Friday, September 25, 2020

UF Becomes the The New Trump University and the Sheep Who Work There

 


In today's Gainesville Sun one of the main stories was about State and University pressure to have full scale in person classes in the Spring. Yes, that is before or shortly after a vaccine. Plus, Governor Deathsantis wants college kids to party because as he puts it "that's what college kids do."  There is less important story about a doctor (well past his prime in terms knowledge and common sense) who refuses to wear a mask. I am not so interested in the idiot doctor but in the University. 

I am truly mystified by what motivates the State and University to want warm bodies in seats when it could mean some get very sick and some (not many I know) could die. And why would a governor encourage students to party like its 1999? The only things I can think of are funding and ranking because its clear when one makes a cost benefit analysis, those two interests trump (pun totally intended) any interest at all in the heath and well-being of the students and townspeople who must interact with them in grocery stores, drug stores, and every other place it is difficult to avoid even if you are being careful. I mean, there must be some cost benefit analysis that goes on and avoiding death or severe illness get zero points  when it comes to the state of Florida.

But there is a bigger problem. It's the administrators who just follow orders. What is wrong with these people? If a dean or two or three just said we are not doing it it would make a big difference. And what would happen to them. They all have tenure so the worst would be returning to teaching and writing (something they call swore they were devoted to before they tired of it and wanted to join management.) This goes for Fuchs  right on down to the lowliest department head. DeathSantis says who cares if a few students get sick or even die or become carriers who then infect the townies. 

DeathSantis says "kill a few" and UF administrators say "how many.'


Friday, August 21, 2020

The Life of Deans and Side Deals: A Theory

 Trump: The Art of the Deal

In my teaching career I have been through 9 law school deans. One thing I think is true is that there is an inverse relationship between the number of side deals a dean makes and how long they last. Lets see in order, 5 years, 8 years,  5 years, 5 years, 3 years, 4 years, 11 years, 1 year, 6 years. Now, in fairness, one was done in by an extramarital affair, one was an acting dean, and one is still running but is showing signs of being on the ropes.

 Side deals are those that are made with individual faculty which could not be offered generally. Things like remote teaching during a pandemic but not because of an illness. Or, a one or two day teaching schedule because you live too far away to commute. Or, a special leave that could not be available to everyone or the doors would close. Or, a job because the University wants to hire your spouse. Some side deals are implicit. Like you can teach in our overseas program and I expect your loyalty Or you can have a program in Poland but that's because we are buds, right.

Before condemning deans for their side deals there are many things to keep in mind at least as a general matter.  First, deans serve as long as a faculty lets them. In fact, some stop being effective deans well before they realize they are finished. Second, deans are generally people who have lost their taste for simply teaching and writing but have no market value as practitioners. Third, no dean I have known has had any training for or experience in a management position. In sum, they need the job. They got into one job and just did not like it. Deaning was the logical move. MOST important and certainly more important than any of these  is that the work force they "manage" (or who manage them) possess the greatest sense of entitlement of any work force with the possible exception of the Trump family. I am talking generally now. There are some good ones and you can spot them -- they are the ones with footprints on their backs.

So what happens? The problem is that people without management training seem to have no concept of  the long term. Sure, when young, vivacious, and perky Daisy asks to teach remotely from Kalamazoo because it would make her life less complicated you say yes. Then grumpy old Victor shows up and wants to teach from Rome because he has heard there are smoking hot chicks there you say no.  Then people decide they really would like to teach remotely too because they do not want to risk dying. How do you say no? You can lie, admit you fucked up, or start putting your books in boxes. I do not mean to imply being caught once would do it. It's the accumulation of favors that cannot be generalized. When you give out favors that cannot be generalized it almost always comes back to bite you in the ass. Deans think that by making side deals, they are buying time but, in fact, they are sowing the seeds of the end of their deanships.  Bye bye. 

Wednesday, April 29, 2020

Commercial Arbitration Course

Hi,  I am writing here to rising 2 and 3 Ls in order to bring their attention to a course with the mysterious title "ICAM." That stands for International Commercial Law Moot but that does not tell you much.

The first five weeks of the course are devoted the the study of the Convention on the International Sale of Goods (CISG),  the New York Convention, and the UNCITRAL Model Law.  The CISG is the actual statutory law of the US and about 90 other countries pertaining to contracts between parties in different countries. You would not believe the number of attorneys who have blundered into attempting to apply the UCC. The CISG is much shorter than Article 2 of the UCC but covers basic contract law questions. At the end of the five weeks there is a short exam.

The first Friday in October the international organization in charge of the Moot issues the CSIG problem for the year. It also includes a procedural issue. At that point the class does not meet on a formal basis. We may gather for brainstorming sessions. During that time, students write Claimant's briefs based on the problem. Those are due in mid November. 

At that point students make a 15 minute oral argument based on their brief to me and a couple of others. There is no final exam or further work.

EXCEPT. Based on the briefs and oral arguments a four-person team will be selected to travel to the international competition in Vienna. The Law School covers all expenses. About 200 teams from 100 countries participate over a five day period in arbitration sessions.  It is hard work and great fun. 

Sunday, March 15, 2020

Compensating the Victims of the Ratings Scramble




Most people know that negative externalities are costs of your activities that you impose on others. With the release of the new US News law school rankings it makes sense to think about whether there are negative externalities stemming from law schools competing with each other to rise in the rankings. And a related question, should those who suffer from these externalities be compensated by those causing them.

A complete analysis would focus on each factor US News reports considers and there is no denying that some of the pressures are beneficial. On the other hand, suppose a school tries to raise its perception by others. It publishes all kinds of crap in big glossy magazines that typically find their way into the trash without being read. Externalities? Of course. Probably at every stage from printing, delivery, and disposal.

