The debate continues over the value of law blogs and their role in the continuum of scholarship.  We have written extensively on this topic, including the possible role for blogs in law school rankings.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings. 

More and more, academics seem to be coming around to the view that law blogs have an important role to play.  Some have done so because of the perceived improvement in the dynamics/technology of blogs.  As Orrin Kerr recently noted on the Volokh Conspiracy,

• Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text.

Nonetheless, not all law blogs qualify as scholarship, as Steven Bainbridge recently reminded, and not all law blogs are active participants in shaping the law.  So which ones qualify?  One answer requires reference to both demographics and the judicial system. 

First, some of the growing influence of law blogs can be put squarely at the door of demographics.  As a practical matter, those below 40 (which this author is not) are more likely to use the Internet to conduct legal research and search for information. 

Second, given this demographic reality, it would be important to know where younger lawyes have a disproportionate impact on shaping the law.  They are not, on the whole, managing partners at large law firms, general counsels at Fortune 500 companies, or judges sitting on the state or federal bench. 

They are, however, lawclerks to judges.  Despite the existence of permanent clerks and lawclerks who have already practiced, most still come directly from law school.  Lawclerks are likely to be younger and more technologically proficient than the bar as a whole.

They can, as a result, be counted on with some frequency to read law blogs that comment on cases under consideration within their respective chambers.  (The likelihood will no doubt vary depending upon the particular court considering the case, the public profile of the case, and the case's legal complexity).  As they research these cases, either to prepare their judges for oral argument or to draft opinions afterwards, they are likely to want to consider any erudite commentary that sheds light on these cases.

Blogs that focus on cases, therefore, can have an impact on ongoing litigation, even if in a sub silentio fashion.  They can also become part of counsel's strategy in dealing with important cases.  This was suggested in an exchange that I had with a prominent lawyer in Washington DC.  As this lawyer explained:   

• I understand that Supreme Court clerks (and lower court clerks, as well) often check the blogs that cover their cases.  Appellate lawyers are aware of this practice, and, as a result, blogging is sometimes used as a kind of back-door, post-argument supplemental briefing.  In most appellate courts, particularly the Supreme Court, the court will only very rarely allow the filing of a post-argument brief to address an issue that arose during oral argument.  However, since bloggers discuss and comment on the oral argument in prominent cases, and since the clerks (and possibly the Justices themselves) read these posts, the blogosphere can serve as a vehicle to, in effect, continue the oral argument or supplement the briefing.

In other words, contemporaneous commentary on cases can influence the thinking of law clerks and judges.  So can discussions after oral argument, a circumstance facilitated by the quick posting of transcripts by the Supreme Court and the willingness of some circuits to put oral arguments online.  In effect, blogging can be a form of post-oral argument analysis. 

Discussion after oral argument can be particularly important for cases at the Supreme Court if used to address issues left unanswered or partially answered at oral argument.  For cases at the US court of appeals, the identity of the respective panels usually becomes known only just before argument occurs (the DC and 8th Circuit are the exceptions, see Neutral Assignment of Judges at the Court of Appeals).   Blog posts could at that point address concerns or positions of the particular jurists actually deciding the case.  

This suggests that law blogs focussing on cases can have accentuated influence.  This Blog does.  Moreover, as we have seen, TheRacetotheBottom increasingly makes appearances in briefs (for examples, go here and here).  During the Blog's coverage of the trial of Ward Churchill, it was common to enter the courtroom and see the latest posts from TheRacetotheBottom on the computer screens of counsel.

Not all law blogs do this.  Moreover, some that do merely throw off a paragraph or two that is more descriptive than analytical.  In the end, detailed analysis for important cases from those in the academy with deep expertise in the legal matters at issue may be the best way for blogs to play an active role in shaping the direction of the law.  

