Wednesday, July 17, 2019
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
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
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
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
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
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
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
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 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
Tuesday, May 02, 2017
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
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
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
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?
Sunday, January 22, 2017
As I understand it one million women and some men marched in DC. A million more if you add up the rest of the world. As best I can tell, and to my great disappointment, no bricks were thrown, there was no substantial blockage of traffic. Some of the speakers sounded a wee bit angry but I certainly did not sense that was the mood of the crowd. I read the list of complaints, and with the possible exception of Planned Parenthood and Obama care, where there may be some overlap, none of the issues addressed the blight of poor and working class people -- the very ones the Democratic Party needs to bring back into the fold.What's the use of preaching to the choir?
So, when 1 million people who already agree with each other get together, is it a movement or a pajama party? I hope the former, I fear the latter. To me, a movement means, ideally, a fair amount of civil disobedience, some bricks thrown, police clearing away determined demonstrators who refuse order to leave the Mall or the roads. A pajama party means going home tired because you stayed up too late but you had a great time. Maybe it's the difference between a rally and a demonstration.
Unless there is major follow-up and a concerted effort to cross class lines to recruit the poor and working class women who voted overwhelmingly for Trump, what's the point? In any case, probably by mistake, Trump played his cards exactly right. Although he engages everyone for even the most insignificant slight, he seems to have largely done the only thing he could do to win -- he ignored the marchers. I know this cuts against the grain of most readers but you've got to engage the enemy to make something happen, That or recruit more people to your side. So far, I do not see progress on either score but I sincerely hope I am wrong.
Friday, January 06, 2017
(cite as 2 Class Bias & Random Thoughts 17 (2017)
The Lorenz curves illustrates what percentage of income the lowest ten percent of wage earners get and then what percent the lowest 20% get and so on. If income is equally divided you get that 45 degree line. The gini coefficient is the same idea expressed as a number. If one person gets all income, the coefficient is 1 -- perfect inequality. In the US it is slightly over .40.
The concept has a great deal of promise for running a law school. Suppose a Dean or Associate Dean kept a record of how much time was spent attending to each individual faculty member. Then they would be ranked from least amount of time to most. Suppose it is a faculty of 50. The percentage of total time taken up by the lowest 20% (10 people) could be calculated. The percentage of time taken up by the most demanding 10 could also be determined. My hunch is that the bottom 20% take up about 5% of the time and the top 20% take up about 50% of the time. The Lorenz curve could be even more bowed than the one in the graph.
Actually, the real Lorenz curve and the faculty demands on administrative time may be similar in an important respect. If you think of the real curve, the upper 10%, income-wise, may very well be the greediest most self-interested in the land. Now switch over to the faculty-demand-on-administrative-time Lorenz curve. My hunch is that people in the top 10% share many of the same characteristics as those in the top 10% of the real curve. Instead of money, though, it is badgering and complaining about leaves, courses, teaching loads, days spent teaching, special treatment, self-promotion, and being "helpful."
The analysis bogs down a bit at this point. The real Lorenz curve can be used as a basis for thinking about income redistribution. It is hard to apply that to the demand for administrators' time since people in the lower regions actually are likely to be pretty happy with their jobs and do not want or need greater attention. In fact, my bet is that the time hoggers are actually generally unhappy people at work and in life. Still, if you could just lop off the top 20%, administrators would have much more time to tend to the needs of the students and the institution.
You could also use the gini coefficient to assess how many students people teach. Again, take the bottom 10 (20%) in terms of student contact hours generated and my guess is they generate about 10% of all the teaching that goes on. The top 20% of teachers in terms of student contact hours probably account for 40%. Plus, I am willing to bet the people in the bottom 20% never pull their share of the load and the to top 20% are consistently the work horses.
In both cases -- demands on administrative time and student contact hours -- I'll bet the happiest law schools are those where both curves approach 45 degrees.
Friday, December 30, 2016
When I was in college we raged against the war, some sincerely and some because it was the thing to do. Around the fringes (for whites, that is) it was also about race but I always had the feeling that Blacks knew in their hearts that whites were fair weather friends. Toward the end of those years it was about gender and the environment.
