Saturday, August 30, 2008
Posted by Alan Childress
So far I have found some useful links for storm information and various storm tracking tools and maps. Such trackers include 5-day models, computer models, interactive maps, and blogs. News stories are at Nola.com which is run by the Times-Picayune. They also link some trackers, as does The Weather Channel at Updates (but more specific and detailed ones are at my other links to follow).
Both Gustav and Hanna also have their own trackers and graphics at local Channel 6's www.wdsu.com. The local Fox channel (Live 8) has several good satellite sites here. An interactive one here is from StormPulse. They have one for Hanna too. Both allow zooming.
Here is an MSN storm tracker using Virtual Earth and allows zooming. You may need to update it as the link may be to an earlier map. Its advantage is that city names and locations are superimposed, so it is more useful than some of the others where you guess where Houma and Kenner are. It also projects windspeeds if you let your cursor sit on a spot.
The U.S. Geological Survey, here, has set up sensors to allow tracking of storm surge for Gustav. It is presented and explained well on a map. "This interactive tool can be used to track storm surge and floods in real-time on Google Maps before, during and after the storm." Its zooming tool is extremely precise and detailed, allowing you to create a zoom box.
Friday, August 29, 2008
The Florida Supreme Court issued an opinion yesterday that upheld a criminal conviction but remanded the case to a new judge for sentencing. The defendant was charged with a number of violent offenses. His lawyer moved to withdraw prior to trial based on alleged death threats by his client to the lawyer and his family if convicted. The client denied that he had made the threats. The judge denied the motion, telling counsel not to worry because, if the client was convicted, he would never get out to jail to carry out the threatened conduct. The court found insufficient evidence that the situation had undermined the jury's verdict but remanded because the judge's remarks indicated a predisposition in sentencing the defendant. (Mike Frisch)
Another interesting bar discipline decision of the Pennsylvania Supreme Court deals with the impact of mental health issues in determining an appropriate sanction. The attorney had submitted 34 false travel vouchers to his law firm, obtaining slightly under $70,000. His actions were discovered by the firm. He resigned, reported the misconduct and made full restitution to the firm.
The reason? He was diagnosed with obsessive/compulsive disorder, particular subtype of symmetry and ordering. The particulars of the behavior, dating back to his college years, are described in some detail. The misconduct was triggered by his involvement in California litigation and guilt over separation from his family. His obsession focused on the exterior of his house. During the misconduct he had spent $69,000 on landscaping in a single year, up from the usual $28,000 per year. The funds were taken to aid in the concealment of the ensuing financial problems.
The Disciplinary Board concluded that the condition caused the misconduct and that he is in the process of rehabilitation. The board recommended a stayed five-year suspension with five years of supervised probation subject to a number of conditions including continued treatment and recovery. The court agreed. (Mike Frisch)
The Pennsylvania Supreme Court rejected the recommendation of its Disciplinary Board for a year and a day suspension and imposed a three-year suspension in a case involving misconduct both related to and outside the practice of law. Both the proposed and imposed suspensions were made retroactive to a 2006 interim suspension.
The client-related violations took place in three matters. The attorney had accepted fees, not performed the work and falsely assured clients that the matters were progressing. She also had engaged in unauthorized practice after the interim suspension.
The other misconduct involved five arrests and four convictions for alcohol-related driving offenses. In one instance, she presented false identification (posing as her own sister) and was convicted and sentenced under the sister's name. She received a favorable disposition as a first offender. The matter came to light when the sister was unable to renew her insurance, leading to a criminal conviction for forgery and identity theft. She failed to report the convictions to the bar as required by Pennsylvania rules.
