Wednesday, August 19, 2015

What Do I Tell My Friend?

A friend of mine just took job as the head of a corporation which is owned by another corporation. The parent corporation knew its subsidiary needed help and my friend understood this. No one mislead anyone.

But when my friend arrived at the new job here is what he found:

1. Employees were responsible for the product lines to be offered and they always selected the products they personally liked  whether or not there was a market for them.

2. Some employees were paid for full time work but were, in fact, only working part time.

3. Some were paid who actually were never at work.

4. Prior management knew all this but did not address it for fear of a revolt among employees.

5. Instead the prior management was weak and made secret side payments to employees for "extra work" as defined by the employee.

6, If  prior management made any effort to address issues, the employees closed ranks and defended each other.

7. When employees feared one of there product lines might be examined they formed into bands designed to spread disinformation about management and its motives.

8. The subsidiary was consistently out of compliance with some of the basic rules of the parent corporation.

9. The corporation kept no written records.

9. It was impossible to fire anyone regardless of their lack of production.

What can he do?

Monday, August 17, 2015

How Not to Lose Your Tenured Position

[Rerun] 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 of 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 people 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? 

Tuesday, August 11, 2015

Contemplating Crows: Smiling and Reading about Scholarly Impact

One way to know how many crows are on a telephone wire is to count them. If fact, it may be the only objective way to know how many crows are on the wire. What do you know about the crows once counted? You know how many crows there are. Do you know if they are wonderful for people too look at? Are they tormenting some poor kitty cat? Really all you know is the number of crows. What about the impact of the crows? You would laugh if I told you that counting them tells you anything about their impact, importance, usefulness, or whatever.

In the most recent effort to rescue citation counting as a measure of the importance of legal scholarship from being completely disregarded by all but a group of people who teach law, the gang at St. Thomas has published another work that purports to measure the impact of scholarship by counting the number of citation regardless of what what a work is cited for. The jump from counting to impact is a hard one since there appears to be no separate definition of impact. In the tautological world  of citation counting, counting equals impact and impact equals counting. And, impact is reserved for citations by other legal scholars only. Citations or impact on courts (it's all the same thing to counters) is irrelevant. Your school could have 27 Supreme Court citations and 13 citations in the Bosco State Law Review and your school would be ranked higher in impact than a school with 0 Supreme Court citations and 14 Bosco State citations.

And, if you are the editor of a book of, say, 30 articles, you (and your school)  will be cited every time one of the articles is cited, regardless of your contribution, including if it was strictly administrative.

As best I can tell, the authors are really good counters and if one is drinking the from the same punch bowl they are excellent at determining impact. But in many ways, their efforts reveal the results of too much time at the punch bowl. First, in an effort to illustrate that scholarship does not interfere with teaching,  they cite studies showing the absence of a negative correlation between writing and teaching "quality" which is measure by -- you guessed -- student evaluations. My personal hunch is that writing does not detract from teaching but,  I wonder if they missed the numerous studies showing that teaching evaluations by students are rarely correlated with actual learning. What I took from their analysis is that writing was consistent with being a good entertainer in the classroom.

Second, as a demonstration of their objectivity they select the most recent 5 year period completely arbitrarily. As best I can tell this is done for ranking the schools as well as individual faculty. I am not sure it makes sense for ranking schools. For individual faculty, it is to reduce the impact of oldsters like me. In a sense this makes individual rankings more current although one wonders about the difference between one or two citations without regard for judicial citations or the nature of the citation -- in text, an aside etc. (Perhaps a better measure is the sum of judicial and scholarly citations.) The problem with simply counting arises more importantly when they include  new lateral hires who have written nothing or very little at their new schools. What does this mean exactly?  The only thing that it can mean is that the school that was left has less scholarly impact (but how could it?) even though every or most citations are to  works produced at that school. At the same time, the new school gets impact credit even though that particular scholar has written nothing (and may never) at the school to which the impact is now assigned -- so much for the accuracy of counting and ranking the scholarly impact of school or even its current faculty.

