Eugene Volokh (UCLA), Richard J. Peltz-Steele (UMass) & Robert E. Steinbuch (Arkansas-Little Rock), Brief of Amicus Curiae National Association of Scholars in Support of Appellants, Richard Sander and The First Amednment Coalition v. State Bar of California, No. A150625 (CA Ct. App. Ja. 26, 2018):
The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data.
Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research of the very kind proposed by Appellants Sander and The First Amendment Coalition represents standard, indeed commonplace, research practice furthering the public interest, while employing established methodologies that minimize the risk to privacy.
III. Social Science Research Into Legal Education and Admission to the Bar Is Presently A Matter Of Urgent Public Interest And Improtance, Requiring Solid Empirical Analysis Of Personal Data In Government Possession.
Catalyzed by the 2008 financial crisis and defying previous trends in hard economic times, legal education has spiraled into an unprecedented recession that largely persists today. In chicken-and-egg cycle with this fundamental breakdown in how American lawyers are educated, the legal profession in the United States and around the world is transforming how legal services are provided and paid for. Admission to the bar and the bar exam sit at the junction of these changes, rippling ramifications through overwhelmed legal aid, downsized law firms, and outsourced legal services. In this climate, social science research is critical to ensure that the legal practitioner survives as principled professional rather than devolving into snake-oil seller.
Amid the financial crisis, applications to law school plummeted by roughly half in a decade, hitting a 30-year nationwide low in 2013 and a 32-year low in California in 2016. James E. Moliterno, And Now a Crisis in Legal Education, 44 Seton Hall L. Rev. 1069, 1108 (2014); Amy Yarbrough, Bar Exam Pass Rate Dips to 32-Year Low, Cal. B.J., Dec. 2016. The soaring cost of legal education and evaporating lawyer jobs have meant that law school is no longer a smart bargain for many college graduates. Paul Campos, The Crisis of the American Law School, 46 U. Mich. J. Law Reform, 177, 197-215 (2012); William D. Henderson, A Blueprint for Change, 40 Pepp. L. Rev. 461, 466-90 (2013). Under-enrolled, law schools have cut budgets, limiting or eliminating courses, personnel, and services. E.g., Victor Fleischer, The Unseen Costs of Cutting Law School Faculty, N.Y. Times, July 9, 2013.
Struggling to maintain financial stability amid falling enrollments, many law schools, controversially, have dug deeply into applicant pools. Bar-pass rates have declined, at least in part a result of desperate admission standards. Mark Hansen, Bar Fight, ABA J., Sept. 2016, at 48. Worse might have been the impact of lower admission standards on rising attrition. That link raises the ugly specter, no less reality, of students being exploited for tuition money when law schools know that their application data portend significant disappointment. Brian Z. Tamanaha, Failing Law Schools 165-66 (2012). Further, with law schools simultaneously under pressure to enhance diversity and access to legal education, the risk of the afore-described exploitation is compounded by its discriminatory impact. See Mark Hansen, Deeper Data, ABA J., May 2015, at 67.
Indeed, amid this upheaval, and as the American Bar Association (ABA) accreditation process has come under fire, the ABA aptly has cracked down on enforcement of bar pass and attrition standards. James G. Milles, Legal Education in Crisis, and Why Law Libraries Are Doomed, 106 Law Libr. J. 507, 513-14 (2014); Marilyn Odendahl, ABA Watches Law Schools’ Attrition, Bar Pass Rates, Ind. Law., Feb. 2, 2017. The ABA crackdown led directly to the failure of Whittier Law School. Sonali Kohli et al., Whittier Law School is Closing, in Part Due to Low Student Achievement, L.A. Times, Apr. 20, 2017 (reporting 20% 1L attrition and 22% summer 2017 bar pass); cf. Stephanie Francis Ward, ABA Places Thomas Jefferson School of Law in Probation, ABA J., Nov. 15, 2017.
Perversely, the public need for legal services has swelled, even while under-employed lawyers glut the job market. This disconnect adversely affects the economically disadvantaged, who usually go without vital legal services and sometimes muddle the work of trial courts with pro se claims. Tamanaha, supra, at 170-71. Tamanaha reported, for example, that 90% of California defendants in eviction cases were unrepresented. Id. Examining reform proposals, one scholar lamented that the party forgotten in the discussion is the client, who is suffering from a “mismatch” between need and affordable legal services. Paul Horwitz, What Ails the Law School?, 111 Mich. L. Rev. 955, 958 (2013).
Seeking a way out of this quagmire, the ABA, the Association of American Law Schools (AALS), and legal scholars have resorted to intensive empirical research. The ABA in April 2017 formed a Commission on the Future of Legal Education to study issues including nationwide falling bar pass rates. Karen Sloan, Problems Facing Law Schools are Focus of New ABA President, Law.com, Aug. 16, 2017. ABA President Hilarie Bass said that the commission will seek data from the National Conference on Bar Examiners, “so an independent group can do an analysis.” Id. The AALS in November 2017 formed a new section, Empirical Study of Legal Education and the Legal Profession, to provide a platform for researchers to collaborate on issues including bar pass. Barbra Elenbaas, Spotlight on Sections, AALS News, Fall 2017, at 9. The section soundly aims to foster legal scholars in conducting qualitative and quantitative empirical research, incorporating related disciplines such as cognitive science, and linking with researchers at the Law School Admission Council (LSAC) and AccessLex (both nonprofits committed to overcoming barriers to legal education especially for historically disadvantaged groups such as racial and ethnic minorities). Id.; see infra part IV (citing LSAC research).
The public interest in research into legal education and admission to the bar is therefore no less than the public interest in equal protection under law. It is incumbent on public entities, such as state and national bar organizations, that amass data about law students, bar candidates, and practicing lawyers to cooperate with independent researchers. The scientific method must be brought to bear to understand how best to equip lawyers to meet the overwhelming public need for legal services. Data are needed to promote access to opportunity for persons who would be lawyers, prevent exploitation of under-qualified applicants, and increase access to legal services for ordinary people to protect their rights.
IV. Social Science Research Of The Very Kind Proposed By Appellants Sander And The First Amendment Coalition Represents Standard Research Practice In Furtherance Of Vital Public Interests And Has Been Conducted Successfully Without Any Cognizable Harm Resulting.
Notwithstanding parades of horribles imagined by opponents of even customary transparency, redacted records of educational test performance are commonplace as source data for social science research in the public interest. ... Like research in education, social science inquiry into the process of admission to the bar can provide attorneys, educators, students, researchers, policymakers, and the general public with reliable information about a vital public service. Researchers have devised and employed standard methodologies of de-identification to ensure that data can be analyzed to further the public interest while minimizing (but never entirely eliminating) the risk of harm to data subjects. Standards of science and law do not require that the risk of re-identification be reduced to zero, but that de-identification reasonably safeguard against invasion of privacy. Ample experience with privacy regimes such as the federal policy on educational records demonstrates that the public interest in access can be, and for some time already has been, exonerated, all along while privacy interests are respected.
Social scientists are expert and overwhelmingly successful at devising and implementing strategies to ensure that people and their privacy remain respected in the conduct of research. Social science research employing established technical methods must be brought to bear to understand how best to license and equip lawyers to serve the public, especially to meet the overwhelming public need for legal services. The law privileges research in recognition of its role in furthering public interest, and best practices in the social sciences have been developed and tested over time to balance the complementary demands of access and privacy. Standard, well-established methods of de-identification ensure that data can be analyzed to further the public interest while minimizing the risk of harm to data subjects. Through these methods, the public interest in research can be exonerated while also respecting the personal privacy of individuals.