What concerns me most are the externalities that fall on students. Take my school (I stress only as an example since this practice is evidently widespread) which shot up in the rankings in part due to the decision to lower the number of students from 300 to 180. Applicants now fall into three categories.  Some with high LSATs scores are given generous scholarships. I do not know this but I assume some are admitted but receive less generous or no scholarships and rely on loans. And some applicants who would have been admitted but for the rankings are rejected in the interest of upping the average LSAT.

On top of all this is important to note that LSAT scores are correlated with socioeconomic class meaning that the externalities land disproportionate on those less able to absorb them. Plus, in the case of UF, there is massive excess capacity both with respect to faculty and physical plant. In short the marginal cost of admitting those students is close to zero.

So what happens to those 120  students per year who would have been admitted but for the rankings? (Please note that I am not worried about those who were made offers and did not come. Instead, these are people who would have accepted their offers.)  They will attend another law school, delay admission and go later, or give up on the law schools idea. In all cases they are saddled with a less preferred outcome. In one way or another, the decision to reject them, even though they were acceptable imposes a cost on them. Sure, maybe they would have been admitted and not been subsidized like their privileged high LSAT classmates but Florida was still what they preferred.

The cost of the rankings is imposed on them as they must move to a less preferred choice.  Maybe the other law school is lower ranked, maybe it is more expensive (meaning more student debt), perhaps it is farther from home meaning more expense to travel home over the holidays, perhaps its placement statistics are inferior to Florida, and it is possible that the quality of the teaching is lower than Florida's. Remember, these externalities last beyond three years. If they are at  inferior schools, employment opportunities may be fewer and starting salaries lower.  The implications could last a life time.  And if they postpone law school or not go at all, the externalities are obvious.

Do any people gain? Sure, accepted students are better off because of efforts to raise bar passage rates and placement numbers and lower competition for jobs. Even with no extra effort one would expect these numbers to improve. Students with high LSATs are better off but they are not responsible for imposing the cost on the 120 who find the door shut. The ones responsible for closing the door and gain by doing so are administrators -- primarily, college Presidents, Provosts, and Deans. Their incomes, statuses, and job opportunities are dependent on having the power to bar qualified students from their favored law school in the interest of increased rankings. BTW, there is no known correlation between a law school's ranking and the quality of the education delivered.

I suggest that students that would have been admitted but for the ranking race receive compensation for the burdens that have been thrust upon them. I understand this cannot happen so a redistribution from qualified students applying to a school with excess capacity to barely higher LSAT students  and administrators (the educational version of the top 1%) will continue.

Ironically this denial of opportunity takes place in the context of a profession that undeniably has a liberal (but definitely not leftist) slant. It's important to keep in mind the words of Phil Ochs on liberals: "ten degrees to the left of center in good times, ten degrees to the right of center if it affects them personally."





Wednesday, March 04, 2020

Killing the Messenger





When a dean lasts five years at my law school, he or she is evaluated by the faculty in order to determine whether there should be another five years. I note that this evidently has no impact on the actual decision to retain the dean and it's not even clear that such a review complies with University policy.

In this year's evaluation, there were statements with which you could agree or disagree or anything in between. These questions showed signs of having been drafted by people unaccustomed to writing surveys but I hasten add that his year's committee was pretty much stuck with what prior committees had used. There was also space for comments. The results were mixed.  The dean scored high on fund raising and elevating the reputation of the school. She did OK on issues like fairness in salaries and assignments. The comments were also mixed. Many faculty were quite happy with the dean, understood what she faced when coming here, and admired her energy and vision. Other comments were  negative and not something many faculty, except for one or two of my more candid colleagues,  would have the balls to say directly to anyone unless it was a secretary or grocery bagger.  It was all  public and some faculty quickly distributed the results to Above the Law and to the students. No doubt this was done to further disparage the dean. My estimate was there were 18 to 23 "haters" --  the title some of us attach to people who found fault with virtually everything. The dean scored weakest on style, transparency, and consulting faculty before making decisions.

 I chose "Killing the Messenger" as the title of this blog because over 5 years the dean delivered a message many faculty did not want to hear. That message was basically that the law school, teetering on the edge of the top 50,  was, after being run by the faculty for decades, not such hot shit. The title could have been "You Cannot Handle the Truth." And I could have gone with "Uncapturing the Law School." This was a particular apt title since until the not so new dean arrived, the School was clearly captured and run for the convenience and benefit of the faculty. Some examples are found in a article I wrote several years ago: "Faculty Ethics in Law School: Shirking, Capture, and 'The Matrix'", 83 U. Detroit Mercy L. Rev. 397. You know what I mean: foreign programs that made no sense other than someone wanted to do it; course offerings that were truly vanity courses; voting on tenure and promotion based on friendships or politics; reluctance to review clinical offerings, traveling to conferences on the school's dime when the real purpose was a vacation, starting centers that allowed students to concentrate in a area and receive an unofficial certificate without any proof that these opportunities accrued to the benefit of the students, publicly advertising jobs that did not exist.

Any of these titles would have worked. There was one comment that captured the sense of most negative comments:"Leave, please, please, please leave our College. Go on your way and leave us." Note the use of "our" and "us." The idea is that the law school is owned and operated for the benefit of faculty In reality the law school's stakeholders are students, taxpayers, and donors. Faculty are just hired hands and what makes them happy may have little to do with what makes the stakeholders better off. Generally trusting faculty to do right by stakeholders at a state school is foolhardy.

So, let's go back to style, transparency, and consulting. I personally do not understand the style issue but it seems to have something to do with saying fuck, maybe "pounding the table" (whatever that means), or being abrupt. I cannot address the style issue since I have not personally witnessed any of these activities. More interesting is the transparency matter. As far as I know, the dean has taken no major steps without informing the faculty. There were mutterings in the comments about not getting enough information about budgets. As best I can tell, no prior dean explained much about budget matters unless it was bad news with respect to raises or resources. I think the budget questions could be reduced to "you did not spend the money the way I would have" with the "would have" meaning on my pet project.