Class was never the focus. It could have been different. If there was anything that characterized the war it was race and class. Minorities and working class kids fought the war and paid a huge price. Nevertheless, the movement against the war never really attempted to enlist working class and poor people. After all, they were not taking semesters off to study in Spain and they might have short hair because they did not have the safety net that permitted rebellion. (Is there was way to spell rebellion with an even smaller "r" or maybe it was just a middle and upper class temper tantrum.)
I've never really regarded the women's movement has having much to do with class, except by coincidence. Yes, data about wage differentials sweep in class issues but, for the most part, it is not what feminist focus on. Let's face it, the elitists who write about feminist issues are mainly interested in middle class and upper class women. Thelma, a single mother of 2 in need of dental work and who cannot afford to see any doctor other than the 5 listed in her plan (if she has one) is hardly the subject of many feminist law review articles.
And, what exactly was the plan environmentalists had for coal miners once the mines were closed. Or were they just collateral damage not to be worried about since they hardly count anyway.
Class has always been of very limited interest to liberals and Democrats. After all, low class people are not interesting, have no eloquent spokes people, have not been to Europe, do not read the New Yorker, might have some acne scars, may be missing a tooth, wear clothes that are too loud or faded. and you would not want your son or daughter marrying one.
Feel that pain in your ass that looks like Donald Trump? Guess what all you do gooders of the past 50 years. You just got a shot to the gut compliments of the people you ignored and walked over.
I once asked a friend why Law Professors were not more interested in issues of class. His answer, "It's too important."
Thursday, December 08, 2016
David J.J. Wheatstone
Schadenfreude and spite are similar in that they involve deriving pleasure from the misfortune of others. They differ in an important way that has implications for the law. For the most part, in the case of schadenfreude the pleasure is a windfall. The person finding pleasure in the bad luck or poor decision making of another may not play any role in bringing the events about that lead to the unpleasantness. Spite, however, means actually playing a role in making others worse off – purposely creating an externality. In fact, in some cases, acting spitefully means both parties are worse off but the spiteful person is willing to pay to make the victim worse off because of the satisfaction derived.
The fact that spite requires a cost and that cost leads to harm, even if only psychic, of another makes the phenomena different from other areas of law in which externalities are involved. For example, torts are often the result of one party attempting to save money by not taking preventive measures. In contract, the harm from a breach is a direct result of the benefits the breaching party seeks. The spiteful person is rewarded too but a different relationship exists. The money saver in the case of torts or contract breach would just as soon that the harmed party not be harmed. They derive no pleasure from that. The spiteful person only derives pleasure if another person is worse off.
From the perspective of the spiteful person, spite can be efficient or inefficient. Efficient spite comes about when the spiteful person gets more pleasure from the discomfort of another than the cost he or she incurs to bring about that displeasure. Two types of errors may occur. To illustrate take the case of someone who touches his or her brakes lightly to annoy a tailgating driver. The first is the inefficiency error. For example, you may touch your brakes lightly to annoy a tailgating driving only to see him or her speed off around you without a care in the world. There is little satisfaction in incurring the cost just to see the target actually benefit by your purposeful pokiness. The second error is a misperception error. You touch your brakes but do not realize the tailgater was in no hurry and actually did not even notice. In the spirit of “I’ll show him a thing or two,” you showed him nothing. In some broad sense is this not inefficient since you think you have incurred less cost than your target but pleasure is based on an illusion.
Consequently spite can be put into three categories. There is actual efficient spite in which the harm to the target and the satisfaction derived exceeds the cost. There is unrealized inefficiency in which the spiteful person assumes incorrectly that the harm exceeds the cost. Finally, there is the obviously inefficient spite in which it is clear to the spiteful person that the victim has not been affected at all.
Regardless of the form and from a broader perspective it is difficult to justify spite on any grounds. From a purely ethical standpoint it means using others without their consent to satisfy one’s own ends. For those with a Kantian point of view, this is enough to take measures to deter spite. From a Rawlsian perspective spiteful behavior would be rare.
