Friday, May 13, 2016

The Diva Tax: Insufferable Diva BUT He Writes

I mean he and she divas although I know that is technically incorrect but cut me some slack on this one.

I wrote about this general idea some time ago. The context was whether "character" should be consider a plus among law professors so that it off-sets a lack of productivity. The converse question is harder -- should a low character law professor be cut extra slack if he or she writes or at least is perceived as being productive.

I suppose there is a difference between character issues and diva issues although I am not sure there is a bright line. I have recalled in a prior post a situation in which an appointments committee discussed whether to hire a productive married visitor who kept an apartment close to campus for entertaining female students. After about 15 minutes, the dean who was there, said, "Why don't we talk about his qualifications." I thought before that statement that character was part of qualifications.

On the other hand there is the never pleased person -- the wrong course, the wrong time, too many students, too many days of the week, not enough research assistants, secretaries got it wrong,  broken record in faculty meetings, protecting turf, knifing others behind closed doors, and on and on. I guess this is not technically a character matter but a pain in the ass or diva issue.

Here, I think, would be the conventional thinking. If you do not write enough you will pay for character issues or being a pain in the ass. On the other hand, if you write enough, you pay no price. Is it a double standards? Should it be a standard at all?  If someone is a good salesperson, do employers really worry about whether they are good parents or abusive. (Or whether the floor show is racist sexist, or demeaning?) Probably not because the bottom line is money. And in law school rankings, the bottom line, along with student qualifications and placement, there is image which is often based on writing. So, in a sense, law school administrators do not and should not care about divas unless it affects the writings of others.

Makes sense, right? No, sorry. It does not. There are plenty who write without being pains in the ass. They line up each November or October in Washington DC hoping for a job, pleading. Many of their resumes already make incumbent law profs look like loafers, some with tassels even. They populate many faculties. There are a bunch on my faculty -- the productive non divas I mean.

Bottom line? There is never a good reason for law school administrators to coddle those who make trouble because the supply of productive law professors or potential law professors far exceeds the demand. Think of it in economic terms. Divas make schools pay a diva tax. What do we do when there are good substitutes for things that are highly taxed? We buy something else. So should law schools.

Sunday, May 08, 2016

Law School Recipes

Anyone can make these foods:

Mediterranean Grits;

1. Bike, drive, or walk to grocery store.
2, Buy Grits
3. Return home
4, Make grits but put in many raisins  -- half cup
5. When grits are cooked, toss on some grated cheese (graded cheese is OK too)
6, Fry an egg and put on top of grits mixture.
7. Eat

Chicken Pot Pie

1. Bike, drive, or walk to grocery store.
2, Buy a bunch of boned chicken
3, Leave grocery store
4, Buy pot from teenager waiting outside with pimply face.
5. Throw away chicken.
6. Smoke pot.

Cherry Cream Corn

1. 1. Bike, drive, or walk to grocery store.
2, Buy fresh cherries and one can cream corn
3. Return home
4. Pit cherries and chop
5. Mix cherries with cream corn
6, Add flour until mixture is like cookie dough
7, Preheat frying pan.
8, Place dollops of dough in pan and cook until golden brown.
9, Sprinkle cheese on top
9. Eat

Monday, April 25, 2016

Antitrust Law and (not really) Economics

Some people are happy as can be that antitrust law has become the principal means by which neoclassical economics has wormed its way into our lives. Others long for the old days when the Supreme Court said efficiency is not all that counts.

As it turns out, efficiency is not everything or even anything to those who applaud the subordination of antitrust law to an ideology. The big problem is that conventional antitrust scholars talk a big game when it comes to efficiency but walk the walk, they do not.

There are many ways in which the intellectual hypocrisy reveals itself but let's take one example: externalities. Externalities is not just what law faculty do to each other as you might think if you ever read this blog. It is what businesses can do to all of us when they do not pay for all the resources they use.

For example, trucks speed down the road clogging the highway, causing stress and increasing the need for repairs. Smoke fills the air with one pollutant or another. Waste is dumped into lakes, rivers, and the seas. We all end up paying for it in terms of enforcing environment protection laws or by headaches, higher taxes, or lower property values. Yes, those business subject to the antitrust laws pay for some resources they use and we pay for some others.

But when it comes to deciding which ones are efficient, all the harm they heap on the rest of us is not part of the calculation.  Let's take one of my favorites, the Florida sugar industry. The are partially responsible for the destruction of the Everglades and manage to shift those costs to taxpayers. On the other hand, in the myopic world of antitrust economics, they may come out smelling like a rose. Ironically, it is because they are so good at shifting their costs to others.

Take some made up numbers. Two firms produce sugar. When they add up all their costs, production by Firm A is $1.00 a pound and by Firm B it is $1.25 a pound. Firm B just cannot compete at those numbers. But firm A is in Florida and damages the Everglades to the tune of $2 billion. Add those costs in and they are at $1.35 a pound. Firm B challenges the pricing of Firm A saying they are charging prices that are below cost (an antitrust violation if it means A will likely become a monopoly).  So is A more or less efficient than B? This is critical because many in the antitrust field worship at the toes of Mr. Efficiency. (Rhymes with Mr. T.)

 No economist or thinking person or beaver would say A is more efficient. What does antitrust law say? You guessed it. A is more efficient. And why is that? Because they actually paid less than B to produce. Did it cost less for them to produce? No. Did they use fewer resources than B to produce? No.

This is all because antitrust economists do not count the externalities. In the process they set up an interesting set of incentives. First is the race to the bottom as far as environmental ethics. Firm B can be more "efficient" if it too figures out how to shift its production costs to others. Second is the race to Florida or any other jurisdiction that makes a firm instantly more "efficient" and grants a form of antitrust "immunity."

Saturday, April 16, 2016

Selling the Deal in the Deal: Predatory Pricing and Antitrust

I recently wrote an article about modernizing antitrust that only one law review accepted and it may have been charity more than anything else. Part of the thesis was the the neoclassical model depends too much on low prices. A sense of fairness, what people often want and derive utility from, can be advanced in other ways.[More specifically, antitrust economics ignores externalities, most people do care whether prices reflect the exploitation of others, consumer surplus is only tenuously connected to actual welfare, etc.}

Over here in Italy I have discovered a new wrinkle that further puts neoclassical economics in the rear-view mirror of antitrust. There were two incidents.

Walking through a really big market I stopped to buy for 1 euro the cheesiest gift I could find for my friend Amy. For some reason I also picked up a necklace. 25 Euro the seller said. I shook my head. "No grazie," I replied indicating I did not want it. The reponse was "20 Euro." Again,   I said no wanting to buy that great gift for Amy and leave. (I will not disclose what her gift was except to say it includes a magnet which was demonstrated to me many times.) Now I hear 15 euro, and then 11 euro. 11 Euro was a sticking point. He said at 11 he only got 1 Euro profit. I showing him that I only had ten. Finally he said OK to the ten.

