Friday, May 22, 2015


I wish I had taken  photo. Today I got a cup of coffee from the faculty lounge which is also home to the faculty refrigerator which is the home of the faculty freezer. I wanted to drink coffee right away and it was hot so I opened the freezer for a cube of ice to cool it down.

When I cracked it open I found out that the speed of smell is faster than the speed of light because the odor was on me like cat hair on a furry sofa. I know this because I have two cats and two furry sofas. And then I looked and realized the the freezer was not a place for mixed company.

There were abandoned ice cream bars maybe dating from the fifties, frozen foods left from the ice age, and smears along the walls. I had not seen anything like it since I peered into a diaper pail.

So what was going on?  It takes no genius: it was global warming, overfishing, over hunting, clogged roads and every other Tragedy of the Commons in a one foot by 2 foot space. The first thing I though of was I will take my Law and Economics class next year on a field trip to the faculty freezer. No more field trips to Greenland necessary,  Everyone who ever wanted a freezer used the freezer as long as there was space. Spills? Who cares? [I have to be honest, though, the ice trays were full meaning that free riding in the ice tray department had not occurred.]

I mentioned to a pal who said "Why are you surprised, right there in front of you was faculty governance." He war righter than rain unless there is something even righter than righter than rain in which case that is how right he was.

Yes, everyone takes: they want their programs, their conferences, their foreign travel, teach their courses, at their times, 2 days a week max, smallest sections, blah blah blah. It is all put in terms of what is good for the commons but almost none of it is or, if it is, it is a fluke.

The Commons can be solved in a variety of ways. Private property rights supposedly encourage people to internalize the costs of their efforts to benefit. I thought about assigning to each person a designated  4 cubic inches of freezer space but some of that space would be suspended in mid freezer and not usable. As far as faculty graspiness, I do not know how you gets a person who wants to fly a dozen or so people to a continent just below ours so they can confercate to internalize the costs

There also can be contractual rights. I suppose everyone could agree to not leave anything in the freezer for more than 7 years and to clean up spills. This would not work unless there is an enforcer. There are no freezer enforcers. As far as faculty governance, few deans with ambition to last for more than a year or two or move on would dare enforce or question whether faculty governance is anything other than Jim Dandy (is that supposed to be capitalized?).

Freezer dictator is what we need. He or she has complete control of the freezer and it is only used with permission. Anyone abusing the freezer loses freezer rights for a year or, at least, has to eat one of the abandoned ice cream bars.

And, I think that is where I end up on deans and faculty governance. Faculty governance, as everyone knows is another way of saying "free for all." I want a dictator dean. One willing and able to say NO to anything that does not, in a very obviously fashion, advance the welfare of the commons.

Tuesday, May 19, 2015

Faculty Report Card

At my School where we big on counting, it is (self) report card time.  We get a form that goes on forever and asks questions about every imaginable part of the job. For example, did you read any manuscripts for students? I stopped keeping track of that . . .  actually I never kept track of it. How many people did you suggest should download your articles, How long is the list of advertisements after your signature on a letter.   How many externs did you supervise? (That one is important because that is where the students pay us to work somewhere else for nothing and we bankroll the take. )  And then there is "Did you turn off the light when exiting the men's room." I've always felt that one was unfair because someone else may be in there and you may have to fess up that you did not turn off the light. Nevertheless, even though there are no other light sources or windows in the men's room,  I always turn the light off because it is cool to hear the cursing and screaming.

There is the usual  stuff: How many students did you teach? I think they may actually have that in their on records somewhere -- Don't you think?  I always put down zero because I think it is a trick question. I know how many are enrolled but how can I know how many I taught? If you look at some of my exam answers the number is pretty low.

How about this. Did you attend any conferences at which you did not make a presentation? If "yes" where did you eat?  Another trick question. Is it to determine how much of the school's money you spent confercating or is it some kind of feather in your hat to go somewhere and sit there.

I am not sure who grades these reports but I hope is it not the little girl who sat in front of me in 2nd grade who, when we exchanged papers to grade, would always put a big X on my paper if I did not dot an "i" and then wave her hand until the teacher called on her and say, "How many points off for not dotting an "i."