The Board found the misconduct was caused by alcoholism and that the lawyer was making excellent progress in recovery. The attorney was remorseful and had had no prior discipline. The report is attached to the court order. As in all the Pennsylvania matters that I have reviewed, the court did not in any manner elaborate on its reasons for rejecting the proposed discipline. (Mike Frisch)
A judicial ethics opinion from the State of Washington Judicial Ethics Advisory Committee considers the ethical implications when a judicial officer teaches a class at a sports club outside of work hours (ok if not undignified) and teaching a law school class during the business day:
Teaching a class that begins during court hours several times a week has the potential to interfere with the performance of judicial duties and also creates the appearance that the judicial officer is permitting outside activities to take precedence over judicial duties. Before a judicial officer agrees to undertake such a schedule, the judicial officer should work with the law school to try to schedule the law school class either before or after court hours. If that cannot be accomplished, the judicial officer must take necessary precautions to ensure that teaching the class does not interfere with the performance of judicial duties or increase the workload of other judicial officers and/or court personnel. Those precautions may include such things as assignment to a particular calendar, courthouse location or other accommodations that might be worked out with the presiding judge. If the judicial officer is not satisfied that teaching the class will not interfere with the performance of judicial duties, the judicial officer should not teach the class.
The Kansas Court of Appeals issued an interesting opinion today concerning issues relating to attorney liability to the estate of a deceased client. The client had retained counsel to draft a living trust. After the client died, nearly half of her approximately $40 million estate went to taxes. Claims were thereafter filed by the personal representative against the attorney, a bank and other defendants.
The court rejected the attempt to frame the case as one involving breach of contract and concluded that the claim sounded on tort as a legal malpractice action. Because the malpractice (the assesment of the taxes) did not occur until after the client's death, the claim of malpractice was based on alleged conduct that did not occur in her lifetime and did not survive her. However, the court remanded on claims of breach of fiduciary duty. The remand directs a determination whether the alleged breach took place prior to the death of client. (Mike Frisch)
The North Dakota Supreme Court affirmed the convictions of a husband and wife for the exploitation of the wife's vulnerable parents. The court rejected a claim of error based the admission of videotaped statements of both parents when they were deemed incompetent to testify at trial. Both defendants had been represented at trial by the same lawyer; the court found no error in the alleged failure of the judge to inquire into conflicts of interest.
The conflict claim was as follows:
Represented by separate counsel on appeal, the Keeners argue they were denied effective assistance of counsel because their trial attorney had a conflict of interest and divided loyalties. Asa Keener claims his attorney could not effectively pursue a viable defense to the conspiracy charges because pursuing that defense would have implicated Laurie Keener, who was also his attorney's client. Asa Keener contends his attorney should have argued he was not guilty of conspiracy because Laurie Keener made the financial arrangements with the Whiskers, Laurie Keener led him to believe her parents promised to reimburse their expenses and had authorized them to receive significant amounts of money for the Whiskers' care, and Laurie Keener duped or mislead him. Laurie Keener also argues she was denied effective assistance of counsel because her attorney had divided loyalties, however, she does not agree that she mislead or duped Asa Keener.
The court concluded that there was an insufficient record to resolve the contention on direct appeal:
We are unable to determine from this record why certain trial strategies were used and whether there was an actual conflict that adversely affected counsel's performance. Furthermore, Laurie Keener fails to even allege how there was an actual conflict that adversely affected counsel's performance as it related to her. We conclude the record is not adequate to determine the Keeners' ineffective assistance of counsel claims. Those claims may be pursued in a post-conviction proceeding.
An Arkansas attorney was reprimanded and cautioned (both in the same order) for misconduct in connection with a divorce (the reprimand) and an untimely response to the bar investigation (the caution). The putative client never met with the lawyer; she dealt only with the lawyer's (now departed) assistant. The assistant took a combination of cash and check in payment. The lawyer got the check but did not cash it and marked it "returned as void." The lawyer directed the assistant to advise the client that she would not represent her. The client was apparently not told that the lawyer would not pursue the case. Rather, the client sought and was unable to contact the attorney by phone. Her letter to the lawyer was returned as unclaimed.
Eventually, the assistant filed the case and attempted to arrange service of process. The client eventually complained, leading to findings that the lawyer had failed to pursue the case, communicate with the client, supervise the assistant and to prevent unauthorized practice, dishonesty in allowing the assistant to file court pleadings and conduct prejudicial to the administration of justice. Arkansas (like many state bar disciplinary systems) also imposes costs as part of the bar discipline. (Mike Frisch)
Thursday, August 28, 2008
Posted by Alan Childress
Plus UNO, SUNO, and even the University of Phoenix I guess. Tulane, Loyola, and Xavier have already announced closing today or noon tomorrow, with likely resumption of classes on Thursday Sept 4. So if you are in Memphis, Alexandria, Shreveport, Jackson, Montgomery, etc., and know someone who lives in New Orleans, please try to call them and offer a room for the long weekend. There are certainly central housing efforts taken by these schools (e.g., Tulane takes dorm students to Jackson State University thru the generosity of that school), but any help for others would be appreciated. I will be in DC. Thanks.
