to speak out on politics.

Second, there are arguably federal laws that make their project--stamping money with an advertisement of their Web address--illegal, most notably 18 U.S.C. § 475, which prohibits anyone from advertising on currency. But they have obtained a legal opinion from an attorney who assured them that the First Amendment could not extend to such "clearly protected political speech." If only there were other judicial opinions that struck down federal laws that burdened political speech that might be useful in addressing such a ban....

If U.S. News rankings were a cake, you wouldn't want to follow the recipe

UPDATE: the methodology described in this post is from the 2014 rankings. The 2015 use substantially the same methodology with some minor differences in application.

Imagine you want to bake a cake. Usually, you would want a recipe: the list of ingredients, the quantities of each, and the order and manner in which they are mingled.

Law school rankings are like that. But for the U.S. News & World Report rankings, the recipe does not match the cake you see. And that should disturb you.

Here are the items used in the methodology from 2014.

Quality assessment
Peer assessment score (0.25) [63% response rate]
Assessment score by lawyers/judges (0.15) [9% response rate, two-year average]

Selectivity
Median LSAT scores (0.125)
Median undergrad GPA (0.10)
Acceptance Rate (0.025)

Placement success
Employment rates at graduation (0.04) [variously weighing 22 of 35 different post-J.D. jobs and durations]
Employment rates nine months after graduation (0.14) [variously weighing 22 of 35 different post-J.D. jobs and durations]
Bar passage rate (0.02) [based on ratio of passage in jurisdiction]

Faculty resources
Average instruction, library, and supporting services expenditures per student (0.0975)
Financial aid expenditures per student (0.015)
Student-faculty ratio (0.03)
Library resources (0.0075)

The first problem is this: USNWR doesn't disclose all of the data it uses above. The second problem is this: USNWR discloses data it doesn't even use in its overall score.

If you opened up the magazine, then, the "recipe" would have a bunch of missing ingredients, and a bunch of useless ingredients.

You could figure out some of this data on you own, such as obtaining the ABA median LSAT and UGPA data. And you could understand why some of it is kept in the dark: for instance, keeping expenditures per student private to avoid an arms race, or to minimize the secret formula for weighing employment rates to avoid schools gaming the employment statistics as they had for years. Some try to reverse-engineer the scores to reveal the data that's otherwise hidden.

But it's notable that the final score--and final ordinal rank--has a majority of its data concealed from the public eye. Indeed, its glossy print edition includes six columns of data that the magazine itself deems irrelevant to its overall score. It's one reason why professors like Brian Leiter constantly implore commentators to focus on the data, not the ranking--and it should call into question why so much data is concealed.

Tomorrow, U.S. News & World Report will disclose its ordinal rankings, likely with a slightly modified methodology. But it's important to recognize that this ranking--this cake--was baked with ingredients we don't have the pleasure of seeing.