Saturday, August 13, 2016

Should Consulting Professors be Paid Less?

A recent article in the New York Times outlines how difficult it is to balance two jobs -- think tank scholar and representative of an industry or firms that have specific interests. Let's call the think tanks "think tank" and the other firms "moonlight." So is it possible to work for moonlight and not have its interests affect performance in the context of think tank? Put differently, can you serve moonlight and they switch and be a "perfect scholar" -- open minded, objective searching, etc. -- for think tank purposes. In theory it is possible but, even if it is,  the quality of the think tank product is lower in the eyes of the public.

This is relevant for law professors in that law school position is the think tank and all forms of expert witnessing and consulting are moonlight. This is hardly a new issue and was recently addressed in a "Open Letter" that suggests ethical standards for those employed by both think tank and moonlight. I think it is fair to say that proposal is two fold -- do your best not to be influenced and disclose to the reader anything that would be relevant. In fact, one particularly attractive proposal is that all sources of funding be revealed on the think tank web site. I note, however, that the ultimate way to avoid the conflict -- don't take the money -- is not proposed.

The effect of disclosure is to shift the risk to the think tank and its customers/readers to assess the extent to which the work of the moonlighter can be trusted as a scholar. This risk shifting is questionable since the party to whom the risk is shifted has no way to know just how much risk is there. But there is another problem that can be connected to products liability. Disclosure is effectively a warning label. Or perhaps it is comparable to an "as is" notice. In either case the buyer is on notice to beware.

When products are put in the market that carry warning labels their value is less than those in which the manufacturer has addresses the source of the problem. For example, if the market works, cars without air bags but containing a warning against high speed collisions (if available)  would presumably have lower prices than those equipped with airbags.  If the market works the same would be true of think tank employees who are also moonlighting. All other factors equal, those who do consult are selling a product  inferior to that of the non or infrequent consultants.

If accepting money from outside sources is not an option, disclosure makes sense but only if those with things to disclosed are paid less. It is odd that the only thing that keeps this from being the case are market imperfections.

Sunday, July 31, 2016

So Many Questions

Here is what I believe to be a reasonable comment [in Roman]over on the tax prof blog about the tax (non) "issues" at UF and my responses [in italics].  Two comments: First, I think I have never seen any instances in which people who claim to have the best interests of a program at heart have done so much to communicate that it is declining. What are they thinking? 

Second, the information from the alum comes from inside the law school as does mine. I could be wrong, thus,  I want to invite anyone who wants to from the law school to correct me. I will turn over the blog to them. For most part all of these are turf protection statements and are not relevant with respect to the quality of the program. That is not determined by who signs off on schedules or what room a course is taught in. Instead it is based on the quality of the students and instruction.

Professor Harrison: First, try and be less patronizing and more respectful. If anyone is being blindly loyal, it's you to the dean.
Now, here are the facts as presented to us, alumnus:
(Who presented them? Why does he or she hide?)

1. Mike Friel stepped down as the Associate Dean and Director of the Tax Program a couple weeks ago; he will remain as an adjunct professor this fall and for up to 3 years.
All true as far as I know. But a little context. People who retired as of June 30 received a payout of all accumulated sick leave. I do not know how much his was but mine, if I had taken it, was 75K. If you retire after than you receive zero. Was this a factor? How could it not be? Plus, the adjunct deal that the dean gave him is the richest one I have heard of. Sounds like a win win for Friel and the School. He is still here doing what he is great at and he got the retirement pay out.

2. Professor Lidsky, a constitutional law professor, is now the Associate Dean for Graduate Tax.
Professor Lidsky is not a con law professor. In fact, she has held administrative posts before and is Dean for all Graduate Programs. She is bright, energetic, and experienced. But this statement suggests there is something wrong with Professor Lidsky. The tax program is lucky to have her. I understand this to be an interim post with a search taking place this year.

3. Professor Mashburn, a Senior Associate Dean, is now assigning graduate tax courses- which had always been handled by the Graduate Tax administration.
The way it works is this. Each year we write down on a form what we want to teach next year and, for the most part, that is what we teach. "Assigning" is a formality and such assigning always goes through the Dean's office. I do not know if Professor Mashburn will be the one who signs off but that, for the most part, except for the JD program, there is self-assignment.

4. The Tax Program has lost its dedicated classroom and the 60-minute hour class has been reduced to 50 minutes.
Two parts. The dedicated classroom seats 112. In recent years tax has had only one course that needed a room that large. On the other hand, there are other classes that are closed with students still wanting in them because of the "dedication." The classes, like all law classes will be 50 minutes, This is the same at other law schools which our faculty regularly visit with no problem. 