Ranking law blogs is notoriously hard to do.  Do you rank by traffic, an approach used by Paul Caron when he does a quarterly list?  If you rank by traffic, do you go with individual IP addresses or page views?  Do you rely on the number of links to your blog, a method used for example by Google?  (Ranking of blogs, including the influence of blogs on US News rankings, is examined in greater detail in Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings). 

And, of course, whatever the metric, how does one assess influence?  Particularly in the realm of modestly trafficked blogs (as most law blogs can be characterized), the goal is influence quality rather than quantity (although some law bloggers are paid and this does often depend upon traffic). 

So, we were very pleased, here at The Race to the Bottom, to see that we had achieved a mark of influence.  Law Week Colorado, a legal newspaper, put out an issue titled "The Best of the Best," a paean to "the very best things about living and working in the legal world of Colorado."  The issue included a number of categories and ranked the best based on the consensus of the 400 or so readers who submitted ballots, labeled the People's Court, and the staff of Law Week, labeled Barrister's Best.  

Included among the many categories was the best law blog (see page 16).  The People's Court weighed in on Above the Law, a blog that unabashadly describes itself as a "legal tabloid"  (http://www.abovethelaw.com/).  

The Barrister's Best?  Our very own Race to the Bottom.  As the paper explained:

• Race to the Bottom is a blog written by University of Denver Sturm College of Law students and profs, and it gives you something more substantial to read after you've gotten your daily schadenfreude fix at Above the Law.  Though Race to the Bottom's main focus is corporate governance, few blogs or newspapers have explored the Nacchio and Churchill trials from as many angles.

We don't aspire for these sorts of things but when they happen, we appreciate them.  The students worked particularly hard covering the two trials mentioned above.  Its nice to know that some arbiters of quality and influence noticed.   The University of Denver has posted a short story on the accomplishment. 

While this is a corporate governance blog, we also occasionally touch on matters pertaining to legal education, particularly rankings. 

With that in mind, we turn to a recent piece in The New Yorker, How David Beats Goliath.  The article indicates, counter intuitively, that David often beats Goliath but mostly when David responds to Goliath with unconventional strategies.  As the article notes:

• David’s victory over Goliath, in the Biblical account, is held to be an anomaly. It was not. Davids win all the time. The political scientist Ivan Arreguín-Toft recently looked at every war fought in the past two hundred years between strong and weak combatants. The Goliaths, he found, won in 71.5 per cent of the cases. That is a remarkable fact. Arreguín-Toft was analyzing conflicts in which one side was at least ten times as powerful—in terms of armed might and population—as its opponent, and even in those lopsided contests the underdog won almost a third of the time. . . . What happened, Arreguín-Toft wondered, when the underdogs likewise acknowledged their weakness and chose an unconventional strategy? He went back and re-analyzed his data. In those cases, David’s winning percentage went from 28.5 to 63.6. When underdogs choose not to play by Goliath’s rules, they win, Arreguín-Toft concluded, “even when everything we think we know about power says they shouldn’t.”

How does this pertain to legal education?  It suggests that law schools wanting to "slay Goliath," which in this post means moving up in the rankings, ought not to invariably play by Goliath's rules.  In other words, law schools need to embark on strategies that are unconventional. 

What might this mean?  There is no easy answer.  In How David Beats Goliath, it meant a basketball coach who used a full court press to cause turn overs and throw off the ability of the superior shooting teams.  Moreover, whatever the "unconventional" idea, once enough schools follow suit, it will become "conventional."

With law schools, there are a number of possible ways to attract positive attention to the institution through unconventional approaches that also benefit students.  Possible examples?

• Law classes in foreign languages.  International law programs have proliferated.  Yet programs that actually teach students to operate in non-English enviornments are almost nil.  Particularly for programs offering law classes in Spanish (the University of Denver has a "Spanish for Lawyers" program), it provides an opportunity to encourage internationalization and to reach out to an under-represented segment of the community (non-native English speakers).  

