Monday, December 15, 2014

Ultimately It's All About the Faculty and The Comfort Dog



Recently over on the Tax Prof blog it was revealed that FSU is the leader of the pack with respect to gaming the USWNR rankings as far as transfer students. This, on top of accepting 800 students to get 188 means that the school has to go a fair amount of trouble to appear attractive in today's market. I'll bet their faculty is as good as most others including my own so all these extraordinary efforts really mean is that the ratings matter more to that faculty than to other faculties.

I mention this because the ratings game in which most law schools are involved is really all about the faculty at the schools and their personal comfort. Higher ratings make them feel better when all they really need is a nice dog.  Sure, maybe the Deans spin the numbers but without tacit faculty approval, none of that happens. One version playing the game is paying for high LSAT scores and GPAs. That, as I understand it, is where most if not all of the scholarship money goes at some law schools.

For example, I know one student who is deciding between a free ride at FSU and a 3/4 free ride as Florida. What makes the student so desirable is the 160 plus LSAT and a GPA to match. Will she be a good lawyer, is it only with this assistance the she can go to law schools, will she "pay back" some of the super subsidy by engaging in some form of public service work. That is all utterly irrelevant.

Yes for your largely (not all that) liberal law faculties and their graduates one thing counts -- what will this do for our rating.  These are the well-meaning, I'm for the little man, do you need a hug, sharing, how did that make you feel, may I pat your comfort dog, don't buy Nike, boycott Nestles, give the tomato pickers a penny, sensitive, multiple ways of learning, Meyers-Briggs, people who are willing to take money away from those who need it and and might do something with the support and hand it over to someone who did well on a multiple choice exam that has a suspect relationship with success at anything including attending law school.

My hat is off to any faculty anywhere that musters up as many as ten people who go to the dean's office and say "Stop" subordinating anything to rankings.

Until then, law faculties, the world has your number. And unless you've got the stones to stop your own school please don't throw any stones at FSU just because they are better at it,

Wednesday, December 10, 2014

OK We are Done Here: Research-Wise I Mean



I was 99.9999% convinced that legal scholarship is anything but scholarship and, even when it is, almost no one reads it. Based on my research of legal research it's also clear that almost no one relies on any thing found in law review articles other than to skim off some facts.

But now I am confronted with a study on the citation rate of men and women. I mean, as I understand the question, which gender gets cited more relatively speaking.

I could not understand all of the article but if women are cited more often then men (relatively speaking) there are some very important policy implications that follow. I will list only the top ten.

1. Women write better articles. I am not sure what "better" means but what difference does it make?

2. Women write articles that are more likely to appeal to all genders than men do.

3. Women cite each other more than men do.

4. We should hire only women because they are cited more and this would impress someone somewhere because goodness knows citation is what it is all about.

5. Each man's citation should count 1.000009 and each woman's citation should count as 1 in order to off set the gender bias in citation.

6. Anyone citing someone based on the gender of the author is making an important political statement and, as a minor aside,  admitting he or she is an idiot.

7. If I could get more in touch with my feminine side I could get more citations.

8. Men need to get wise and coauthor more articles with women.

9. Further research is needed to determine if citations are also biased by weight, height, time in the 100 meter dash, color of hair, type of car driven, what you had for dinner, or where one teaches or went to school. (Opps, we already know the answers to the last two.)

10. Finally,  the last possible topic for anyone in law teaching to write about has been written about and so we are finally done. Close the door, turn out the lights.


Thursday, November 27, 2014

Not So Annual Top Ten (Bad and Good) Turkey Day Turkeys

Bad Turkeys


1. Me. (for too many reasons to list but one of which is spending time doing this when I could be working)

2. Self Important Humorless Law Professors (OK, virtually all Law Professors but especially one up in the DC area) including those who think they are not humorless but whose humor only works to get nervous laughter at a faculty meeting.

3. Anyone using any of the following terms: share, reach out, civility, leadership, practice ready (EF, thanks on this one), thank you so much.

4. Any law professor who name drops in class, in conversations, or in email -- this includes dropping the name of any schools you went to.

5.  Law Profs or administrators who catch administrativitus upon being appointed to any position of supposed importance. Administrativitus is a common affliction that involves lack of transparency, half truths, spinning numbers, lack of humility with respect to tasks they do not know the first thing about, ignoring emails, making decisions to preserve their positions, blah. blah.

6. Anyone who hints that someone else is a racist, sexist, drunk, or homophobic but cannot back it up.

7. Anyone who talks more that 1 minute in a faculty meeting.

8. Those who protect pet programs or their own authority to determine who is involved in those programs without considering the overall benefits to the school.

9. University Presidents who commission 90K searches for Law Deans when any group of 5 law professors could identify all likely candidates for $1.98.

10. A system of legal education that encourages everyone to write when 90% of what is written is useless, meaningless, and results in less student contact.

11. (Yes this top ten has 11 just like you know whose amplifier). Those nasty little petty people trolling the halls claiming to know things no one else knows.

12 (when 11 is not loud enough). Gutless law profs who never write anything down, never take a position based on right and wrong, and for whom life is a long term strategic negotiation about their own self interest.

Good Turkeys  

1. Students who come to class ready to work.

2. Law faculty who stay in their offices other than to get a cup of coffee or take a short break.

3. The current Dean and Associate Dean at UF.

4. Committee members who say "I can do that."

5. Faculty teaching 200 students a year.

6. Faculty who write no more than an article every year or two.

7. Faculty who do not think a 50th ranked law schools should to the same things as a 10th ranked law school.

8. Those who let their work speak for itself as opposed to doing some work and then speaking on its behalf.

9. UF Law and Administrative and Secretarial Staff. 

10, Eric Fink and Chris Sagers, 

Thursday, November 20, 2014

Tofu Anyone? Hubris, Architecture, and Voting





I've seen law professors take on all kinds of tasks better left to others. Among those was how to design a law building. Another is how to decide what to serve at lunch. For example, on the lunch issue suppose there are 60 people with all kinds of preferences and 60 different food choices. Would it make sense to have each person vote for 5 choices and then serve the 5 top vote getters?  People who know about cycling, preferences, and rigging know this will likely tell you very little about what preferences really are. First though Rather than 60, let's say there are 3 choices and 3 people. The choices are roast beef, chicken, and soup.

Person one ranks them like this: roast beef>chicken>soup
Person two: chicken >soup>roast beef
Person three: soup>roast beef> chicken.

If everyone gets one vote, it is a three way tie. So how do you rig this to get where you want to go if you personally favor roast beef. First you ask a vote who wins between chicken and soup. The answer is chicken. Now who wins between roast beef and chicken. The answer is roast beef. Having the power to determine how the vote is to be conducted gives the "authority" to determine the outcome.

