Thursday, March 12, 2015

Different Worlds, Different Teaching Loads, What is Right?

One issue that has arisen in connection with the article you must not download is how many courses law professors should be expected to teach each year. At my school it is 9 credit hours which usually means 3 courses a year. A commentator on my last post writes:

"I only have my own observations and anecdotes to back this up, but my understanding is that this "4-course-load/7th-year-sabbatical" arrangement is pretty common in legal academia, and that 3-course loads to allow for scholarship and frequent sabbatical semesters are only common among the more elite schools and some of the wealthier non-elites."

 Frankly, I too only have anecdotes and do not know what the average is. Here at Florida the 9 hour load is very imbedded. In fact, in a recent strategic plan it was proposed that every fifth year we teach 12 hours to allow for smaller classes in the first year. That would be an extra course every 10th semester. The resistance was so strong that that part of the proposal had to be dropped in order to ensure passage of other components. In fact, as I understand it, we all technically teach 12 hours but somehow end up with 9 if we say we will do research and the 9 has become what people believe they are entitled to.

Almost certainly the number of courses or hours should not be simple a matter of  inertia or threats that the faculty will balk at other important changes unless it gets its way. Plus, to me at least, the number of students taught and how productive someone is with respect to meaningful scholarship should figure into the calculation. A nine hour load for some people who have taught the same course for 20 years and teach 80 or 90 students a year is a different teaching load than someone teaching 9 hours that includes a new course and 100 students. In the first example, 12 or 15 hours seems fair;  in the second, 9 hours is enough.

In short, framing the issue as 9 hours or 12 hours or 15 hours misses the point. Ideally teaching loads would vary depending on the difficulty of the actual teaching. That is not to say that people do not have different teaching loads but I have yet to detect an actual institution and student benefit-based approach to these differences. In fact, once there was a dean who, when asked to explain the differences in teaching loads, seemed to have a great deal of difficulty coming up with any reason why some people taught more and some less.

Maybe a good starting point is this: Everyone starts with 12 hours. Those who opt for no research or are teaching less than 100 students in courses they have taught for years are elevated to 15. (Rapidly changing courses that require a huge amount of prep no matter how many times taught would not fall into the "easy prep" category.)  I am sure they will consider that fair,  right? OK, maybe not. Those who present a research proposal that addresses an important issue of public importance would get 9.  The reduced load would be a case by case decision  like a research grant in other disciplines. I won't hold my breath.

Did I say do not download that article?

Wednesday, March 11, 2015

Legal Scholarship, Suspending Disbelief, and Existential Questions

[I want to draw reader's attention to a thoughtful comment that you must click on to read.]

When Amy Mashburn and I wrote our article (more on this at the very bottom) about legal scholarship we anticipated some of the criticism and addressed it up front.  We wrote about arguments based on academic freedom, comparisons with other disciplines, some kind of instinctive "I just know they are wrong,"  and  the "you must be wrong because I can think of an exception."

I resisted all of that. Who, I thought, would try to justify the state of legal scholarship by saying other departments are just as bad or that he or she just "knows,"  it is influential or that we must be wrong because some articles are influential.Boy, was I wrong. Those types of arguments only magnify my concerns about legal scholarship.

As I understand it, the arguments would go like this:

1. If the history department is wasting money we should too.
2. I just know legal scholarship is influential (as long as someone else is paying 200-300 million a year for it).
3. If there are some influential articles, all  should  have been subsidized. (This actually is very much like an argument Richard Posner makes and which we deal with in our article.)
4. I don't think you should say this because it is really scaring me.

So what is behind this squirming and the use of reasoning that would not pass a high school logic test? I  think it is fundamentally the fear of an existential question. To avoid facing the question, all kinds of contrivances are employed. The most important one is suspending one's disbelief. To even entertain the possibility that most legal scholarship -- especially their own legal scholarship -- is not of much use is like looking into an abyss. The self-esteem of so many  is wrapped up in believing they are special and that specialness is captured by how many second and third year law students say they are by publishing their articles and by how many other people in the very, very small law professor terrarium then download then or mention them in a footnote.

There is something almost sad about this (or maybe I am just falling in love). Suppose a law professor spent 40 years of his or her live teaching four classes a year and did not write a word of scholarship. If worth or value is measured by actually making a difference in someone's life, I think that law professor has made a bigger impression than 80% of those teaching two or three classes and churning out an article or two each year that very few people will read and no one will pay attention to. Sure, it is not as fun as research and writing but truly intellectually engaged people will do it anyway. And, it's a dilemma: Do you really want to make a difference or pretended that you do?  I wonder when actually being effective and more valuable became a sign of failure?

Oh, one more thing. See that link up there where it says article. Please, please, please  do not download it. Do you promise? Get a copy from someone else or I can email you one. That way we are free to say we just know we would have had 10,000 downloads -- instead of 12 --  and influenced thousands  because, in the world of law profs, a lack of evidence proves something exists.

Wednesday, March 04, 2015


Over on the tax prof blog Paul Caron has posted an article about reduced teaching loads to keep star faculty from leaving. The idea is how odd it is to reward stars by reducing the amount of time they spend with students. The article does not focus on law profs and seems to be more generally about departments in which important research takes place. (so obviously not about law profs).

It does raise the question of what it means to be a star in legal education. I have heard the term "star" used quite a bit. There are stars and rising stars. "Rising star" is one of the favorites among those writing tenure review letters.

The notion of a star means a star in the terrarium of law professors. I think it means being at a fancy school and being cited a lot. Of course citations come to those at fancy schools so it is more a commentary on the school than the individual. The problem with the label "star" is that it is a bit like being the star on the chili cook-off circuit. No one cares but a very small group of people who rank people on an unknown scale. But then chili recipes are not fungible while law professors are so I am not sure the term star is even applicable. Any one of us could be kidnapped by aliens and only a small group of people would notice the difference.

There are faculty stars. These are the people who teach 12 hours and 200 students, write an article every year or so about something relevant, advise students, do committee work, and are always ready to read a manuscript.  There are very few of these stars. Interestingly, being a star on your faculty means there is no chance you will be a star in the law prof terrarium. Plus, can someone be a star simply by putting in a day's work? I would not think so but in a world of reduced teaching loads, directorships, and vanity courses, it is hard to find an honest day's work.

I remember the first time I heard someone use the term "star" in the context of law professors. My first thought was "this is delusional" but I suppose that goes hand in hand with the puffed up sense of importance that pervades the profession.

Thursday, February 19, 2015


One of the more shameful things I have done is be part of what was called the "60's" Yes we marched to end racism, the war, sexism but so many of the participants then went on summer vacation to Europe or to just travel around. They could take the risk of getting arrested, missing class, taking a semester off because they had safety nets at home.  While I did not have a similar safety net it was clear to me at one point that is was as much about having fun as anything else and our presistent ridicule of others who were not "cool"  was hardening the attitudes of those who opposed what we were for. Most of the people I was with had no inkling of what it meant to be disadvantaged. It was largely middle class and upper middle class frat party with pot instead of beer. Maybe it helped end the war earlier and that is no small thing. But it also hatched or pormoted  many other bad things like the everyone gets a trophy movement,  trigger warnings, sanctimoniousness, and anti intellecualism.