I realized the price of the necklace was irrelevant. In all conversations since then it has been known as the necklace that was reduced from 25 to 10. I felt pretty good about getting the lower price but I also felt uncomfortably knowing the vendor needed the money more than I do. Still, if you think about it, everyone came out ahead. I get to feel like I was a really good bargainer and the seller got 10 euro -- 1 euro was for the necklace and 9 were for letting me feel good about the deal. The low price in and of itself meant nothing. In fact, I was happier at 10 than I would have been at 1 Euro because the seller had bundled the necklace and an opportunity for me to feel like a successful bargainer.

Second incident. Walking back to our apartment, a woman is moving along in full out African garb selling bracelets. I see her actually sell one for 5 euro. She gets to me and I say "how much" and she says 10 euro and I looked shocked.  Then she says 5 and indicates that is what the other man paid. I say, "no" and in broken Italian add "I am not that man." Finally I pull out  2 euro from my pocket because that is all I have. She takes it and then makes the SHHH sign and points at the 5 euro buyer.

What I really liked about this was her follow through on the sale to the other man, She wanted me to help preserve his feeling-goodness from the bargain he thought he had made. She sold him a 1 euro bracelet and 4 Euros of feeling good about the deal. For me, there was a discount, I paid 1 Euro for the bracket and only 1 Euro to feel good.

There are many antitrust issues to consider here. There was clear price discrimination with respect to sale of the "feeling good" component of the deal. And sometimes the price of feeling good was cut so far that it seemed it could be predatory. But I have no idea what the seller's marginal cost was of selling the good feelings.

Thursday, April 14, 2016

Law Prof Advocacy, Entitlement, and I: A Really Good Example

One in a while my posts get reposted over on Paul Caron's Tax Prof blog and usually there are very few comments but this one caught me eye. The post it is commenting on is the one three down about law profs and their sense of entitlement. Here is the comment: [oh, it is good idea to have Toby Keith's "I Wanna Talk About Me" playing on your favorite country station.]

"For each of the past five years, I have taught an average of 20 semester units -- primarily to make possible new programs that I view as valuable to students. During the same period, I have developed and implemented new programs, helped my school negotiate financial rapids, chaired major committees, written a first and second edition of a casebook and 400+ page teacher's manual, presented and published multiple articles, and co-hosted our school's Tax Policy Colloquium. For this, I am paid a small fraction of what I could be earning as a partner in a major firm. My choice, and I'm happy with it. But I wish Prof. Harrison would speak for himself, and not for all of legal academia. I know that many of my colleagues, at Loyola and elsewhere, work their hearts out for their students and their schools."

Ok, so it's a tad defensive or maybe a lot defensive but I admit I am old fashion about self promotion. I think the author just needs a big group hug. [I'll bet the signature on his email mentions all of this like a colleague of mine whose below the signature  information includes everything from when he was potty trained (a record young age) to his last talk where the very top people sat spellbound.] Still it  reflects a high level of productivity which actually makes my point for me. I wonder how many other law teachers are teaching 20 credit hours, and writing casebooks and major articles. I do not think there are many and I know there are none on my faculty although some work just as hard.  So what the commentator tells us is that at full capacity law profs can be enormously productivity.

But it also includes more information about a sense of entitlement and advocacy [and, I might add, the lack of humility that seems to be a pathology associated with attending Harvard (think Ted Cruz)]

1. He is teaching what I think is 20 hours a year. That really is huge but notice it is for programs "I" think are important. What about any one else? Are they vanity courses? Suppose he were asked teach something that "he" did not think was important.

2. I'm not going to scoff at completing a huge casebook. It is hard work. On the other hand, to judge whether it was time well spent or just something "he" thinks is important, I'd like to know the market share or number of adoptions. That would give the reader something to evaluate in terms of using one's time productively. Advocates do not give out this information unless it favors them; scholars do. Of course one could just say "many adoptions." See below.

3. He says he has written multiple articles. There is not doubt that he is a productive scholar. In 25 years in the business, though, I could find but 2 judicial citations and 250 in secondary sources. I am sure I am missing some since I just put the name in westlaw and, in his field, I am sure there are other outlets. Let's put it this way. I'd be happy to argue that he has worked his butt off . . . .  but was he writing about what "he" thought was important? Does that account for the seemingly low reliance on his work but others even though he graduated from you know where? Somehow the law prof entitlement of "doing what I think is important seems to come through again and this is my entitlement point.

4. By the way, "many" people at his schools work their hearts out. Same at my school but the system still stinks as long an others can cruise,there is no accountability, and everyone does what he or she thinks is important.  And what about that word "many." It's a law professor favorite because it has no meaning.  It sounds like you are saying something but you have complete deniability. I have heard law professors invoke "many," "most," and "a bunch" typically when it is a handful but they need to make it sound, in the words of the Presidential candidate whose hair looks like an Afghan puppy fell asleep on his head, HUGE.

5. Finally there is the straw man. The writer must know better. I agree that I cannot opine on "all of legal academia." How could I?

So, as I have written so many times that I am really getting pissed off at me, we have a system in which people do exactly what they want to do. They teach what they deem to be "important" and write what they want to write regardless of of whether anyone listens.

Thanks for your support commentator!

Monday, April 11, 2016

Advocacy and Law Professors

I have noted prior to this that law professors tend to write advocacy as opposed to scholarship. The key distinction is whether  ahead of time you know what your conclusions are likely to be and whether subtly or with a hammer drive these points home.

In many respects there is  very little to separate law professor advocacy scholarship and expert witnesses who are called to testify on behalf of one client or another. When there are differences the expert witnesses come out ahead on the ethics scale. This may not surprise anyone but me. For years I ranked expert witnesses as the lowest of the low. Having been an expert witness, I observed testimony that only money could buy and the view of many experts that the function of the profession is to support the highest bidder regardless of the truth.

But why are they superior to law professors who write advocacy? Expert witnesses present their version of the truth but almost always face someone who will present the other side. In addition, they know they will be subject to cross examination which includes the possibility of exposing conflicts of interest. Although the truth does not always prevail, it at least has a chance. With the law professor advocate, that is less so.

Perhaps more important is that with expert witnesses the pretense of objectivity -- even though it may exist -- is dispensed with. Law professors can be advocates in their scholarship. In addition, many are on retainer or of counsel to law firms and write so call "friend of the court" (amici) briefs in which they purport to bring their wisdom to bear to one issue or another. Often this includes pleading with other law professors to sign those briefs.  In fact, does anyone actually believe they ever take a position without considering the position that most favors the firms paying them. Or does any think that many do not get their marching orders from their other employers? Finally, does anyone believe this advocacy is not done while on the payroll of tax and tuition payers? In effect, law schools end up subsiding one side of a case they may know nothing about.