• Changes to the first year curriculum.  Most law schools teach the first year in a more or less identical fashion.  Contracts, torts, civil procedure, criminal law, property, maybe conlaw, crimpro and sometimes an elective.  Harvard's reforms announced a couple of years ago put a bit more emphasis on international and administrative matters but otherwise didn't tamper much with the model.  What might be done?  How about a first year curriculum that in one semester teaches civil law (torts, contracts, civpro, property and legal writing) and in the second teaches criminal law (crim, constitutional crim pro, criminal procedure, legal writing and a seminar on a crimlaw topic).  Perhaps by clustering the courses, there will be opportunity for common problems and cross learning, increasing retention.

• Increased substantive expertise by allowing a professor with a particular area of expertise to teach the same 20 or 25 students in several classes during the same semester, perhaps providing opportunities for experiential learning.  This could be set up several years in advance, allowing students to plan for the semester and entail rotation of faculty.  The designated faculty member might even teach his/her entire load in one semester, giving students 10-12 hours of the area under study. 

• Becoming the first law school in the country to have tenure track writing faculty for both first year and upper level writing requirements?  Particularly with the upper level writing requirement, schools often allow completion through methods that can sometimes be unrigorous, whether participation on a law review or completion of a seminar paper.  Having students taught entirely by trained writing faculty (for both first year and upper level) would by itself be an unusual step.  Making them all tenure track would be unique.

These are random ideas of varying quality.  There are other methods.  I have written about the use of law blogging by faculty to raise a law school's notoriety.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.  If anyone else has unconventional ideas, please share them.

As expected, US News did combine full time and part time statistics (despite the separate ranking for part time divisions).  This may explain some of the movement in the rankings (the relatively large drop for George Washington, for example).  It suggests that next year, there will be yet another adjustment as law schools unprepared for this combination (many throw weaker students into the part time division) adjust and raise the median for that division.

We thought that we'd at least have a day to start the discussion on the latest version of the rankings before they came out.  Wrong.  They have been leaked.  A copy can be found here.  While these may be fakes (this kind of thing happens all the time), they look real.  The official release day is April 23.

The law school rankings put out by US News will be published this week (April 23), with leaks probably taking place around Wednesday.  These rankings have been vociferously criticized and Brian Leiter has called on blogs to avoid posting them when they come out.   As he wrote:

• When the new rankings come out in a couple of weeks, may I suggest that you not post the overall ranking. You all know the overall rank assigned to a school by U.S. News is meaningless, often perniciously so. It combines too many factors, in an inexplicable formula, and much of the underlying data isn't reliable, and some of it (e.g., expenditures on secretarial salaries and electricity) isn't even relevant. You all know this. So don't report it. The fact that this garbage appears in a major 'news' magazine doesn't change the fact that it is garbage.

There is much truth to the criticism but the rankings have some advantages.  To the extent that they encourage law schools, for example, to reduce the faculty-student ratio, increase expenditures by raising additional dollars, or improving employment rates (particularly now), they push at least some schools in an appropriate direction.   For more on this, the methodology can be found here.

We will keep our eyes on things as they come out.  The big issue this year was whether US News would combine part time and full time divisions.  The effect would be to reduce median LSATs of most schools with part time (evening) divisions since most have lower median LSATs for the part time division.  By producing a separate ranking for part time division, US News is for now apparently not combining the two.

More as things develop this week.

We have noted already that there is a recession free industry:  Graduate School.  With the economy in full recession, the WSJ reports that one strategy is to go to law school.  As the Journal notes:

• In seeming defiance of logic, many law schools are surging in popularity. At Washington and Lee University in Virginia, for example, law-school applications are up 29% this year over 2008, while Yale Law School and the University of Texas School of Law both enjoyed an 8% increase in applications. Nationwide, the total number of applicants is up by 2% over last year, with the deadline to submit applications having passed at most schools.

This is taking place despite the lay offs at large firms that seem to occur almost daily.  It seems that applicants are nonetheless looking for a refuge and law school is high on the list.