The New York Appellate Division for the Third Judicial Department imposed reciprocal disbarment based on the permanent disbarment of the attorney in Louisiana. The attorney had been found to have engaged in a number of acts of misconduct, but the disbarment was based on his federal conviction for computer fraud. As the Louisiana Supreme Court had found:
According to the factual basis for respondent's guilty plea, respondent was employed as an Assistant City Attorney for the City of New Orleans for approximately twelve years, the last eight of which he was assigned to Section "C" of Traffic Court, where he prosecuted individuals who had been issued traffic citations within the City of New Orleans by various law enforcement agencies. From March 11, 2004 to April 8, 2004, respondent met with an undercover FBI agent whom respondent believed to be a taxi driver who wanted to resolve several outstanding traffic citations. Respondent accepted $1,000 in cash from the man and, in return, agreed to nolle prosequi the traffic citations in question. This exchange was audio and video recorded and under the surveillance of FBI agents. Respondent subsequently did dismiss the traffic citations, and provided to the FBI agent written confirmation of that fact....
On two separate occasions, respondent accepted $500 bribes in exchange for dismissing a case in Traffic Court, where he served as the prosecutor. We cannot and will not condone conduct by an attorney that is so plainly calculated to frustrate the administration of justice.
Note that the New York disbarment does not indicate that the sanction is permanent, although I rather doubt that he will be welcomed to New York practice in the future. (Mike Frisch)
The Supreme Court of Missouri recently issued an opinion regarding a grand jury subpoena for the transcript of a witness interview conducted by a criminal defense attorney of his client's son. The court held as follows:
Overview: A grand jury subpoenaed the transcript of an interview a criminal defense attorney conducted, in preparation for litigation, of the older son of the attorney's client, a person of interest in the grand jury's investigation. In a 6-0 decision written by Judge Patricia Breckenridge, the Supreme Court of Missouri holds that the circuit court is prohibited from compelling the attorney to produce the transcript to the grand jury. The transcript of a recorded interview of a person taken in anticipation of litigation is not discoverable by a grand jury subpoena unless substantial need and undue hardship are shown, and here, the grand jury failed to make such a showing.
Facts: In June 2003, a man notified St. Louis police that someone stole his parked vehicle with his younger son – a 10-year-old disabled child – inside. The police recovered the vehicle but did not find the boy, whose fate remains unknown. The police subsequently interviewed the man's older son and the man, who invoked his constitutional right to remain silent. The man hired attorney John Rogers to represent him in connection with possible charges arising out of the disappearance of the man's younger son. In March 2007, acting on behalf of his client, Rogers took a sworn statement from the older son, and a stenographer transcribed the statement. The client is a person of interest in a St. Louis County grand jury investigation of the younger son's disappearance. The grand jury subpoenaed Rogers, directing him to appear and produce a copy of the older son's statement. Rogers filed a motion to quash the subpoena on the ground that producing the statement would require disclosure of attorney work product and that its disclosure would be unreasonable and oppressive, alleging the prosecution showed no need for the statement. After a hearing in chambers, the circuit court overruled the motion to quash, finding the transcript did not constitute attorney work product because it did not contain counsel's opinions, theories or conclusions. Rogers seeks relief from this Court.
The court's opinion is linked here. (Mike Frisch)
The Louisiana Supreme Court recently issued amendments to its Code of Judicial Conduct and the commentary to the code. The code revision deals with the retention of usused contributions. The commentary addition deals with the issue of "thank you" notes to campaign contributors. The note can be sent by the judge or judicial candidate's campaign committee but not by the judge or candidate herself. (Mike Frisch)
Wednesday, August 27, 2008
Meredith Miller (Touro) has a neat website called The Slippery Slope, and she let us know that she has posted a podcast with Mark Britton, the CEO of a startup company called Avvo that assists consumers in selecting lawyers. Kind of Facebook meets Martindale-Hubbell. Take a listen. [Jeff Lipshaw]
Even though I know the dotted line is not an actual projection but simply represents a collection of other lines from models all over the place--an average--I do feel like taking a holiday trip for the long weekend. Hopefully it only represents what would happen if you combined the stats of part-time and full-time hurricanes so that it is not a useful predictor of the actual gamed system in which part-time storms do not count in USNews.