Congratulations if you made it this far because if you have followed the gist of this blog, which I assure you is boring me more than you. you may have noted that it comes down to "consulting the faculty." Here it gets tricky. Say the dean makes 4 decisions: a 10% raise for you, no more 7 AM classes, begin having a full range of classes on Friday afternoon, and exams must be anonymously graded.  You like the first 2 and hate the second two. The ones you agreed with will get no complaints about consultation. The one you disagree with will irk you because you were not consulted. So really "I was not consulted" often comes down to "I disagree."

And in this case nearly all the "I was not consulted" versions of saying "I disagree" amount to being unhappy about changing from a sleepy, faculty-run, pet project tolerating, law school effectively "owned' by the faculty to something that is better for actual stakeholders.


Sunday, January 05, 2020

I'd Do Anything for Rankings But I Won't Do That



If you are a law professor, take a good look at these shorts and assume USNWR added a new category for ranking -- number of faculty wearing see through shorts.  If that happened, I  promise you that you would be encouraged to wear them. Of course, wearing them would not mean your law school is actually better -- no, but the ranking would be higher and that is infinitely more important than actually being better.

OK, the shorts example is (I hope) not realistic but if it happened wouldn't we all agree that the rankings had become a joke.  This begs the question. Aren't they already a joke? For example, take one of the recent ranking-increasing strategies -- lowering the size of the entering class. At my school the latest move was to lower the entering class from 400 to 300 to 180. And, get this. I am not kidding -- we regard it as a feather in our cap that the percentage of students accepted has gone down. Or to put it more accurately, we take pride in rejecting well-qualified applicants. Yes, we turn more students down not because it makes us a better school or that the public will be better served by fewer students. Naw, it's just to ratchet up our average LSAT scores and GPAs. At UF this is in the context of physical plant that was designed to serve 400 new students each year.

Think about it. Is a school training 200 students with LSATs averaging 158 somehow inferior to one with 100 students with an LSAT average of 159? By what possible definition is the first school worse than the second. In fact, rather than average LSAT why not rank schools based on the number of students times average LSAT score. (My apologies to utilitarians who see that I have adopted the utilitarian dilemma.)

It would be unfair to pick on my school. If you look at the selectivity rates recently published over on the tax prof blog my hunch is that UF is far from alone. This ploy of lowering the entering class is off set at many schools  by admitting transfer students whose scores do not count in the annual law school evaluations. And then there is counting people as faculty who were not previously faculty, rearranging finances so it appears that expenditures per student go up. (In fairness, I do not know whether my school does any of this.)

 Schools go out in the market for students with high LSATs and GPAs and bid against each other to lure the students. The need of students is irrelevant, rich or poor, if you score high you get the dough. (I cannot prove it but I would bet high scores are correlated with higher socioeconomic class.)  Law students are the equivalent of college football players. They are really not wanted because of who they are-- character, experience, probability of doing good deeds upon graduation -- but because of how many games they can win. They are means to an end.

Law schools  now teach to the bar, offer courses on how to pass the bar, and activity discourage students who are at risk when taking the bar. No one knows how many are talked out of taking  the bar exam who would have passed had their confidence and self esteem not been undermined. All in the interest of boosting rankings. If it were for the benefit of the students schools would have done it decades ago.

But is there a limit? I have not seen one yet. I predict that by 2030 the rankings race will tighten as every law school had an enrollment of 1 student with perfect scores, faculty student ratios of 50 to 1, expenditures of 10 million dollars per student, and plastic shorts. There is a good outcome when the rankings are finally regarded as a joke. Maybe law schools will stop spending millions of dollars on personnel, publications, and whatever with the sole purpose of moving up a slot or two.

Thursday, December 05, 2019

NO, You Cannot be a Law Professor


                                                                     


About once a year a student comes to my office to ask about becoming a law professor. I have to tell him or her there is virtually no chance and that may be overly optimistic. The reason, of course, is that they are not attending one of a tiny handful  of -- mainly expensive private -- law schools that produce what people who went to those schools, and are in charge of hiring,  regard as good enough to be law professors. This always seemed odd to me since some of the smartest people I know went to mid level law schools and some of the dumbest and most narrowly educated  (including some law professors) went to the fancy schools.

Even if they apply to be a law professor they will be quickly vetoed -- without so much as a second look -- by someone who did go to one of those law schools. Strange isn't it. The privileged attend the fancy schools, get all puffed up about it but they actually do not think they are very good teachers. How do we know this? Because rarely, if ever, do they think they have been effective enough in class to elevate even the smartest student to be a potential law professor. They must be lousy teachers since they cannot even explain to others what they claimed to have learned in law school themselves.

So what is up with this. It's either about rankings or some delusional notion that you have to have gone to a fancy school to be an effective teacher and researcher. I've said enough in other blogs about how law schools will sacrifice everything to advance in the rankings. It is the least ethical conduct I have seen in legal education. And, I do not know whether going to a fancy school is correlated with good teaching and research. I once attempted an empirical study of this but could not find enough people who went to non fancy schools to make the study valid.

So what's is it really about? It's about status  and preserving status-- anyway you can. Think about it. You've spend a few hundred thousand to attend a fancy school and you are a law professor. (And you are sure to remind the students of your days at Harvard or Yale,)  Then someone is hired who did not go to a fancy school and is running circles around you both teaching-wise and research-wise. What does that mean about you? It may mean that you are not so hot after all since some poor schlub from the University of Florida is kicking your elitist ass.

So don't feel bad. It's just a way elitists ensure that the caste system is perpetuated. It has nothing to do with your merit and, most definitely, nothing to do with theirs.



Thursday, November 21, 2019

Sins in Service to Law School Vanity.

                                                                   




       The promotion of legal scholarship and the massive resources invested in the law school ranking race are strikingly similar. They are net drains in resources that rarely if ever produce anything beneficial to society -- dead weight losses. They are expenditures that serve the personal vanity of professors and administrators -- no more important than an institutional swim suit competition. 