So what does that have to do with UNC and safety nets? Most readers have probably read about closing the Poverty Center and no doubt some will read this and say I agree with that. I don't and regard it a tragedy created by the Right Wing nuts who now control North Carolina.

But being class conscious I cannot help but note that all the publicity is about the Director of the Center and the possible impact on his Academic Freedom and virtually none is on the impact on those who were made better off by the center.

This reminds me of what I learned about safety nets in the 60s and how your own safety net may make you gamble with the fates of those who have no safety nets. In this case, the person who is portrayed as being wronged  had the freedom to say whatever he wanted to say and not worry about his job, his salary, his house (or houses as someone wrote), his car, medical care or where he would eat.  That gave him the freedom to piss off some people who were dangerous not to him but to those who do worry about those things.  I used to know Nick and a harder working and nicer guy would be hard to find. And, I am not suggesting there is a thimbleful of hypocrisy here. There is, however, the possibility of being too full of yourself and playing a dangerous game with the fate of others. That does not make you a hero or martyr when you have a safety net -- there was nothing to lose.

I see the UNC Dean has quoted one of the more trite Dylan lyrics.  Lot of good that does now when  he forgot the Jim Croce Lyric -- "don't tug on Superman's cape"  (even when the Superman is a thug.)

Sunday, February 08, 2015

Legal Scholarship: Is It a Public Good When You Can't Give it Away?

I have read some defenses of the massive investment in legal scholarship based on the public good rational. I addressed this to some extent a couple of posts ago but at that time did not realize how much defenders of legal scholarship misunderstood the notion of public goods.

At at superficial level legal scholarship is like a public good in that the producers cannot keep others from using it without payment. Of course, not all of it is because as long as producers can internalize just enough of he benefits to exceed the costs, they will produce it. They do not have to internalize all of the benefits. When the is money on the line -- like in antitrust and other areas -- this is likely to be the case.

The other problem is that discussion of public goods assumes there is a demand for what ever is produced but that demand is not expressed in the market.  In effect, everyone hopes someone else will produce and he or she can free ride and no one produces. If, however, preferences could be revealed, discovered, or forced into the open somehow, out would pop this demand for the public good. So, no one hires private security firms but when there is a police force they are quite happy about it. And no one stops polluting but they really want pollution to stop.

You can see where I am going. We cannot determine the demand for legal scholarship but we can assess how much people would have demanded of it by looking at its use after the fact. And, what we find is that there is a very small  hidden demand. How do we know that? Because you cannot even give it away once produced. (The "it" here is not paper and ink but the ideas, theories, and arguments made) In fact, we try to give it away -- westlaw, ssrn, reprints etc., but where is evidence that anyone cares about most of it. Do you really think someone somewhere is waiting with  bated breath just wishing someone would write an article about the efficient breach, antitrust standing, or the ADR in the Netherlands?

The talk of legal scholarship sounds all high minded but let's get serious and stop pissing away hundreds of millions of dollars. The public good rationale for legal scholarship holds true for a very small percentage of it and that scholarship is generally not in the top ranked journals.  Instead, the rationale is something law professors made up to justify fewer  teaching hours and as a way to raise the qualifications to become law professors -- professional birth control you might say.

Wednesday, January 28, 2015

Ethics, Citations, Gaming the Law Ranking System: The Circle of Deceit

I was chatting with a friend at another school and the subject of an up and comer in a mutual area of interest came up. In the midst he suggested he had questions about the ethics of the up and comer. I pressed him and his story was that he had run across a footnote in the up and comer's work that did not seem right to him so he looked at the cited source which actually was just another law professor making a more general statement. Then he looked at the work cited by that law professor and found that the statement was not supported. He felt the up and comer should have checked to see if the person he cited had any basis for his statement.  Of course, now that the up and comer has made the same statement, it is likely that will be cited and the incorrect information will be carried forth until it becomes truth when if fact it may never have been fact.

This raises the issue of the care that goes into citations and a small irony. Law review editors want authority for virtually any declarative statement in an article. On the other hand, they do not seem that concerned about the quality of the authority. Consequently authors can write that declarative statement and suggest that it must be true because another author said so and, of course, that author cited another author who cited another one.A vast amount of law review writing is build on a stack of hearsay. I am not sure the hearsay citation raises an ethical concern although, before citing someone, you can argue that an author has an obligation to assess whether that person he or she is asking the reader to depend on knew what he or she was saying (especially if others have said the opposite). Think of it as a reference letter recommending someone you barely met. When I think about it in those terms, I'd say it does raise an ethical issue. Perhaps it is this type of research -- find someone who said this somewhere and cite it-- explains why legal scholarship is often viewed as inferior.

The hearsay citation matter and over citation  feed into another problem. As most know, law reviews are ranked and those rankings are determined in large part by citations to the review. The more citations and, perhaps where cited, determine a law review's rank and the law review's rank becomes the the driving force in selecting articles.  Thus, when a manuscript arrives editors look at the school where the professor teaches, the source of his or her degree,  what he or she has published, where it was published, and how often that author has been cited. Articles of equal quality bubble up and down the law review ranks depending on these factors and the cycle continues. Those that did rise to the top by virtue of institutional authority and the law review's own obsession with rank, are cited more often and those sinking down cited less often. And the cycle goes on. And on.

In the past few years many have accused law schools of being unethical with respect to what they disclose about the legal profession and what they do to game in the rankings. The apples do not fall far from the trees and in my view law reviews that do any of the things listed above are also gaming the rankings. It becomes unethical when they solicit articles without disclosing exactly what their selection process is like. But, there is good news too. Since so few people, aside from those of us in the law school terrarium, care at all about what law professors have to say, the damage is not as great as it might be.

Tuesday, January 20, 2015

Inside Dean Candidates: Pandering, Apples, Experience, Hard Decisions

When a law school looks for a dean there is always the possibility that inside candidates emerge. For some there is no chance. Are there any at my school right now? I know some people able to do the job who have emphatically said no way. Otherwise, I do not know.

Having gone through many many dean searches led me to think about the ups and downs of inside candidates. If they are viable at all they have a head start because faculties are afraid of change. In fact, people who are contacted as potential outside candidates are often less interested when it is revealed that there is an inside candidate.  It's not that anything is rigged, It's just that the insider will have friends and will be better able to discuss things people can relate to.

I am putting aside my misgivings about hiring anyone to be dean who wants to be dean. [Similar to my view on gun control: If you want one, you are disqualified from owning one.] I've never understood why someone who, in the interview, promised that his or her life ambition was to teach and do research all of a sudden decided they preferred management since, for the most part, none of they have managed anything beyond household finances in the past.

But that applies to all aspiring deans. Basically, they realize they are not who they thought they are and they  want more  money or have the perverse view that becoming  a dean is a promotion.

So back to inside candidates. Here are some guidelines.

1. Experience. Has the inside candidate occupied a position in which hard decisions were make and there was widespread faculty interaction. In that position if everyone came away happy, do not let this person become dean. Many law school decisions are, in fact, zero sum.