How else can being the "authority" who determines how people are polled dictate outcomes? Let's say there are 7 choices for lunch and 10 people voting and they each get to vote for (but not rank) their top two. That's 20 votes in total and it comes out like this:

Roast beef - 4
Tofu (gads!) -4
chicken -3
tuna -3
beanie weenie -3
cheese -2
PB&J -1

Clearly the faculty prefers Roast beef and tofu. Right? Just hold on a bit. Actually 60% prefer anything other than tofu and 60%  are saying "Please God anything but roast beef, it made us really sick the last time we had it."  If you knock out cheese, beanie weenie, and PB&J and revote, roast beef and tofu may well fall off the list completely.  In fact, if you do not do that, those voters are, in an sense, disenfranchised and you really do not know much at all about preferences.  This is all a middle school level of understanding and why even in places like Louisiana there are run offs.

So what would be the rationale for not having a run off? I  can think of three: 1) you do not care what people want, 2) you do not understand how imprecise one ballot can be in gauging preferences when there are many votes and many choices, or 3) you have a hunch you can deliver 4 roast beef votes but no more and you are worried about the outcome of a second ballot. In the case of law professors, it could be any three.







Tuesday, November 18, 2014

IntraClass Warfare, Tenure, and For Cause Dismissals

Over on Faculty Lounge and to some extent on the Caron Tax Blog a discussion has broken out about what to do with all the old (and privileged)  folks in law teaching who are clogging up the system so all the young (and privileged) folks who want to be law teachers have a hard time getting those plum jobs. My view? I'm just happy to observe the intraclass warfare.  As the John Revolting character said to the Christian Slater character in "Broken Arrow" when he set off a small nuclear device, "Ain't it Cool."

In the course of the discussion (I'd link to it but have no idea how to link to a comment) someone made a comment like "Young or old, let's have standards and if people cannot keep up, out they go."  Orin Kerr then writes: "Can you say more about how/if you would do that in a way consistent with tenure protections? Would you say that failure to reach a minimum productivity level is "good cause" to fire a tenured professor, and if so, what kind of standard would you propose? Or would you end tenure protections first?"

 And, right there we have the issue, don't we. I like the ways he phrases it -- "good cause." I think if it as "for cause."  When we think about tenure the running joke is to lose it you have to do something really awful -- kill someone, rob a bank, sexually harass a student,  Simply punching a student is not enough. In fact that gets you a paid vacation. Being a God-awful teacher is not enough; stealing from the school is not enough. In fact, and here is my punch line:

There is nothing connected to actually doing the job or not doing it that can be a basis for dismissal.

Think of this in the context of other jobs. If you delivered mail, you could be fired for punching the boss but never ever for putting the wrong mail in the wrong box. If you were a meat inspector, you could get fired for shop-lifting from WalMart but never ever for simple stamping as OK, rotten meat that then makes 1000 sick. A physician could be canned for getting drunk and smashing his Porsche into a pedestrian but not for performing an accidental lobotomy.

I'm thinking. What kind of job security is it that says the main thing you can never be fired for is screwing up on the job you are being paid to do? 

Wednesday, November 05, 2014

The Highest Priced Research Assistants in the World: Part 2



I recently blogged about the highest priced research assistants in the world -- law professors. At least that is what one would conclude if examining only the use of legal scholarship by courts. It is very rare that a court appears to care about a law professor's theory, reasoning, or analysis. Instead, they cherry pick articles for background facts that could have found for $15.00 an hour.

What about legal scholarship itself. Legal scholars do cite other scholars much more than courts do so maybe this means legal scholarship has a greater impact on other scholars than it does on courts. Whether one scholar's impact on another is important is a different question and open to debate. It depends, I would think, on whether the eventual work does some good for someone some where.

To examine not the quantitative impact in terms of numbers of citations but the qualitative impact, this time my coauthor and I looked at the way scholarship is actually used by other scholars in their work. Do scholars build on the ideas of others? Do the take several theories and combine them?

Unfortunately, this is another instance in which where citation counts may significantly overstate the benefits of legal scholarship. In examining the actual uses of legal scholarship, four categories emerged. First were gratuitous cites. Those were things like, "For more on BeBe Riboso see  . . . ." or  "See generally  . . . . " Typically the referenced materials are related to the author's work but they are not that different from Amazon telling you that since you read The Spy Who Came in From the Cold you might be interested in A Day in the Life of Ivan Denisovich. It is useful but is it worth the cost?

A second category is "hearsay." The author makes a statement and then cites another work because that is where the author "heard" the statement. When one looks at the cited source it usually says what the first author claimed but it too relies on hearsay. So Joe cites Jane and Jane cites Todd for an assertion that may or may be true unless it is obvious in which case it needed no citation. My favorite one in this category was something like, "The common law can be characterized by inconsistencies."

Often when you research the hearsay category you eventually come to someone who has done original research. Unfortunately it may come in the form of the ubiquitous See e.g. cite. The text may say, "The law as it pertains to liquidated damages is changing rapidly," and then three cases are cited for support.  I can remember writing my second law review article and coming to a full stop when I got ready to make a declarative statement like the one above. I asked an older colleague what to do. After all,  I had only read a few cases. He alerted me to the "See e.g." cite and just like that, in John Madden's terms, -- BOOM -- truth was created or at least its appearance which is good enough for legal research.

How about the last category? One scholar carefully reads the work of another and the takes those ideas and the ideas of other and his or her own, discusses them, and actually moves the reasoning to another and original level. In a survey of 100 cites -- all we have examined so far -- we could find it only twice.

Sunday, November 02, 2014

Gossip and Leadership



At my law school gossip festers like the Ebola virus if it really were as nasty as CNN wants us to believe. I have no reason to believe it is not the same at other law schools. It certainly was at others I have visited. But one has be careful when discussing gossip because a massive amount of writing about it by social scientists  describes its benefits.  It makes groups more cohesive. Evidently groups can be held together and reciprocity established through gossip. It reminds of leadership. We all admire people will leadership ability, don't we? It is a gift. But hold on just a sec! Hitler was one of the most effective leaders of all time and I'll bet Nazis, especially members of the SS,  were world class gossips.

That, of course is the catch. The term leadership means nothing as a normative matter until we know the goals of the leader. And gossip can be anything from "Isn't it great that John has finally fallen in love" to "I think I smelled liquor on Jack's breath at the faculty meeting?"

I probably have seen some positive leadership in legal education although I cannot think of any right now. I've seen so called leaders throw one group under the bus to save his and the hide of others and then be labeled a leader. As for gossip, it all seems to be negative and undermining as, I have read, is characteristic of workplace gossip.[Here I must add a qualification before ranting about gossip. Gossip typically fills an information vacuum at work. Thus, when administrators are less than transparent, secretive, misleading, etc. they invite gossip. Thus, one way to minimize gossip is to provide accurate information.]

So why is gossip so attractive? First, accuracy is not required. You can simply mislead people in hopes of getting a desired reaction. You achieve your goal and maintain deniability -- "I did not say that." You can fish around for support by dropping little pieces of bait in hopes someone will grab the bait and run with it. You can slip in and out without being seen. You can tell one person one story and frame it so it appeals to his or her insecurities and then tell a similar story to someone else and custom frame it to fit that person's insecurities. Let's face it. Gossiping and hearing gossip can be thrilling but it is always at another's expense. Generally it's pretty cruel -- think SS, mobs. Mean Girls, Lord of the Flies, bullies, etc.