5. Control of student records, registration, and admissions have been removed from the Graduate Tax Administration and is now in the purview of the general law school.
I do not know all the details on this and I am struggling to figure out its relevance. I certainly hope someone with Friel's credentials was not doing this. If not, it is done by a secretary and does it matter where the secretary is?

6. Based on recent retirements (Dilley & Hudson), leaving faculty (Marian who maybe saw what was coming), and planned retirements, the Tax Program will be down from 10 to five faculty members as of next year.
These numbers may not reflect much at all. For example, Hudson also taught other courses and I think Willis does too. In addition two faculty teach tax course but for some reason (to artificially depress the numbers?) are not listed as tax. There are critical adjuncts as well. I can think of no less than 10 people who teach tax. Plus, enrollment in some classes is very very low. This year 67 students will enroll and the acceptance rate was 80%. Student faculty ratio is a better measure of staffing adequacy.

7. The Tax Faculty is no longer called the “Tax Faculty”; rather, they are law professors who teach tax-related courses.
I am not sure this is an official designation. If it is or was, I did not know it. Everyone I talk to says "tax faculty" and not "law professors who teach tax related courses." But what difference does this make in terms of the quality of what happens in the classroom?

8. The Administration has promised the Program that they can keep the tax office space for one year.
I do not know anything about this but I am confident everyone will have and office and all the usual functions will be taken care of.

9. The Tax Program’s staff administrator position has been taken away.
You might be talking about the lady who was paid by UF but determined to be living in another state and I do not mean commuting from Waycross. I heard that position could have been filled by someone who actually came to work but simply was not filled by the tax faculty.  If it was taken away and if it was the lady who lived in another state (not even Valdosta) and simply was not filled, I wonder if the position was ever necessary.

10. ½ the Research Assistant budget has been taken away, and it appears a larger cut is coming.
I have heard nothing about this but, quite honestly, I do not know what research budget means -- time off for research, research assistants,??  The tax faculty already teach lighter loads than others. To the extent it brings their budget into line with everyone else, I applaud it since, as a group, they are no more or less  productive than the large bulk of the faculty.

Are these not true? How is this modernizing and improving the best program UF Law has to offer? Please explain, I honestly want to know. I love this school, it did great things for me and I want to see it do well.

The best way to see it do well is to stop repeating those who say it is in decline. And think about modernizing seriously. This fall 80% of those applying were accepted and 45% or 67 students will register.  More attention needs to be paid to recruitment, tracking of graduates, and making the program accessible to those who cannot afford a year in residence in Gainesville. In terms of modernizing, most of the measures make the Program leaner and reduce duplication of efforts, both very much needed in light of declining applicants and students. 

Wednesday, July 27, 2016


In my previous post  I praised the new Dean at UF. Someone, perhaps disingenuously, perhaps sincerely, wrote a comment (anonymously) asking me to list what her accomplishments are. Although many anonymous commentators could not tie Rod Stewart's shoe, I responded with a list that can be found in the comments section of my past post.

To make a long story short although it is too late now, one of my answers was "modernize the LLM in tax." To that I got this -- yes, anonymous -- comment: "By modernizing the LLM program, do you mean by dismantling it and not hiring outstanding faculty to replace those that are retiring?"

This particular  phrasing has been used repeatedly by people who are being manipulated, in my opinion, to fight self-interested battles of those  terrified of changing a 50s style LLM program into a 21st Century LLM program to the benefit of all. Some of this has occurred evidently in a mass mailing. In fact, I expect to see  T shirts that say "Don't dismantle tax." The ANONYMOUS commentator is parroting a rumor possibly spread, encouraged, and, hatched by people at UF who are afraid of moving forward.

I've decided to respond to this clearly disingenuous and anonymous question, (Rod Stewart's shoe aside) as what might be called a teaching moment. Oh, that's to high minded sounding. Let say it is a blah blah moment during which I try to dissuade others from buying into every rumor that emanates from UF Law. Riling up students and alums to advance personal ends is pretty desperate.

1. Dismantling: As far as I know there is no dismantling unless that means making the program more attractive and exciting. And, as far as I know, if any retiring people are not replaced it will simply reflect the fact that we do not replace all people who retire because of budget issues. Four or five people retired from UF Law this year. As far as I know, none will be replaced except maybe tax. Again, the  commentator/questioner has been duped into thinking that tax is any different from any other area.