 Consider legal scholarship (or what passes for scholarship since most articles are inflated  short pieces with numerous usually irrelevant footnotes). It has been reported that the average law review article costs about $30,000. As a point of reference, you can build a Habitat for Humanity house for about $90,000 or the cost of three articles. Citations of articles are correlated with the rank of the law review publishing the article, the rank of the school at which the author teaches, and the rank of the school from which he or she graduated. Citations, therefore, do not measure impact or anything else other than citations. A survey of the reasons for citing articles reveals that articles very rarely have any influence on the ideas of other scholars, lawyers, or judges. They are often cited for the facts they state without attention to whether the cited article had any authority for those facts. Alternatively, they simply puff up an article that really is not much more than a two page op ed piece.  Unless a judge, a legislator, or an attorney successfully relies on the (rarely) novel ideas found in an article, the article is a waste of an average of $30,000. There is also no known correlation between article writing and teaching effectiveness. Articles exist almost solely so that law professors can compare themselves and compete with respect to promotion and salary.  So what does scholarship do? It makes the professor look good to himself, may impress those delusional enough to think legal scholarship is real scholarship, and gives law schools something to publicize in the shameful ratings race. It is like deciding who wins a swim meet on the basis of a swim suit competition. 


What about the rankings race?  It too is an expensive effort that produces nothing that is socially beneficial. In fact, the law school ranking disaster is probably worse than scholarship. For example, people are hired to scheme ways to advance in the standings with no consideration for whether the result is more effective instruction. The "marketing department's" principal or only responsibility is to promote the image of the law school including inflating the accomplishments of faculty. Students well-qualified for admission are turned away (or asked to delay their admission) in the interest of elevating a school's average LSAT scores and GPAs. 


High LSATs and GPAs are essentially products sold by students to law schools that pay for them through scholarships and other forms of subsidization. Most tragically, these payments do not go to those most in need. In fact, the affluent and high-scoring students will become attorneys anyway. Paying them to go to law school is purely in service to law school vanity.  And, in the meantime, less affluent students who may be well-qualified to be effective attorneys are ignored. The net effect may be an income redistribution from those less well off to those better off.  


 All of this is especially repugnant when it takes place at a public law school. 


Wednesday, October 02, 2019

How Not to be a Great University: UF Plunges Into Darkness with Invitation to Don Jr.







Recently the University of Florida celebrated becoming a top 10 public university. Then in a effort to undue this accomplishment a student run organization, spending the money of others, agreed to pay Donald Trump Jr. (well-known big game hunter) and a "campaign adviser" $50,000  to spread their special brand of hatred to those willing to listen. What is stunning about this has nothing to do with free speech or intellectual diversity. I value both and have frequently railed about the lack of intellectual diversity on college campuses. And, as far as free speech, I am an absolutist.

But this is wacky. First of all, free speech does not require paying someone $50,000 to speak. Second, if UF wants to have diversity, how about intelligent, intellectual diversity. The University is supposed to be about ideas and even conflicting ideas. If the student organization in charge of this decision cannot contribute to that mission, it should go into receivership.

UF is saying the could not find another more qualified speaker from the conservative world for $50,000. Let's face it, this is nothing more than a direct contribution from a few (frat boys?) UF students, using student funds that are not their own,  to the reelect Donald Trump for President campaign. And with the current Governor and the two current Senators, why should that be a surprise?

It is utterly irresponsible but since we are now inviting speakers from the dark side I have a few suggestions myself. Next up: Mohammed bin Salman









Wednesday, September 25, 2019

Choke an Orca





My law school, perhaps because it is relatively fortunate financially, has lunches for everything --speakers from inside, speakers from outside, faculty interviews, staff interviews, new babies, high school graduations, acceptance of articles, having had a good class, setting your personal best for beer pong, catching the biggest fish at the annual faculty fishoff, divorces, pet births, speakers at other schools, going up in the rankings, almost going up in the rankings, helping students in trouble but do not know it, surpassing 10,000 steps on your Fitbit. Trust me, this is a partial list and does not count the countless efforts to feed the students or the ubiquitous plastic trays and tops that contain the food much of which is uneaten.

But the main thing we do is choke orca. Yes we eat off of, drink from, and lift our food with plastic. So let's say 40 weeks of 2 lunches a week and 25 people eating. (These are conservative estimates.) I think that adds up to 2000 plastic plates s+ 2000 plastic forks + 2000 plastic spoons + 2000 plastic cups + 2000 plastic knives in just one year. If you are counting that is 10,000 chunks of plastic each year. And since this has gone on as long as I can remember -- let's say 5 years -- we have contributed 50,000 chucks of plastic to the environment that will biodegrade sometime after Trump finishes off the earth. So, I guess in a way it does not matter.

But it could matter! What if not only the Law School but the entire University and not just the University but all Universities decided no more single use plastics. When you get down to it there are climate deniers who say so expressly and there are climate deniers who say it by their actions. Looks like academics fall in the second category or maybe they just do not give a fuck. [And please no comments that I should try to initiate change. I have.]

Tuesday, September 17, 2019

Toasting Kavanaugh









It will come soon if it has not happened already. Justice Kavanaugh will be the esteemed guest at many law schools. All will  be forgiven just as it has been with Justice Thomas. Most liberal law professors will crowd around at the inevitable faculty lounge brunch or afternoon coffee. I've seen how it work at my own law school which has had Justice Thomas in for two extended visits. With yet another to come. I am surprised we have not invited his wife to guest lecture.  I am sure if we could get Donald Trump in to teach negotiations or even ethics we would do it in a heartbeat. I would not let any of the three of them tie my shoe.

It is not just us and it's just not law schools. You might say that people put their convictions aside when a celebrity enters the room.  What is it with that? I can think of two explanations. The first is the "respect for the office." Total BS! It's more like being in awe of the office and being careful not to offend someone who is higher up on the status totem pole than you are. Anyone who kowtows to Kavanaugh or Thomas out of respect for the office misses the point that neither should be in the office.  Respect for the office would mean snubbing those two. If you really respect the office, do not toast the pretenders.