The advise from the law blog on the right law school strategy?  "For those hellbent on the paper chase, Koppel provides a couple nuggets of advice: try hard to go to an elite school. Once you’re there, focus on a specialty well-poised for growth, like intellectual-property."  Perhaps we might add securities, which is a growth area, and corporate governance, which will continue to grow given the current compensation scandals still plaguing the markets.

The Race to the Bottom is dedicated to providing our readers with high quality content while remaining advertisement free.  Nonethless, we are not revenue neutral but have occasional modest expenses.  We pay for this platform and have to maintain our URL.  Materials we use on the Blog occasionally must be purchased (a FOIA for documents related to the SEC's position in Stoneridge is pending and may require a document fee). 

If you enjoy our publication, please show your support by donating to our organization.  They will help us continue to bring the serious and in depth commentary that readers on this Blog have come to expect.   

The Race to the Bottom is dedicated to providing our readers with high quality content while remaining advertisement free. If you enjoy our publication, please show your support by donating to our organization.

Don Guter, the dean of Duquesne Law School was recently removed by the president of the University.  He had been in the position since August 1, 2005.   On this Blog, we do not particularly view personnel changes at law schools to be part of our intellectual mission.  We do, however, view rankings as an appropriate topic for discussion.  Guter's removal, however, has been linked to the rankings so we have opted to discuss the situation.

The dismissal was abrupt and earned a blunt response from Guter.  The resulting letter chronicled his accomplishments at Duquesne: 

• During my short tenure as Dean, we have enjoyed record bar pass rates that rose from 68% at my arrival to 88%, 9l% and 97% in my three years.  These are our highest rates in at least 25 years and rank us second in the state. We also achieved our first ever specialty ranking in U.S. News and World Report, ranking 30th out of 200 law schools in Research and Writing.  Faculty scholarship has risen significantly.  Our ABA visit was the most successful in the school's history. Most recently, we won three straight national moot court competitions, including the Tournament of Champions which makes us the best in the United States.  Our relationship with alumni has never been stronger and giving is robust.  Perhaps most importantly, I brought surcease to a divided and angry faculty and high morale to our students, all in consistent support for the University's mission statement.

The dean apparently places the blame on a personality conflict with the president, noting in his letter the president's "personal animus toward me."  The accomplishments sound impressive and at least with respect to student relations supported by reported reactions to his dismissal (including voting no confidence in the president).

We have no idea what level of personal animus entered into the decision.  The university president attributed the dismissal to "a consistent pattern of failure to meet expectations" but was otherwise vague about the precise nature of the expectations.  A spokesperson for the university did, however, note that: "Overall, we have a fourth-tier law school that has not moved in the U.S. News rankings."

This raises an interesting question.  Are the low rankings of a law school a legitimate reason for removing a dean?  (Again, we repeat, it is unclear how much this played a role in Guter's removal, if at all).  And, even if it is, how long ought a dean to have to show progress?

In connection with Duquesne, the Law School's numbers are weak.  As the Pittsubrg Post-Gazette noted, following a discussion with Robert Morse at US News:

• Duquesne ranked second to last out of 184 law schools in per-student spending on instruction, library and support, Mr. Morse said. It spent 64 percent of what nearby Pitt spends.

• Duquesne's law student-to-faculty ratio, at 18.2 to 1, ranked 160th, Mr. Morse said. Volumes and titles in Duquesne's law library, at 386,540, ranked 153rd.

• Rounding out the six criteria were the school's 145th ranking in the median LSAT entrance exam scores; a 1.9 out of 5 possible points in a category allowing law schools to rate peers; and a 157th place in the share of the Class of 2006 employed full- or part-time nine months after graduation. It was 86.1 percent

With the exception of peer rankings and employment, all of these categories in one way or another are matters of funding.  While incoming class statistics might not seem directly related, they are influenced by the scholarship dollars available, which is a matter of financing.  Published stats indicate that, from 2005 to 2007, the median LSAT score for the entering classes at Duquesne has been declining.