One thing that all recipients of gossip need to keep in mind  is that most of the time,  the person coming to you is there to use you. You are supposed to pass it on, become inflamed, protest publicly. The gossiper is not your friend. He or she is the puppet master. Ironic isn't it since the person hearing  gossip actually feels honor to be confided in. For example, if a student comes to complain about a professor, doesn't that mean you are a trusted "friend."

Do you want examples of workplace gossip? I can provide a list that would fill a blog post reaching from here to Ojus but that would just be another form of gossip. But, for all gossipers at all law schools. This is about YOU.  And for every administrator who fuels the flames of gossip because he or she is personally better off if some things are secret, you should be ashamed of yourself.



Thursday, October 23, 2014

Over, Around, and Through the Cookoo's Nest of Tenure and Promotion Decisions



Suppose behind the veil of ignorance you were designing a process to determine whether someone is awarded lifetime employment (or an annuity as some skeptics would say). You do not know if you are -- when the veil is lifted- the candidate, those deciding, those paying the salary, or those who would not be able to find a job because the one that might be right for you is taken up by a life-timer.

Here is the process I am pretty sure would evolve and has evolved at a school I have only heard about.
1. The candidate's scholarship would be mailed out to experts in the field some of which are friends of the candidate, some of whom the candidate has alerted in advance they the may be asked to comment, and some simply selected by the candidate. The letters are likely to be all positive and, if any are not, the writer of the letter is ignored or criticized. The letters are passed onto the faculty without comment or evaluation. An alternative to this is to not have scholarship reviewed at all since it rarely makes a difference.

2. People would visit the candidates class to evaluate teaching. Then they would sign what might as well be a form letter saying how much the enjoyed the class and that the teacher was superior. A really negative review might say the teacher's tie clashed with his trousers. An alternative would be to forego teaching evaluations and just submit a form letter written for all candidates for every class.

3.As noted, steps one and two are irrelevant in some cases.  Suppose the candidate did not say hello to you properly on a couple of occasions. Maybe he or she was too friendly with some people you don't like. It is important to start the whispering campaign. Demonstrate your indignation to people like yourself who are only looking out for the students and taxpayers. Be sure to emphasize the clashing tie as indicative of disregard for good teaching and the fact that one of the review letters, although glowing, was late.

4. Be secretive and self righteous. Do not mention any of these concerns to the candidate or anyone other than your clique before the secret meeting at which the candidate is discussed because nothing is worse than opposing a candidate and giving the candidate an opportunity to respond.

So, there you have it. The process that takes everyone's interests into account, creates deniability and gives life time employment to the best people. Right? Yes, it is right but remember this is the Cookoo's nest and in the Cookoo's nest things are different.

There is also the not-in-the-Cookoo's-nest approach. It might go like this.

1. A committee of scholars and good teachers with no political axes to grind select reviewers for the candidates writings. The reviewers are asked to be completely frank. People who agree politically with the candidate are not selected nor are any people to whom the candidates has attempted to ingratiate himself. The names of the reviewers are not disclosed in hopes this will provide them with a spine.

2. Classes are visited but any letter that is unequivocally positive or uses words like "superior," "gifted," or "extraordinary" is rejected.

3. An evaluative committee examines all these materials and makes a recommendation to the faculty well in advance of the full meeting of the faculty and invites comments from others on the faculty and the candidate.

4. Individual faculty must voice concerns to the candidate or the evaluative committee before the faculty meeting.  Anyone who snakes around office to office to voice their indignation is excluded from the full meeting, shunned, and sentenced to time out.

5. No subjects may be raised at the meeting that were not already raised with the evaluative committee and about which notice was given to the candidate.

Please don't comment. I know the non CooKoo's nest approach is unobtainable in the world of the entitled and self-important.

Tuesday, October 21, 2014

Highest Priced Research Assistants in the World? More on the Scam



I have already written about the huge investment in legal research. I estimated it to be close to $3 million  a year at my school alone and probably around $350 to $400 million nation wide. This could go down if schools concentrate more on teaching and on line publication becomes the norm.

A colleague of mine and I have launched a study attempting to determine what the pay off is from the enormous sums spent on legal research and writing. We've started looking at law review and judicial citations and are as aware as anyone else that this is incomplete in terms of determining the impact of scholarship. (I mention this so no one will reply as have a dozen of our colleagues, "but there are other impacts.")

Citation counts are not necessarily consistent with impact. From that one might infer that scholarly works have a much greater impact that citation counts would suggest. That may be true and it may not be true. What if citation counts actually overstated impact? In fact, this may be the case.

To understand why, think about why most law professor write. As I have noted, they usually write with a lawyer's mentality -- advocating an idea. To do this these they offer facts (often selectively gathered), reasoning, or both that, like a well-written legal opinion, lead the reader to agree that the proposal of the author was the only logical outcome. And, in a law professor's dream world, those conclusions, proposals, suggestions, whatever will be adopted by a court or agency.

So when a court cites legal scholarship, is that what it is about? Actually no. In fact,  in the vast majority of instances in which legal scholarship is cited, the citation has nothing to do with the author's proposal, reasoning, or logic. Instead, except for very few instances the citation is to some fact found in the work. For example, it might be to "The UN Act of 2015 contains 5 sections." or "Twenty three states have laws prohibiting pit bull sainthood."

In short, the 400 or so million may result in high level thinking and important insights but, for the most part, what courts are after is not that. Courts are looking to the factual underbrush or what any decent research assistant could find for $10 and hour.

It is completely fair to ask whether this is also true of all the others ways in which people claim legal scholarship is of value. Do those impossible-to-count uses rely on the theories and reasoning of fancy articles? We have not looked at that yet but my hunch, and it is only that, is that all those other users to which law professors are fond of pointing are equally uninterested in anything other than cherry picking from the hard research -- not the ideas. We will see.

Thursday, October 16, 2014

The Tragedy of the Grading Commons



I have posted (to some) way too many times on the closeness of faculty governance to the tragedy of the commons. I should say some faculty governance because I am confident that there are faculties that overcome individual self-interest and whims and  avoid the tragedy. (Please do not tell me if I am wrong, I need the eggs.)  Some do not. This was brought home to me over the last two days when a student described what the commons could look like and I compared that to the actions and logic of those in charge of managing the commons.

According to this student our law school should graduate the most effective and professional students possible given whatever budgetary restraints exist. This means, according to him, more competitive students, fewer disappointed employers (who will come back for more), and, most importantly, clients who get the best possible service. I have a hard time not agreeing with this.