Pretty clearly advocacy is not scholarship and no self-respecting institution would treat it as such. But the bigger question is whether law schools should continue to subsidize those who write advocacy and thus, indirectly, subsidize their clients or the firms retaining them. Might as well mail in a contribution to those benefiting.

I have another possibility drawing from ancient history of the regulation of broadcasting. All topics written on by law professors should be publicly announced. When it is advocacy, whether in the guise of scholarship or an amicus brief, those with the opposite position should be given a chance to respond, also on the law school's dime. It is called the "fairness doctrine."

Friday, April 08, 2016

You Say You Want a Revolution

Well we've got one and seems like now no one much wants a revolution. This revolution is unlike others. Those that were in power would hardly see it that way but they exercised their power  through a Dean who was paralyzed when it came to what made sense for those paying the bills. So for ten years the tyrants ruled. In that time there were many activities that seemed unreasonable except that someone wanted them. Like:

1. Hire your buddy as a adjunct.
2. Start a Center and Certificate so I can get time off from teaching to be a director even though neither helps students become more employable.
3. Fly me and my pals to South America every other year to make 10 minute talks and then chill out.
4. Teach a class with 5 students or fewer in it.
5. The side deal -- record a course and run it as summer teaching while also on a summer research grant.
6. Teach American law to Polish students in Poland because two or three whiners will be oh so sad if you do not.
7. Pimp out the students by paying faculty to find the students unpaid summer jobs for which the get law school credit and pay full tuition although no one is teaching anyone. 
8. Be of counsel for a law firm and but appear as an amicus brief writer and organizer for the issue the firm favors, 
9. Take 15 years off to raise your kids.
10. Teach your regular load which is supposed to constitute a full time job when joined with research but then add about 5 more hours for a  nice bump in salary and them brag about how many hours you teach. 
11. Badger your colleagues for contributions to establish a foundation or endowment and then pass out the money to rich kids.

I doubt this will appear in any Panama papers or that the President of Brazil had a hand in the corruption and oppression but it was the Law School equivalent.

And then the revolution came in the form of a 5 foot 6, 120 pound dean with great insight into who the generals should be. Kind of a Trojan horse of a dean because no one expected what was really inside. A sweet move; some refer to the dean as a stealth dean.  Think of Castro landing quietly in Cuba in the 1950s. There is resistance but all the former established has is a sense of entitlement, secret efforts to rile up students and alums (all of whom will be better off after the revolution), and office to office campaigning. 

I love a good revolution.

Thursday, April 07, 2016

A Pervasive Sense of Entitlement: Tom Waits

A sense of entitlement comes up quite often on this blog and, actually, in some of my writings. I think what is at the core of a sense of entitlement is a feeling you are an end and not a means. When that is combined with being successful at getting what you want just by demanding it,  the formula is complete.

It happens in legal scholarship where 8000, $30,000 each articles are written each year  without much thought going to into what difference it makes. In a way you may think this is hypocritical for law profs but it is not. In real life they do not actually care if any of it makes a difference as long as it gets their names out there.

Faculty at law schools have an Everest sized sense of entitlement when it  comes to teaching. They want to teach only certain courses, at certain time, and on certain days. In fact, and I am not making this up, they want to compress courses into the fewest number of days possible. One colleague wanted to teach his 3 hour contracts class and his 3 hours securities class on Monday from 11-2. Yes, concurrent teaching.

Someone else topped that. Next year he will teach a 4 credit contracts class which meets 4 times a week for 50 minutes for 14 weeks and that is a total of 2800 minutes. He has asked to teach those 2800 concurrently from 10:00 to 10:1 on Monday, September 15th.  He either will talk 2800 times faster than he does normally or somehow fiddle with the space/time continuum. I think the big the collider thing over in the Alps is somehow involved.

Ok, some of the details on that are made up a wee bit but  I am not making this one up. Once we approved a 3 credit course and a law prof asked why we did not label it a 4 credit course because that way we could get 4 hours instead of 3 hours of our 9 hours teaching loads taken care of. Yes, no change in the course, just the credit hours.

I love students. I love them HUGELY. And especially I love those that feel entitled to have classes with only 6 total students in them, not have classes on Friday, and are entitled to write way in excess of the word limit on the test. Where does this come from? First, you have come to believe that the world rotates around you and simply complaining without any reasoning -- it's not fair, why are you punishing me, you've declared war on the students-- means you get your way. And, second, you missed the idea of limited resources and not everyone (except you, of course) gets what he or she wants (I'll be so happy when the grammar gods make "they" equal to he or she.)

What does Tom Waits have to do with any of this? In a word, Everything. If you read this rambling ( I am hopeful that you have better things to do than make it this far) please imaging it all being sung by Tom Waits who then follows it up with a lively rendition of Volare.

Wednesday, March 30, 2016

Scholar or Producer: The Pi spot

Tomorrow I  am scheduled to be on a panel discussing the future of legal scholarship. This led me to think about scholarship. There are two distinction that can be made. One is between scholarship and advocacy. Many law professors write advocacy. The difference is this. You are an advocate if you start out to prove something. In effect, you know the outcome of your research before you start and you gather support and use many "for example," cites.

You are a scholar if you do not know the answer. Your research is designed to learn, discover or test a hypothesis and you report the outcome no matter how disappointing it may be to you personally.

Another division is between scholars and scholarship meaning actual printed pages. (Since so many law profs do mainly advocacy this is not about them.)  Some of the most interesting people I  know are simply scholars. The are  thinking and searching but do not write very much.  In fact, for those people the actual time spent gathering 200 footnotes, ratcheting up the article and going back and forth with law review editors is just too boring and detracts from the process of being a scholar. They live in a world of ideas. And some people are so "productive" that they write plenty but really have few insights that engage others.  The system rewards these pseudo scholars. On the other hand the true scholars who do not communicate their ideas are neglecting what they are paid to do.

I have know a few people who have hit the sweet spot of being a scholar and also writing when they actually had something to say as opposed to keep the dean off his or her back or to be noticed. Those folks are the best. My last count is that there are 56.314 law professors who have found that spot. Let's call it the Pi spot

Monday, March 21, 2016

Law Review Pie: Articles in Real Life

The whole idea of a law review exchange rate which was explored two posts ago got me to thinking about how law review articles might fare in different circumstances. For example:

Tom brings a law review article to the Antiques Road Show. The expert examines it carefully and notes that it was written in 1976 by an assistant professor. It has 230 footnotes and 56 pages. The author went on to write 6 more articles before retiring. Based on comparable sales the expert says the article is work 10 Peeps and in an auction with highly motivated bidders, it could go as high as 11 Peeps.