The other one -- which I have heard -- is "he is really a nice guy." Really, really! By that standard everyone is nice. How hard it is to seem to be friendly and impress people with superficial affectations of warmth. Oh, let's just have a beer together. (Or in Kavanaugh's case, make that a keg.) Being a nice guy, which anyone can do, is one way to hide your actual values. Being a nice guy should not be assessed on the basis of a 20 minute talk or a dinner but rather on what you actually do that affects people you do not now.  Thomas, Kavanaugh, and Trump are not nice guys no matter how "nice" they can be in a social setting.

But somehow, after the smoke clears, Kavanaugh will be the toast of many faculty gatherings attended by liberals and conservative alike. Because, we know when you get right down to it, he is a nice guy and we must have respect for the office.

Wednesday, July 17, 2019

Is it Time for Law Professors to Walk out to Protest Trump





I've always had mixed feelings about the student demonstrations of the 1960s. The cause was a good one but I felt there was also way too much fun involved. Plus, it seemed to be an activity one could participate in only if you could afford it. Too many of my fellow impassioned demonstrations were also planning their family funded back packing trips to Europe. In short, there was definitely a bit of self-indulgence. And, of course, my personal interest in class-based justice was dropped as soon as the war wound down.

My one bit of something akin to civil disobedience since those days was refusing to teach on the day the state of Florida executed someone. I did this once and the only official reaction was my Dean telling me I should make up the day. So, I ended up inconveniencing a class of students and the execution took place and it was all bit foolish.

Over on Facebook on other places people alarmed about Trump (I personally have never felt stronger hatred for a politician except maybe Mitch McConnell)  make a comparison to nazi Germany looking for a way to head off this country's downward spiral. The question that arises is what can anyone do. I have a couple of suggestions. One is to stop legitimizing members of the Trump cult by being anything but civil to them. Do not buy anything from a Trump supporter. Is your doctor a Trump supporter? Get a new one. Is your grocery store manager a Trumps supporter? Go to a different grocery store. Economic boycotts can work if people will make the collective sacrifice.

Here is a touchier suggestion. I think everyone agrees that the vast majority of law professors are liberal leaning. I've always regarded them as limousine liberals because other than talking a good game I see little action. So, liberal law professors, do you want to do something that will show you care? Walk Out. Yes, I propose a day in which every Trump detractor cancel class for the day. Call in sick if necessary. Call it a strike if you like. That may be the most effective teaching you could do and it may give some support to the few souls who are actually willing to put something on the line to get rid of this monster.

Of course this will not happen because, when it comes to really questioning authority, we are a profession well-versed in free-riding.

Sunday, May 13, 2018

Volunteering and the Quandary it Presents



One of the more fascination ploys of the upper classes or elites is the volunteer “move.”  It means never asking for something (asking implies the other person has power) but volunteering (which implies you are doing the other person a favor).  This means no matter how much you want something, when you get it, it was a result of your charitable instincts.  For example, I once chaired the committee that was to go to the meat market. Not everyone on the committee needed to go so in a meeting I made the mistake of asking who "wanted" to go.  Not one person “wanted to.” Within days every person on the committee contacted me privately to say he or she was “willing to go.” And then when I announced I had too many people who volunteered to go, no one volunteered  to stay at home.

It is pervasive. I was in a meeting a few months ago when one faculty member described how he did not want to hold an administrative post, a position now held by that person with an iron grip with no signs of change. And, there was a past interim dean who was described as being forced to be interim dean. The problem was it took a crowbar to get him to move on.

My favorite recent one involves the director of a set of programs that involve traveling to interesting places. When I asked to go, I was told that he had already “volunteered” to do it.

And, there are plenty of people who volunteer to teach an extra course, organize a conference, or teach at an inconvenient time. Sometimes volunteers are solicited and sometime people volunteer to do things that really do not need doing. It is the appearance of volunteering that is important.

But here is the quandary. If you volunteer for something and then do it, can you turn around and complain that you have too much on your plate or that you are deserving of a pay raise higher than that of someone who did not volunteer? This gets even stickier when you volunteer to do something that is not really needed -- you kind of made up a project, a program, a course, -- and then you turn around and want to be rewarded for it.

Perhaps those who step forward when volunteers are solicited deserve recognition. On the other hand, volunteers who create work for themselves and then seek a reward are not volunteers at all. They are operators.

Monday, May 07, 2018

Legal Education, Public Goods, and the Ratings Race



Once upon a time the public good rationale might have been  the basis for subsidizing legal education.  Personally, I never bought the rationale. Instead I figured that people with property and money -- the ones needing lawyers -- decided it would be great if everyone could be taxed to help produce lawyers so that legal fees might be lower.  After all, this is America.

You could think of it as income redistribution from the less well off to those better off.  One of the great examples of this, which many people hate to hear about, is the state subsidization of tax LLM. programs.  (Do you think Sally, the single mom down at the 7-11 needs a tax lawyer?) I actually do not know as a factual matter whether state operated tax LLM programs continue to be subsidized but, if so, let's hope we come to our senses.

But let's say I am wrong at least with respect to JD programs (even tax LLMs)  and that there once was a legitimate public good rationale and subsidization was based on that rationale. Or, more cynically, a public good rationale had nothing to do with it  but, as it turns out, there were unexpected positive externalities. Put differently, left to market forces, legal advice and assistance would be produced at inefficiently low levels. (If you know a thing or two about public goods you may be wondering who the free riders would be that would mean that demand for lawyers would be suppressed leading to too few lawyers. But let's say for now that 50 years ago the system made sense if only by accident.)