We are supposed to present evidence of our impact in the profession. It's like "did you have an impact in a terrarium."  Like the tree in a forest I wonder if when a law professor says something does anyone hear it outside the terrarium. Law professor praise is the ultimate in the one hand clap. Nevertheless, the right answer is 50,000 SSRN downloads, 852 judicial citations, 3400 citations by  other scholars, 53 Papal references, and 2300 texts. I always write down that answer and then, if challenged, threaten to sue the school and the dean for destroying the only evidence I had. I really hate them for doing that and forcing me to make that threat but I know what they are up to and they know I know.

I give way too many talks to remember and organize a conference every day. In fact, what you are reading now is one of my scholarly papers. And when I am in the lounge getting a cup of God-awful donut flavored coffee, that was a conference. I had 5 cups today alone. Sometimes I give asynchronous talks. I go into the lounge alone and give my talk and people who come in later may hear the echo.

So far, my annual report is only 100 pages long but that's fine. I just changed the date on the one I have been submitting for 10 years.

One thing I am really proud of is that I always get very high marks on "getting along with others."

Tuesday, May 05, 2015

Bullying for a Good Cause: (Another Hot Potato Post that No One on Facebook will Dare Like)

When I was an even younger boy than I am now, there were two bullies in my life. I remember both their names but will not reveal them in case their family members might read this (or that they may still come after me).   When you were around them you remained silent and did not question them or even make eye contact. They ruled by how much they could hurt you. (Actually, in the interest of full disclosure one of them liked to shove you at the water fountain so your face would go into the water or your teeth would clang against the spigot. That ended, though, when for some reason I spun around and clobbered him right in the puss. It was a wonderful moment -- maybe the most important in my life.) Live was so much simpler.

Lately I have been applying the notion of a bully to law faculties and I really cannot say there are people roaming who I would regard as traditional bullies.  No one walks up and punches you in the stomach and says "for a dollar that will not happen again," Instead, it is white collar bullying and I have learned there is a huge literature on it.

 On my faculty I have seen people in fear and administrators paralyzed. No,  it's not fear of teaching 12 hours, or of a new Dean, or any of that stuff.   Instead it is the fear of being tagged with a label that could follow you forever. (And yes, you are right. It is the fear you are thinking of right now and wondering if someone is actually allowed to write what follows.)

For example, about a year ago in a prior Dean search one faculty meeting suggested that very well qualified candidate may have homophobic tendencies. Maybe someone asked why but no one pressed the issue. Evidently she just "knew" it. More than a decade earlier, also in a Dean search, someone indicated at a promising candidate had a "problem with people of color."  In neither case did anyone ask "why," "what happened" or ask for any kind of foundation. No one dared press the issue or maybe they just enjoyed watching bullying. More recently,  a person said about another person that "he was widely known to be an extreme homophobe." Was there a reaction? The victim, now deceased, could hardly respond which made it easier for those who mourned him and spoke so eloquently about him at his memorial to remain silent.

What makes this type of bullying so difficult to handle are four factors. First it is especially powerful, The victim cannot spin around, like I did at the water fountain, and stop it. In fact, in these cases any form of denial just means the bully must be right.

Second, some people  who spread the word that others are homophobic or racist or child molesters, may be right but even if they are not right they have conviction of a right wing Christian and, as in the case of other forms of bullying, there is no answer but to nod in agreement.

Third, those bullying are likely to have been bullied in the past. In fact, thinking of well known bullies throughout history, I wonder if this this a characteristic -- those bullied become bullies if it is possible. If this is the case, why didn't  the experience of being bullied result in some level of empathy?

Fourth, and this is the really tough part:  bullying, in the examples I have identified here, is aligned with a good cause. It's like bullying for better treatment of animals, children,  and adults. As for getting it wrong sometimes, an economist might say, "So there are a few innocent victims here and there but the costs of their careers is easily offset by the benefits." Some victims are just necessary collateral damage like the dead children after a drone strike designed to protect us all from another 9/11. I guess we can all understand that but it does not help those who find they are collateral damage.

The problem with this fourth point and possible justification is that it drives the evil that gives rise to the bullying underground. No one's mind is changed and on top of whatever ills there may be, there is now a further layer of resentment.

I do not like bullies of any kind because they get their way by threatening to harm people. Plus, they change  no minds and, if  they claim to be acting to advance a cause, they are more than likely to  set it back.