A law review article is on Survivor. It has a very sexy title which leads to thousands of downloads. It has been cited 12 times by scholars and never by a court. It is voted out at the first tribal council because it insists it is important although it is only good for kindling in a fire.

A law review article is on Better Call Saul. It plays the role of a small time con man -- claiming to be something it isn't. Jimmy befriends it but it is too shallow even for Jimmy so he hands it over to Mike to "take care of."

A law review article is on that show where people try to get successful people to invest in their ideas. Actually, not really, the article never makes it through auditions because the experts, for the life of them, cannot understand why anyone would spend money to make sure the articles exist.

A law review article appears as a new footman in Downton Abby. The cook, Mrs. Patmore, thinks it is a ghost since nothing is there. Nevertheless, she gives in to Daisy and along with some other articles makes it into a law review pie. It is served at the next dinner. The guests all become sick and she is fired.

Saturday, March 19, 2016

Every Decision is Made: P.S. on Peeps

My last blog on the costs of legal scholarship caused widespread discomfort if widespread could, in some world, mean two people. Their comments seemed to boil down to two issues. One is the estimate of total cost of $240 million is too high. No one offers an alternative but it's just too high. Why? Well it's just too high. Actually it may be too low since, as I was reminded, some of the 8000 articles are published by non law profs and thus the number divided into the 240 mill is lower and the cost per article goes up. I was also reminded that some of the release time for profs is for committee meetings, etc. That may be true but, at least at my school, you are expected to do all those things no matter how many hours you teach. You get released from courses if you write. [On this I want to offer one caveat. There is a difference between being a scholar and producing scholarship. I know some great scholars who do not actually publish much.]

But aside from quibbling about the numbers and a line of argument I did not follow about how I had not distinguished between difference schools and professors at different points in their career, I would say there is one underlying theme. Law professors are terrified of cost/benefit analysis when it comes to scholarship. I am too unless I am doing it. Actually, they want no part of cost benefit analysis, no matter how broadly defined, whether it comes to scholarship, LLM programs, certificates, or courses.

The problem is that all of these decisions are ultimately made one way or another. Someone decides how many hours faculty teach as opposed to doing research. what course to offer, when a course is too small to offer, etc. There are some alternatives to cost benefit analysis in making these decisions. For example, release time from teaching could be based on seniority or juniority. It could be based on the number of students taught. It could be based on a faculty member's persistence in lobbying the Dean or the strength of a threat to file a grievance. This last one is probably the leading system for allocating law school resources.

I cannot put a dollar value on every article so I can compare it with 30K. That would be silly because not every article costs 30K to produce.  On the other hand, I can hear a topic or read a title and know in many cases that the topic means the article will not be read and will not have a positive impact on anyone.  All Law professors can do this.

Every decision is made. Why not be responsible and accountable and face the fact that some of it cannot satisfy any form of cost benefit analysis. It's what we do when we spend our own money. Seems like a good idea when spending the money of others. Or, we can just continue with a system of making decisions that has no name, cannot be written down, and which has only one advantage -- it is scrutiny proof.

Thursday, March 17, 2016

The Cost of Scholarship (and Peeps)

In an article I wrote with Dean Amy Mashburn we estimated that $240 million a year is spent on legal scholarship. I am not sure if advocacy (which many articles are) is scholarship but let's say it is. There are about 8000 law review articles published every year. That means about $30,000 per article on average. Some cost more if the prof is an underachieving senior and some may be less. The assumptions underlying that figure can be found here: The 30K may be too high since in addition to 8000 articles law professors produce case books, books of readings and so on.  On the other hand, it could be very low since it does not include sabbaticals, summer research grants, secretarial time, costs of law reviews, copying costs, and submission fees. And some of those 8000 are published by people other than law professors and this too raises the average cost.  On balance it is probably a bit low but regardless of your own assumption it's a lot of money per article. Plus, all of this begs the question of whether income producing materials should be supported as scholarship. This is a thorny question since all the efforts are work for hire and if the universities cared to they could claim the royalties.

But let's play with the 240 million and 8000 and 30,000 per article. I read the other day that the  average Habitat for Humanity House costs $85K. So the tab for legal scholarship is equal to 2800 houses per year for the less affluent. Yes, that would be just less that three law review articles. There may be three law review articles out there that are worth a house for a relatively poor person. In fact, I bet there are. None of mine are and I have a hunch that goes for about 80% or more of the articles written.

Or we could put it this way. I read that the average student graduates with $140k in debt. That is about 4.5 articles or, if all scholarship money were devoted to reducing student debt, 1700 students a year could graduate without debt. Personally, I am not that comfortable writing 4.5 articles and making the case that they are worth the same as asking a 24 year old to start his or her life with 140K in debt.

In fact, since we are all bleeding hearts, you could extend this and say starting out with that much debt means a student is less likely to take a public interest job or a job as a public defender in which case, your scholarship may be actually be making some people worse off.

I know if we stopped all scholarship today it would not mean instant houses or debt relief. Moreover, some of it is likely to be worth every penny. The point is that the cost of legal scholarship is massive and law professors often pick topics on the bases of what will appeal to 24 year old law students, or on a whim, or because they want to once again preach to choir.

I don't post many blogs in which I don't try to be funny a little bit so let me close with this. Easter Peeps are much better than  any other Peeps. I am so glad the Easter Peep season is here. Cost of legal scholarship: 750,000,000 Peeps.

Friday, March 11, 2016

The Mayflower and Modern Contract Law

Here is the abstract for my latest yet to  be written article, the title of which is the title of this post.

Clearly all we now know about third party beneficiaries can be directly connected to one particular incident on the Mayflower. The same is true of the Statute of Consequence and the Contractual Contraction. This article explores the concepts and the evolution of events that led to their widespread adoption. This  effort is challenging because not that many people who travel on the Mayflower left a record of exactly what went on aboard. In fact most, if not all, of those aboard have now passed away. One thing that as become clear, though, is how much American contract law owes to the 102 brave souls aboard the Mayflower.

This is a new direction in my legal research and, with all due humility, legal research generally. First, no theory. When you are at a mid level school and went to a School that is rapidly becoming mid level no one will published your article that includes theory. I have heard this directly from editors. This is both good and bad. The good part is review editors are risk averse and have a chance of correctly assuming that people who went to so so state law schools know anything about theory. The bad part is that they assume a professor who attended and teaches at a  top level law school does know anything about theory. They do not understand that name brand schools to do not guarantee that the author is going to say anything anyone will remember even for a day or even  minute or read at all.

OK, so no theory. Just as important, almost no footnotes. Where are you going to find sources that provide information about contract law aboard the Mayflower. Oh, I know there is a fair amount of information in the Kingly piece, Tibor Kingsly, "The Mayflower's Lifeboat," 12 North Suffolk L. Rev. 211 (1875), but beyond that not very much. No footnotes is both good and bad. The good part is that there will be no footnotes that exist just to be footnotes. Also, no "see also," see i.e,", or whatevers that were merely lifted from other articles. The bad part is that most of the article will be made up. But when you think about it, that is actually good or at least no worse than what is published in law reviews already.