Why does Duquesne have such a significant problem with resources?  Assuming Duquesne is tuition driven, it charges, for a private institution, a relatively low tuition.  Moreover, some portion of that is no doubt taken off the top by the University (the so called rip off factor).  The only way out of the muddle?  Accelerate fundraising, increase tuition rates, or get the University to reduce its take.   All of these are difficult to accomplish at all, much less in a three or four year period.

Rankings matter.  They likely impact admissions and employment (both places were Duquesne seems weak) and possibly fundraising.  In turn, improving a law school's finances can be disproportionately important in the ranking process.  It is unclear the degree to which Guter was forced out because of the Fourth Tier status of Duquesne.  It is likewise unclear how much that status resulted from policies instituted by the main university.  Nonetheless, it seems likely that had Guter raised the rankings of the Law School he would have been more insulated from removal.  That is probably the take away from this for other deans, if there is any.

US News is considering changing the formula for computing rankings of law schools.  Right now, the magazine uses the median LSAT and GPA from the full time divison.  The magazine is considering using the median from the combined full time and part time divisions.  Because for most schools the part time division has lower LSAT medians, the impact of combining the two will be a drop in the median for at least some, if not many, of the schools with an part time division.  The change is, therefore, being watched with great interest.  The latest pronouncement?  Continued uncertainty.  As the US News Blog noted last month:

• Still undecided: In terms of the overall law school rankings, at this time, U.S. News is still studying the idea that was raised in my blog post "Changing the Law School Ranking Formula,” where we discussed the possibility of combining both full-time and part-time entering student data for median LSAT scores and median undergraduate grade-point averages in the calculation of the school's overall ranking. Our current law school ranking methodology counts only full-time student admissions data. Just to be clear, U.S. News is carefully contemplating the potential impact of such a methodology change: We will not make a decision until January 2009.

Law schools live and die by rankings.  The mother of all rankings are those prepared and published by US News & World Report.    

The scourge of these rankings may, however, soon be over.  US News recently announced that it was shifting from publishing every other week (it had already ceased to be a weekly) to monthly.  Perhaps the next step will be a complete cessation of business.  As one columnist speculated:

• Just call it coincidence, but on Election Day, word spread that the once-weekly U.S. News was downsizing to a monthly — a step closer to the fate of Literary Digest, the weekly magazine that vanished two years after its straw poll predicated an Alf Landon landslide over Franklin Delano Roosevelt in 1936.

We shall see about the continued viability of US News.  For any change to benefit law school, it will have to happen by April.  That's when the next round of rankings come out.

The debate over blogs and legal scholarship continues.  As we have described, blogs are appropriately viewed as part of the continuum of legal scholarship, a place to debate ideas or apply more traditional scholarship in practice.   We have discussed this in much greater length in the paper, Of Empires, Independents, and Captives:  Law Blogging, Law Scholarship, and Law School Rankings. 

We take a moment to note a recent law review citation for The Race to the Bottom.  In The Enduring Ambivalence of Corporate Law, 59 Ala. L. Rev. 1385 (2008), Chris Bruner writes:

• But in any event, as has long been recognized, the Delaware legislature has traditionally remained very cautious indeed when it comes to fundamental reform.  Thus in the near term we are likely left with the status quo which, by the way, may not be such a bad thing. Former Chief Justice of the Delaware Supreme Court Norman Veasey, for example, observing that neither the shareholder-centrists nor the board-centrists are "fully satisfied" with the present state of the doctrine, has suggested that perhaps this means something approximating an appropriate balance has been struck. "Maybe that is good," he suggests, "like a settlement where there are no clear-cut winners or losers.³⁰⁴

As part of footnote 304, Bruner says the following:

• An interesting reflection of the dynamic identified by Veasey emerged out of an exchange between scholar J. Robert Brown, who wrote a blog post highlighting the five decisions from 2007 "that most show the anti-shareholder, anti-plaintiff nature of the Delaware courts," and Delaware practitioner Francis G.X. Pileggi, who responded with a blog post highlighting five decisions "that demonstrate that the Delaware courts take shareholder rights and the duties of directors very seriously." Compare J. Robert Brown, Delaware's Top Five Worst Shareholder Decisions of 2007, THERACETOTHEBOTTOM.ORG, Jan. 3, 2008, http://www.theracetothebottom.org/preemption-of-delaware-law/delawares-top-five-worst-shareholder-decisions-of-2007.html, with Francis G.X. Pileggi, In Defense of Delaware Corporate Law Opinions, DELAWARE CORPORATE AND COMMERCIAL LITIGATION BLOG, Jan. 4, 2008, http://www.delawarelitigation.com/2008/01/articles/chancery-court-updates/in-defense-of-delaware-corporate-law-opinions/index.html.

The exchange was an interesting exercise by two individuals who routinely follow the decisions of the Delaware courts and perhaps there will be a reprise of the exchange for cases decided in 2008.  Certainly there are plenty of candidates that would qualify for any anti-shareholder list.

How are we doing as a Blog?  The Race to the Bottom has been up and running for a bit over 18 months, not long relative to the other corporate governance blogs.  One way to measure success is through traffic.  Our platform keeps the statistics.  We are posting the stats for the one year period that ended on Thursday, Nov. 6.  Certainly we are not CNN but the traffic is steady and growing.

We are always interested in the online universe and so read with interest the analysis by the Pew Research Center on the source of campaign information.  Turns out that the percentage of those describing the Internet as the "principal source" of campaign news has grown from 10% in 2004 to 33% in 2008, second only to television.  There is a clear generational divide in the data.

• Not surprisingly, the internet is a considerably more popular source for campaign news among younger Americans than among older ones. Nearly three times as many people ages 18 to 29 mention the internet as mention newspapers as a main source of election news (49% vs. 17%). Nearly the opposite is true among those over age 50: some 22% rely on the internet for election news while 39% look to newspapers. Compared with 2004, use of the internet for election news has increased across all age groups. Among the youngest cohort (age 18-29), TV has lost significant ground to the internet.

As we have noted, the Internet is a paradigm shift and is gradually affecting the staid world of law scholarship.  This is discussed in Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.

We normally write about law blogs.  We were, however, tipped off (from our ever vigilant librarian at the University of Denver Sturm College of Law) about the annual survey of the blogosphere (not just those with legal subject matter) undertaken by Technorati.  In the survey results, what caught our eye was the conclusion on blog profitability.  As the study noted:

• The majority of bloggers we surveyed currently have advertising on their blogs. Among those with advertising, the mean annual investment in their blog is $1,800, but it’s paying off. The mean annual revenue is $6,000 with $75K+ in revenue for those with 100,000 or more unique visitors per month. Note: median investment and revenue (which is listed below) is significantly lower. They are also earning CPMs on par with large publishers.

The Race to the Bottom is advertising free, so far.  But even in the legal business, a significant number of blogs accept advertising or sponsorship.  Paul Caron's arrangement with Foundation enables him to share the largess with each blogger in the Prof Blog Empire (based upon traffic data).  Want to read more on this?  Consult Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Ranking.

Paul Caron's posting on the University of Michigan Law School's Wolverine Scholars program (see here) and Bill Henderson's follow-up (see here) demonstrate how the USNWR rankings are continuing to be the tail wagging the dog when it comes to a law school education.  

Do I think that Michigan's outreach to this particular group of students is wrong-headed?  Of course not (although Bill correctly points out that the rubric for finding the Wolverine Scholars is both over- and under-inclusive). 

Do I hope that Michigan is trying to find a way to reduce the over-reliance on the LSAT as a way of indicating student quality?  Sure, I do.

But this particular program has the same side-effect as does USNWR's proposed inclusion of the LSATs and UGPAs of part-time students (see here for Race to the Bottom's earlier post on USNWR's proposed change, and see here for my first take on the change).  It cedes control of a law school's educational program to a magazine in an attempt to game the system.  