Since they must defend the citadel of counting,  they are obliged to take on a recent study by Amy Mashburn and myself attempting to determine not counts (which are highly correlated with where you teach, where you published, and where you went to school) but whether you were cited for anything that seemed to influence another author. I guess you might all this "actual impact" as opposed to "faith based impact" on which citation counting is based. No doubt our effort is fair game, as is any subjective effort. And, as you would also expect from legal scholarship cheerleaders (all of whom are  on the team and almost none of whom are not law teachers)  we are accused of being too conservative in our labeling. For example, if someone quoted someone else as saying "the common law is complex," we did not regard the author of that incisive statement as having a significant impact on the citing author. We were even criticized for selecting a sample composed of the articles most likely to be cited and to have an impact. That critic, who was uncomfortable with our findings, actually suggested a sample of articles that would result in a worse outcome in terms of "impact."
In our work we were particularly worried about hearsay and appeals to authority.  For example, how about this: "Citation counts objectively measure impact," with the following footnote:"See David L. Schwartz & Lee Petherbridge, The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study, 96 CORNELL L. REV. 1345, 1354 (2011) ( saying in study of citations of legal scholarship in court decisions, “measuring the use of legal scholarship by measuring citations in opinions has the benefit of being a fairly objective measure”); Arewa, Morris & Henderson, supra note 7, at 1011 (referring to “objective criteria such as citation counts and the Social Science Research Network (SSRN) downloads” for peer review  of faculty scholarship, although acknowledging these “are not perfect measures either”)."

This is from the St. Thomas article. In a citation count, these citations will be as important as ones noting works the authors actually grappled with. But what are we to make of these citations. Did they influence the St. Thomas authors? I doubt it. Instead it looks like an appeal to authority without any real examination of whether the "authority" is "authoritative." At also represents, unfortunately, a norm in legal scholarship and, also why it gets so little attention outside a small world. What it means is "you should believe me because I found someone who agrees with me."But who knows if they know what they were talking about?  It is, at best, a substitute for real research.  Indeed, when my coauthor and I tracked down some citations, those cited were citing a third party who also cited someone farther down the line. That amounted to a hearsay appeal to authority.

The Mashburn/Harrison work has received a fair amount of attention and, surprisingly, most of it has been favorable. (In their hearts law professors know.)  In that article we challenged defenders of counting to redo our study. The St. Thomas group did not do this opting instead to decide it cannot be right because -- well, just because. Moreover,  no one challenging our work has opted to prove we are wrong by selecting an article and indicating how each cited work was influential or did not fall in the hearsay category.

The bad news is that that the authors may be right. Citation may equal impact. If so, based on the research methods widely used by law professors, we are in even bigger trouble.

PSS: A thought passed on to me that can be summed up as "so what."  Suppose citations do equal scholarly impact. One law professor influences another and so on. There is hardly anything useful going on unless that impact is felt somewhere outside their closed group. Unless you assess that, you have no meaningful measure of anything.

Wednesday, August 05, 2015

Laughter and Respect

I am experiencing a relatively rileless summer. Some have noted that this is correlated with the departure of side-deal dean. I tell them correlation is not causation but, on the other hand, it does not rule out causation.

But this is not really what this post is about. It is about two different things. Yes, two for one and if you call now, you will get a pocket sized fly fishing outfit. Operators are standing by.

Laughter Lately I have been thinking a lot about laughter. It's that odd hacking sound people make when they find something funny. Surely evolutionary biologists have looked into this. What is the  function of genuine laughter? Why didn't we evolve to click our teeth  or flex our toes.

An aspect that is particularly interesting is laughter inflation.  It has devalued real laughter. I am talking about social laughter which is not an involuntary reaction at all.  It's a way to recognize others, make yourself seem impressed or non threatening, or just a way of saying I am jovial, fun loving, or what ever. It is a form of signaling. So, instead of saying "Hi, I am Phil, this what I want you to think I am like," you act it out.

I notice this at faculty meetings where there is a fair amount of nervous laughter -- "yes Phil, I am getting ready to say in coded terms that you are a idiot but I am just a nice guy." See, hear me laugh --ha, snort, ha, ha!