The fact that many people trained as lawyers cannot find jobs does not necessarily mean the public good rationale does not continue to exist. Maybe the problem is that people still cannot afford to or are unwilling to pay for legal services. Could the subsidization be too low? Perhaps all law school grads should get government stipends so poor people could afford their services or maybe the costs to  those who demand legal services should be reimbursed. All we know is that many people graduating from law school cannot earn a living selling their human capital and have to find other employment. Pumping out even more  publicly subsidized lawyers without determining the extent of a continuing public good rationale makes no sense. If  there remains inefficiently low levels of legal assistance being sold, other avenues of subsidization should be considered.

But let's suspend our disbelief if necessary and say there continues to be a public good rationale. Let's see how law schools are responding in the era of a rankings race (or law school mutually assured destruction). Law Schools cut the size of classes as a way to increase their entering class GPAs and LSAT scores. The compete for and recruit  students for the same reason almost as aggressively as college coaches. They attract students by paying them -- REGARDLESS OF NEED - and, unlike college athletes, there appears to be no limit to what can be offered. Yes, they pay students to attend a specific law school who would attend a law school somewhere without the payment.  Law schools operate  massive "development" offices that seek financial support for their addiction to the rankings racket.

How many of these practices are responsible reactions to a possibly imaginary rationale for public subsidization of legal education?  None. The benefits flow to very very few and certainly not to the public.

Wednesday, May 02, 2018

The Best Job in the World




This is partly about me and not just about my faculty since I have heard these stories from many people at other schools. In fact, I've never visited a school at which I was not eventually cornered and told who the good guys and bad guys were.

Law teaching is a pretty great job. You are paid more than most academics (although this is lost on most law professors who have never lived the life of a real academic) and you get to do pretty much whatever you like assuming you are intellectually curious. A few times a week you teach a group of students and the only real downside is about two weeks of grading twice a year.

Cool job, right? So why do I see so many people who seem to be so unhappy. Drama is pervasive, Demands are made about the most trivial things. There are always conspiracies afoot. Someone else is racist, sexist, or homophobic, that is, if you listen to the gossip. High blood pressure is far from rare. Emails are sent that demand attention yesterday. There is never enough for whichever "me" you happen to be.

Is it the job or is that people cannot accept having one of he best jobs in the world? What is this with the office to office gossip, the complaints about the wrong room, the wrong secretary, and imagined slights? Really, do people need to be unhappy about something?

[Time out for a sec.  I need to see if the dean answered my email yet. After all, I send it almost 20 minutes ago and she has not answered. Who the hell does she thing she is!??]

[Sorry, I am back now but first I had to figure out why Jane's office is being painted. No one asked me about painting my office. What is wrong with these people?]

Ok, so what made me do that? Why bitch about the dean and feel slighted. Why worry about Jane's office since the paint on my office is completely fine and it would be more inconvenient to have it painted than it is worth.

Why roam the halls, trying to convince that that guy who blogs should not be hanging out our dirty laundry. If you get 10 people to agree with the obvious (of course he is hanging out the dirty laundry that's the whole point and maybe if it is hung out and it looks bad you will make it less dirty) where does that get you? He obviously does not care because he is so uncollegial. I really hate that blogger guy because he might be talking about me.

[Sorry, I need sec here to tell the dean that I gave an important talk to people at the highest level at the Gainesville Car Wash Society. Also I need to put it on my resume. Actually one person was not that high.]

Ok, I am way too pissed off about my job to keep writing this and I feel a high blood pressure attack coming on. Really, I am never treated fairly. This job sucks.

Monday, April 30, 2018

Fussy is as Fussy Does







A colleague of mine described law professors as "fussy." That's a great word. Basically it means hard to please. Fussy law professors want things like this:

1. I really must have my office repainted. Right now the light blue on the walls interferes with my scholarship.

2. When that visitor passed me in the hallway he only nodded hello. Shouldn't he have engaged me in a discussion of my work.

3.  You cannot possible expect me to hold class on Mondays or Friday. Those are the day I write (at my condo at the beach).

4. The carpet in my office is getting a little dirty. I'll need to have the carpet replaced by hard wood floors. Otherwise I will have to write even less than I do now which will mean actually unwriting.

5. My office 30 feet from the nearest printer. Please have a new printer installed in my office.

6. I can't possibly be available to students after classes end and before exams. I need that time to write my exam and to spend time with my family.

7,  If you make us offer a 7 semester JD/LLM program we will be demoralized. Please make a therapy dog available.

8, What, I have to share a secretary!? But my work is so important!

9. I cannot attend faculty lunches because some people there are not vegans and it offends me.

10. That painting on the third floor of Mother Teresa "concerns" me. To our students it could be seen as endorsing the possibility of a God.

11, Please arrange for me to attend the meeting by skype. I'll be home feeding my parakeet.

12. I'm deeply offended. The Dean did not mention me in her Twitter feed.

13. My classes must meet at 11 AM. Please do not schedule any other classes at that time.

14. I am offended. Not sure about what right now but I will think of something momentarily

Wednesday, April 25, 2018

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]

Tuesday, April 24, 2018

Platform Failure



The big topic in antitrust these days is two or more sided platforms. These are things like Open Table, Amazon and both Scholastica and Expresso. They serve two markets and reduce the transaction costs of having those markets interact. For example, in the case of Open Table, diners do not want to call several restaurants to find a table and restaurants would prefer not to spend hours on the telephone so they join the Open Table listings.

In the case of Scholastica and Expresso, writers of law review articles would prefer not to print out, address, and mail articles to law reviews and then wait for post card acknowledgments. And law reviews benefit by a standardized method of receiving submissions. Given the lower costs to submit, they are likely to receive more submissions as long as they are signed onto the system.

Here transaction cost reduction means reducing quality, in  a sense raising barriers to entry. In the olden days, professors send out articles by mail, maybe a batch of 10, then a batch of ten more as they work down the rankings. I explained this to a law review editor several years ago at a very low ranked review and he asked -- due to the paucity of submissions the review had received-- when the review could expect authors to finally send drafts. Yes, there was a time when a 50 or 60th ranked review might  get only a  smattering of manuscripts.