2. How long has the inside candidate been at your school and how many deans has he or she worked with. This falls in the apples not falling from the tree priblem. If the candidate has seen a limited version of deanships then expect prior styles to be repeated. What else would the candidate learn from? So, if last dean was terrific there could be more of the same. If the last dean was subpar, expect more of the same.

3. While a faculty member did the candidate always check the way the wind was blowing before making a statement or were most statements things like "Great idea," In other words if the candidate was unwilling to stand up for anything controversial then get ready for a dud of a dean. A faculty member who has been campaigning for years is not who you want. The campaign to please the right people at the right time will never end. So think back, can you call any position he or she took in a faculty meeting with conviction?

4. Has the candidate shown any sign of "not technically a lie," or arrogance, If so, steer clear. This includes odd memory lapses.

5. Is the candidate fair minded or  a turf protector. For example, if he or she has been in charge of a Center, Institute, or Program and, in that position, closed it to questions and people in the interests of maintaining control, this is not a person who understands that his or her needs are secondary to successful operation of a law school.

Monday, January 19, 2015

The Table I Built, Law Schools, Hospitals, and Hard Choices

It will come as news to no one that law schools have high fixed costs in the form of tenured faculty salaries. In fact, as applications and admissions fall these are rapidly becoming what regulatory economists call stranded costs.  You can think of them as hospitals that have overbuilt and have empty beds.

We also know that one way law schools are dealing with costs that would otherwise be stranded is to admit students who they would not have been admitted ten, five, or even three years ago. You could think of it as welfare for law professors at the expense of taxpayers and students who incur massive debt.  Since high GPAs mean little these days, the focus is has been on low LSAT scores. I do not know the details but it seems that, once a score falls below 150, the risk of success falls and the idea of admitting students  in the low 140s is especially troubling. But the schools need the revenue and so it goes. It's not that different from hospitals who, before insurance companies cracked down,  also needed the money and admitted people who did not need to be admitted and kept people longer than necessary for fear a bed would be empty.

People who write about law schools and are self appointed protectors of potential law school applicants moan about the ethics of admitting students who are in these high risk categories. There is a catch though. Like all averages, they know which students are at risk but not which ones will fail. In fact, I am sure there are many students with borderline LSAT scores who have done well in law school and even gone on to pass the bar, practice, and even do so ethically.

It's way too easy for the hand-wringers to wring their hands about admitting these students. This is especially true if applicants understand that risk goes up as scores go down. Just which students with a 145 LSAT should be excluded?  Should it be all of them? Should they all be excluded because some may fail? If so, should the hospital deny medication to sick people because it does not work all the time? 80% of the time, 50% of the time.  It is true that the side effects of law school can be nasty  but it is very hard to predict that on an individual basis.

No, what I sense is going on with the self-appointed protectors of 21 years olds who want to go to law schools is that they like the feeling of being perceived as as concerned  but not the feeling of actually doing the work to increase the accuracy of measures that predict law school success or step up to the bar to help students who would be much less at risk if law schools began assessing deficits and offering programs to address them. That would be work but no pub!

Friday, January 16, 2015

The Best of Deans and the Worst of Deans

If I have counted correctly and all goes well, the 8th dean will enter my career this fall. That tells me two things. First, it may be time for me to find something else to do; eight is enough of most things including law school deans. Second, I just may be in position to create from my 7 dean experience  the best and worst composite deans. These are composites because even my least  favorite dean had some good characteristics and my most favorite had some bad ones. So let's put some Lego pieces together and build two deans that never existed. Ten characteristics for each one.

The Best;

1. Has no interest in preserving the job unless that is consistent with honesty and transparency and making hard decisions.
2. Skin thicker than that on a rhino which means never doing anything vindictive.
3. Reads and attempts to understand the scholarship of others. Participates in scholarly matters like a faculty member.
4. Does not rationalize why what ever exists is "fair" but has an honest sense of what is fair and does everything possible to work toward that end.
5. Does not avoid unpopular decisions that must be made by assigning them to the faculty to decide.
6. Raises money with dignity.
7. Requires faculty to justify expenditures.
8. Keeps faculty meetings on track by controlling over talkers and those off on tangents.
9.  Does not act as social director by asking everyone to come on over and have  beer or by announcing every  birth, death, graduation, marriage,divorce, of every faculty member and his or her cousins.
10. Does not encourage self promotion by congratulating someone for making the same talk the 20th time or being quoted in the newspaper.

The Worst

1. Puts keeping the job over all else because the only successful dean is one who lasts a long time.
2. Responsive to complaints based on how embarrassing it would be if the news got out regardless of the validity of the complaint.
3. Appoints committees likely to silence views he or his  confidants do not want to hear.
4. Never ever misses a photo op and makes sure he is in the middle.
5. Adopts a defensive posture and hunkers down whenever a difficult issue arises
6. Is uninterested in scholarship.
7. Never does anything because it is the "right" thing to do.
8. Appoints associate deans based nothing indicating the person is qualified but on the basis of the likelihood it will preserve his/her deanship.
9, Is vindictive in decisions about raises, teaching assignments, etc. And rewards those who "play ball.'
10. Responds to tantrums, threats to leave, or sue.
11. (There have to be more that 10 for "worst" because there are more a"bads" than "goods" among most.)  Too interested in the private life of faculty.
12. Master of the "not quite a lie"
13. Makes side deals with faculty on teaching loads, summer compensation, all based on unknown and unknowable standards
14. Claims that when problems arise it is the first he has heard of it even though 5 people have already raised the issue.

Thursday, January 15, 2015

Plums and Deans

Last year my Law School went searching for a dean or maybe it was a certain person or maybe it was not a search at all. But that is not a good start to this post because actually the Law School did no searching.  Instead it was conducted by a 80K firm and a committee the majority of which were not tenure track law faculty or law faculty at all.   I bitched about the process because it seemed likely to find a DOA dean.  After all, no matter how much one says the Dean works for the President and the Provost, the faculty can fire the dean too.  In fact, in the last search it fired one before he became Dean. The President then fired the other two candidates, which the faculty had endorsed, before either of them became Dean. From the standpoint of a faculty member it was like going to a restaurant that had  only 3 items on the menu and the restaurant was out of two of them and you were allergic to the one they had or at least thought you were.

So less than a year later and another $100K search (evidently my offer to do it for a large pizza was declined) here  we go again. And as Jack Keroac wrote, ". . . and nobody, nobody knows what's going to happen to anyone beside thee forlorn rags of growing old.. . " BUT, this time it looks like there will not be DOA candidates or at least none that the faculty will fire before they arrive. Not only is there a search committee with a law faculty majority  but another faculty committee to communicate faculty concerns to the President directly. And a faculty member is co-chair of the search committee. After last year's bizarre hush-hush, faculty should not be seen nor heard, everything is on a need to know basis, I ain't say'n noth'n till I see my lawyer search I am very surprised.   I am not keen on the 100K but, this year at least, it is unlikely to be pissed away on a process that  is doomed from the outset.