Sunday, May 03, 2015

Decency and Law Profs

Lately I have been thinking about two very different incidents. One is the well-known Fisher/Welch/McCarthy incident that let to the following rebuke by Welch when Fisher was accused of being a Communist because he had been a member of the National Lawyers Guild.

"Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man, but your forgiveness will have to come from someone other than me. . . . We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?"

The second is the recent controversy at UNC concerning the Poverty Law Center and the attack on the Center by the right wing politicians that was viewed as actually aimed at its Director. Faculty jumped to the defense of the Director. Just like Welch and McCarthy?  Well. .. not quite. In fact, not by a light year.  . . .It took no courage to defend a liberal cause in the midst of liberal faculty although I sure it resulted in a great sense of righteousness.   (It was interesting, though, how some people, perhaps uncomfortable defending the director, framed the issue in terms of the ridiculous idea that if the Center had out-lived its usefulness, the faculty would terminate it. I'll believe a law faculty will stop a program that anyone wants to continue when I see it.)

Now lets shuffle things.  For the McCarthyites substitute folks today who are as willing as the witch hunters of that era to label people as something they may not be  and with as little knowledge -- maybe less -- as the tail-gunner and his henchmen  had at the time.  Shift the context to a law faculty -- one like UNC where there was such outrage and where, I am sure, everyone claims to be for fairness and justice. For Fred Fisher, substitute the names of individual law faculty. And for "Communist," substitute "homophobe"

1. Would there be Welch courage? Would one person on a law faculty step forward to say "before those named "bear the scar" we need to make sure the charges are true."
2. Would there be UNC courage? Where many people would step forward because it is safe to do so and law profs, with the exception of a few, only move in mobs.
3. Would there be no courage at all?

When it comes to law profs, I am betting on 3. I think I have seen 3. I have also seen occasional acts of courage and the price those few souls pay.

Of course the victims of witch hunts cannot be the ones to speak up. They are already suspect. Instead it takes some courage and leadership.  In the law teaching field you can count the number of those people on less than one finger.

Friday, April 24, 2015


Sorry but I do not know who the new Dean will be at Florida. All the finalists seemed fine to me except for wanting to be dean. That would not be so bad unless it means a deanship devoted to just continuing to be dean. That is not to say others do not know which leads to time to discuss NEW DEAN RITUALS.

Some of these predate the actual appointment of the Dean.

1. Information is power. Anyone in law teaching knows that people like to seem to be connected, in the know, or whatever. They drop little pieces of information here and there like the bread crumbs in the story of Hansel and Gretel to let you know.  In the context of new deans it means knowing who the new dean will be but not saying. It is important to let people know you know but not to say because once word is out your power is gone. After all, knowing makes your important.

2. The stampede. Get to the dean first with your version of things like 1) what the law school should be doing, 2) how important you are. 3) how you have been wronged, 4) why you should be associate dean. 5) why your pet program which the old dean had put on the chopping block should be retained 6)  how tight you are with the Central Administration, 7)why you need extra travel money, 8)what foreign program you want to start, and (9) how you like your eggs.

3. Fall out shelter: This is actually a corollary to number 2. Do not have an office between the new Dean's office and other faculty offices unless you like to be caught in the stampede.

4. Understanding. Convince the new Dean that you are a trusted friend she  never met. This means not being in the first wave of the stampede but holding back and starting with light chit-chat and later moving into items like those in number 2. This is a form of salesmanship like when you go into a store and the salesperson treats you like his or her new best friend for 5 minutes before making the pitch.

5. Be a good Boy or Girl, Most people are on their very best behavior when the new dean comes on board. Appear to be a loving, mindful, kind, and altruistic person. You just want to "help" the new Dean understand the Law School from the only person who truly understands it -- YOU.

6. Act like you are representative and trusted and, thus, a faculty leader.  When talking to the new dean always use terms like "several of us" which actually mean you and maybe one other person you saw at the Greyhound bus station.

My bet:

Thursday, April 23, 2015

The "L" Word and the "C" Word

Running across this book review of The No Asshole Rule: Building a Civilized Workplace and Surviving One that Isn't made made me realize how dangerous the "C" word and the "L" word are. The C word is, of course, collegiality and the L word is leadership.