Recently I asked a colleague how many reviews he had submitted his latest to. The answer was 90. I recently submitted a piece to 99 reviews. Why? Thanks to the platform, the cost in terms of time and dollars is inconsequential especially if your school picks up the tab.

But what does this mean. Law reviews receive, in many cases, thousands of submissions. They are swamped. Do they read each one? Can they even begin to read each one? Of course not. This means the flawed process by which articles are selected is made even worse - editors rely on institutional authority more than ever. They count citations of those submitting articles,  they consider the schools at which authors teach as well as those from which they graduated. It is even harder for authors who depend on substance to gain entry to the elite reviews.  There is no known correlation between the quality of a work and institutional authority. There is a known correlation between citations and the rank of review as well as the rank of the schools professors graduated from and attended. If citations are correlated with reading then articles are read on the basis of who wrote them, not the quality of the ideas.

Can you blame the editors? Hardly, what are they to do? Can you blame the authors? I do not see why. If someone is submitting to 60 reviews it's best to do likewise.

Wednesday, April 18, 2018

Killing them Softly





The State of Florida, as do most states, runs a controlled experiment each year -- the bar exam. Why is it a controlled experiment or, at least, somewhat controlled? Each fall eight or so law schools admit students. Three years later they are given the same exam. Pass rates differ dramatically. Some schools do very poorly. Others have students who, though seemingly less qualified, do much better.


I can think of two possible explanations both of which may fall into the category of no good deed goes unpunished. The first is the availability of courses and the freedom of students to opt out of courses that are tested on the bar. At one school that tends to underachieve, the selection is enormous. Students can go to China over spring break and pick up some credits. The can go to the beach to study environmental issues. The can take a long list of course on a pass/fail basis or spend semesters away and take no classes at all or classes that have no relation to the bar exam. Many of these "opportunities" are vanity courses. These are courses that would not exist if there were not a professor promoting offering the course. I would bet that bar passage rates vary inversely with the number of vanity courses available and directly with the number of required courses. This nonchalant attitude toward bar passage may make sense in private schools (not that any could survive long with dismal pass rates)  but for those that are subsidized by taxpayers it makes sense to prepare the students to actually become licensed. The rub is that funneling students into bar courses likely displeases some of them and would require faculty to give up their pet courses.


The other explanation is more tenuous but what the hell. In a year of teaching I have seen faculty hand out candy, cookies, ice cream, pizza, donuts, coffee and I am sure I am missing something. I personally want to take all of my students to Disney World but cannot afford it. I tell them that is my hope because it is, after all, the thought that counts. My reason for taking them to Disney World is that I want them to realize what a good guy I am. And, if I could just prove to them that I am a good guy maybe they will give me high marks on my course evaluations. OK, I know you are thinking "shouldn't your evaluations be directly related to how much the students learn in your class." In fact, studies have shown that the correlation between evaluations and learning is tenuous and sometimes negative. In one amazing study student were asked to evaluation professors after seeing a short soundless video. Then they were asked to evaluate the teacher after the course. As I recall the evaluations were the same. Actually experiencing the course was irrelevant.  Probably the best evaluations are for those who appear to be rigorous (but not really) and caring. So, if the appearance of caring is positively related to evaluations and your evaluations determine how productive you appear to your bosses, you know what any rational person will do -- stand back the swag is on the way.


Oh, that's Roberta Flack singer of Killing Me Softly.

Wednesday, April 11, 2018

There is No Limit Except on My Availability







There is no limit to the number of "Future of Legal Scholarship" conferences that can be held. I am not sure how many there have been so far but my guess is hundreds. We are only scratching the surface. The second generation will be a Conference on Conferences on the Future of Legal Scholarship. And, then (you know it's coming) the Conference on Conferences on Conferences on the Future of Legal Scholarship. The funny thing is that, as a matter relative to most legal scholarship, these will be no less useful than most of what fills the majority of law reviews.


Law professors, if nothing else, are fussy. In the dictionary you could have a picture of a law professor beside the word fussy and that would tell the whole story. I mean they are fussy about the food they eat (when we have lunch at my law school the caterer has to have 22 varieties of food for every diet: my favorite is the selection for low-salt-vegans-with-peanut-allergies-and-soft gum disease),  when they teach, the days they teach, the rooms they teach in, the arrangement of the chairs at a conference, the location of their offices, the art on the walls, and so on. I am not making most of this up.


An emerging version of fussy is when they will be available after classes end and before the exam. Today I was asked in class,  "How late is too  late to ask questions?" My answer: "Once I hand out the exam, no more questions."  There was a gasp. I asked,  "What's up. Is that surprising? "Oh," a couple informed me, "Our other teachers have cut off dates." I asked why.


Reason one: If I do not have cut off date everyone will ask questions at the last minute and it will be too crowed. I smiled at this one but I wondered, once you have a cut off date won't there be a rush to make it by the cut off date creating the very same issue.


Reason two: I might be writing the exam and if you ask a question it may affect how I answer the question. I thought "so what." Plus writing the exam a week or two before the end of the semester might address this supposed problem.


Reason three: If I answer your question it may disadvantage the students who did not think to ask the same question. As I understand it, under this line of reasoning you would never answer any question with out recording the answer (video, of course) and playing it back for the entire class.


Reason four: Hey, this is my time off. Don't bother me!!

Monday, April 09, 2018

Back and Even More Annoyed

Been taking a break and now I want to see of this blog still works. Here is a riddle: How many conferences can be held on the future of legal scholarship? Answer tomorrow.