But Florida's Central Administration has created an interesting situation. Last year the argument could be made that the failed search was on them. This year, if the Law School does not stick in its thumb and pull out a plum, the faculty needs to examine itself.

Sunday, January 04, 2015

Is Legal Scholarship a Public Good? If So, What On Earth are We Doing?

I have often wondered on this blog what the public good rationale is for legal education. Is there a free rider problem when it comes to legal education? I do not see how. So, perhaps the rationale is that there is a need for legal assistance that is not reflected in the market because people just cannot afford it. There is a "need demand" but not an "economic demand." I've always suspected that publicly supported legal education is less about subsidizing less affluent potential clients than it is about a system for keeping legal fees lower for those who actually do have money and property -- sort of a reverse Robin Hood deal.

But what about legal scholarship? A huge amount is invested in it each year. From the public good perspective the logic would have to be that it would be "under produced" if it were not subsidized. The typical argument would be that no one would invest in legal scholarship even though it is beneficial because others could free ride off the legal research of others. So, everyone would sit around doing nothing while waiting for someone else to write about some critical issue and in the meantime all is lost.

Of course the public good logic has two steps. The first is that something is produced that actually has a positive impact on others. The second is that, since the writer cannot internalize the benefit of that positive externality, he or she will shut it down and the positive benefits will not come into existence.

My impression is that legal scholarship is very weak on both steps. I feel certain that some legal research does create positive externalities. But even here there are two problems. A positive externality probably depends on whether you agree with the information in the article. For example, I do not regard the massive amount of legal (and economic) research that led  the Supreme Court to reverse its view on Resale Price Maintenance as the source of a positive externality. Others certainly do. These are not externalities like cleaning the air or water. Their positiveness is in the eye of the beholder. The other problem is that the decision about what scholarship should be done that will lead to positive externalities and, therefore, justify the subsidization is made by narrowly educated people who in most instances have only a very limited feel for what investment in scholarship is most needed.  Instead they want to be noticed by other scholars.

On the second point, if legal research were not subsidized would it go undone? Some would but massive amounts would still get done. For example, where there is money to make by winning a case, convincing a legislature, or and administrative agency, the backing would be there. In fact, even huge and well funding non profit groups would finance legal research to support whatever cause they favor.

I certainly could be wrong on this but it would be only on the matter of degree, What I am sure of is it makes no sense to spend $300 million a year on research that should 1) generate positive externalities
and 2) would not otherwise get done and allow law professors to decide how it is to be invested.

Monday, December 15, 2014

Ultimately It's All About the Faculty and The Comfort Dog

Recently over on the Tax Prof blog it was revealed that FSU is the leader of the pack with respect to gaming the USWNR rankings as far as transfer students. This, on top of accepting 800 students to get 188 means that the school has to go a fair amount of trouble to appear attractive in today's market. I'll bet their faculty is as good as most others including my own so all these extraordinary efforts really mean is that the ratings matter more to that faculty than to other faculties.

I mention this because the ratings game in which most law schools are involved is really all about the faculty at the schools and their personal comfort. Higher ratings make them feel better when all they really need is a nice dog.  Sure, maybe the Deans spin the numbers but without tacit faculty approval, none of that happens. One version playing the game is paying for high LSAT scores and GPAs. That, as I understand it, is where most if not all of the scholarship money goes at some law schools.

For example, I know one student who is deciding between a free ride at FSU and a 3/4 free ride as Florida. What makes the student so desirable is the 160 plus LSAT and a GPA to match. Will she be a good lawyer, is it only with this assistance the she can go to law schools, will she "pay back" some of the super subsidy by engaging in some form of public service work. That is all utterly irrelevant.

Yes for your largely (not all that) liberal law faculties and their graduates one thing counts -- what will this do for our rating.  These are the well-meaning, I'm for the little man, do you need a hug, sharing, how did that make you feel, may I pat your comfort dog, don't buy Nike, boycott Nestles, give the tomato pickers a penny, sensitive, multiple ways of learning, Meyers-Briggs, people who are willing to take money away from those who need it and and might do something with the support and hand it over to someone who did well on a multiple choice exam that has a suspect relationship with success at anything including attending law school.

My hat is off to any faculty anywhere that musters up as many as ten people who go to the dean's office and say "Stop" subordinating anything to rankings.

Until then, law faculties, the world has your number. And unless you've got the stones to stop your own school please don't throw any stones at FSU just because they are better at it,

Wednesday, December 10, 2014

OK We are Done Here: Research-Wise I Mean

I was 99.9999% convinced that legal scholarship is anything but scholarship and, even when it is, almost no one reads it. Based on my research of legal research it's also clear that almost no one relies on any thing found in law review articles other than to skim off some facts.

But now I am confronted with a study on the citation rate of men and women. I mean, as I understand the question, which gender gets cited more relatively speaking.

I could not understand all of the article but if women are cited more often then men (relatively speaking) there are some very important policy implications that follow. I will list only the top ten.

1. Women write better articles. I am not sure what "better" means but what difference does it make?

2. Women write articles that are more likely to appeal to all genders than men do.

3. Women cite each other more than men do.

4. We should hire only women because they are cited more and this would impress someone somewhere because goodness knows citation is what it is all about.

5. Each man's citation should count 1.000009 and each woman's citation should count as 1 in order to off set the gender bias in citation.

6. Anyone citing someone based on the gender of the author is making an important political statement and, as a minor aside,  admitting he or she is an idiot.

7. If I could get more in touch with my feminine side I could get more citations.

8. Men need to get wise and coauthor more articles with women.

9. Further research is needed to determine if citations are also biased by weight, height, time in the 100 meter dash, color of hair, type of car driven, what you had for dinner, or where one teaches or went to school. (Opps, we already know the answers to the last two.)

10. Finally,  the last possible topic for anyone in law teaching to write about has been written about and so we are finally done. Close the door, turn out the lights.

Thursday, November 27, 2014

Not So Annual Top Ten (Bad and Good) Turkey Day Turkeys

Bad Turkeys

1. Me. (for too many reasons to list but one of which is spending time doing this when I could be working)

2. Self Important Humorless Law Professors (OK, virtually all Law Professors but especially one up in the DC area) including those who think they are not humorless but whose humor only works to get nervous laughter at a faculty meeting.

3. Anyone using any of the following terms: share, reach out, civility, leadership, practice ready (EF, thanks on this one), thank you so much.

4. Any law professor who name drops in class, in conversations, or in email -- this includes dropping the name of any schools you went to.

5.  Law Profs or administrators who catch administrativitus upon being appointed to any position of supposed importance. Administrativitus is a common affliction that involves lack of transparency, half truths, spinning numbers, lack of humility with respect to tasks they do not know the first thing about, ignoring emails, making decisions to preserve their positions, blah. blah.

6. Anyone who hints that someone else is a racist, sexist, drunk, or homophobic but cannot back it up.

7. Anyone who talks more that 1 minute in a faculty meeting.

8. Those who protect pet programs or their own authority to determine who is involved in those programs without considering the overall benefits to the school.