Since the tax program attracts many fewer applicants than a few years ago, the class is smaller, and so few JD students take tax courses (what is with that? when I when to law school most people took at least 2) most people would agree that it makes little sense to replace everyone who retires. Again, I do not know that people will not be replaced but in the interest of simple economics, I personally would not replace them.

2. Dismantling and not replacing are the same question but let's get real about the LLM at Florida. It is the third ranked LLM according to  US News but in some other rankings it is much lower. I believe the Dean is struggling to make sure the US News ranking is maintained despite the loss over the past several years of some true tax stars and a serious case of inertia.  As for how outstanding the current faculty is, I cannot say since I do not pay much attention to the area. I am pretty sure there is definitely one outstanding scholar and perhaps more. A rumor is that two others, well-versed in tax,  are more or less excluded from being "official" which in both cases makes no sense to me. Just sliding those two over into tax to replace retirements would be a big step. I hope the Dean does this but I am happy to have no influence.

So if there is no dismantling of what is one of UFs highest ranked programs (whether reality based or not) what would be the interest in not hiring the best person possible? If we hire I am sure the sights will be very high and possibly higher than some would like.

There you go bated breath commentator!!!

Saturday, July 23, 2016


For ten years my law school had a Dean who defined  his job as keeping himself as Dean. You know what this means -- for a mid level law school like my own it means avoiding any shake-ups, pleasing the majority of faculty most of the time regardless of the consequences for the students, taxpayers and other shareholders, picking battles very very carefully with only the people who are not part of any discernible constituency. Mainly, that Dean avoided any decision that could upset people. He shifted them to the faculty instead causing all kinds of ill will that would have been avoided if he had simply stood for something other than keeping himself as dean.

After watching this dean and his immediate predecessor, I took to the internet in the form of this blog to bitch, sometimes directly, sometimes indirectly. I understood that I would be going outside the system instead of working within it. I don't claim at all that I had any part in the events that led to substantial improvement. In fact, I may have made it worse but it was therapeutic and I found like thinkers (and haters) I did not know existed. As for working within in the system, the system existed to avoid change and to silence those who suggested it. Please spare me the inside the system BS.

But now tables have turned. I think the new Dean is fabulous. I agree with every decision she has made except two minor ones. She has the courage to make decisions the system could not make and is willing to take the flack that follows instead of forcing the faculty to bleed. She regards the Law School as more important than the self-interest of petty cliques within the law school. She lives the saying "you do not ask permission to start a revolution.

A few individuals worry about top down management. We tried the opposite and it was a dismal failure. One response is the same as mine was -- go outside the system. I should not complain, right? One faculty member -- the Michael Corleone of the Law School -- and maybe others get on the phone and rile up those who owe him. So, I am wondering if there is a difference between these two versions of going outside. I think there are four differences.

1. The new version is to protect a status quo that is crumbling.
2. It appears to deal in half-truths or out right misrepresentations or, in its most benign form it evidences no willingness to correct these distortions if the advance the case.
3. It involves using others, who lack full information,  to achieve certain ends.
4, The person making the greatest outside the system efforts never speaks publicly or takes any public stands.  Instead the communicating is similar to a steady, persistent ooze.  How's that for courage?

Are there any ethical standards for those who work outside the system, even those who prefer to avoid taking responsibility?

Sunday, July 17, 2016

Charity for the Haves and Administrative Stipends

My university, in a jaw-drooping exercise of hubris, just up and unilaterally terminated payment of part of compensation already due employees. This compensation was in the form of a pay out for unused sick leave.  (As an aside (note the the parentheses) there should not be sick leave payouts. It is the ultimate class-based benefit. Why? Guess which folks in the University are least likely to use sick leave? You've got it -- elitist professors and high level administrators who are then able to cash in for upwards of 100K while staff people account for every hour.)

Ok, the plan was crazy and designed so the haves get even more. Still, it was part of the compensation package, it vested after 10 years, and many, many lower paid untenured people, who needed the pay out more than others,  got ripped off. After paying for decades UF said, "no more" even if you vested and it was retroactive. I guess University officials could say it is not compensation at all in which case maybe past UF officials should be doing time for making gifts for several decades.

If you retired by June 30th you got the pay out (or is that "pay off") and a small handful of people took the dough who were likely to retire anyway.  But some just were not quite ready to retire. They wanted the dough but they also wanted to keep their humongous salaries for a little longer.