Even those with an economic or cost benefit view will have to concede that there is no possibility of knowing whether spite driven activities do more harm than good. The person making the cost benefit decision about acting spitefully can only assess how the activity makes him or her feel and there may be a sense of a net benefit. For spite to be efficient, the harm to the victim would have to be worth it even after the spiteful actor him or herself internalized those harms. In other words the sum of the cost to the spiteful person plus the cost to the targeted person must be less than the satisfaction that the spiteful person derives. In effect the full cost, including internalization, will always exceed the external harm. That does not mean that overall all spiteful acts are inefficient. This all turns on how deeply satisfied the spiteful person is. A person who craves harming certain other people may actually get such great joy from harming others that even after internalizing the harm caused they would find it beneficial to act spitefully. Because spiteful people do not internalize the harm and might not act spitefully if they did and because, in any case, such an efficiency analysis involves a highly complicated and suspect interpersonal comparison of psychic cost and benefits, there is no economically based justification for permitting spiteful activities.
In conclusion, by raising the cost of spite, justice, in all of its forms, is advanced.
Yes, what the world needs now is a new law review so here it is. The Class Bias and Random Things Law Review (Class B. & Ran. Tgs. L. Rev.)
This is online referreed journal that accepts only works (meaning not just articles but poems, short stories, drawings, photographs, etc.) that are short and without footnotes.
Single submissions only but guaranteed turn-around time less that 24 hrs and publication within the next 24 hours.
This is online referreed journal that accepts only works (meaning not just articles but poems, short stories, drawings, photographs, etc.) that are short and without footnotes.
Single submissions only but guaranteed turn-around time less that 24 hrs and publication within the next 24 hours.
Wednesday, November 30, 2016
I ran across the term "normative scholarship" in an article in the Journal of Legal Education by Robin West. It is, of course, and I think she would admit, an oxymoron. I've looked up every definition of scholarship I could find and no where is there any mention of normativity. Scholars search for information, inconvenient and otherwise, and report it. When they do, it is scholarship.
When they add the "should" element, it stops being scholarship and it becomes advocacy. This is not true just of your run of the mill article in which someone tries to convince you that the position they hold is the "right" one (usually by reporting what others have written that supports that position and not reporting what does not.) It also applies to any empirical work in which the author interprets the results with a certain "correct" spin without coming clean about other possible interpretations.
This is not to say no law professors produce scholarship. Some do. And, this is not to say all normative scholarship is bad. But it is to say that it is not scholarship, it is advocacy. Why don't more law professors do scholarship? The easy answer is they do not know how. They were not trained to be scholars. That is not good enough. All of them were law students and all of them, I hope, were taught to be critical thinkers. Even on their exams I think they were told to spot the issues. This meant exploring the strengths and weaknesses of both sides of the issues. I am going to make the not so wild assumption that every law professor did well in law school and that every one learned to be critical even of his or her own thinking.
So, did they become advocates by practicing law? That does not wash either. Anyone who wrote a brief in support of one side of case certainly, if he or she hoped to effective, thought of every response to the arguments and reasoning presented.
If law professors were critical thinkers when they were students and had to be critical thinkers to the extent they practiced law, how did it evolve that they lost the one ability that distinguished them from politicians as well as the Rush Limbaughs of the world? What exactly about being hired onto law faculties qualified them to be moralists? Is it just arrogance that propels young Jane or Timmy into thinking making high grades at an expensive law school made them minor gods? In fact, nothing made them any more qualified to say what should happen than (dare I say it, oh what the hell) that orange guy with the dead dog on his head who will soon be President.
But here is the good news. In the vast uber vast number of instances their moralizing goes no further than other law professors who share the same points of view. Their scholarship is like a pebble tossed in a pond and results in not a single ripple. In legal scholarship, still waters run deep.
Friday, October 21, 2016
[At my school there is an interesting dialogue about faculty governance. It includes many issues: Do we have faculty governance? Have we ever had it? If we had it, did it serve the interests of students] There were a number of exchanges and, with permission, I am uploading this one by an anonymous faculty member.]
As you can see from the various mailings, I am at odds on the faculty governance issue with
Linda, Jake, and, I expect, a majority of the rest of the faculty. Linda and Jake are two of the
people on the faculty I respect the most and so I believe this really is a disagreement about
principle and not anyone’s pet project.