Yes, I am talking about the totally made up fantasy article that exists because it just might be true. Maybe Miles Standish and his wife did make a deal with John Alden to benefit John Langmore. And maybe not. The thing is that that is the way all law review articles should be read.  Maybe right and, if so, by coincidence or maybe dead wrong. This is because  most law review articles advocate a position and the sources are carefully selected to appear to  support what is said.  In short, most are just made up with the author blind to opposing views.

In the case of my careful Mayflower work, I am not blind to opposing views. I am open to them and will report them as soon as I make them up.

Thursday, February 25, 2016

Dumping, Externalities, and Creeping Around

If you have followed the news you know that southwest Florida's beaches are a mess due to pumping water from the  Lake Okeechobee. It's a pretty good example of an externality. Another one is more personal to me. Several years ago Nautilus  or one of the other fitness machine makers had a weight lifting contraption. I am not sure it was Nautilus since they were responsible for the torturous cross country ski  machine that made water boarding look inviting by comparison.

Ok, back the to machine. I said I would like one to someone and she said I could have hers. She would just give it to me. Of course, knowing that you should always look a gift horse in the mouth but ignoring that, I arrived to pick up the machine and it was obvious that she was referring to something completely different. I took it, not wanting to hurt anyone's feelings, and it sat around my house for several months until my  wife said "it's me or the machine."

But what could I do with the machine? In the middle of the night I hauled it over to the Law School in put it in the middle of a common area. It's was kind of an experiment to see what would happen. It stayed there for months. Sometimes students would use it. No one asked "Did someone lose an outdated weight lifting machine. "No one took it to lost and found. Some thought it was sculpture. And then it disappeared.

[To show that I was also interested in positive externalities, I'd like to mention that I used to take all the foam cups from the lounge and hide them in hopes that coffee and tea drinkers would get discouraged and bring ceramic cups. It did not work. The more I took, the more that appeared -- I mean thousands -- until an new environmentally-minded associate dean starting supplying paper cups.]

In any case, I left my trash (the machine) at the Law School and the externality was that someone else had to figure out what to do. What does this have to do with anything? Did you notice I did it in the middle of the night so no one would know.

That's the best time to handle dumping. On faculties secret dumping takes the form of side deals.  Each person slithers down to the dean's office and explains why he or she is special and should get a special deal -- a very long leave, reduced teaching, more money for teaching a course, extra travel money, etc. And when they get the special deal someone else has to clean it up by teaching more students, teaching courses that the students need but the dumpers have bargained their way out of, or by hiring visitors when the money might have been used for improving the classrooms or library.

The externality thing also occurs in a more pernicious way. Suppose the dean tells you that it makes no sense to pay you 40K or more to teach a handful of students in the summer or to pay you 20K in the summer to pimp out some students.  At this point you begin to slink from office to office looking for other people who are as self-interested as you are and you do not have to look very far. In fact, even people who betrayed you or are not speaking to you become potential allies.   You approach others and get them on board by expressing it like this "I am not sure I agree with the Dean deciding to change the law school so YOU are worse off."  Yes, you are only looking out for others or for, "academic freedom." Sorry I just threw up when I imagined something protecting their turf with that appeal.

Perhaps I should mention that we are all people who claim our lives are devoted to high minded things like teaching and research -- you remember that, right? If that is what you want to do then the mob and its impact is a huge externality. It makes the environment unhealthy. It means picking up sides. I means far more effort than usual to filter out the truth from the lies and exaggerations. It can mean more meeting and gossip that is unrelated to teaching and research.

So, what is the message here. I would think it is clear: Faculties, do not become Lake Okeechobee or an outdated 300 pound weight machine.

All my love, Jake

Tuesday, February 23, 2016

Principles or Principals: Levels of Moral Development

The other day someone complained about something the dean had done that he though was up to the faculty. I said it was the right decision and the response was "but it is the principle of the thing!" The "thing" was faculty governance.

I had two thoughts. I sincerely hoped that that a faculty that had abused faculty governance to enrich itself would have faculty governance removed. For the most part faculty governance is used to fleece people who have no say in the matters that affect them.

The second thought was about how many time people say "principle" when what they are really concerned about are the "principals" involved.

So, suppose the Dean says something like " it would be better for the students is everyone taught 4 courses instead of three each year." "Wait a sec" someone might say, "That is a matter for the faculty to decide. It's the principle of faculty governance." But then when the faculty actually votes it's not about principles but principals.

Sometimes I think it has to do with moral development. Some may recall the stages of moral development from readying the work of Lawrence Kohlberg. If memory serves me there were 6 stages that could be distilled to three. Lowest was a strict cost benefit analysis. Second was a broader sense of caring for the community. Finally were people who acted consistent with principles even though the outcome might be counter to self interest.

An example of level 1 would be like the day my wife told my 4 year old that he could have one cookie while she was away. I say him with 4 cookies and asked him about it. His reply "But mom is not here yet. "

As best I can tell, many or most law profs are stuck, at least when in the context of law school, at level one. This is where the side deals and special treatment come in. It all takes place in a dean's office and has nothing to do with fairness or even what is best for the community. Faculty each want as many cookies as they can get as long as they are not caught.

Do faculties ever make it to the middle stage of caring about the community? For example, does anyone ever say " I should not do this because, if everyone did it, it would create uncertainty and chaos within the faculty?" Or how about, "I am doing this even though it makes me worse off because it will make the community better off."   I am not saying that they do not cooperate from time to time but, when they do, it is consistent with the getting all the cookies they can. No principles, just principals acting like a school yard gang.

The top level of moral development is very rare and frankly scares me a little. I am sure some of the worse villains in history believed they were acting on principle. I now know why this would be the highest level of moral development since the principle may have cruel and awful consequences. Still, I'll take that risk with law faculty and just once like to hear someone invoke "principle" and not mean "principal."

Tuesday, February 16, 2016

Top Down or Bottom Up

When it comes to management that is the question, right? When should management take over and determine the ends and means for the organization. Conversely, when should those decisions be made by the workers. Under which regime are stakeholders (students, tax payers, alums) better off.  In the world of so-called faculty governance (or, more often, lack of governance) the issue gets very sticky.

When the top does not have courage, ideas, personality or anything else that would make the School better for stakeholders the default position is  bottom up.  If you add to that a lack of shared aspirations something akin to white collar looting occurs. Faculty charge into the School and take what they want. The  School's shareholders? -- screw them!