Consider that at one point in time the Republican Party was considering holding its Sept. 1, 2008 convention in New Orleans. Would have been simply delicious if it had been set for the Convention Center, the Superdome, and the WalMart on Tchoupitoulas Street. Better yet the I-10 overpass. [Alan Childress]
The New York State Commission on Judicial Conduct recently issued a press release concerning a village court judge who had agreed to resign but then apparently had buyer's remorse and rescinded the resignation. The commission's decision accepting the resignation, with links to the stipulation of misconduct, may be found here. The non-lawyer judge is named Michael Feeder. I assume he is not one of those "feeder judges" whose clerks move on to the United States Supreme Court. (Mike Frisch)
Posted by Alan Childress
Although the case wound up being more about procedure than the underlying matter of receiving an asset from a client and how that is characterized, this Fifth Circuit decision released yesterday may involve substantive and fiduciary issues of interest to our readers. I quote here a helpful summary from the Fifth Circuit Civil News by its editor Bob McKnight, with my thanks to him for it and for providing the court link:
Jenkens & Gilchrist, A.P.C. v. Groia & Co., No. 07-20296 (5th Cir. Aug. 26, 2008) (Jones, Davis and Garza): Jenkens & Gilchrist, a law firm, filed an interpleader to determine ownership of an asset that a former client transferred to it 10 years before. The client claimed that the asset transfer was only to secure payment of invoices, while J&G claimed that the transfer satisfied a non-refundable retainer. The former client, Felderhof, defaulted on the interpleader complaint and the district court entered judgment declaring J&G the sole owner. The district court denied Felderhof's motions to set aside the default under FRCP 60(b)(1) or 60(b)(4). Holding: Affirmed with respect to the denial of Rule 60(b)(4) relief: Felderhof argued that the judgment was void because she did not receive a summons along with the complaint, but the record evidence supported the opposite conclusion. Vacated with respect to the denial of Rule 60(b)(1) relief: the evidence suggested that Felderhof had a meritorious defense to J&G's claim and the record did not conclusively show that her default was willful. But the district court did not issue any fact-findings in connection with its denial of the Rule 60 motions. "Without guidance from the district court as to the basis for its Rule 60(b)(1) decision, we cannot determine whether the district court abused its discretion; and we are, thus, constrained to vacate this portion of the district court's order." It remanded for the district court to determine whether the record sufficed for denial of Rule 60(b)(1) relief and, if so, to "issue a more detailed ruling sufficient to resolve that which currently hinders our review." (Appeal from S.D. Texas ...)
A rather interesting and unusual bar discipline case is summarized on the web page of Massachusetts Bar Counsel:
The respondent was a longshoreman, and he was also a practicing attorney admitted to the practice of law in the Commonwealth on December 20, 1994. In July 2002, the respondent applied for and received unemployment compensation in connection with his employment as a longshoreman. Between July 27, 2002, and May 31, 2003, the respondent reported to the Division of Employment and Training (DET) that he either had partial earnings or no earnings. The respondent did not disclose to DET that he had been regularly employed since 1997 as a bar advocate and was being paid by CPCS throughout this period. As a result, the respondent received $2,573 in unemployment compensation benefits to which he was not entitled.
Another matter involved a change to the master contract affecting longshoremen to take effect on October 1, 2004. Those longshoremen who had worked on the dock before October 1, 2004, would lock in a higher rate of pay than longshoremen who began work on or after October 1, 2004. In September 2004, the respondent had his four-year-old son placed on the payroll by filling out a W-4 form for him and having his son’s name entered for working shifts on the docks. The respondent did this to lock his son in at the higher rate of pay.
The attorney was convicted of related criminal offenses and placed on interim suspension in 2006. The final discipline imposed was indefinite suspension. (Mike Frisch)
The Illinois ARDC has filed a complaint alleging ethics violations in a case arising out of the attorney's federal bribery conviction. The complaint alleges:
Respondent represented individuals and entities in matters relating to the Illinois Department of Revenue (hereinafter "Department").