9. University Presidents who commission 90K searches for Law Deans when any group of 5 law professors could identify all likely candidates for $1.98.

10. A system of legal education that encourages everyone to write when 90% of what is written is useless, meaningless, and results in less student contact.

11. (Yes this top ten has 11 just like you know whose amplifier). Those nasty little petty people trolling the halls claiming to know things no one else knows.

12 (when 11 is not loud enough). Gutless law profs who never write anything down, never take a position based on right and wrong, and for whom life is a long term strategic negotiation about their own self interest.

Good Turkeys  

1. Students who come to class ready to work.

2. Law faculty who stay in their offices other than to get a cup of coffee or take a short break.

3. The current Dean and Associate Dean at UF.

4. Committee members who say "I can do that."

5. Faculty teaching 200 students a year.

6. Faculty who write no more than an article every year or two.

7. Faculty who do not think a 50th ranked law schools should to the same things as a 10th ranked law school.

8. Those who let their work speak for itself as opposed to doing some work and then speaking on its behalf.

9. UF Law and Administrative and Secretarial Staff. 

10, Eric Fink and Chris Sagers, 

Thursday, November 20, 2014

Tofu Anyone? Hubris, Architecture, and Voting

I've seen law professors take on all kinds of tasks better left to others. Among those was how to design a law building. Another is how to decide what to serve at lunch. For example, on the lunch issue suppose there are 60 people with all kinds of preferences and 60 different food choices. Would it make sense to have each person vote for 5 choices and then serve the 5 top vote getters?  People who know about cycling, preferences, and rigging know this will likely tell you very little about what preferences really are. First though Rather than 60, let's say there are 3 choices and 3 people. The choices are roast beef, chicken, and soup.

Person one ranks them like this: roast beef>chicken>soup
Person two: chicken >soup>roast beef
Person three: soup>roast beef> chicken.

If everyone gets one vote, it is a three way tie. So how do you rig this to get where you want to go if you personally favor roast beef. First you ask a vote who wins between chicken and soup. The answer is chicken. Now who wins between roast beef and chicken. The answer is roast beef. Having the power to determine how the vote is to be conducted gives the "authority" to determine the outcome.

How else can being the "authority" who determines how people are polled dictate outcomes? Let's say there are 7 choices for lunch and 10 people voting and they each get to vote for (but not rank) their top two. That's 20 votes in total and it comes out like this:

Roast beef - 4
Tofu (gads!) -4
chicken -3
tuna -3
beanie weenie -3
cheese -2
PB&J -1

Clearly the faculty prefers Roast beef and tofu. Right? Just hold on a bit. Actually 60% prefer anything other than tofu and 60%  are saying "Please God anything but roast beef, it made us really sick the last time we had it."  If you knock out cheese, beanie weenie, and PB&J and revote, roast beef and tofu may well fall off the list completely.  In fact, if you do not do that, those voters are, in an sense, disenfranchised and you really do not know much at all about preferences.  This is all a middle school level of understanding and why even in places like Louisiana there are run offs.

So what would be the rationale for not having a run off? I  can think of three: 1) you do not care what people want, 2) you do not understand how imprecise one ballot can be in gauging preferences when there are many votes and many choices, or 3) you have a hunch you can deliver 4 roast beef votes but no more and you are worried about the outcome of a second ballot. In the case of law professors, it could be any three.

Tuesday, November 18, 2014

IntraClass Warfare, Tenure, and For Cause Dismissals

Over on Faculty Lounge and to some extent on the Caron Tax Blog a discussion has broken out about what to do with all the old (and privileged)  folks in law teaching who are clogging up the system so all the young (and privileged) folks who want to be law teachers have a hard time getting those plum jobs. My view? I'm just happy to observe the intraclass warfare.  As the John Revolting character said to the Christian Slater character in "Broken Arrow" when he set off a small nuclear device, "Ain't it Cool."

In the course of the discussion (I'd link to it but have no idea how to link to a comment) someone made a comment like "Young or old, let's have standards and if people cannot keep up, out they go."  Orin Kerr then writes: "Can you say more about how/if you would do that in a way consistent with tenure protections? Would you say that failure to reach a minimum productivity level is "good cause" to fire a tenured professor, and if so, what kind of standard would you propose? Or would you end tenure protections first?"

 And, right there we have the issue, don't we. I like the ways he phrases it -- "good cause." I think if it as "for cause."  When we think about tenure the running joke is to lose it you have to do something really awful -- kill someone, rob a bank, sexually harass a student,  Simply punching a student is not enough. In fact that gets you a paid vacation. Being a God-awful teacher is not enough; stealing from the school is not enough. In fact, and here is my punch line:

There is nothing connected to actually doing the job or not doing it that can be a basis for dismissal.

Think of this in the context of other jobs. If you delivered mail, you could be fired for punching the boss but never ever for putting the wrong mail in the wrong box. If you were a meat inspector, you could get fired for shop-lifting from WalMart but never ever for simple stamping as OK, rotten meat that then makes 1000 sick. A physician could be canned for getting drunk and smashing his Porsche into a pedestrian but not for performing an accidental lobotomy.

I'm thinking. What kind of job security is it that says the main thing you can never be fired for is screwing up on the job you are being paid to do? 

Wednesday, November 05, 2014

The Highest Priced Research Assistants in the World: Part 2

I recently blogged about the highest priced research assistants in the world -- law professors. At least that is what one would conclude if examining only the use of legal scholarship by courts. It is very rare that a court appears to care about a law professor's theory, reasoning, or analysis. Instead, they cherry pick articles for background facts that could have found for $15.00 an hour.

What about legal scholarship itself. Legal scholars do cite other scholars much more than courts do so maybe this means legal scholarship has a greater impact on other scholars than it does on courts. Whether one scholar's impact on another is important is a different question and open to debate. It depends, I would think, on whether the eventual work does some good for someone some where.

To examine not the quantitative impact in terms of numbers of citations but the qualitative impact, this time my coauthor and I looked at the way scholarship is actually used by other scholars in their work. Do scholars build on the ideas of others? Do the take several theories and combine them?

Unfortunately, this is another instance in which where citation counts may significantly overstate the benefits of legal scholarship. In examining the actual uses of legal scholarship, four categories emerged. First were gratuitous cites. Those were things like, "For more on BeBe Riboso see  . . . ." or  "See generally  . . . . " Typically the referenced materials are related to the author's work but they are not that different from Amazon telling you that since you read The Spy Who Came in From the Cold you might be interested in A Day in the Life of Ivan Denisovich. It is useful but is it worth the cost?

A second category is "hearsay." The author makes a statement and then cites another work because that is where the author "heard" the statement. When one looks at the cited source it usually says what the first author claimed but it too relies on hearsay. So Joe cites Jane and Jane cites Todd for an assertion that may or may be true unless it is obvious in which case it needed no citation. My favorite one in this category was something like, "The common law can be characterized by inconsistencies."