So Jack wants to teach a 4 credit property course in one four hour block so he can spend  days at the beach. Linus wants a year off with pay with no obligation to account for the time off.  Joe just wants to teach "Law and Gumby." Patty wants only to teach at 1 PM every other Friday. Chris wants to teach everything online and asynchronously and concurrently. Jane wants to teach a seminar with 4 students because her course is so important (to no one but Jane). Ricky likes to travel so he thinks it is OK to miss a few days each week so he can network. Bottom up means everyone who counts is happy as long as everyone who counts is on the faculty.

Why do leaderless schools become bottom up nightmares?  Because no one will say "no" and the majority, to the extent there is voting on policy, need votes. How do you get votes? By having a management policy of "you can have yours if you let me have mine." Yes, bottom up management in an institution dominated by self-interested people means chaos.

They hate top down management because they do not get what they want. It's not on the basis of management philosophy or on the basis of top down results being better or worse outcomes for  shareholders.  That is irrelevant. Ironically the bottom up people may say "it's the principle of the thing" when, in fact, it's hearing the word "no" that sets things off.

 It sets things off even if it is not top down at all. No, "top down" becomes an accusation and it must be bad no matter how good it is or even whether it exists.  It is a form of name calling when the name callers have nothing substantive to say. In fact, like claims of lack of collegiality the accusation of "top down" can be completely false and amounts to an attempt at bottom up bullying. When enough people are involved it is a mob.

Wednesday, February 03, 2016

Help! My Dean Won't Let Me Blog

The handful of you who come to this blog may wonder why I have not been blogging (although I am sure my anonymous internet stalker is probably relieved).

It's my Dean. I used to have a nice hobby bitching about one thing or another. You know, stuff like getting a big payday for pimping out the students, side deals for everything from teaching a course to taking on the huge responsibility of being a Center Director when there are only about 8 students who care what the Center is doing, foreign programs for the privileged, vanity courses, and the "not technically a lie" culture.

Now I cannot write about those things. Why?? It's my Dean. Yes the old dean who tolerated, supported, and encouraged all that stuff  I complained about is gone. And, now we have what I would call the "opposite dean." She could not be more different than old dean and it appears (actually it is blatantly obvious) that she feels that -- get this -- the Law School does not exist to serve faculty interests, financial and otherwise. Instead  faculty are mere means for providing the best legal education possible, writing the best scholarship, and doing everything possible to find employment for the students. Yikes. We are so not used to this. She is also willing to take risks. Now, I know law professors reading this will not be familiar with the concept of "risk" but I assure it takes confidence and courage.

And where does this leave me? Did she consider my blogging? I was not even consulted about how much the changes would affect me.

I might note that other than the things listed above, I also ranted about the use of claims of incivility, uncollegiality, poor people skills, and "I am offended" as ways of silencing people when, in actuality you just did not like the substance of what was said but had no response other than one that would reveal you were greedy, looking out only for yourself, and had a Everest-sized sense of entitlement.

Unfortunately I may be able to keep blogging on those topics because change worries people and, when it does, the knives, distortions, and group whining appear.

Tuesday, December 15, 2015

Poor Pitiful Me.

Since it is the Holiday season I tend to think about those less fortunate. Oh, you might think I mean people with these problems:

My boss may lay me off.
I hope I can make this month's car payment.
I hope that check does not clear before payday.
I am not sure what I can put under the tree for the kids.
My tooth aches but the dentist would cost $100.
I have no health insurance and Billy's earache has been going of for two weeks.
If it gets cold this winter, how will I pay for heat?
Judy needs new shoes but that will have to last until after the first of the year.
I wonder if I will have to work the night shift.
Where will I sleep tonight.

Or, then there are the truly needy whose unfortunate lives have lead to an obsession that is close to physical pain. Their problems go like this: (you will get more of if this if you also listen to this

1. I may have to teach my class on Friday.
2. What if not enough students do not sign up for my course, "All about Law and Me."
3. Was Jim disrespectful to me in the faculty meeting?
4. How can I get by without my own personal really fast printer next to my desk?
5. What if I have to be on campus more than two days a week?
6. How can I convince the Dean to get the school to pay for my trip to Honolulu.
7. As I walked by Jack's office did I see he now has a triple monitor set up?
8. If  have to teach 50 students it will interfere with my very very important "work."

For the first group there is never enough under the tree, For the second group there is too much and they want more, more, more. (you are supposed to click on that underlined part)

Monday, December 07, 2015

The Best v. the Most Useful Scholarship

I've had my say on the huge wasted investment in fancy scholarship. On the other hand, if  I had to rank scholarship in the basis of difficulty it would go something like this. There are caveats and another bigger problem.

1. Single authored full length books that are not primarily descriptive. (This assumes carefully done research, not advocacy dressed up as scholarship, and certainly not a compilation of previously published articles.

2.  Single authored full length articles that are not primarily descriptive. (This assumes carefully done research, not advocacy dressed up as scholarship, and certainly not a compilation of previously published articles.)

3. Treatises. Purely descriptive I know but there is something to be said for the ability to fit it together in a meaningful way. (I do not mean yearly updates, supplements, and the like)

4. Single authored casebooks that are widely accepted. Actually, I've only seen two casebooks I would regard as scholarship at all -- the old Kessler and Gilmore Contracts book and the Areeda and Turner Antitrust book.  On this, though, I have  seen only a few casebooks and certainly there may be more that can be regarded as scholarship.  I  rule out casebooks that have multiple authors since this is mainly a marketing tool. It guarantees multiple adoptions and the casebook publishers will publish (and have published) even the worse casebooks if the adoptions are guaranteed. Also ruled out are editions beyond the first.

5. Articles that are advocacy. The equivalent of briefs only with far more irrelevant material.

6. Nutshells and all the new versions of Nutshells. I have to admit, though, that some are quite good at doing what they are intended to do.

7. Edited books of readings. I do not mean any essays by the editors but otherwise it is an administrative task.

This is pretty simplistic because within each category there will be variations in quality and low quality may mean a work in a higher category is no better than works in a lower category.

I do not know if anyone agrees with this list. Nevertheless,  now I will list the same works in terms of the actual impact or influence they have on others.

1. Treatises

2. Casebooks

3. Nutshells and all the new versions of Nutshells

4. Articles that are advocacy.

5. Single authored books.

6. Single authored articles.

7. Edited books of reading.

So here is the problem. First, focus on a law school The first ranking is probably the ranking one would go by if the goal were the enhance the reputation of a law school. The second ranking is the one to go by if the goal were to increase the actual impact of a law school.

Now focus on faculty rankings within a law school.  If you go by the first list, you will rank highest the most difficult and the most useless work.  If you go by the second list, virtually everyone in the law school is the same -- none of the top impact types of "scholarship" are difficult.

It's  a problem. What does a law school want to be? How do you rate faculty?