What do to with the obvious deserving-of-more-more-more people?  You've got it. Extra paid leave or special new duties as senior envoy/assistant for the purpose of  . . . . . Well that is kind of the catch.  The new higher salary is for doing what they were doing or were expected to do. Yes, it is another situation in which professors who are working at full capacity all of a sudden aren't at full capacity when there is some money on the line. As in, "sure I have time to teach an extra course," or "sure, I can be special envoy to revise the environmental law program." Come on! Hit me with one of those   "administrative stipends."

Of course we know that haves always get more especially when the givers are also haves. So, how do the haves cut side deals to make up for the lost sick leave pay out? Use your imagination but do not doubt for a second that it occurs.

Thursday, July 07, 2016

Thieves, Rent Seeking, and Pie

In his classic 1967 article on rent-seeking (which does not actually use the term because it had not been coined at that time) Gordon Tullock explained that the cost of theft was not that one person's property was taken by another. In fact, that transaction in isolation may increase welfare. The social costs were the reactions of those attempting to avoid theft and those refining their skills. Richard Posner extended the analysis when he wrote about the costs of monopoly. Again, it was not that some became richer at the expense of others but that enormous sums were invested in bringing about the redistribution. In neither case do the rent seeking, social-cost-producing efforts create new wealth.

Still, in the case of Tullock and Posner the social costs were at least about something. There was a "there" there in the form of a chunk of wealth to bicker over. But now we come to law professors and law schools.

Law professor efforts to self-promote have exploded. Included are repeated visits to the Dean asking for one thing or another, resume padding, massive mailings of reprints, posting SSRN download rankings, or, even better, emailing 200 friends asking them to download a recently posted article, churning out small symposia articles because deans often want to see lines on resumes as opposed to substance, playing the law review placement game, and just plain old smoozing ranging from name dropping to butt kissing. Very little of this seems designed to produce new wealth. If fact, think of the actual welfare-producing activities that could be undertaken with the same levels of energy -- smaller classes, more sections of needed courses, possibly even research into areas that are risky in terms of self promotion but could pay off big if something new or insightful were discovered or said. But this is the part that puzzles me. Whether the thief in Tullock's case or monopolist in Posner's, the prize is clear. What is the prize for law professors? Are these social costs expended to acquire rents that really do not exist or are only imagined? What are the rents law professors seek?

Law schools make the professors look like small potatoes when it comes to social costs. Aside from hiring their own graduates to up the employment level, they all employ squads of people whose jobs are to create social costs (of course, most lawyers do the same thing), produce huge glossy magazines that go straight to the trash, weasel around with who is a first year student as opposed to a transfer student or a part time student, select students with an eye to increasing one rating or another, and obsess over which stone is yet unturned in an effort to move up a notch. I don't need to go through the whole list but the point is that there is no production -- nothing socially beneficial happens. That's fine. The same is true of Tullock's thief and Posner's monopolist. But again, and here is the rub. What is the rent the law schools seek? Where is the pie that they are less interested in making bigger than in just assuring they get the biggest slice possible? What is it made of?

At least thieves and monopolists fight over something that exists. And they often internalize the cost of that effort. Law professors and law schools, on the other hand, may be worse. They do not know what the prize actually is; they just know they should want more; and the costs are internalized by others.

Wednesday, June 29, 2016

Using Students

Although I crab a bit about class bias in legal education and law professor self promotion, self-interest, work avoidance, and senses of entitlement, I have little to say about what goes on in the classroom. There are reasons for this. My only observations are based on my own experience which is a pretty small sample. Plus, as a student, I found actual classroom instruction to be very high quality. I suppose I could look at teaching evaluations but my sense is that a number of factors can account for high and low evaluations that have little to do with the actual quality of instruction. In fact, as a law student I remember thinking one professor was  great who infuriated the rest of the class by not giving them "the answer."  In any case, from my own experience and the grapevine I think law professors, when in the classroom, are generally pretty devoted.

There are some exceptions, though, and I do not necessarily mean lousy teaching. I mean devoted to oneself. I've written before that law professor rarely engage in scholarship. For those who missed this which would be nearly everyone, scholarship involves research designed to discover answers. Law profs do advocacy -- they know the answers (how do they know? they just do.) and then devise ways to convince others.