According to him, this means that students should choose courses -- with proper advisement -- that best prepare them for practice. A factor that should not be part of the decision is "what grade will I make." He was not the only one with this view. A colleague on my faculty said just recently that one of the best things he heard when he entered law school was a statement by the dean that grades would not in any way be determined by the selection of courses or teachers. In short,  the students would be free from pressure to game the system and from weighing a possible higher GPA against taking a course that would be part of his or her best preparation.

Maintaining that notion of the commons means that each professor at my colleague's school had to agree with the plan -- not just a curve but a grade distribution.   In other words, there would not be some teachers who would achieve the required average by giving lots of As and Cs while others achieved it by giving mainly B+s. (Some of you will also note how, if there are varying ways of achieving the curve,  the impact will be felt differently depending on whether students are risk averse or risk takers.) The answer, of course, is a curve with some semblance of a required distribution. And it would also mean that some, maybe all, teachers would have to subordinate what he or she preferred in order for the commons to be established and maintained.

Everyone knows what causes the commons to collapse. Each person does what is in his or her self interest.

So what types of specific things cause the tragedy and what are the arguments for not having a required distribution. First, the first sign that the tragedy is in trouble is when a faculty member's first instinct it to see if his or her past grading would comply with a possible distribution. But beyond that how about these tragedy promoting arguments:

1. We already have a curve. This distribution thing is just too much. It requires even more math. (Oh come on! I really don't know what else to say this one.)

2. Since I don't like the curve I also do not like the distribution idea because I want to give the students what they "deserve." (You lost that argument when a curve was adopted.)

3. This impinges on my academic freedom. (Yes people who don't have the balls to say anything controversial raise academic freedom as a reason why they are entitled to help destroy the commons.)

4. Hey, why don't we compromise and just have the distribution in some classes. (The problem is not classes. It is people grading the classes. Applying it to some classes and not others does not solve the problem)

5. The students in my class all made As and they expect to get high grades. The distribution keeps me form doing that. (The curve already prohibits giving them all high grades. The distribution would only keep you from giving them all the same grade. If that is the problem and it could be, there are exceptions.)

6. I'm not saying anything because I hope to be dean someday. (Just kidding no one actually said this but in a way they did.)

Why the photo of Rick Scott? If there were a saint of commons destruction, he would be a prime candidate.


Wednesday, October 15, 2014

Scholar, Advocate, or Both: With a HT to Prawsblawg



Suppose you are a historian and a great admirer of Martin Luther King. By digging around in various historical documents you discover he was a pedophile. Do you write about it?   Or let's suppose you are a huge supporter of ObamaCare and know it will mean care for millions who go without. You read the law carefully and based on your understand of the Act and the Constitution, you believe ObamaCare is unconstitutional. Do you  stay silent?

Paul Horwitz over on Prawsblawg wrote a fascinating post that opens this can of worms. To some extent, the issue can come down to whether you are an advocate or a scholar, but I am not sure of  this, and the issue extends to what role a law professor should play.

As a preliminary matter let's be clear that an advocate can be passive or active. The pro Obama care professor discovering the constitutional defect who says nothing is an advocate just as the agenda driven law professor who writes thousands of pages on the matter.

But what is the distinction between the advocate and a scholar? The scholar does research to find answers to often difficult question or to test hypotheses. He or she is not driven by wanting to find something that supports his or her point of view but instead, is gratified by finding an answer even if that answer is inconvenient. The advocate presents his or her case for a position with carefully selected arguments. There is no effort to find the truth but, rather, to bring you around to a point of view that has two sides -- otherwise there will be no reason to advocate a position. I do not know if  it is possible to be a pure scholar. I know I sat on a topic for years and did not write about it because I felt the analysis would reveal something that cut against my personal beliefs. I certainly was not a scholar in that case.

What should law professors do? First let's be clear. For many "scholarship" is the process of  having ideas as clients and writing long briefs, called law review articles, in support of the client. In virtually every case the client behind the idea is the law professor him or herself in that the position taken is consistent with purely subjective political beliefs. Thus, a high paid law professor may take the salary from his law school and spend all his time writing in support of his political views in their various manifestations. These folks are simply being lawyers and now they have found a way to express themselves on behalf of themselves on someone else's dime. I know, I have done it too.

The problem is that if law schools are ever going to be viewed as legitimate graduate level colleges the trend needs to be more toward scholarship. This is hard for two reasons. First, unlike other graduate level teachers, law professors are not trained as scholars. The idea of testing an hypothesis is foreign to many.  Second, without question they can point to the hypocrisy  of  so called sciences  in which numbers and outcomes are fudged and then the outcomes reported as scholarship.

In any case, did anyone imagine when law schools started that a professor making 250,000 a year, half or a third of which goes for scholarship, would then believe the money is meant to be used for him or her to promote a particular political position?  The decision to do that is evidence of a powerful sense of entitlement.

Saturday, October 04, 2014

"Pills," Drug Addiction, and the Veil of Ignorance.



The other day a few of us were feeling happy that our school had reportedly done well on the bar review passage rate.  We had seen what appeared to be the official results. When I mentioned this to someone, he said, (jokingly, I trust) "wait till you see the next US News & WR rankings. You will be even happier." Of course the rankings can only make you so happy since they are only relied upon by people who have been under a rock but I said, "Why?" The answer was, "I wrote those bar results up and I will write up a the law school rankings. I just want people to feel happy."

 "What a saint!" I did not think to myself.

Yes, it was life imitating the movie "The Matrix" only it was not really the red or blue or green pills but manufactured information that no one dared to investigate because who wants to become unhappy when you can be happy. In fact, law professors rely on a clever perversion of Rawls'  veil of ignorance. This veil allows you be ignorant of the current reality.

The difference between the Matrix and being a law professor is that the profs are both the pharmaceutical companies -- manufacturers -- and their best customers.  They create "pills" and then take them. They feel better but nothing changes except perception. Here are some of the best selling meds.

1. Your article will be published by a top ten law review. That's great, right? Why? Because a group of privileged 24 year olds  who know very little about law or your area of expertise and knew nothing about law until about a two years ago decided it was not too risky and had enough appeal to authority that seemed like it was meritorious? Really, isn't that a bit like feeling joy about winning a figure skating contest judged by people who have only in the last year or so seen ice? Nevertheless,  when that pill arrives you gobble it down and try to get a refill.

2. SSRN reports that your article is in the top ten most downloaded articles. SSRN has as many top ten categories as there are law professors. So, aside from the fact that the top ten scam is like the people who say  they want to put you in Who's Who in the academic world if you pay $50 for a copy of the book, what else is going on? One thing is you helped destroy some trees. Another is that downloading is free, Think of it as more like someone picking up one of the 15 free newspapers next to the real ones. You put your newspaper out there and it was free. It is more than likely lining the floor of a parakeet's cage.

3. You look up your name on Westlaw and your articles have been cited 1500 times. That's a pretty good pill but how is it connected to reality? Did you change a mind? People mentioned your name in an effort to create their own pill that is likely to be as irrelevant as your own.