Thursday, December 03, 2015

Letter From Home

Dear Jack:

I just thought I would write and let you know what is going on in my life. I am still teaching law and living in a small Southern town. We have Fresh Market but not Whole Foods. We make up for that by having more Walmarts per capita than any other city in the world.

Things used to be fine at the law school but now we have fallen under the rule of a new dean who makes ridiculous demands. Just listen to this. He expects us to do research when we have research grants and actually have something to show for our efforts.  Well, so much for academic freedom! I really may file a grievance because our old dean never really asked for anything. I guess his view was that part of our job might entail doing nothing because, evidently, that was his job definition.

And then there are the forms we have to fill out. Oh my God. Some take as long as ten minutes to fill out which means that is time I could be devoted to my very, very important research. In fact, this semester alone I had to fill out a form to explain what I do for the money the school pays me and to indicate what classes I will teach. OK, I know it is probably OK to ask what I want to teach but, GET THIS -- I am asked to only list courses that students sign up for. Really, that is so over the top. People like me who teach in highly specialized courses may only have 5 or 6 students. I fear for what will become of those students who will now be deprived of my expertise.

Some of our best work comes out of various centers, foreign programs, and advanced degree programs. We have had all of these for years. Eleven years ago they were all studied very closely and it was determined that they were all first rate. That was good enough for me. Yes,  in some cases we have several faculty devoting all their time to a hand full of students while the remaining faculty teach several hundred students in massive impersonal sections,  that is just they way to goes when you want to have quality.

The changes are really upsetting. Teaching more students and writing. When exactly did that become part of our jobs. It is so discouraging and I am feeling so very sad that we cannot go back to the day of being true intellectuals.


Tuesday, December 01, 2015

Brad Paisley: Social Scientist

I like Brad Paisley and the song Online: You probably never heard of him. Some of  lyrics to "online" are as follows:

I work down at the pizza pit
And I drive an old Hyundai
I still live with my mom and dad
I'm 5'3 and overweight

I'm a Sci-Fi fanatic
Mild asthmatic
Never been to 2nd base
But there's a whole nother me
That you need to see
Go check out MySpace

'cause online I'm out in Hollywood
I'm 6'5 and I look damn good
I drive a Maserati
I'm a black belt in Karate
And I love a good glass of wine

It turns girls on that I'm mysterious
I tell 'em I don't want nothing serious
'cause even on a slow day I can have a three way
Chat with two women at one time

I'm so much cooler online
So much cooler online

I get home, I kiss my mom
And she fixes me a snack
I head down to my basement bedroom

And fire up my Mac

You get the drift. This guy lives in a fantasy world in which he is a star. Sound familiar? Well let's change a few words and see how law professors have built a similar fantasy world. Just sing it to the tune of "Online."

I work at the law school.
I drive a sensible car
I'm a big deal in the sec pool
I scoff at being member of the Bar.

I am a Harvard fanantic
A little out of shape
Often feel I am taken for granted
But there's a whole nother me
Check my law School bio
And you will agree

cause in my head I am so intellectual
I'm well known and influential
People consult me at the highest levels
My work is so important
Excuse me I'm off the to airport. 

My articles are read by everyone 
Especially students when I test on them
I know others read it too
Or at least I claim they do.

I am so much more important in my head
Partly because I am so well bred.

I have no sense of humor.
My irreverence  is nil.
I love a juicy rumor.
No courts ever cite me
But  I am important still.

In the real song,  opposed to this admittedly pathetic attempt at satire (not parody, a different thing), it goes on and on to explain with great insight how people lose sight of where they are in the scheme of things and take the "self justification" remedy. 

Brad Paisley -- keen observer of the fantasy life. 

Monday, November 30, 2015

I Just Might Leave!!!! [Much Foot Stomping]

The emptiest   threat academics make, if they are silly enough to try it in this era, is the "I want my way or I might leave." My reaction, if I were a Dean would always be, "TaTa, do you need some boxes for packing?"

There really are only about 26 law professors whose departure from any school would make a difference to the students or the reputation of the old or new school. And remember, I am not saying which way that difference would run. It is just as likely that the spoiled prof's departure will make the school better off. For example, maybe the person is a good scholar but has so many side deals going that he lowers the moral and productivity of others. Or maybe she is, according to the students, a spectacular teacher but the students are really learning much and, generally, there are demands and an aura of drama wherever she goes. As a generally rule, I think every school is better off if the foot stompers leave because it is likely they are a pain in the ass in other ways. And there are 0 professors  when it comes to actually making a difference in terms of the welfare or people generally. 

Yet, I hear this all the time in various forms. Often it follows that Deans make counter-offers without even thinking that for the amount of the counter-offer they could get someone much better. This strikes me as odd for a different reason.  The counter-offer means "We always knew you were worth more but did not have to pay it so we did not." If this ever happened to me the counter-offer would have to account for all the years the school now admits I was underpaid.

Nearly all of the people who could leave for a better job left already and most of those who get offers for better jobs will go. Every school goes through this.  That means the threat makers are saying, there is another job for me but I did not take because it was not a better job but whatever irks me has now meant that this job and that job have changed places.  Really? Sorry I am not buying that the other job is now so much better that they would actually go through the trouble of leaving.  First, for the most part the threats are the product of people who are over affirmed, bought into their own publicity and have a sense of entitlement. Second, it's just a spiteful temper tantrum -- you have hurt me and I am going to hurt you back even if it ultimately makes me worse off.

I guess these snits have paid off in the past for them but only a woeful dean would allow them to change anything that did not need to be changed already.

Thursday, November 26, 2015

Psst, Hey, Over here.

I need to tell you some things I found out today.

1. A certain first year dean at a large mid ranked law school is already interviewing to leave the school.
2. Jackson, that guy we just hired, is interviewing at Tennessee for a chaired position.
3. Janet said she smelled liquor on Jim's breath this morning.
4. Linda's students have been complaining about starting class 15 minutes late every day.
5. Did you hear the new dean is going to discontinue, dissemble, and destroy, the LLM in Law Finance. There is even some talk that he may torture the faculty.

Actually I made that all up. Or maybe I just changed the names. Whatever the case, one thing I have observed is that people love to have information. Actually, that is not quite right. More accurately, people love for others to think they have information, especially information that is not widely known.  This is probably true of all groups but, in the world of academics, seeming to know things others don't  raises status and, to some extent power.

But there are other interesting aspects of information status. First, as already noted you may know nothing but be good at appearing to know something. Second,  suppose you do know something and it's sort of interesting but not likely surprise anyone. A common practice is to ratchet the information up a notch. It goes like this: You overhear two students talking about how hard Professor Jones is. Ratcheted up it becomes, "I heard a bunch of students complaining that Jones is their worst professor and they are going to the Dean."