The heart of the argument by Jake and Linda at one level is that faculty governance works
and has worked well in the past. At another level I read their argument to be that faculty
governance is an end in itself that must be protected even if we do not like the outcome.
For example, we would not end our democracy even if Trump were elected. (OK, actually
My view is quite different and it is that type of governance that best advances the goals
of the law school – which I take to be the welfare of students and other shareholders but
not faculty except as a means to an end –is the one to adopt. And that might change
depending on the dean and the ability of the faculty to internalize the goals of the
institution. This disagreement is about as fundamental as it gets.
I firmly believe faculty governance at the law school has failed as a means of improving
the lives of students and stakeholders as much as possible. Probably the turning point
on this for me came 12 years ago. Jon, in his last year, I think, appointed a programs
review committee. During deliberations I heard from more than one person on the
committee that some proponents of various programs, centers, etc., would not
cooperate in presenting full information about their programs. The committee spent
a year or longer reviewing every program except I think CGR and Tax that
were off-limits. Bob then stepped into the deanship and the hard work of the
committee came to naught. It is possible that one of the numerous programs was
eliminated and it was no coincidence that it had but one proponent. When Bob pulled
the plug on the programs review it was clearly an instance of faculty governance.
Since then I do not have enough fingers and toes (and I have all of them) to count
the number of times in casual conversation a program, speaker series, center,
concentration, course has come up and the second line of discussion, after the issue
is broached, is “but Jack, Jane, Stu, Bill, Cosmo, will be unhappy.” That has become
our form of faculty governance – if enough well-like peopled will be upset, we do
not do it. Rarely do I hear discussions that focus on what is best for others.
For faculty governance to work faculty have to internalize the goals of the institution over self interest. I believe a majority of faculty here do this. They are actually able to vote in a counter-preferential way for something that may make them personally worse off. A critical mass though, does not do that. Instead the question is how does this affect me, will my center be eliminated, will I still get to teach my pet course, can I still select my speakers, will I still be able to spend summers of Vermont, will I still have the title of director, will this encroach on my research time, will I have to grade even more papers, will I have class more than 3 days a week, etc. I do not know what size that group needs to be to distort the process but I believe we exceed it. And with our history of door-to-door gossip, exaggerations, and egging each other on, that group has disproportionate power. I cannot identify the group because it can shift and likely includes me at times. It is difficult to escape the powerful influence of self-interest.
To me, working faculty governance means adopting a veil of ignorance perspective in a Rawlsian sense. As you know, behind the veil you do not know how the decision will affect you personally. Behind our veil we would only know one thing – our decisions can positively or negatively affect students and stakeholders. And, I would add we should assume that all those stakeholders are our children or loved ones for whom we want the best possible outcome.
In any case, would anyone in his or her right mind allow a group dominated by over-affirmed, elitist, children of privilege to govern anything that touched on the lives of real working people without some assurance that their values were aligned with those most directly affected?
In any case, would anyone in his or her right mind allow a group dominated by over-affirmed, elitist, children of privilege to govern anything that touched on the lives of real working people without some assurance that their values were aligned with those most directly affected?
Wednesday, October 12, 2016
OK, this is really important. I mean What the Fuck. According to the Chronicle of Higher Education my dean uses profanities. We cannot tolerate this shit! Actually, to tell the truth, I can tolerate it and I want more.
Today I did read with some interest the long article in the Chronicle of Higher Education about UF Law. I'd provide a link but the article is in the premium section and you need a subscription. I actually do not have one but got a copy anyway.
According to the article, the Dean here yells at people and frankly I am really pissed off about that. What do you have to do around here to get yelled at? I have tried and it's beginning to look like a conspiracy to keep me from getting my fair share of yelled-at-ness. Is it because I am male?
Speaking of conspiracies as I was just in the last line, according to the article, the Dean has the Associate Deans spying on faculty. I've checked my office for bugs and other Jack Bauer devices. Nothing. Not a damn thing! What do you have to do around here to be spied on. I am beginning to feel that I am not getting my fair share on spied-on-ness.