I was on a ship the other day and seating near a group of 10 guys just getting to know each other. It was either a laugh riot or a laugh off. Everyone seemed to signal to others that they were good guys by laughing at whatever anyone said that was within a mile of being funny. I think there must have been prizes for first laugh, loudest laugh, longest laugh, and last laugh.

After several days of meals and several hours of hanging out with each other, I noticed the laughter was infrequent. Did they all use up all their jokes? Naw, after about 40 hours of eating together the personality "marking" was over. Each had done what he could to communicate why he was likable and the other had bought it or not. The "laughter" had served its purpose

I also see it with my wife. It's  never in response to anything I say but in response to someone she does not know that well. They can say,  "Do you want a nickel, go get a pickle" and the deep laugh comes on and goes on forever or maybe it just seems forever.

Now laughter is spoiled for me. Am I laughing because it is funny or is it signaling? Are you laughing because I am funny or because you are telling me something about yourself. If it is the latter, please keep it to your self or email it.

Respect: A little over two years ago I wrote a post in which I said I respect people in inverse relationship to their power, status, and income. Yes, there can be false positives and false negatives but it's a really good starting point.

One of the things that can help you spot false positives and negatives is the way people treat secretaries. This is not fool proof. Some will be sweet as can be because that is the way to get what they want. On the other hand, those who treat secretaries badly drop off my chart of people who deserve even an atom of respect. In fact, the first level of a**holes on your faculty are those who treat the secretaries in a disrespectful manner. You might be surprised about who is "outed" by the secretary treatment check list.

Sunday, July 19, 2015

Is it Racist? I Do Not Know

A recent study shows that, when you hold constant for nearly everything imaginable, minority students, on average, receive lower law school grades than white students. This has some commentators , who find the study "carefully done" and compelling, wringing their hands about what can be done.

I have no doubt about the outcome of the study but the actual color of the students -- since there is blind grading -- cannot be the cause.  Unless I missed something in high school biology, there is no correlation between pigmentation alone and anything else. There is a causal factor, to be sure but, before coming up with solutions, how about putting social class into the equation or anything that can actually explain the outcome. 

 There is something going on and studies like this do make while people feel righteous but they are useless at identifying  specific remedies. Plus, as with all  averages, unless one is ready to say every minority student, even those who made high grades, suffered the same level of disadvantage, generalized findings do not lead anywhere.

 Increasingly I think white liberals want to classify deep social issues as exclusively matters of race. This means they can continue to ignore matters of class -- of which there is a great variety within races --  more generally. The reason for this is easy. Class differences, more than race differences, are responsible for their successes and we would not want the legitimacy of their success questioned, now would we?

In fact, something makes me uncomfortable about the use of race as a variable in a study about grades or scores that are blind graded. Some of that discomfort comes from the possibility of stereotyping -- minority students do worse can too easily become all minority students do worse. Or, worse yet: Since you are a minority student, you will do worse.

Thursday, July 16, 2015

Commercial Monetary Policy Conference

I have been in hot water lately with most academics because I took a vacation and did not figure out a way to get my School to pay for it. Several faculty complained to the Dean. I  was so out of line, I complained about me.

Problem solved. I was checking out of the 7 room Volcano Hotel and asked if they took US dollars. They do but I did not quite have enough to cover the tab. Together the manager and I determined how many dollars and how many Iceland Krone (the coins are so cute, the have fish on them, more fish more value).

We took some time and  I realized we were having a CONFERENCE on Contract Law and International Currency. And, it was kind of a conference version of cinema verite. So I had some programs printed up and they looked like this:


July 15, 2015

Volcano Hotel  (about 10 miles west of Vik,  Iceland)

Meeting Room: Check Out Desk in Entry Area

Speakers: Jeffrey Harrison
Jeff's wife, Sarah

Papers Delivered: On the Complexity of Dividing Everything By 750.

Skype is available for those unable to attend.

Registration Fee: $500
Late Registration $300
No Registration $200.

Tuesday, July 07, 2015

Competition and Consumer Surplus and unSurplus

Is there another area of law so buried in an outmoded analysis as antitrust? My goodness, allocative efficiency is "wealth maximization" labeled differently. Richard Posner made a disasterous effort to claim wealth maximization was tethered to a desirable normative outcome and got clobbered for it in the early 1980s. It was not that hard since wealth maximization was cobbled together by Kaldor and Hicks in the last century to support a claim that economics could be an aid to forming public policy.  It can be, but no one has figured what it is saying.