Or this: You are in the faculty lounge and Tom and Buck are discussion whether restitution can remotely be called a form of damages. Racheted up: "My God, I thought Tom and Buck were going to get into a fight. They were screaming at each other about teaching assignments."

Steve comes to school on a non teaching day wearing dirty clothes. Ratchet version: "Have you seen Steve lately? I've heard there are mental problems."

Sadly, although these are made up, I have seen  worse. Too many people thrive on drama and the appearance of being in the know. The ratcheting can be up or down like when the effort of one faculty member to push the hand of another away became the "slap" heard round the world and then was widely investigated as though the administration as nothing productive to do.  Ratcheting down means something like this, "oh but she/he is a really nice person". This comes right after finding  out that the person assaulted a student. I should mention that some information comes  from actual research into, let's say, the salaries of everyone who ever taught law or what someone far away said about someone's latest article. Don't trust these people either. They almost always present only part of the research.

So now you know how to (shall we say) "gather information." What do you do with it? Three possibilities. 1. Just impress others that you are so in touch with what is really going on in the faculty. This works mainly on the insecure untenureds who are just getting used to how unstructured things are. But that's Ok, the information peddler is usually also insecure. 2. Take it to the Administration because after all you are trusted, in the know, would never ever ratchet and, oh, by the way, maybe the Administration will look favorable on you. After all, you are not just any faculty member.  (Any administrator who encourages this at all or  without triple checking the informants information will be the death of your law school unless chased off.) 3. If it is really important and could actually have an impact on a person, go to him or her and discuss it. (Only a fool does this because it means no status and sense of importance for you.)

I really wanted to call this post "Information Whores" but I am not sure that term has evolved to be gender neutral which is the way I would have meant it.

Tuesday, November 24, 2015

Law and Economics People:Don't They Suck?

Of course they do. They are the worst, aren't they. Always talking about efficiency, consumer surplus and the like. Heartless people who are not in touch with real values. "Bean counters."

I think I would be regarded as a law and economics person by anyone who has not read anything I have written and that's fine. With respect to most of the people who have rolled their eyes, accused me of have a law and economic agenda or whatever I stand with Rod Stewart. I would not let them tie my shoe.

There a couple odd things about being or not being a law and economics person. First, in actual real life it seems like the non law and economic types are far more likely to act like self-interested rational economic people. My observations are they are more inclined (or at least no less inclined) to worry about getting the best teaching load, the right number of students, enough money to travel the world, the highest salary, the best deal on a car, etc. And if you think for a second this is in service to the institution, forget about it. It is over-the-top self interest regardless of the impact on the community. In the words of Toby Keith, it is about "my, me, my." OMG, the stories I could tell of programs, certificates, LLMs programs that all reflect personal as opposed to institutional and student welfare. This is demonstrated most when they have outlived their usefulness, if there was a use in  the first place, and yet individuals cling to them.

So when it comes to individual self interest it's all about "law and economics." They should be teaching a course because they live in the shoes -- whether tied or not -- of the economic man. Interestingly this applies regardless of whose money is spent but the difference is this:

1. If the decision affects the individual, the hard nosed economic man comes out.
2. If the decision is spending the money of others the "it's not about the money, there are other values" comes out.

Well here is a little news: IT IS ALWAYS ABOUT THE MONEY!!! (Unless, that is, there is an unlimited amount of it.)

The only way to believe it is not always about the money is to be born without a part of the brain that understands opportunity costs. And since everyone I know understands opportunity costs when it comes to personal decision making, that part of the brain is in good shape. So what explains ignoring then in all kinds of other contexts? For example:

1. You want to run a summer foreign program in Poland, France, or Santa Barbara. You say it is  enriching for the (mostly already well-to-do) students. You send faculty there and say it does not cost anything because they would have been paid anyway. Yes, but the cost is in terms of what they would otherwise be doing. And if you say,  "They otherwise would be doing nothing" then the opportunity you missed was not paying them at all in the summer or paying the same money to some who actually does do something.

2. You want to have a Program in Intermediate Snooker Law because someone deeply interested in snooker wanted to teach it and then add advanced courses (total enrollment 30). You cannot have a program without a director and a director cannot possibly teach a full load what with all that directing that goes on. He or she is taken off the schedule for one course. The loss of that course is the opportunity cost.

3. You have an LLM program that wants teach its courses over a 60 minute class period even though the 95 per cent of the school teaches 50 minutes classes. The teachers really, really want it. It means dedicating a classroom to their use even though the room is rarely full and, in fact empty several hours a week. The opportunity costs? Classes that students want cannot be put in that room even when there is no other room for them.

Am I saying summer programs, snooker law certificates, and LLMs taught in 60 minute class periods are bad. Nope, not at all. I am saying the reasoning, or lack thereof, that results in those decisions conveniently  does not reflect the same law and economics analysis that the same people apply to themselves when trying to maximize their own well-being.

Yes, those law and econ people do suck but they may not be the ones most people think of.

Thursday, November 19, 2015

The Programs/Ranking Scam, Self Esteem, and Helping Your School

Did you ever wonder how important those rankings of specialty programs in law are. You know what I mean -- tax, IP, environmental law, international law, and on and on. This occurred to me, and I am sure others, some time ago. Let's say you've got 4 people on your faculty who teach Immigration Law. They actually are not very distinguished but then they create and LLM in Immigration Law. I am not sure how many of these programs exist but let's say 5, so now they are 6th. BOOM, U.S. News and World Reports announces that the program is the 6th best Immigration Law program in the US.  You know what comes next -- It is plastered all over the Law School web site, brochures are printed, and massive quantities of law porn hit faculty mail boxes across the country.

There is a slightly different way to think about it. Suppose your school has a program in Immigration Law that is ranked second in the nation. (Just in case, it is important to know that I have no knowledge about immigration law programs.) You look around at the actual professors in the program and maybe they are not so hot. In fact, it dawns on you that 50 other schools could take their existing immigration law faculty and form a program and yours would instantly drop to 52nd. What should you do. OK, I am going to get a little fancy here and bring in the Coase Theorem. You pay them not to start a program!

That is disappointing and costly but there is good news here too. Everyone actually should not get stoned but should start a specialty program instead. In fact, I think I may hang a sign outside my door that says: "Institute for Study of Law School Craziness." I am the director so I get time off and I will enlist 12 people as Associate Directors so they can put that after their signatures on all their correspondence. I'll also probably move to the mountains near a nice trout stream and "work at home" because as director I actually do not have to do much teaching.

You can do this too. Help the ranking of you school by forming up a program. It's good for your school and for self esteem. It does not matter if the actual people teaching are 20th best in the country. The program will be in the top 5 and then the teachers will likely believe they too are in the top 5. After all they are sooooo special. Or at least they are now.

So, how important are those rankings? If you think they tell you much of anything about the actual instruction that goes on I need to talk to you about some precious metals I would like to sell.