4. Several people on your faculty are asked to rank law schools. All of them rank their law school first and the one they graduated from second. Then they feel happy that those are ranked high. Actually this one happened not long ago. That's how much they need a fix.

5. Your hardback book just came out. Your mom will be so proud. Are you! Hmm. is it actually your last 4 articles loosely tied together? Is it a collection of articles written by others at your request and that were acceptable to you because of who they were and not what was said? That's all the medication you need. It does not matter that it is not evidence of new ideas or that only a small handful of people will read anything in the work, After all, others, also taking meds, will regard it as a good thing.

So, what if law profs dropped their version of the veil of ignorance and went into rehab. Are there any pills that make a law professor feel better and do so without the veil. I do not know. There is a pill can make things better but seem not to make law profs feel better since so many veiw it as poison-- teach as many students as possible and tell them everything you know. That pill is not a big seller. Not FDA or AALS approved to be safe and effective, I suppose.


Wednesday, October 01, 2014

The Invisible Hand and the Dangers of Famililization



It is good to start this post with this quote from the Wealth of Nations:

"Every individual necessarily labours to render the annual revenue of the society as great as he can. He generally neither intends to promote the public interest, nor knows how much he is promoting it ... He intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for society that it was no part of his intention. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good."

The question arises with the last two words. What is "public good." One look at the plight of law schools today tells you how the Adam Smith approach -- a constant battle in service of self-interest -- is working.  It is a world of low teaching loads, vanity courses, massive spending on irrelevant "scholarship," travel to do little or nothing, crushing debt for students, and dishonesty in the rankings game.

That is the good news; it could be worse. Why?  Two points. First,   I can count on one hand the number of law professors who do not attend the church of Adam Smith. In fact, I can count on the fingers of no hands the number of times I  have heard a Law professor say in response to a policy or program question, "That is inconvenient to me and will cause some changes but I can see it is better for the institution,"

Conversely I do not have enough fingers and toes to account for every time I have heard "I oppose this policy/program because it will mean I have to change what I do."

How could it be worse? Suppose faculty began acting like one big happy family. They  celebrated birthdays together, ate lunch together, and really cooperated. The cooperation was designed to maximize total benefits for faculty with the distribution of those benefits determined later. So even lower teaching loads, more travel, more vanity courses, etc.  You might call this the Tony Soprano model.

If so, the best outcome is that faculty continue to "compete" not because it increases the public good, as Smith would have it, but decreases the damage.

So should we encourage law faculties to act like families? Like that slippery notion, "leadership," it all depends on goals and values. If they are not in the right place, kinship is a dangerous thing.











Thursday, September 25, 2014

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 Roger" 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, and citing myself 37 times 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.

Then I realized that "personal attack" accusations are all part of the civility game -- the way the "ins" stifle dissent by the "outs."

Lots of people have been writing about this lately, The most direct (if there is anything direct) way to use civility as a weapon 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. Jack's reply is "I don't like your tone," as he closes the back door of his Volvo on 100 reams of 8.5 x 11.  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.

[I am stopping here to catch my breath.]

The other silencing tactic I discussed two posts ago -- do not engage. No engagement means no discussion and no discussion means the status quo is safe.

What about 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 who is involved,  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 than 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.

This is different from the perfectly valid rejection of an ad hominem attack as in: "Bill can't be right about that because he is a puppy kicker." Or maybe that is just a non sequiter.

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

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 Phil. [see above]

The New Craze: EXPERIENTIAL LEARNING . . . for law professors



I want to start this rile-free posting by noting much of what is here applies to me although perhaps not quite as much as it does to the majority of law professors.

I also want to start from the premise  that in law teaching the minimal goal is not "do no harm" but "do some good."  I'll put aside my view that this means about 95% of legal scholarship falls outside the "do some good" category. (Ok, now it is aside.)

How are law professors supposed to know what it means to do some good as in making someone better off? This is the problem, most law professors when straight for grade grubbing undergraduates to grade grubbing at a small group of so called elite law schools. Most have had very few life experiences that would help them understand what it means to "do good" or why one might choose to "do good" for those worst off in society. (I like to say sometimes some law professors seem to  "have feelings too," just really tiny ones.  That is likely not true -- they probable have the same capacity to feel as anyone else, they just do not know from experience how certain things feel.)

If we are turning to experiential learning for students, how about some experiential learning for law professors so they will have a fuller idea of the breadth of "do good." To this end I am hereby propose to the ABA, the AALS, the ASPC and whatever  that all wannabe law professors and incumbents be required to select three of the following activities in order to improve their teaching and the quality of their scholarship:

1. Live as a homeless person for 2 months.
2. Go without dental or medical care for 10 years.
3. Take no vacations of any kind for 5 years.
4.  Work as a laborer on a construction site for 6 months.
5. Do not eat out except in fast food restaurants for 5 years.
6. Don't own a Prius but get by on $30 worth of gas a month.
7. Teach 9th graders at a school located in a urban low income neighborhood.
8. Bus tables for 8 hours a day 6 days a week.
9. Be a firefighter or police officer for a year.
10. Work as the nurse in an emergency room, operate a bulldozer in 95 degrees, process chicken, etc.

This is only a partial list of experiential learning opportunities for law teachers because, let's face it, is there a more inexperienced group than the people who teach and write about law?


Saturday, September 20, 2014

The Tactic of Non Engagement



I cannot say my rile is where it once was.  I blame the current administration at UF law which is demonstrating an unprecedented and alarming  lack of indifference to the welfare of the students, fiscal responsibility, and even handedness.

But there is an interesting condition that seems to afflict the privileged more than others.  I am not sure it is laziness, boredom,  a character flaw, or a political tactic. It a is cousin to the obsession with civility as a means of stifling dissent and maintaining the status quo. You know what I mean  - its not what you said but your tone.

It's the reluctance to engage. Here is an example. Someone on your faculty, or any workplace for that matter, does something that you think is wrong -- let's say he says everyone in a faculty meeting who disagrees with him is "insane."  It that bothers you there are a couple of ways to go. You could go to the person and say, "I'd like to convince you that broad non substantive statements like that are a problem." Or you could go to your own little mini mob and complain that the person is a jerk and add to that all of the other offenses by the person.  And, in future years you could describe the incident in slightly more extreme terms - he said we were insane and then starting cackling like a hen -- to get even more converts to your view that the person is truly evil or a nut case. This happens all the time.

Other than the law professor priss factor of which I have written before, what else is true about non engagers? Two things, but for this I need a better example. Let's suppose that a professor has a long list of speakers come to his class and none of them are gay. You decide this is a sure sign he or she is homophobic. If you engage the person, that means that you are conceding that he or she has something to say. Now you would not want that would you because, after all, you, the non engager always knows there can be no  room for discussion. You are not about to change your judgment because after all, on matters of homophobia, you are never wrong.  In effect, not engaging but spreading the word to your mini mob is just a fancy way of silencing. The other prof cannot speak to the issue because he has no idea it is an issue.