Tuesday, May 02, 2017

Moonlighting Sonata: Conflicts, Disclosure, and the Scholar/Consultant






https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2853672

Moonlighting Sonata: Conflicts, Disclosure, and the Scholar/Consultant

Jeffrey L. Harrison & Amy R. Mashburn

Abstract: Although the impact of conflicting interests is of constant concern to those in legal education and other fields, a recent scholarly article and an extensive analysis in the New York Times suggest the problem is more pressing than ever. In the context of legal scholarship the problem arises when a professor is, in effect, employed by two entities. Disclosure of possible conflicts is the most commonly proposed response. The article argues that disclosure is merely a risk shifting devise that does not fully address the issue of bias. It draws on comparisons with products liability and legal ethics to suggest that many conflicts should simply be avoided.

Tuesday, April 04, 2017

The Dean's Parking Spot





Today I parked in the Dean's parking spot. Her car was not occupying it at the time so I thought to myself "Isn't it time you put some of your academic freedom to use?"  And I then thought to myself "Yes, Chadsworth, go ahead an park in her spot. Express yourself in a way that may lead to controversy."

She called later that day, having recognized my  288 BMW Super Z car with the "Eat More Fruit" bumper sticker, and expressed some displeasure. I hit her with "academic freedom" and she got very, very quiet -- so quiet that I could barely hear the subdued "oh" as she hung up the phone. Chalk one up for free expression. So much for vivacity!

I kind of feel the same way about the times I teach class. My time, or should I say the time I feel most free, is 1-2 Monday - Wednesday. Assigning me any other time is an infringement on my academic freedom as, I might add, is the requirement that I give my exams on certain days. I'll give them when I am good and ready. In fact, part of my academic freedom extends to my teaching -- including whether I choose to meet class -- and most definitely to the type of exam I give and even more most definitely to the day I give the final exam and most, most definitely to whether I will allow the students to use number 2 pencils on their multiple choice exams. So what if the machines will not read anything other than number 2 pencils? Pencil choice is a critical part of my pedagogical divinity.

Thank goodness for academic freedom or we professors might be discouraged from doing research and expressing views that cause others to think. You can imagine the profound message inherent in my pencil allocation decision.  Sadly, one of the things that most gets in the way of academic freedom is teaching or, even worse, teaching something just because the students need it or it is on the bar exam.

Life is hard when you deserve everything and only get 99%.

Monday, April 03, 2017

Those Bastards!!



Yes, it's that time of year again -- teaching schedules for the  next two semesters. And, as usual, when I filled in the form asking for my preferences, I gave the Deans all kinds of options. I am willing to teach Monday-Wednesday at 1-2 or Monday -Wednesday 1:05-2:05.  Mornings are out! I spend the morning reading the Times until my massage at 11. Lunch is at noon.  But what do they give me? Monday - Wednesday 2-3. These people do not know who I am. Do they have me mixed up with someone who went to a state school?

And what lowlife did they give my times to? I will find out and, when I do, that person will pay especially if he or she is untenured. Geez!

Thursday and Friday are off limits because I am expected to spend those days at my condo on the beach when I am not consulting, that is. I mean, otherwise, why have a condo on the beach? It just would not pay. I cannot possibly teach later than 2:30 the other days because I need to wind down after a hard day and  how can I do that in the mere hour between 3 and 4, when I have to leave for my personal training. If I do not get the training in by 5, I can forget about making it to the club in time for cocktails.

I'll tell you what. I will email my students and tell them that we meet at 1-2 Monday-Wednesday. I'll tell them it is in room 108 because I like the lighting there and it is close to my office and my teaching assistant (who actually does most of the actual meeting with students) also thinks 108's colors complement my wardrobe.  Like the little critters, I am really getting mad now just thinking about the disrespect. Let the bastards work it out when my 8 students show up.

But wait, it gets even worse. I have told them repeatedly to schedule my classes concurrently, Instead they put one of my 3 credit courses in the fall and one in the spring. What is it with these incompetent people? Don't they know I need to compress my 6 hour teaching schedule into 3 hours one semester a year so I can do my writing and be of service to the school (at the condo at the beach)?

What a hard life it is when you deserve everything and only get 99% of it.


Wednesday, March 08, 2017

Riding the Train, Not High on Cocaine, and a Serious Talk with My Dean




I hate the US News rankings but had to smile when I saw that UF Law had gone up 7 slots. Once I retire I expect it to sky rocket into the top 15 or 20. Some of the increase came by raising the LSAT score of entering students while NOT decreasing enrollment (like other schools)  and actually increasing diversity. I personally am not keen that students are recruited and courted like football players but, then again, it is a mixed bag. It appears to be the way the "game is played" these days and if you can do it without cutting class size it's amazing and an example of what a dean with focus, grit, and energy can do. Plus, a higher ranking and higher student credentials likely lead to better employment outcomes. That, in particular, is hard not to like.

I also had to smile because, according to rumor, the tax program has maintained its ranking.  It is a testament to the Dean's efforts since people inside and outside the law school, including many grads, had decided the program was being dismantled and spread the word far and wide.   Yes, even those who tried to scuttle the program to preserve petty interests evidently had no impact because the Dean was determined to rescue it from its 1950's mentality.  Like the regular JD program,  I would not be surprised if rose in the rankings given some of the newcomers to the program and one outstanding offer than I hope is accepted.

But where does that leave me? My blogging was motivated by the sense that the dean for 10 (seemed like 20) years defined his job as keeping his job which in turn meant saying yes to the right people (usually the wrong people), saying no to as few as possible, and leaving a legacy of wasteful programs and people with a sense of entitlement the size of Donald Trump's ego. If you have been around more than the smallest sample of law school deans, you get my drift so I will spare you the details. That blogging was fun, though. It drove some of my colleagues crazy, that is, when they were not quietly whispering to me, "I cannot say this to anyone but I want you to know I agree with you."

Those were pretty awful years but they were fun and now my Dean has taken the fun out of blogging. Sure, my stress level is 1/10 what it was, my blood pressure is rock bottom, I sleep through the night, and I am generally happier doing my research and teaching, but no blogging fun. So it is time for serious talk with my Dean. Can she make me a happy blogger without bringing back the past?