No respect at all!
According to one person the reporter spoke to, the dean is "degrading" us. Now I could be catty and say "no, maybe you finally got the grade you deserved" but I am not saying that. Forget you read that. I do not care to be degraded but I wonder if she could go over my paper and tell me what I did wrong so I could do better the next time (and, by the way, if you could raise my grade, that would be OK too.)
But there is even more bad news, according to one colleague, with a very short memory, this is the "most distressing" he has ever seen. Wow, I guess he fell asleep during the last administration during which everyone was respected, got their grade raised, and the ship was sinking with all hands aboard. (and which led to the highest bar failure rate anyone can remember.)
How about this one. Allegedly, someone said it was like the Dean came into "your house" and moved everything around. First, since when did a law school belong to the faculty? Second, what if the house is falling apart?
When I think of the Dean at Florida and her actions so far I think of the saying, "It's not a revolution if you ask permission." I wonder why the sample of people who talked to the reporter (many of whom remained anonymous just as they do when spreading gossip office to office as opposed to the Chronicle) think they were entitled to give or withhold permission.
Tuesday, October 11, 2016
Just had to leave a faculty meeting on shared governance of which, according to some, we have too little. I, as usual, disagree and think we have too much. In the shared governance peak of my law school we had all kinds of odd programs that seem more designed to please individual faculty than to actually advance the interests of shareholders -- students, taxpayers, the public. Makes you think twice about shared governance and it makes me think about copyright law.
As most people know, the Copyright Act is long. The goal of copyright is to encourage creative efforts. If you took the Act, about 1/20 of it, at most, has anything to do with encouraging people to be creative. The other 19/20 of it are about who gets the dough when they are. The difference in economic circles is between allocative outcomes and distributive ones. Allocative means increasing general welfare (or the size of the pie) and distributive means cutting up the pie even if it means a smaller pie.
What does this have to do with discussions of shared governance -- everything. A faculty may meet to decide whether to hire someone. Mr. Allocative might think "will this person make the school better for the students and others." Mr. Distributive might think "Does that candidate agree with me politically and will she want to teach something I teach." Or suppose it is a new foreign program in the South of France. Mr. Allocative would think, "is this the best learning experience we can offer for the money." Mr. Distributive, on the other hand, could think, "I'd really like to teach in France in the summer" or "If I vote no on this, Phil (sponsor of the France program) will never vote to approve my spring break program in London."
Now suppose you have a faculty of 60. Some are Allocative -- they want to increase the quality of the School in the best possible sense -- and some are Distributive -- constantly making sure they get as much of the pie as possible. If the are all Allocative, shared governance make sense. If the are all Distributive, shared governance means reliving (or living for the first time) something out of the Lord of the Flies.
Unfortunately, it is not that easy. Suppose the split is 80% allocative and 20% distributive. This may sound like a good place for shared governance but like I said it's not that easy. If it is a tough issue and splits the allocatives close to evenly, the distributives will determine the outcome. Luckily, many decisions are not that close and with only 20% distributive things may work out. This just begs the issue, though. Where is the tipping point? What proportion of a faculty can be distributive minded and still be entrusted with the obligations of shared governance?
Monday, October 10, 2016
What are Trumpian Truths? These days I hide from CNN and Presidential debate but even I know what Trumpian Truths are. They are misrepresentations (lies, exaggerations, etc.) that people believe because they want to even though if put to some sort of life and death test they would admit that they do not really believe it. So, let's say Donald says "HRC is responsible for 9/11." Some people, desperate to hate HRC, believe it or act like it is true. In acting like it is true they repeat it and it becomes real. Unfortunately, people used to believe anything that was in print. Now some people believe anything that is spoken as long as they want to believe it. And, yes, here I am again on my rant against faculty gossip and the gossipers.