Often when you research the hearsay category you eventually come to someone who has done original research. Unfortunately it may come in the form of the ubiquitous See e.g. cite. The text may say, "The law as it pertains to liquidated damages is changing rapidly," and then three cases are cited for support.  I can remember writing my second law review article and coming to a full stop when I got ready to make a declarative statement like the one above. I asked an older colleague what to do. After all,  I had only read a few cases. He alerted me to the "See e.g." cite and just like that, in John Madden's terms, -- BOOM -- truth was created or at least its appearance which is good enough for legal research.

How about the last category? One scholar carefully reads the work of another and the takes those ideas and the ideas of other and his or her own, discusses them, and actually moves the reasoning to another and original level. In a survey of 100 cites -- all we have examined so far -- we could find it only twice.

Sunday, November 02, 2014

Gossip and Leadership

At my law school gossip festers like the Ebola virus if it really were as nasty as CNN wants us to believe. I have no reason to believe it is not the same at other law schools. It certainly was at others I have visited. But one has be careful when discussing gossip because a massive amount of writing about it by social scientists  describes its benefits.  It makes groups more cohesive. Evidently groups can be held together and reciprocity established through gossip. It reminds of leadership. We all admire people will leadership ability, don't we? It is a gift. But hold on just a sec! Hitler was one of the most effective leaders of all time and I'll bet Nazis, especially members of the SS,  were world class gossips.

That, of course is the catch. The term leadership means nothing as a normative matter until we know the goals of the leader. And gossip can be anything from "Isn't it great that John has finally fallen in love" to "I think I smelled liquor on Jack's breath at the faculty meeting?"

I probably have seen some positive leadership in legal education although I cannot think of any right now. I've seen so called leaders throw one group under the bus to save his and the hide of others and then be labeled a leader. As for gossip, it all seems to be negative and undermining as, I have read, is characteristic of workplace gossip.[Here I must add a qualification before ranting about gossip. Gossip typically fills an information vacuum at work. Thus, when administrators are less than transparent, secretive, misleading, etc. they invite gossip. Thus, one way to minimize gossip is to provide accurate information.]

So why is gossip so attractive? First, accuracy is not required. You can simply mislead people in hopes of getting a desired reaction. You achieve your goal and maintain deniability -- "I did not say that." You can fish around for support by dropping little pieces of bait in hopes someone will grab the bait and run with it. You can slip in and out without being seen. You can tell one person one story and frame it so it appeals to his or her insecurities and then tell a similar story to someone else and custom frame it to fit that person's insecurities. Let's face it. Gossiping and hearing gossip can be thrilling but it is always at another's expense. Generally it's pretty cruel -- think SS, mobs. Mean Girls, Lord of the Flies, bullies, etc.

One thing that all recipients of gossip need to keep in mind  is that most of the time,  the person coming to you is there to use you. You are supposed to pass it on, become inflamed, protest publicly. The gossiper is not your friend. He or she is the puppet master. Ironic isn't it since the person hearing  gossip actually feels honor to be confided in. For example, if a student comes to complain about a professor, doesn't that mean you are a trusted "friend."

Do you want examples of workplace gossip? I can provide a list that would fill a blog post reaching from here to Ojus but that would just be another form of gossip. But, for all gossipers at all law schools. This is about YOU.  And for every administrator who fuels the flames of gossip because he or she is personally better off if some things are secret, you should be ashamed of yourself.

Thursday, October 23, 2014

Over, Around, and Through the Cookoo's Nest of Tenure and Promotion Decisions

Suppose behind the veil of ignorance you were designing a process to determine whether someone is awarded lifetime employment (or an annuity as some skeptics would say). You do not know if you are -- when the veil is lifted- the candidate, those deciding, those paying the salary, or those who would not be able to find a job because the one that might be right for you is taken up by a life-timer.

Here is the process I am pretty sure would evolve and has evolved at a school I have only heard about.
1. The candidate's scholarship would be mailed out to experts in the field some of which are friends of the candidate, some of whom the candidate has alerted in advance they the may be asked to comment, and some simply selected by the candidate. The letters are likely to be all positive and, if any are not, the writer of the letter is ignored or criticized. The letters are passed onto the faculty without comment or evaluation. An alternative to this is to not have scholarship reviewed at all since it rarely makes a difference.

2. People would visit the candidates class to evaluate teaching. Then they would sign what might as well be a form letter saying how much the enjoyed the class and that the teacher was superior. A really negative review might say the teacher's tie clashed with his trousers. An alternative would be to forego teaching evaluations and just submit a form letter written for all candidates for every class.

3.As noted, steps one and two are irrelevant in some cases.  Suppose the candidate did not say hello to you properly on a couple of occasions. Maybe he or she was too friendly with some people you don't like. It is important to start the whispering campaign. Demonstrate your indignation to people like yourself who are only looking out for the students and taxpayers. Be sure to emphasize the clashing tie as indicative of disregard for good teaching and the fact that one of the review letters, although glowing, was late.

4. Be secretive and self righteous. Do not mention any of these concerns to the candidate or anyone other than your clique before the secret meeting at which the candidate is discussed because nothing is worse than opposing a candidate and giving the candidate an opportunity to respond.

So, there you have it. The process that takes everyone's interests into account, creates deniability and gives life time employment to the best people. Right? Yes, it is right but remember this is the Cookoo's nest and in the Cookoo's nest things are different.

There is also the not-in-the-Cookoo's-nest approach. It might go like this.

1. A committee of scholars and good teachers with no political axes to grind select reviewers for the candidates writings. The reviewers are asked to be completely frank. People who agree politically with the candidate are not selected nor are any people to whom the candidates has attempted to ingratiate himself. The names of the reviewers are not disclosed in hopes this will provide them with a spine.

2. Classes are visited but any letter that is unequivocally positive or uses words like "superior," "gifted," or "extraordinary" is rejected.

3. An evaluative committee examines all these materials and makes a recommendation to the faculty well in advance of the full meeting of the faculty and invites comments from others on the faculty and the candidate.

4. Individual faculty must voice concerns to the candidate or the evaluative committee before the faculty meeting.  Anyone who snakes around office to office to voice their indignation is excluded from the full meeting, shunned, and sentenced to time out.

5. No subjects may be raised at the meeting that were not already raised with the evaluative committee and about which notice was given to the candidate.

Please don't comment. I know the non CooKoo's nest approach is unobtainable in the world of the entitled and self-important.

Tuesday, October 21, 2014

Highest Priced Research Assistants in the World? More on the Scam

I have already written about the huge investment in legal research. I estimated it to be close to $3 million  a year at my school alone and probably around $350 to $400 million nation wide. This could go down if schools concentrate more on teaching and on line publication becomes the norm.

A colleague of mine and I have launched a study attempting to determine what the pay off is from the enormous sums spent on legal research and writing. We've started looking at law review and judicial citations and are as aware as anyone else that this is incomplete in terms of determining the impact of scholarship. (I mention this so no one will reply as have a dozen of our colleagues, "but there are other impacts.")

Citation counts are not necessarily consistent with impact. From that one might infer that scholarly works have a much greater impact that citation counts would suggest. That may be true and it may not be true. What if citation counts actually overstated impact? In fact, this may be the case.