Stranger than allocative efficiency is consumer surplus. It is the different between what you must pay for an item and the most you would have paid. The problem is "most you would have paid" is assessed before you actually pay or know the outcome.  So it is your hunch about the how happy you will be about making the purchase.

That is hardly any surplus in any rational sense. Consumer surplus should be the difference between what you paid  and the how much you valued what you actually got. A good way of showing this is the graph above. D1 is the usual one based on expectations. D2 based on the most you would have paid had you know what the experience would be like. Yes, this reflects disappointment. The curve could shift up or even stay the same. My hunch is that shifts down because sellers are so intend on raising expectations. In time the market night draw the curves closer but who knows?

As you see, the consumer surplus as traditionally described is PCA. Experienced consumer surplus is PEB. Lower, right? No  it is even lower than that.  All those who bought units Q1-Q2 actually are worse off (negative consumer surplus). That loss in consumer surplus must be substracted from PEB. So actual consumer surplus is PFDB. Yet antitrust policy is designed to push purchases out to Q1 when Q2 is actually more consistent with maximizing consumer surplus.

Of course, I am just playing around with some ideas suggested by the work of Kahneman and others on the difference between expected or decisional utility and experienced utility.

Thursday, July 02, 2015

The Elusive Excess Capacity on Law Faculties

Alternative Title: "I would do anything for law but I won't do that."

Yesterday I blogged that I have never heard a law professor say "great job, I am only working at 60% capacity." It was in the context of hard working law profs who seem to have unlimited time to do more but only if it means a little extra dough. If there is no extra money, they are currently  fully employed. The problem has a Catch 22 element to it. If they have extra time to pick up some extra coin then they actually do have excess capacity.  If there is no money involved, they have no excess capacity. So which is it? And, if they have excess capacity but only if there some extra money involved, how about a refund for all those years they were not working full time.

When I though about it, I realized I was wrong that they never say I am only working at 60% (which is another way of saying I am overpaid.)  I can think of three examples.

1. At my School we have the usually array of foreign programs. I think they are required to break even or make money but I am not sure that happens. But how about this argument for how to make them profitable -- staff them with people who are already on 12 month contracts. That way you do not have to incur the marginal costs usually associated with staffing those programs. But . . . .but . . . . but. Weren't those administrators already fully employed to earn their base salary plus 33%  more. Well, were they or not?  I mean if they can go away six weeks this year, could we please get a refund for all the times they did not go away because obviously they were not fully employed.

2. We run a massive externship program. It's the program where students pay the school and firms employ the students but do not pay them them. Yes, it's a pay to get to work program. To boost law school revenues someone got the bright idea to pay professors several thousand dollars to line these things up and to chat with the students from time to time. But wait, some of these folks also teach or do research in the summer. But suddenly they had excess capacity when there was a chance to pick up some more money. I am pretty sure at my school you can teach, do research, and do the externship things and get paid for all three. Plus, if another money making opportunity comes along there will be plenty of excess capacity for that.

3. From time to time law schools hire staff people for various institutes to write grant proposals and do research. That's all fine. They are full time employees. Then they propose to teach a course and it is approved and life goes on. If I teach a three hour course I devote as little as 5 hours a week to it a week and as much (I hate to admit) as many as 12. I assume these staff/teachers are the same (unless they are into asynchronous taping.) So what were they paid for before?  Weren't the fully employed. If not, will there be a refund?

Law schools seem to have unlimited excess capacity but it never appears until someone wants a side deal.

Wednesday, July 01, 2015

Just When I Was Losing My Rile the Side Deal Came Back

News of yet another side deal [I was going to list all the possible side deals but it would explode the internet] at my Law School came just in time. I had just about lost all my rile. It  felt pretty good not having rile but my rile rallied.