The other possibility is just plain sloth. In this case, it's just easier to go next door and complain. But what this really means is that you did not actually care that much about, in this case, the possible homophobia at all. Naw, you're just engaged in recreational BS.    

Tuesday, September 09, 2014

Rile-O-Meter Still Low



I am still struggling to get my rile back.  I think it's the fault of the new dean. One has the distinct impression that his deanship is not 100% focused on "what do I do to extend my deanship." I guess I should not complain but I do miss being riled.  It  makes me realize that an old blog about the benefits of having an interim dean missed the point. Not the whole point but there is another way to have a dean who will actually put his or her self interest aside -- hire an old dean. A Dean at the end of his or her career is like an interim dean -- no need to worry about anything other than the school.  I guess a term limit dean would work too.  On the other hand, an old dean has seen it all.

I am not riled but disenchanted by the data on scholarship my coauthor and I have turned up. A few things stand out. First there is a statistically significant correlation between both the rank of the review and the rank of the school from which the author graduated and the number citations by other scholars. The good news is there is no significant correlation between judicial cites and either of those. Courts, to my surprise, don't care all that much about institutional authority.  There is, though, a bad side to this. They also don't care much about what law professors have to say.  Citations to legal scholarship are not rare but they are almost never for the analysis or the proposals found in law review articles. Instead they are for things like:"this section of the UCC has 4 subsections." or "12 states have laws against this."  Yes, mainly they lift facts from even the fanciest articles. It's hardly worth the  $300 million a year spent on legal scholarship. That, btw, is a very conservative estimate. It does not account of the costs of running reviews, mailings, postage, time, etc. What a terrible waste.

I guess the 300 million plus a year for legal scholarship does rile me not just because the scholarship so rarely relied on in a meaningful way but because so much if it is not scholarship at all -- more like extended op-ed pieces.

I have been riled for a long time about the absurd "we will hire whomever you are sleeping with" policy at UF. I have been told it means more jobs for women -- a feminist thing. Huh. I do not know the gender breakdown on trailing spouses but, if it is to hire women, what an insult to feminists -- hiring women not because of who they are but because they hooked up with  the "right" men. My rile on this has faded mainly because I have had my say.

I am kind of riled by Obama being such a dud and those who somehow think the Ravens are heroic for cutting Ray Rice once they saw the video. The relevance of the video is lost on me other than to suggest that battered women should start wearing those little cameras because that appears to be what it takes to get some action.

Any law professor who utters anything about academic freedom could rile me. I have never seen a freedom so infrequently used.

I am sure there are things I should be riled about but since I cut off all information coming out of the months  the law school's biggest agitators and least accurate people, the rile-o-meter has been very low.



Wednesday, August 27, 2014

Getting Back My Rile




Have not written much lately -- just have not been riled enough. I am not sure what accounts for that.




Could be that I became a grandfather and my thoughts are on that. Could be that we have a new "acting" dean who is pretty direct so, for the most part you know what he is thinking. This would be in comparison to the old dean who seemed to get the vapors if he had to say something that would be controversial or offend one of the "yes" people.





It could be that I have been doing my best to avoid gossip. In fact, I have imposed an embargo on my best pal on the faculty from telling me anything that two blabber mouths who are often wildly inaccurate and mischievous have to say no matter what and for all time.




And, there is a pretty reliable source saying that the world's least rational and most single-personality-driven foreign program is kaput.
 

But my rile came back a bit lately. Partly it is the result of an empirical study that shows that citation in law reviews is largely correlated with the status of the school you attended. Yes, the elites prefer to cite the elites. My hunch -- actually far more than a hunch since I have been told this by law review editors -- is that articles by elites are more likely to be read in a timely way and accepted. Why? because top reviews perpetuate the elitist system in legal education.




And then there is this piece from the New York Times. discussing the failure of elite colleges to make much if any progress in admitting those who are not privileged. You should read it but this quote from the article captures most of it, "But critics contend that on the whole, elite colleges are too worried about harming their finances and ranking to match their rhetoric about wanting economic diversity with  with action." Is there really any surprise here? Why would there be? When was the last time your hiring committee was even willing to break bread with a stellar state school grade as opposed to bottom of the top third at an Ivy.





Of course they don't because it would be an admission that they are not so special. Plus, little Nancy or Trevor may be in the market for a law teaching job some day and it's better for them if the system stays as rigged as a clipper ship.





Yep, the privileged are not giving it up until it is ripped from their greedy little paws or it is torn down. I'm up for either one.   

Wednesday, August 06, 2014

The Public Law School Dilemma



Recently a colleague circulated a list of various specialties our law school offers and the enrollment in the highest enrollment classes within each specialty. In effect, it was a assessment of the demand for various classes. The effort was to assist us in long term planning. Where are we using resources and where should they be used? It is a really tough question for public law schools which I guess are really only quasi-public these days.

As one might expect, the demand for law school classes is a derived demand. That is, demand is determined by what is selling in the market. So, there is a high demand for business oriented courses and a low demand for family law, environmental, criminal law, and poverty law.

To me this captures the dilemma of today's law schools. Do they serve market  demand or not. I think I know what most will do if for no other reason than to survive. The problem is that public law schools exist, or so I thought, to produce public goods. I cannot think of another justification. Why else force tax payers to foot a substantial part of the bill?

The public good rationale would mean offering courses in areas in which attorneys cannot internalize the benefits of the services they sell. This would mean more attorneys specializing in consumer law, perhaps family law, and environmental law -- all areas with poor financial prospects because the demand (or should I say need) for those areas is not manifested in the market.

The problem is that while my school offers a huge supply of those types of training, the demand is very low. If one were only interested in matching supply and demand there are two answers. One is to decrease supply. The other is to increase demand or apparent demand.  In other words, make those classes more attractive to students and I do not mean by giving everyone an A. Instead, you stimulate demand by making investment in those area attractive. I do not suppose there is any way to cause salaries to increase but another approach would be to decrease costs so that the return to investment rises.

What does this mean? Perhaps differential tuition for those willing to practice, at least for some period of time, in areas in which there are public good elements. Or scholarships for those willing to concentrate in those areas.

Pie in the sky, I know but if public schools only serve market demand, why do they exist?


Sunday, July 27, 2014

The Anonymous Poster: Or is it Anony-mouse



Back when Moneylaw appeared to be an up and coming blog, I think it was Jim Chen who used to respond to anonymous comments with the salutation Dear Anony-mouse. I thought about that when two of the commentators on my last post remained anonymous although not saying anything controversial and saying what was said in a completely civil way. This made me wonder about the reasons for anonymous comments.

One  reader informed me that a person is in the private sector who says things  that could result in formal or informal sanctions in his or her job may well prefer to remain anonymous. That one maskes sense to me as long as the comment is substantive. When they get nasty, I'd say the commentators just want to  snipe and the private sector excuse is inapplicable.