To understand why, think about why most law professor write. As I have noted, they usually write with a lawyer's mentality -- advocating an idea. To do this these they offer facts (often selectively gathered), reasoning, or both that, like a well-written legal opinion, lead the reader to agree that the proposal of the author was the only logical outcome. And, in a law professor's dream world, those conclusions, proposals, suggestions, whatever will be adopted by a court or agency.

So when a court cites legal scholarship, is that what it is about? Actually no. In fact,  in the vast majority of instances in which legal scholarship is cited, the citation has nothing to do with the author's proposal, reasoning, or logic. Instead, except for very few instances the citation is to some fact found in the work. For example, it might be to "The UN Act of 2015 contains 5 sections." or "Twenty three states have laws prohibiting pit bull sainthood."

In short, the 400 or so million may result in high level thinking and important insights but, for the most part, what courts are after is not that. Courts are looking to the factual underbrush or what any decent research assistant could find for $10 and hour.

It is completely fair to ask whether this is also true of all the others ways in which people claim legal scholarship is of value. Do those impossible-to-count uses rely on the theories and reasoning of fancy articles? We have not looked at that yet but my hunch, and it is only that, is that all those other users to which law professors are fond of pointing are equally uninterested in anything other than cherry picking from the hard research -- not the ideas. We will see.

Thursday, October 16, 2014

The Tragedy of the Grading Commons

I have posted (to some) way too many times on the closeness of faculty governance to the tragedy of the commons. I should say some faculty governance because I am confident that there are faculties that overcome individual self-interest and whims and  avoid the tragedy. (Please do not tell me if I am wrong, I need the eggs.)  Some do not. This was brought home to me over the last two days when a student described what the commons could look like and I compared that to the actions and logic of those in charge of managing the commons.

According to this student our law school should graduate the most effective and professional students possible given whatever budgetary restraints exist. This means, according to him, more competitive students, fewer disappointed employers (who will come back for more), and, most importantly, clients who get the best possible service. I have a hard time not agreeing with this.

According to him, this means that students should choose courses -- with proper advisement -- that best prepare them for practice. A factor that should not be part of the decision is "what grade will I make." He was not the only one with this view. A colleague on my faculty said just recently that one of the best things he heard when he entered law school was a statement by the dean that grades would not in any way be determined by the selection of courses or teachers. In short,  the students would be free from pressure to game the system and from weighing a possible higher GPA against taking a course that would be part of his or her best preparation.

Maintaining that notion of the commons means that each professor at my colleague's school had to agree with the plan -- not just a curve but a grade distribution.   In other words, there would not be some teachers who would achieve the required average by giving lots of As and Cs while others achieved it by giving mainly B+s. (Some of you will also note how, if there are varying ways of achieving the curve,  the impact will be felt differently depending on whether students are risk averse or risk takers.) The answer, of course, is a curve with some semblance of a required distribution. And it would also mean that some, maybe all, teachers would have to subordinate what he or she preferred in order for the commons to be established and maintained.

Everyone knows what causes the commons to collapse. Each person does what is in his or her self interest.

So what types of specific things cause the tragedy and what are the arguments for not having a required distribution. First, the first sign that the tragedy is in trouble is when a faculty member's first instinct it to see if his or her past grading would comply with a possible distribution. But beyond that how about these tragedy promoting arguments:

1. We already have a curve. This distribution thing is just too much. It requires even more math. (Oh come on! I really don't know what else to say this one.)

2. Since I don't like the curve I also do not like the distribution idea because I want to give the students what they "deserve." (You lost that argument when a curve was adopted.)

3. This impinges on my academic freedom. (Yes people who don't have the balls to say anything controversial raise academic freedom as a reason why they are entitled to help destroy the commons.)

4. Hey, why don't we compromise and just have the distribution in some classes. (The problem is not classes. It is people grading the classes. Applying it to some classes and not others does not solve the problem)

5. The students in my class all made As and they expect to get high grades. The distribution keeps me form doing that. (The curve already prohibits giving them all high grades. The distribution would only keep you from giving them all the same grade. If that is the problem and it could be, there are exceptions.)

6. I'm not saying anything because I hope to be dean someday. (Just kidding no one actually said this but in a way they did.)

Why the photo of Rick Scott? If there were a saint of commons destruction, he would be a prime candidate.

Wednesday, October 15, 2014

Scholar, Advocate, or Both: With a HT to Prawsblawg

Suppose you are a historian and a great admirer of Martin Luther King. By digging around in various historical documents you discover he was a pedophile. Do you write about it?   Or let's suppose you are a huge supporter of ObamaCare and know it will mean care for millions who go without. You read the law carefully and based on your understand of the Act and the Constitution, you believe ObamaCare is unconstitutional. Do you  stay silent?

Paul Horwitz over on Prawsblawg wrote a fascinating post that opens this can of worms. To some extent, the issue can come down to whether you are an advocate or a scholar, but I am not sure of  this, and the issue extends to what role a law professor should play.

As a preliminary matter let's be clear that an advocate can be passive or active. The pro Obama care professor discovering the constitutional defect who says nothing is an advocate just as the agenda driven law professor who writes thousands of pages on the matter.

But what is the distinction between the advocate and a scholar? The scholar does research to find answers to often difficult question or to test hypotheses. He or she is not driven by wanting to find something that supports his or her point of view but instead, is gratified by finding an answer even if that answer is inconvenient. The advocate presents his or her case for a position with carefully selected arguments. There is no effort to find the truth but, rather, to bring you around to a point of view that has two sides -- otherwise there will be no reason to advocate a position. I do not know if  it is possible to be a pure scholar. I know I sat on a topic for years and did not write about it because I felt the analysis would reveal something that cut against my personal beliefs. I certainly was not a scholar in that case.

What should law professors do? First let's be clear. For many "scholarship" is the process of  having ideas as clients and writing long briefs, called law review articles, in support of the client. In virtually every case the client behind the idea is the law professor him or herself in that the position taken is consistent with purely subjective political beliefs. Thus, a high paid law professor may take the salary from his law school and spend all his time writing in support of his political views in their various manifestations. These folks are simply being lawyers and now they have found a way to express themselves on behalf of themselves on someone else's dime. I know, I have done it too.

The problem is that if law schools are ever going to be viewed as legitimate graduate level colleges the trend needs to be more toward scholarship. This is hard for two reasons. First, unlike other graduate level teachers, law professors are not trained as scholars. The idea of testing an hypothesis is foreign to many.  Second, without question they can point to the hypocrisy  of  so called sciences  in which numbers and outcomes are fudged and then the outcomes reported as scholarship.

In any case, did anyone imagine when law schools started that a professor making 250,000 a year, half or a third of which goes for scholarship, would then believe the money is meant to be used for him or her to promote a particular political position?  The decision to do that is evidence of a powerful sense of entitlement.

Saturday, October 04, 2014

"Pills," Drug Addiction, and the Veil of Ignorance.

The other day a few of us were feeling happy that our school had reportedly done well on the bar review passage rate.  We had seen what appeared to be the official results. When I mentioned this to someone, he said, (jokingly, I trust) "wait till you see the next US News & WR rankings. You will be even happier." Of course the rankings can only make you so happy since they are only relied upon by people who have been under a rock but I said, "Why?" The answer was, "I wrote those bar results up and I will write up a the law school rankings. I just want people to feel happy."