Why do schools continue to play so hard to the rankings?  In part, it's a shared governance problem.  Deans and faculties are supposed to work together to develop their schools' policies.  (See here for my first-cut view about shared governance.)  Deans are pressured by every possible constituency--the university, the faculty, the students, the alumni, and the bar--to move their schools up the USNWR pecking order.  Law faculties are supposed to take the laboring oar when it comes to such faculty-centered issues as faculty hiring, the curriculum, and admissions policy.  Even though deans and faculties are supposed to take the long-term health of their schools into account when making or altering policies, there's a real short-term cost in not playing to the rankings.  A drop in the rankings can cost a school its best applicants, its movable faculty members, and its donations.  (Among other things.) 

And with every type of governance issue, the short-term costs of taking the hit on "measurables" can eclipse an organization's long-term stewardship.  Dropping in the rankings is akin to failing to meet quarterly earnings targets.  'Fessing up to the short-term hit for a good long-term reason is probably in an organization's best interest, but few organizations have the chutzpah to take the hit.

Shared governance makes the decision of whether to play to the rankings even more complicated.  Who makes the call on adopting a new program or policy that will improve the school's USNWR position?  The faculty is the body most likely to decide the broad picture in terms of admission, or to try to hire more USSC clerks to improve the reputation ranking, or to try the "move students to part-time" route.  But it's the dean who's going to be saddled with the ramifications if the new policy or program goes awry.  (Remember this article in the New York Times:  The $8.78 Million Maneuver?) 

It's a classic division of risk and responsibility.  At least when corporations make bad policy, we try to find the people who were charged with making that policy decision and bring them to task.  But in shared governance, deans make relatively few policy decisions on the "big three" of admissions, faculty appointments, and curriculum.  When the policy decisions are good, bravo for the faculty, which made them.  When they go bad, though, faculty heads don't roll.

When we sever responsibility from risk, we get Enron.  We get subprimes rolled into securities that fail.  We get the current financial crisis.  And we get law school decisions made in the hope of getting a slight short-term gain that lasts only until other schools catch on and mimic the idea or until USNWR figures it out.  That can't be good governance.

We have written a series of posts on the proposed change by US News to the system of rankings for law schools (go here, here, here, here and here).  The proposal would rank law schools on their median LSAT and GPA calculated based on a combination of the full time and part time division (it's currently ranked based only on full time). 

The WSJ this week had an article on the subject, Law School Rankings Reviewed to Deter 'Gaming'. It doesn't add much that we haven't already said except that it profiles a few additional schools deemed to be at risk.  The article includes a table that lists law schools that "could have been affected if the change had been made for this year's rankings." Its not exactly going out on a limb to make that statement and our posts point out the schools most likely at risk in greater detail.  Nonetheless, the schools listed by US News:  Fordham, George Mason, Maryland, SMU, Connecticut, Seton Hall, Chicago Kent, Loyola (Chicago), St. John's, Depaul, University of Denver, St. Louis, University of the Pacific (McGeorge), Hofstra, and Stetson.  

The most significant thing about the article is to essentially confirm that US News will make the change.  The director noted that U.S. News was "seriously" considering the change.  Moreover, as for the timing:  "Mr. Morse of U.S. News says the magazine will run tests of how the change would play out in rankings, and then decide in January. How colleges adjust their programs in response isn't the magazine's responsibility, he said. The ranking is published in the spring."

Surely with the issue having been discussed on the front page of the WSJ and with the issue having been framed as a reform designed to stop schools from gaming the system, US News has the cover (and pressure) it needed to make the change (it will be criticized for a change that will make it harder for students with alternative criteria to get in).  Besides the change will help sell additional magazines.  If I were a school with a night/part time division, I would start considering the impact it will have on this year's rankings.