I suppose untenured people might also have good reasons to remain anonymous.  Law profs can be very petty and taking someone on who may be reviewing your work or voting on your promotion, even in civil fashion, is probably not a good idea.  I wish it were not so but we are talking about law profs.

Add to the list of those who can justify anonymity disgruntled students. They bought into law school advertising and many are without jobs but do have debt. Putting their names on anything that could come back in haunt them in a job search would be foolish. Plus they may have more standing that any group to get a little upset.

But let's get to the nub of things. I am willing to bet that a fair percentage of anonymous comments are from tenured law professors.  Sure, I cannot prove it but, if you can prove otherwise, I am all ears and I will pay your way to Disney World if you do prove it.  So what is up with this? Are they afraid they may not be invited to the next conference or asked to contribute to yet another symposium consisting of someone and his or her pals?  What are we to make of people who want to send a strong message and then hide behind a rock after sending it?  Are they afraid the person they complain about will not want to be friends if their  their identity is revealed? Do they actually think people attribute as much weight to views that can only be expressed if no one knows who is expressing them? If the author has so little conviction, why should the listener pay attention? Or is this just wide spread paranoia.  The biggest problem is that they are free riders on the understandable need of others to remain anonymous so the reader does not know how to separate those with legitimate concerns from the hyper-cautious prissy law profs.

Don't get me wrong. I realize, perhaps more than most, that there are sanctions for being outspoken but isn't it better to deal with them than to creep around with a mask on when you feel strongly about about something? I'd feel sneaky.

My hunch is that it is closely related to law professors' obsession with deniability and cost/benefit analysis.

But really, I am quite  curious about the explanation and am open to comments  that would help me understand. Anonymity is fine -- I don't have enough readers to be picky.

Wednesday, July 23, 2014

Dan Markel: How About a Little Respect



I did not know Dan Markel but all I need to know comes from photos of him with two smiling children. It appears from that and everything that has been written that he was a terrific person. It also appears that I was one of a small handful of  people who did not know him. Nevertheless, it is beyond sad to think of the way lives have changed and I do not mean just his.

Some commentators, however, have used the event to engage in typical law professor BS. Tripping over each other in a desire to seem to know him best and to have inside information, stories have mentioned that he was in the middle of a divorce (false), that it was a home invasion (false), that he was shot in the back (maybe but it would be the back of the head.) This is the kind of loose talk usually reserved for the know it all, name droppers who spend too much time trolling the halls or in the faculty lounge. In effect, for some, his death became a means to the end of showing off.

One other factor that reflects badly, at least to me, about the commentators is the persistent description that he was a good scholar, an internationally known scholar, a gifted scholar. I do not doubt any of that for a second  nor do I care. To me it trivializes the loss.  The loving father of two children was gunned down.   My hunch is that he would have traded all the scholarship, citations, and accolades for a mere chance to see his children grow up, to be in a happy relationship, and to have good friends. Somehow, if I were describing the loss of a decent loving person, "scholar" would be way down on the list of characteristics that made the death so tragic. Is it harder to lose a good scholar than, say, the clerk at a 7-11? Not to me. Scholarship, like the 7-11 clerk who gets the change right every time, is simply something a person does. It is not who they are -- not at any meaningful level.

Sunday, July 13, 2014

Prissy law professors? Insufferable? Quiche? Not always!



This is actually Part 37 of Sociology of Law Professors but I could not get it all on the same line.

I've not been around many work groups in my life time. In fact, for the most part, it has been laborers, lawyers, and law professors. In spite of that small sample, the prissiest and most insufferable group in the world must be law professor or those interested in what they have to say.

I have to describe some of them as "interested in" because some of the most insufferable language is found in anonymous comments on blogs. Although there are rumors that some of the anons are actual law professors and one Chicago blog Czar in particular I do not know that. In fact, that accusation may be completely wrong and the product of anons who just want to demonize the other professor.

The best place for the truly wacko and insufferable anon comments that I know of is the Faculty Lounge blog. Over there a barroom brawl among sissies can break out at any time. Things can be fine and then the discussion devolves into pure mush of innuendo, accusations, and a game of gotcha. I suspect the people most likely to pull the civility card when not anonymous are often anonymous when the calls for civility are rightfully attributed to lame efforts to silence someone or are ridiculed as  they should be.

Those comments are  not as much insufferable as they are evidence of a somewhat wacko need to one up the other guy without have to say anything substantive or say who you are.

Some of the signed comments are the most insufferable and penned by those who must have an amazing sense of importance. Over on the contracts list serve, a discussion of contract law quickly went to hobby lobby and then to thinly veiled law prof name calling with one truly screwed up person calling the dean at the school where one of the commentators teaches to complain about the commentator's comments. Yes, this may set the record for prissiest law professor. Hopefully the dean told the complainer to get professional help. I know I did suggest it would be appropriate if, that is, there is treatment for being an asshole.

Here is the type in insufferable language you might find over there and I suspect on any law professor list serve. This is only an example: "But I cannot help add that Peter today perpetuated the unfair "permission to post" meme that Ben started yesterday. Objecting to threads as being off topic are entirely appropriate on a subject matter listserve, though the objection could be unfounded. Characterizing it as Peter (and Ben) did as my insisting on my permission to post, and referring to me by name as Peter did this morning, is itself a polemical and uncollegial means of stifling fair comment."

That was the public post and I do not mean to pick on that writer specifically or Peter or Ben, whoever they are. You may disagree but when I see "polemic," and "uncollegial," I begin to tear up. Just kidding. I do not know if the writer was the dean caller but when I responded publicly that the full comment sounded a bit over the top in the self importance department, here is the  private and intimate note I receive in response:  "Maybe you should have hesitated a moment before pressing send, Jeff. That's an asshole comment to make and I am telling you that directly and not anonymously."

 Of course, while not anonymous, this note came "off list" so none  of those who read the list would know about it or how quickly words like polemic and uncollegial gave way to "asshole."

I loved the private response. First, because as my pal Eric Fink reminds me, it's not worth writing if it does not get under someone's skin. Second, because the writer -- someone who I now have much more respect for -- was willing to forego the code words of law professors and show some emotion. Third, it reveals he can be a real person, not just the typical posturing, indirect priss, so many law professors are.  


Sunday, June 29, 2014

THE BIGGEST LAW SCHOOL SCAM OF THEM ALL?



Each year law school publications publish about 8,000 articles.These are written by law professors and a few judges and practitioners.   In addition, law faculty publish books (often recycled articles), casebooks, book chapters, and edit books compiled of the writings of others.  How much does it cost? That is hard to say but here is a rough estimate based on my law school. Let's say the average yearly earnings of a law prof is $150k. At my School you teach 9 hours year instead of 12 on the theory you are doing research. So about 37K a year goes to research per faculty member. In addition, anyone who wants to can research in the summer for about 15% of his or her salary. Most people do this so add another 20K for a total payment for research of 57K.  We have a large faculty, conservatively at 50 people. So my school invests about $2,850,000 a year in law professor research. For that each of our 1000 students could be given a $2850 scholarship or have tuition lowered by that amount. Or 15 well paid faculty could be hired and class sized dramatically lowered.