Between July 2002 and June 2003, the Department employed auditors including Michael Krol, Chuck Maali, and Leo Langley. It was the auditors’ job to perform audits relating to Illinois state sales taxes and submit accurate audits to determine appropriate tax liabilities.
Between July 2002 and June 2003, the Department’s rules prohibited employees from referring taxpayers to an attorney or law firm in connection with any official business involving the Department. The Department’s rules also required employees to report to the Department any offer of a bribe or any unethical practice by tax practitioners.
The Department received in excess of $10,000 in federal funding each year, making the Department subject to Title 18 United States Code, Section 666(a)(2). See 18 U.S.C. §666(b) which establishes the statute’s applicability to a state agency that receives, in a one-year period, benefits in excess of $10,000 from the federal programs.
Between November 2000 and October 2003, Respondent paid cash bribes totaling approximately $40,000 to the auditors in exchange for referrals to Respondent by the auditors of taxpayers’ legal work involving transactions of $5,000 or more.
Respondent made the payments in cash to conceal the fact that he was making the payments.
Between November 2000 and October 2003, when Respondent made the cash payments, he knew it was illegal for him to do so, and he did so anticipating favorable treatment by the auditors on behalf of his clients.
As a result of the cash payments, Respondent received approximately $148,000 in legal fees and also received favorable treatment from the auditors on his client’s cases including: lowering the final tax liability for certain clients; providing confidential internal Department documents to Respondent relating to clients Respondent was representing; and providing advice to help Respondent represent his clients in connection with their cases.
Tuesday, August 26, 2008
Posted by Bill Henderson and Jeff Lipshaw
The Wall Street Journal article on gaming the USNWR this morning prompts us to a joint posting of something we've been discussing with each over the summer. We see this particular exercise - the use of part-time programs to affect a school's standing - as a real-world intersection of empirical data, the meaning one derives from that data, and the ethics of manipulating the data.
Put simply, in a world in which small moves in the USNWR rankings (much less big ones!) take on meaning within the context of the "rankings game," it is no wonder that the players play the game. Indeed, the players are co-opted into the "rules" of the game to the extent that observers from the outside question the moral sense of those playing the game (the point here). As Nancy Rapoport put it so eloquently in the Journal piece and on her blog, what is the difference between using the gray areas of the USNWR formulas to move up the rankings, or manipulating the gray areas of GAAP to report higher earnings? And what is the implication of this gaming in terms of the ethical leadership of those teaching new lawyers?
Let's review the data. Regarding the proposed inclusion of part-time students in the USNWR rankings formula, there is no need to speculate on which schools will be affected: the ABA-LSAC Official Guide to Law Schools publishes LSAT and UGPA medians for full-time, part-time, and combined entering classes. For example, below is an LSAT/UGPA grid from the recently released 2009 edition. An inspection of the LSAT and UGPA medians suggests that this school is going to get absolutely hammered by the proposed change: -4.0 for LSAT points and -.26 for UGPA.
The school above, however, appears to be one of the biggest gamers of the part-time loophole. Before reviewing the data, however, let us offer some context.
Here is the problem. We aren't at all suggesting that schools with part-time programs are gaming. But as the Journal article and our data shows, under the current system, the part-time loophole opens the door to gaming because schools are able to keep students whose statistics are a drag on the numbers out of the calculation. For example, if FT and PT numbers were combined, there is at least the possibility that a large number of older students with excellent work experience will be less likely to gain admission. During his guest blogging stint at Prawfsblawg back in June, Bill Araiza, who formerly served as Associate Dean of Loyola LA (which has a part-time program), summarized the tradeoffs if we see the worst case:
[The inclusion of part-timer in the rankings formula] is potentially quite pernicious, as it will put pressure on law schools to curtail part-time (especially evening) programs' focus on older students whose life and work experience may offset any deficits on the more standard admissions credentials (i.e., LSAT scores and GPA). This is especially true with regard to LSAT scores. ... If those students are going to start counting for U.S. News ranking purposes admissions committees are going to start giving those students less of a break on that criterion, even if their post-college accomplishments give all kinds of reasons to expect the applicant to succeed in law school.