It's clear to me that some professors carry the advocacy of personal beliefs into the classroom. Of course, we all do that since the notion of pure objectivity is a silly one. Still some professors use the material to promote broader beliefs that are actually not based on the material but reflects the professor's own values. For example, in my own case when I teach contracts I cover the Walker-Thomas case. I can teach it in a way that makes Walker-Thomas and others like Walker-Thomas eligible for water boarding. Or, I can teach it as though Williams is an irresponsible dupe. There is an obvious  political message associated with each side. I do try my best to stay in the middle even though my own political leanings are not close to the middle. Increasingly, though, I hear that other professors use the students to promote their personal views in subtle and not so subtle ways. They can make light of or discount student views with which they disagree. They be critical of some opinions and not so critical of others.

Another form of advocacy is far more discouraging. For example, suppose the faculty is getting ready to vote on whether to have a program in Environmental law. It may be legitimate to discuss it in class or maybe it's just a way to kill time. In either case, it can be presented as an issue on which people can disagree or it can be presented in a way that fuels the student rumor mill. For example, "I thought we were going to have a good environmental law program here but the Dean scuttled it without even consulting anyone." This is the two birds with one stone move. First, you've let it be known that in your opinion the program is needed and you've managed to demonize the dean even though he or she may simply be looking for the best way to allocate funds to make the students more marketable. In fact, giving part of the story is a great way to rile the students. This is often accompanied by claims that "I am getting so many complaints about this from other faculty." When someone says many, several, or tons but does not say how many you know the numbers are actually very small.

People who engage in this second type of "using" the students are right up there or down there with Donald Trump. Their aim is to scare the students into believing something is happening that will have a negative impact when just the opposite may be true. People who disguise their self interested concerns as institutional ones tend to  be short (actually I do not know that but the Randy Newman song came into mind and I thought it could be connected). Well, maybe not but they are weak on substance. They too are water board material.

Saturday, June 18, 2016

Joe Don Looney, Personal Attacks, and Civility

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

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

In the course of the conversation my pal said (and I am changing the names) "Emma told me that Jane told her that Phil had personally attacked, Lucy." Well, I was taken back because I know Phil; Phil is a friend of mine and he's  as sweet as pumpkin pie with double Karo. I wondered what Lucy had done but I realized that even if Lucy were OJ and Phil was Mother Teresa, under law professor rules, Phil was a really bad guy.

Then I realized that "personal attack" accusations are all part of the civility game -- the way the "ins" stifle dissent by the "outs." You can be dead on right about something but if the culprit kicks up enough dust about the fact that you mentioned it, you have violated law professor rule 1.23(a)

Actually lots of people have been writing about this lately (including me since this is a slightly revised version of a post from two years ago.) Other than the personal attack accusation, there are other was to use civility as a weapon. The most direct (if there is anything direct) way is "I don't like your tone," or "I am offended." It goes like this. You express alarm to see  Jack stocking up school supplies to take home, enjoying a side deal unavailable to others, or belittling a secretary.  Jack's reply is "I don't like your tone," as he closes the back door of his Volvo on 1000  reams of 8.5 x 11 he forced a secretary to load.  Another version  is "I am offended." No one asks why because the civility rule is that everything stops when someone shouts "Offense." In fact, right now I am getting pretty offended by just thinking about the "O" bomb. Unfortunately when I am offended by the "O bomb" no one really cares.

[I am stopping here to catch my breath.]

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

The personal attack is different from the  ad hominem attack as in: "Bill can't be right about that because he is a puppy kicker." Therefore, so the reasoning goes, it must be OK for me to take 1000 reams of paper for my personal use.

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

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

Sunday, June 05, 2016

The Donald Trump Chair and Professor of Law

Many law professors hold this esteemed position. It is for those who sell nothing to unsuspecting buyers. Here is what I mean. There was a fellow at a law school at which I once taught. He was up for tenure and that meant class visitation. The visits took place over a 2 week period. Near the end of that time,  a student asked me why Professor Trump was giving the exact same lecture every day.  Yes, he had one particular presentation he had down pat and he went to that one whenever a visitor appeared.

And then the was the Trump professor who did his summer teaching by way of a prerecorded course. This way he could be paid for both teaching and research in the summer, a custom made side deal. One year, though, the same guy needed an extra course in the regular school year to qualify for a sabbatical. All of sudden the prerecorded course, that was offered at the same time it was always offered, was listed as occurring during the spring semester and our boy gets his sabbatical with no additional effort. He may be recruited by Trump U -- the experts in something for nothing.