For $2.85 million you might want to know what you get. But there is no connections between money spent and the usefulness of what is written. Unlike other areas in which someone makes a proposal and someone doling out the money decides if it is worthwhile, there is no similar gate keeping in legal research unless you count the 23 year olds who decide what gets published where.

As I noted, UF is a big operation. Let's say it's the biggest and that all of the other 200 laws schools are half as large and, thus spend half as much money on legal research. That would be $1.4 million times 200 or $285 million per year. No, you did not miss something, Each year law schools invest about 285 million dollars on law professors writing mainly law review articles, books including casebooks, chapters for books, or editing books of chapters written by other people.

It is a scam? That is not easily answered. Some of the works are useful. Many are interesting and there is something to be said for that too. How useful it is impossible to know. For example, 33 of  lead articles in the top 100 law reviews in 2003 have been cited by at least one court somewhere. Sixty-seven have not. Of the 33, most show no sign of actually having influenced the decision.  Maybe that is not so bad but of the 100 lead articles in the secondary reviews at those same top schools, only 8 have been cited by any court anywhere.

Judicial cites, as every law professor reading instantly thought to him or herself upon reading this, are not the only way to assess usefulness. It is but one way but you would think if you were going to spend $285 million dollars a year on something you would do it based on something more than a hunch or faith that most of it is not wasted.

BUT WAIT there is more and OPERATORS ARE AVAILABLE.

I have not counted the research assistants, secretarial aid. submission fees, copying and, of course, travel in the name of legal scholarship.

And here is a final kick to the gut. When these projects generate income, the professors keep it although only the most hypocritical reading of copyright law could lead one to believe the scholarship is not "work for hire" with the earnings going to the employer.


Thursday, June 26, 2014

The No Good Deed Goes Unpunished Ring of Honor



My special awards for those who took risks and did something for someone else only to have it bite them in the butt.

1.  The Dean who went out on a limb to support someone's application for tenure, only to be sued by that person on the basis of that support.

2. The dean candidates who studied the UF Law School, flew to Gainesville at least twice, and submitted to days of questioning only to find out the job was only available to one person.

3. The job seekers who replied to a UF law school notice for an environmental law teaching job by sending extensive personal materials only to discover the job was promised to someone else before they applied.

5. The colleague who fought very hard to get a non traditional background person hired only to find that the person was actually greedier, nastier, and less truthful that anyone else.

6. The faculty member who worked hard to pull off a lateral hire only to discover the lateral hire's lack of productivity means he has to work harder.

7. The Whole Foods chain which was sued for overcharging when, what it sells to customers, is the good feelings they get by paying high prices.

8.  The faculty member asked to read an untenured colleague's scholarship, comments extensively, and finds the advice was ignored and the request made after the articles was accepted and ready to be printed.



Sunday, June 22, 2014

Sociology of Law Professors, Never Admit a Mistake: Part 15.



I think it was 1984. I was at a faculty retreat daydreaming (this was before Ipads and wifi) and someone left the meeting and a door slammed. About an hour later the slammer returned and apologized for his behavior. I did not know what he did. Then maybe 10 years ago, a really unpleasant faculty member was found to have penned an email describing us all as loafers. That might be right but at the time she was attempting to be Ms.Congeniality. Busted. She apologized.

Let's see, that's 30 plus years of law teaching and two apologies. Are law profs always right? I doubt it. So what explains this inability to fess up, admit fallibility, show a little humanity. I am not sure. I suppose it is a sign of weakness to apologize and when your culture is one of constant negotiation you never never show weakness.

So I am waiting for these apologies:

1. From the person who knowingly posted an ad for job already filled: "Sorry, I screwed up and embarrassed the School. Won't happen again."

2. From the Law School officials who refused to acknowledge or address the issue: "Yes, sometimes our paranoia is more powerful then common sense. Sorry."

3. From the professors in meetings labeling others as "insane." "I guess that was not helpful. Sorry."

4. From the professor who insists on an interpretation of a committee proposal that is wrong and takes up 15 minutes while people try to explain it and then just goes silent. "Sorry I used up the time of 50 people today because I had not read the proposal. I'll do better."

5. From the faculty member who says a particular proposal is a good solely because that's what they did at his law school or his daughter's. "sorry for taking up your time with a complete non sequiter."

6. From the dean so obsessed with maintaining his job that he could not make a decision simply based on what was right and wrong. "Sorry I let my selfish needs get ahead of my obligations to the school."

7. From the President who abandoned a dean search when the right politico did not emerge as the favorite (which anyone could have predicted) and said he wants excellence but 2 days later ordered the law school to hire someone it would not hire in a field that is covered. "Sorry, that does not make sense does it,"

8. From colleagues teaching 50-90 students a year. "Sorry, I am clearly not pulling my weight in the classroom."

9. From the professors giving their work to secretaries and then complaining if it is not done the way they would have done it which they should have been doing. "Sorry, I guess my lack of humility is showing."

10. From the snake who gossips, live in the dean's office, and complains constantly about his or her treatment. "Sorry, I'm a miserable person and from this point on I will not say anything until I have the facts right."

11. From the chair of the appointments committee who lied about the contents of reviews of a candidate's scholarship. "Sorry, sometimes chairs get so invested in bringing in the right candidates they lose their objectivity."

12. From the appointments committee meeting chair who could only interview graduates of two or three schools. "Sorry, I guess a broader perspective would be a good idea."

13. From the small covey of mean people  who ran off a talented faculty member for a youthful mistake. "We are sorry. We let our pettiness get ahead of the goals of the school."

14 From the faculty member who claimed a dean candidate was not friendly to the lesbien/gay community but was unwilling to state why, "I am sorry and as soon as I stop being an a**hole, I will apologize.

15. From the Director of a Program who writes "will you do this?" and then says she has no recollection of making the offer; "Sorry, I had promised someone else and it slipped my mind."

16. From the faculty committee chair who sponsored a candidate and did not reveal he knew it was an inside job. "Sorry, I guess I thought playing ball with the administration was better for my career."

17. From the hiring committee member who told the faculty the committee refused to even consider a candidate but sat in a meeting in which the candidate was discussed at length. "Sorry, I lied."

18. From the colleagues who leaned on me to write a chapter for a book that never came out or came out several years later: "Sorry, I should have told you that it is iffy."

19. From cost conscious usually liberal leaning faculty and administrators who think nothing of dropping thousands and thousands of dollars of the money of others' so they can give ten minutes of off the cuff remarks at some distant location. "Sorry, we are selfish and we will try to do better."

20. From the faculty member who refused to hand over a public document in spite of a written requirement that the document be produced. "Sorry, I guess I got carried away."

21. From anonymous sniping blog commentators: "I'm sorry and I will get treatment."

I guess these apologies will flow in any minute but sometimes I think there really is a course at elite schools called "never ever apologize."