Sometimes a Trumpian Truth is wrapped in a layer of deniability, something like a pig in an blanket. Call this a Trumpian Truth with a Side of Deniability. It would go something like this: "I recently learned that Hillary was responsible for 9/11" or "Many people are upset about HRC's involvement in 9/11." So, the repeater cozies up to a lie and veers off at the last minute. They may or may not have heard exactly what they repeated. As listener you cannot say he or she has lied or, in fact, that anyone has lied. Maybe the originator said, "Well at least we are pretty sure Hillary had nothing to do with 9/11" which then becomes "I heard we cannot be sure Hillary was not involved in 9/11" which then becomes "Hillary might have been involved in 9/11" and ends up at "I've heard that Hillary took part in the planning of 9/11." And, of course, the haters act as though it is the truth because they want it to be the truth.
Yes, now you recognize it as very close to gossip and how gossip is invited and consumed by those who want to believe. Some time ago I saw this in terms of homophobia. The pig in this case was "Jake is homophobic" but once wrapped in its blanket it became "I was told Jake was homophobic." So the speaker knows not to go full Trump because that would mean accountability. Plus, maybe someone did say Jake was homophobic or they at least they heard Jake was homophobic or they thought it was possible Jake was homophobic. In fact, we could all be homophobic so I guess you have now heard that we cannot rule out, dear reader, that you are indeed homophobic. How does it feel? Ah yes, law school gossip. It has more legs than a conjoined caterpiller.
In some case, the pig is not only in a blanket but coated with a crust so you have double deniability. How about this one for a starter "If accurately portrayed, I believe an informed observer would deem these measures to be of academic character and to constitute a downgrading of the . . . program within the college" Yes, I am not kidding, a very worried person and litigious I suspect (but do not know) because who else would be careful enough to invoke double deniability. Does not know the facts but heard them! Evidently no effort to verify them. Does not necessarily think this but maybe someone would! So, what the hell, I'll tell you what someone else might think about something that might have happened.
[By the way, while I am at it, "if it is true that Jeff was seen wearing women's clothing a reasonable person [not me God forbid] might think Jeff is transgender."]
Why say anything at all if you do not know the facts and can only speculate about what someone would think? Herein lies the Trumpian connection. Law faculty members do not lie outright, nor did this one. but they will throw some bait out there so those that want to believe have something to point to as the basis for wanted beliefs. To me they are no better than Donald himself, maybe worse. Donald, at least, has balls.
Saturday, September 17, 2016
A few days ago Rob Rhee wrote AND SIGNED a report that was highly critical of Florida's LLM in tax program. To be honest, the wording of the report bothered me just a bit. I like to hear the analysis but I want to come to my own conclusions. On the other hand, the general reaction to the report makes the Trump campaign look like reasoned discourse as opposed to the mob scene it is. Disgusting is one word I hear. Misrepresentations is another. And then there is the hacking-like activity of sneaking around the faculty copy machine to send out anonymously copies of the report and posting anonymous comments.
There are two reasonable responses to a report like Rob's. You can disagree with the numbers, all of which came from the Tax Department to the extent it has kept records or the Chief Financial officer of the Law School who scores a ten in the competency and honesty departments. Or you can claim that his assumption that the tax program should general a profit is wrong. Since I do not understand why taxpayers should subsidize a program that trains people to assist people and businesses with money to avoid paying taxes, I personally think it needs to generate a significant profit. But we could debate that and I already know some good counter-arguments.
Privately several members of the tax faculty concede that it needs to modernize. A starting point was to assign it to classrooms that fit the number of people enrolled and to find a director to ensure the program flourished. These changes and others were unacceptable to some and the Trumpian, name calling, and accusations of distortions started. Those most terrified by change and most willing to sacrifice the program to suit their personal desires revved up alums many of whom did not need to hear both sides of the story because, like Trump, their heros could do no wrong. They had joined the ranks of true believers for whom truth was irrelevant.
Like I said, if people support the UF tax program they need to deTrump their approach and put on some evidence that disproves Rob's points or makes a compelling case that he has misunderstood what a graduate tax program should do. So far I have seen one commentator do that. Frankly I could be convinced by either approach, but as long as the best supporters can do is name call and attribute motives to Rob Rhee (who cares if he has a ax to grind if he is telling the truth) I have no choice but to assume they have nothing to say. There is plenty of "deplorable" behavior afoot but none of it is Rob's.