A friend of mine who is a high school principal tells me that whenever he has to contract the parents of a student whose parents work at the university he call them at home. He asked me, "what is this working at home thing." Some people do work at home but some people are able to actually teach at home. One particular Trump professor, likely hired because he was the grandson of a political celebrity and former Harvard professor, managed to teach his students from home after creating a course that involved supervising students who were teaching high school students about law. Yes, no need to come in to do research or to teach. Nice (non) work if you can get it.

All of us have minor Trump appointments in the form of confercating -- going to conferences that are actually vacations. I am happy to say that the new dean at my school has a rule that you actually must do something at a conference before the School will fund it. God forbid! Great idea but there is still the moral hazard of a 5 minute minute panel appearance or recycling the very same work you reported on 23 other times.

I've blogged way too much about advocacy posing as scholarship and there is no better example of a dead weight loss. It's like throwing away money.

There are many Trump Professors who double dip. They purport to be full time academics but are actually part time while they are consulting or "of counsel." Here is the difference. Most true academics think pretty much all the time about their jobs. "'Could I have done that better in class?" "How would one counter the position I took in my last paper?" "What is a better way to measure the impact of that case?" It's not a matter of being noble. They cannot help it. Always thinking. Yes, I think I am talking about you.

The Trump professors have a time for school work and then a time for making money and self-promoting. Instead of ideas they spend a hunk of time working for others and thinking about what angles to play with book and article placement. In fact, the academic job is not full time for them. Instead they decide how much time they can afford to devote to it.  Maybe they are just bored. Maybe they are in the wrong business.  Here is the catch, when they interviewed for the job they talked about their love of teaching and research.  There is never a mention of how much time off they need for their other job. What's Trumpian? -- the old bait and switch.  Evidently the psychic income of having what can be the best job in the world is not enough.

I'll bet Trump never waits in line. His turn is always first even if more deserving people get there first. There are Trump professors in law teaching in the form of the so-called trailing spouse. Not all of them but there are instances in which positions are created, not advertised, and all of a sudden a line cutter shows up with a job that could have gone to someone who worked harder, would teach more students, but is sleeping with the wrong person.

Wednesday, June 01, 2016

Trump University, Law Schools, and Law Professors: Snark in the Water

I was going to write a really snarky blog about how much law school recruiting looks like it was designed by Donald Trump. I am not going to do that. After all, he lured people into paying. Law schools, nowadays, pay people to come. Sure, they pay them on the bases of GPA and LSAT scores and not whether they actually need the money to go to law school.  This often means the rich get richer but like all liberals this is OK as long as liberal law profs and administrators benefit. The reason for paying students is that it means the ranking goes up, whether or not the quality of the instruction does, and that means being able to use the money to attract even more possibly well-to-do high scorers the next year. But what's wrong with that? If you think about it, it's the way liberals roll -- high ideals until, oops, that is not working for moi.

I noticed that the web page for my own school it says "reknowed faculty" as do the pages for other schools. Renowed seems to have become the go-to word that everyone knows means "nothing special going on here." I knew what that meant but I still looked it up: "famous, celebrated, famed, eminent, preeminent great, etc. " Really? REALLY? I think this is just puffing. Only about 4 law professors in the world are famous and they are not necessary famous for the right things. But, it's OK, while not true it does not rise to Trumpian levels.

How about employment data. You announce that 90% of your students get jobs but not that you hire a couple dozen and when the rating agencies refused to count them as employed you dropped them. This is very clearly Trumpian. It's a version of cooking the books. Actually maybe Trump did not cook the books and so this is more Trumpian than the Donald himself.

Many schools have an extended list of courses offered. Do you think they are all offered? Of course not. - Trump. In fact, the entering student may or may get to order what was on the menu. But unlike a restaurant, once you are in, it is hard  get out.

Hiring the best faculty. Pleeeze. Hiring is highly dependent on who you know, who you are partnered up with, who the school does not want to offend, and who will spout laudatory things about a candidate because the spouter's school itself wants its grads to get teaching jobs. And tenure? This is a sliding scale. Make nice and you are in. Write enough and you are in. These are perfect substitutes for each other.

Sales tactics. You would have to ask others about that but we know the Personal touch is important to law schools and to Trump.

See not snarky at all. I am just  wondering how much separates law schools from Trump University.

 Now the question is how do the activities of law professors in their self promotional efforts match up with those of Trump University.  That will come later but watch out: Snark in the water!!! Why don't we start with writing that purports to be scholarship. machine graded exams, teaching 4 credit courses in two days, writing about the same topic over and over. Later on this, I need a beach trip.


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."