Note what is really be said here: "If US News combines full with part-timers, the part-time programs will be subject to the same foolish, myopic tradeoffs as the full-time." People with excellent work and life experience also apply to full-time law programs. Prof Araiza implicitly acknowledges that we don’t give these characteristics the proper weight when it could affect our school’s US News ranking. Last month, Bob Morse of US News weighed in on this pattern of tradeoffs, observing that the combined rankings really do reflect the entire school more accurately, suggesting that the problem of schools gaming the statistics or changing substance to adapt to the form is really one for the law school accreditor: the ABA. In short, “we just report the numbers; we can’t be responsible for the foolish or myopic tradeoffs.”
To illustrate the effect of US News on law school admissions decisions, let’s assume for the sake of argument that part-time programs are a sanctuary for whole person review rather than vehicle for manipulating US News. Therefore, to get a glimpse of how law school admissions would operate in world without rankings pressures, we compare full and part-time admissions among schools with both programs. Below is a summary of average median LSAT and UGPA scores for the 96 fully or provisionally accredited ABA law schools with part-time programs (from the 2008 ABA-LSAC Official Guide):
Note the difference: Within the universe of schools that offer both full and part-time programs, the typical part-time student has a lower UGPA (-.10) and a lower LSAT (-3.4) than his or her full-time counterpart. Of course, we are not implying that the part-timers are weaker students; with part-time largely exempt from US News, admissions officers are free to make the type of sensible tradeoffs prescribed by Bill Araiza. As compared to a 22 year-old, running a business or non-profit for five years or a tour of duty in the military ought to be worth a couple of LSAT points or .3 UPGA.
The "combined" column tell us the price to be paid for this wholistic review: If these admissions policies are kept in place and US News adopts the proposed methodology, the typical law school with a part-time program can expect a drop of .03 units in UPGA and 1.2 LSAT points.
Now let’s relax the part-time-as-sanctuary assumption and be open to the possibility that, at some schools, the part-time program has become a cynical way-station to collect tuition from lower credentialed students that it would have admitted to the full-time program in the pre-US News era. For example, consider the following facts that apply (in reality, this is not a hypothetical) to the same law school summarized in the above LSAT/UPGA grid—i.e., the one that will get hammered by the proposed US News formula change:
- In 1992, the first year that US News ranked all fully accredited ABA law schools, this law school enrolled 177 full-time and 74 part-time students. In the early to mid-1990s, it fluctuated between Tiers (or "quartiles) 3 and 4.
- In 2004, the school had 89 full-time and 84 part-time students--quite a change--and broke into the second tier.
- According to data in the 2009 ABA Official Guide, the pattern is now fully reversed: 76 full-time and 121 part-time. Further, the part-time yield is remarkable: 149 offers and 121 matriculated (81.2%)--that is better than Yale's full-time yield of 78.4%. In recent years, the school has fluctuated between Tiers 2 and 3.
- In addition to full-time day, the school has part-time that runs during the day and at night. That seems odd.
Last year, the dean who presided over this transformation was hired by another lower ranked law school. The news coverage made it very clear that he was hired for his track record of taking a school from Tier 4 and Tier 2. Indeed, the dean publicly proclaimed that very goal to the local media.
Can you guess one of his strategies for moving up in the rankings at his new school? Shrinking the full-time program while expanding the part-time program? Here is a comparison of figures from the 2008 and 2009 ABA-LSAC Official Guides.
- 2008: 287 full-time, 95 part-time
- 2009: 211 full-time, 170 part-time
The large increase in PT enrollment was achieved by doubling the number of part-time offers, from 171 to 352. On the school's website, the profile of the 2007 entering class has full-time day and part-time evening numbers. Below is screen-shot of the actual page:
Note the qualifying text under the grid: "An additional 70 students were admitted as Part-Time Day." Gee, during the most recent admissions cycle, the school added 75 part-timers while dropping 76 full-timers. Further, the school's website says: "Applicants to the full time day division who do not meet the admissions criteria may be offered admission into a part time day division."