 "What a saint!" I did not think to myself.

Yes, it was life imitating the movie "The Matrix" only it was not really the red or blue or green pills but manufactured information that no one dared to investigate because who wants to become unhappy when you can be happy. In fact, law professors rely on a clever perversion of Rawls'  veil of ignorance. This veil allows you be ignorant of the current reality.

The difference between the Matrix and being a law professor is that the profs are both the pharmaceutical companies -- manufacturers -- and their best customers.  They create "pills" and then take them. They feel better but nothing changes except perception. Here are some of the best selling meds.

1. Your article will be published by a top ten law review. That's great, right? Why? Because a group of privileged 24 year olds  who know very little about law or your area of expertise and knew nothing about law until about a two years ago decided it was not too risky and had enough appeal to authority that seemed like it was meritorious? Really, isn't that a bit like feeling joy about winning a figure skating contest judged by people who have only in the last year or so seen ice? Nevertheless,  when that pill arrives you gobble it down and try to get a refill.

2. SSRN reports that your article is in the top ten most downloaded articles. SSRN has as many top ten categories as there are law professors. So, aside from the fact that the top ten scam is like the people who say  they want to put you in Who's Who in the academic world if you pay $50 for a copy of the book, what else is going on? One thing is you helped destroy some trees. Another is that downloading is free, Think of it as more like someone picking up one of the 15 free newspapers next to the real ones. You put your newspaper out there and it was free. It is more than likely lining the floor of a parakeet's cage.

3. You look up your name on Westlaw and your articles have been cited 1500 times. That's a pretty good pill but how is it connected to reality? Did you change a mind? People mentioned your name in an effort to create their own pill that is likely to be as irrelevant as your own.

4. Several people on your faculty are asked to rank law schools. All of them rank their law school first and the one they graduated from second. Then they feel happy that those are ranked high. Actually this one happened not long ago. That's how much they need a fix.

5. Your hardback book just came out. Your mom will be so proud. Are you! Hmm. is it actually your last 4 articles loosely tied together? Is it a collection of articles written by others at your request and that were acceptable to you because of who they were and not what was said? That's all the medication you need. It does not matter that it is not evidence of new ideas or that only a small handful of people will read anything in the work, After all, others, also taking meds, will regard it as a good thing.

So, what if law profs dropped their version of the veil of ignorance and went into rehab. Are there any pills that make a law professor feel better and do so without the veil. I do not know. There is a pill can make things better but seem not to make law profs feel better since so many veiw it as poison-- teach as many students as possible and tell them everything you know. That pill is not a big seller. Not FDA or AALS approved to be safe and effective, I suppose.

Wednesday, October 01, 2014

The Invisible Hand and the Dangers of Famililization

It is good to start this post with this quote from the Wealth of Nations:

"Every individual necessarily labours to render the annual revenue of the society as great as he can. He generally neither intends to promote the public interest, nor knows how much he is promoting it ... He intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for society that it was no part of his intention. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good."

The question arises with the last two words. What is "public good." One look at the plight of law schools today tells you how the Adam Smith approach -- a constant battle in service of self-interest -- is working.  It is a world of low teaching loads, vanity courses, massive spending on irrelevant "scholarship," travel to do little or nothing, crushing debt for students, and dishonesty in the rankings game.

That is the good news; it could be worse. Why?  Two points. First,   I can count on one hand the number of law professors who do not attend the church of Adam Smith. In fact, I can count on the fingers of no hands the number of times I  have heard a Law professor say in response to a policy or program question, "That is inconvenient to me and will cause some changes but I can see it is better for the institution,"

Conversely I do not have enough fingers and toes to account for every time I have heard "I oppose this policy/program because it will mean I have to change what I do."

How could it be worse? Suppose faculty began acting like one big happy family. They  celebrated birthdays together, ate lunch together, and really cooperated. The cooperation was designed to maximize total benefits for faculty with the distribution of those benefits determined later. So even lower teaching loads, more travel, more vanity courses, etc.  You might call this the Tony Soprano model.

If so, the best outcome is that faculty continue to "compete" not because it increases the public good, as Smith would have it, but decreases the damage.

So should we encourage law faculties to act like families? Like that slippery notion, "leadership," it all depends on goals and values. If they are not in the right place, kinship is a dangerous thing.

Thursday, September 25, 2014

Joe Don Looney, Personal Attacks, and Civility

I've heard it said that Joe Don Looney said, "I never met a man I didn't like except Will Rogers" but maybe I just read that somewhere. In fact. maybe Joe Don did not say it. Maybe Will Rogers, in a moment of self-loathing, said it.

I was thinking about Joe Don, Will, and my 150 page, 300 footnote law review article thanking all the tenured members of my faculty, several people  I hardly know but may have met at a conference in Barcelona, and citing myself 37 times when a law school pal walked in with a problem. It was a real problem but I could not solve it   How does Joe Don fit in? Keep reading.

In the course of the conversation my pal said (and I am changing the names) "Emma told me that Jane told her that Phil had personally attacked, Lucy." Well, I was taken back because I know Phil; Phil is a friend of mine and he's  as sweet as pumpkin pie with double Karo.

Then I realized that "personal attack" accusations are all part of the civility game -- the way the "ins" stifle dissent by the "outs."

Lots of people have been writing about this lately, The most direct (if there is anything direct) way to use civility as a weapon is "I don't like your tone," or "I am offended." It goes like this. You express alarm to see  Jack stocking up school supplies to take home. Jack's reply is "I don't like your tone," as he closes the back door of his Volvo on 100 reams of 8.5 x 11.  Another version  is "I am offended." No one asks why because the civility rule is that everything stops when someone shouts "Offense." In fact, right now I am getting pretty offended by just thinking about the "O" bomb.

[I am stopping here to catch my breath.]

The other silencing tactic I discussed two posts ago -- do not engage. No engagement means no discussion and no discussion means the status quo is safe.

What about the personal attack accusation. Here is how it works. Go back to Jack's Volvo or any other transgression. No matter what the perceived transgression is, if anyone can figure out who is involved,  you have engaged in a personal attack. So, Billy Joe has been running a questionable foreign program for 20 years. If you complain you have personally attacked Billy Joe. It does not matter than you would complain no matter who is running it.  You can avoid this by saying "It is possible that someone, somewhere, at sometime, is running a less than 100% indispensable foreign program" or, in the case of Jack's insatiable need for 8.5 by 11, "Golly, I wonder where all the printer paper went." In other words, say nothing.

This is different from the perfectly valid rejection of an ad hominem attack as in: "Bill can't be right about that because he is a puppy kicker." Or maybe that is just a non sequiter.

Tone complaints, do not engage, and accusations of personal attacks are ways to protect what is and to stop change when it threatens you.

And, Joe Don Looney?  He never met and, therefore, did not know Will Rogers. He did not know what he was talking about any more than Jane knew Phil. [see above]