Let's start with leadership and recall some effective leaders in history -- Hitler, David Korash, George Wallace, Stalin, ---- you get my drift. People spout the word leadership as though it is unequivocally a desired and admirable trait. It is, however, something to be encouraged or feared depending on the ends sought. Please, enough with the leadership worship without first telling me where the leader is leading.

Far more dangerous is the "C" word -- collegiality. My goodness, don't you think the collegiality level was high among those in the George Wallace administration or in David Duke's entourage? Paramilitary groups probably are also way up there on the collegiality scale. Underachieving faculties are likely to be collegial as well. In fact, collegiality is most likely to be valued when people are not sure that what they are doing could stand public scrutiny. Like Leadership, collegiality is a concept or characteristic that is to be valued after only after knowing the ends to be sought.

In recent years, "uncollegial"is used as a rallying cry signalling that the actual issue raised cannot be discussed. Can't rely on reason to get your way? Play the uncollegial card! At bottom charges of being uncollegial are actually name calling as the review referred to above unintentionally illustrates. As often as not, it reflects the discomfort the target has created among those adhering to group norms whether those norms are finding a cure for a dreaded disease or barring entry to a country club.

Leadership and collegiality are dangerous words because they have instant appeal without regard for the ends they advance.

Monday, April 13, 2015

The $1.98 Faculty Meeting

At law school faculty meetings many important issues are raised: should we reduce class size, should we offer more skills courses, should we have higher or lower tenure standards, what should we name the law school cat, do we need a mascot,  should we reduce the size of the faculty? Actually that one is never, ever discussed.

What is amazing is how the issues change but the essence of the commentary does not. It is almost always from the perspective of self-interest, So here is the idea. I stole it from somewhere but I cannot remember.

Each faculty member has a life size photo made. This are all kept in the dean's office but they could also be in the supply room. That is for each faculty to vote on and I am sure they would insist on doing just that. I'd go with the supply room but I will vote with the committee on this.

The faculty meeting is called and faculty stay in their offices writing very important articles, making their next set of reservations to take an important group of people to South America to hear 5 minute talks, napping, playing online chess, or anything else equally productive.

The dean's right hand person goes to the meeting room and arranges the life size photos. The dean arrives and calls the meeting to order and moves to the first item on the  agenda. Let's say it's "should we raise the mean GPA from 3.88 to 3.89."  In their photos, each person has his or hand up and the dean recognizes them in turn. But, and here is the revolutionary move. After calling their names he or she just moves to the next person, They do not talk because they are cardboard. BUT the dean (more likely the dean's assistant)  knows exactly what each person will say because they are like a sentences on infinite loops -- same thing every single time:

Person 1: Shouldn't we check to see what the highly ranked schools are doing because we definitely want to move up the ladder, not down because I actually think it is our job to move up in the rankings. (And, by the way, I getting pretty pissed off if anyone disagrees.)

Person 2: I just want to know if this will hurt the students' feelings because my feelings were hurt once and it does not feel good.

Person 3: Is there some way we could turn this into some money because I really like money.

Person 4: At (my, daughter's, friend's) school they have a 4.00 average and, therefore, we should too because I have no original ideas.

Person 5; (Flipping her hair and acting all flustered): I really think we should do something and I am just wondering [don't you love the passive-aggressive "just wondering move?] if it is really a good idea to give all the students the same grade but I am just wondering so please don't mind me because the most important thing is that you not realize this is a part time job for me.

Person 6: I actually have nothing to say but I always use up about ten minutes saying nothing it so here is what I think and that is many schools do one thing and some do another and I . . . . . because I like hearing myself sound important because if I hear myself sounding important it makes me think I am important or at least you will think I am here more than the 4 hours a week I actually am on campus"

Person 7: I am concerned this will mean less work and less work means less work for me personally and since I am on a year to year contract, I am always searching for something I can do.

Person 8: I am on both sides because I want to be Dean someday.

Person 9: What will this do for diversity because diversity is important and, since this occurred to me when I was 45, I have a lot to make up for and I plan to demonstrate my new found sensitivity by raising it every day and wearing my Che t-shirt.

Person 10: When I grade I take all the papers and weigh them. They I have them blessed by my priest. I read the first one and then the second one than have a beer. The first and second papers are then reread. . . . .  Now what was the question again?

These comments use  up about 10 seconds if the dean is a fast talker and no more than an minute if he is not, The dean flips a coin, Meeting adjourned!

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.