Another section of the website explains how this new program works: "[A] new Part-Time Limited Day Program … allow[s] incoming students to complete their first year in three continuous semesters—fall, spring and summer. Instead of taking five classes in the fall, students take three classes and make up the remaining two classes—Torts and Criminal Law—the following summer. … By the beginning of the second year, students in the [PT Day] program are attending law school full time with their 2L peers. …"
And the US News payoff from this rescheduling of student courses?
- 2008 medians: LSAT, 153 FT / 153 PT; GPA, 3.24 FT / 2.98 PT
- 2009 medians: LSAT, 155 FT / 151 PT; GPA, 3.34 FT / 3.13 PT
A 2 point gain in LSAT and a .10 gain in UPGA. The school also moved from the Tier 4 to Tier 3. The proposed changes to the US News rankings will shut down these shenanigans, which, we suspect, have nothing to do with admitting experienced older students who will enrich the classroom. Note that this dean has been lauded for his mastery of US News--indeed, it appears to be the reason why he was hired.
What Does the Data Mean?
If you look at the data compiled by the Journal today, one of the striking things is how small many of the moves would be. That's not surprising. In April 2007, Lipshaw (who is no statistician!) observed that if you charted schools by the number at each peer assessment ranking, you ended up with a chart like the one at the left (based on the then current rankings): excepting the top seventeen schools, right-skewed bell curve. For large groups of schools, there is no perceived difference in reputation, and getting all worked up about a move up or down by a couple of digits seems misplaced. Just like there probably isn't a whole lot of difference between the performance of the students who get between 3.0 and a 2.7 GPA equivalent on exams with a mandated mean of 2.85, there really isn't a whole lot of difference in small moves within the group bunched between a 2.8 peer assessment score (the schools at that level are BYU, Florida State, Alabama, Miami, Oregon, Pittsburgh, and San Diego) and a 1.7 peer assessment score (schools at that level are California Western, Capital, New England, Northern Illinois, Roger Williams, South Texas, St. Mary's, Texas Wesleyan, and Touro). Perhaps a jump from a 1.7 to a 2.8 would signify a real change, but we could question the significance of most of the small moves inside that range.
But people, including academics, give data meaning--not the other way around. So if meaning arises here (for whatever reasons, including behavioral or cognitive biases, including our round number and base ten biases) because of ordinal ranking, and the way USNWR splits the tiers, and each spot between 1 and 188 means exactly the same thing, it's not surprising that players (deans, faculty, students) ignore the bell-shaped curve, and care, for example, whether the school is ranked 96 or 102.
Lessons in Ethics and Leadership
What does this matter? At least three reasons: (1) most of the time, the "gaming" gains don't actually accomplish very much in terms of movement up or down, weakening the rationalization that it's being done for the "greater good" of the school (not the kind of good cost-benefit judgment we'd like to see our students exercise!) (2) gaming compromises the role-modeling credibility of the legal educators who do it; and (3) all legal educators now have to deal with the "well, everybody does it" rationalization for pushing the edge of the legal and ethical envelope, making their jobs harder, just like ethical corporate lawyers pushing back against CEOs and CFOs have to contend with the "everybody does it" rationalization for accounting manipulation, backdating options, or other arguably benign exploitations of the rules.
We've observed that this kind of sub-optimization to “make the numbers” happens out in the real world all the time. If a company rewards its executives for short-term numerical targets, like inventory turns, or working capital turns, or quarterly earnings, or sales, that differ either from the fundamental number (say, annual earnings) or, worse, damage the company in the long run (e.g. to make this year’s number we cut all R&D spending) you can expect that the executives will respond to the incentives.
To bring it closer to home, it’s exactly the ethical problem we worry about when a law firm sets billable hour goals for its partners or associates. What then drives the determination whether work actually needs to be done? The client’s need or the lawyer’s statistics? One has to wonder about schools teaching “padding your hours” ethics at the same time they are doing this gaming. The point of ethical leadership is to demonstrate a separation of your self-interest from the choice to do the right thing.
Below the fold you can find the chart of the 90+ fully accredited ABA schools that have part-time programs based on the size of the gap between part-time and full-time/part-time combined statistics. It is sorted first by LSAT gap, then by UGPA. Slightly more than half gain 1 or more LSAT point by having a part-time program. As we noted above, these are all the part-time programs, and we aren't suggesting any gaming other than the publicly acknowledged instances we've discussed.