We occasionally examine issues associated with law school rankings (for a paper on the impact of law blogging and rankings can be found here). We are examining the impact of a proposal put out by US News to alter the formula for determining the median LSAT and GPA (which provide 22.5% of a law school's ranking). The magazine proposes that medians be calculated based not on full time students but all students, including part time.

We note a few caveats.  First, the medians are the average of the 25th and 75th percentiles, so they may not actually be the median.  Second, this analysis did not look at GPA.  It is possible that in some cases the combination of the part time and full time class will result in a drop in the median LSAT but an increase in the median GPA, offsetting the effect.  The GPA counts for 10%, the LSAT 12.5%.  Third, the likelihood that some schools will fall out of the top 100 in part depends upon the stats of the schools in the third tier that are waiting to rise.  We did not examine this data either.   

The question becomes, assuming US News makes the change and combines full and part time for purposes of median LSAT/GPA, is there anything a law school can and should do?  There are several answers to the question.  Foremost, a law school can do nothing, either out of indifference to the rankings or out of hope that US News will not implement the change.

Assuming a school wants to eschew this approach, it is late in the admissions season to do much to change the class.  Nonetheless, the goals are obvious.  Either shrink the differential in the median between full and part time or reduce the size of the part time division.  Both strategies will reduce the downward pressure on the median LSAT.  Whether there is time to do so depends upon the situation at each law school. 

Whatever a law school does in the short term, it is clear that this change will result in continued homogenization of entering classes, with law schools having an incentive to ensure that the part time and full time divisions have comparable numbers.  In other words, while some law schools may game the numbers by throwing weaker students into the part time division, other law schools likely take a more untraditional student body in the part time division, perhaps those working (in other words likely to be older) and, particularly with schools in urban areas, perhaps more diverse.  Lumping the two programs together will make it harder for the untraditional student to find a spot in law school.

Of course there's always the long term strategy of increasing rankings by improving reputation.  The best, cost effective way to do it?  Blogging.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings. 

We occasionally examine issues associated with law school rankings (for a paper on the impact of law blogging and rankings can be found here). We are examining the impact of a proposal put out by US News to alter the formula for determining the median LSAT and GPA (which provide 22.5% of a law school's ranking). The magazine proposes that medians be calculated based not on full time students but all students, including part time.

We have already compared the median LSAT score of the part time and full time divisions.  We noted that in every case the median (an average of the 25th and 75th percentile) of the part time division was lower that the full time division.  We also noted that the average differential was 3.7%.

The average of the part time program shows that they have about 38% of the students in the full time division (8685/3330) or about 28% of the entire student body.  Some, however, have part time divisions that are quite large relative to the matriculating day class.  George Mason has a part time division equal to 52% of the day division (176 full time; 91 part time), SMU's equals 59% (177/105), Brooklyn's equals 61% (207/187), Seton Hall equals 71% (214/151), Indiana equals 51% (199/101), Dickinson equals 52% (151/79), Loyola Chicago equals 56% (177/99), Catholic equals 50% (201/100) and, the prize for the largest as a percentage of the full time class goes to Rutgers-Camden, where the law school has the only part time division in the top 100 larger than the full time division, with the percentage equal to 106% (114/121). 

All other things being equal (this assumes the median calculation is accurate, the law schools admit a roughly similar class in both quality and size, and that all of the other numbers remain unchanged), it is safe to say that Georgetown and GW will see a drop in the median LSAT, with GW in particular confronting the risk that it will lose its position in the top 25.  Maryland, Connecticut and SMU will likewise see a drop and confront the real possibility of falling out of the top 50.  All of the schools ranked 80 and below confront some risk of a fall in the median and some possibility that they will drop out of the top 100, with St. John's, St. Louis, and McGeorge perhaps having the greatest risk of this occurring. 

For the law schools in the top 100, we have the data on the differences in the median LSAT scores for full and part time programs and the number of students as a percentage of the day division that each part time program accepts.  If you want a the data, it will be sent gratis to anyone who writes a comment on this series and asks for the data.