My Rile O Meter went up when I thought:  what  happened to just having a salary. For example, suppose I am making $200K a year and someone suddenly does not return in the fall and the course needs to be covered. The dean may ask me to do it. Should I be paid more? Why? Clearly, if I teach the course I will cut back on research and committee work.  Doesn't it work out? Of course, if I were not working at full capacity and am asked to teach one more course, I could do it without cutting back. That raises another issue and I do not claim to have an answer: what is full capacity for a law professor?  Is that even a relevant question?  Have you ever heard a full time professor say: what a great job. I only work at 60% capacity.

Let's say I worked at the local grocery store as a stocker. Someone does not show up in the deli that day and the manager asks me to move over to the deli. Does that person get to say, "sure but only for another $5.00 an hour." Of course not -- you cannot stock and make subs at the same time. So what is it about law professors who want to cash in anytime there is something different? 

This comes into play at my school where have the wacky program called super sabbaticals. We all get a semester off with full pay every 6th or 7th year. Or you can take a year off with half pay. There is some nominal requirement that you do scholarship. Perhaps it is more than nominal. A third possibility is a year off with full pay if you teach an extra course the year before. If you normally teach 9 hours, for that year you go to 12. A nine hour load is what you get if you claim to be doing research. Plus, the extra course can be on BOGO. Yes you can tape a course and that can be your extra course even if it is broadcast while you are in Africa and again and again.

So back to the stockers and deli.  For 9 credit hours I am a stocker and for 3 I work in the deli. Now the boss comes along and tells me if I will spend all 12 hours stocking and 0 in the deli,  I can have a year sabbatical with pay. But wait? Did I actually do anything more that I was doing? I can't teach (stock) 12 hours and do the same amount of research(deli work). How did I earn anything? If you think about it, the whole super sabbatical idea could be seen as based on the notion that everyone is underemployed.

If I had my way, faculty would be on 9 month or 12 month salaries and, aside for summer grants for truly doing something in the summer, that would be it. All this extra for this, extra for that, makes no sense.

Of course if I had my way, I would see and live that  new play Intimate Fantasies.

Wednesday, June 24, 2015

Dale Carnegie and Me

I had a beer in the early 50's with Dale Carnegie. Well not exactly. I did listen to a Teaching Company tape on American best sellers and one of the lectures was on the book How to Win Friends and Influence People. It's possible the lecturer read the book so it's the same thing without the beer  and without Dale. Warn water  was what Dale actually had.  As I recall,  he dipped a tea bag in it for just an instant.

I seems that Dale was all about getting your way by getting people to like you. I guess I wish we had spoken to each other before starting this blog but that is a different matter.

As I listened to Dale or  to the person on the tape who had probably read the book or who I just liked ( because he had Carnegie-likeablity) so much I did not care if he had or not, I thought about-- what else -- my job and the folks who are successful, particularly in administration. I don't mean actual successful administrators but people who move up in the administrative ranks.

Here are some of the best things I learned from Dale:“You can't win an argument. You can't because if you lose it, you lose it; and if you win it, you lose it.” [I do not think he had lawyers in mind.]  Wow is that ever true. Did you ever know a "successful" administrator who argued. It would not matter about what or which side. If you want to be an administrator, do not disagree with anyone openly because eventually that person will be called about you. Of course, Dale was mainly interested in sales and law school administrators . . . oh, that is sales too.

Dale also said,“I have come to the conclusion that there is only one way under high heaven to get the best of an argument— and that is to avoid it. Avoid it as you would avoid rattlesnakes and earthquakes.” Did I mention Dale tended to repeat himself. Maybe it was the tea, Maybe it was the tea.

I think the most important thing he said was "A barber lathers a man before he shaves him.” Did I say "most important? Well yes I did. If you have short term memory issue just look up one line. I think I meant to write "most unnerving."

I realized that Dean's must have read Dale's best seller and learned from it. Of course, they also benefited from the Peter Principle but the PP alone won't do it. For the PP to work, you have to be liked. People have to buy what you are selling. The PP and making yourself liked are all it takes.

Saturday, June 13, 2015


If all goes as planned, on July 1, the ninth dean of my law school teaching career will start her tenure. I don't think it is right to talk about people behind their backs so here are the names of those former deans:

1. Champagne Man
2. Smooth Operator
3. Pippy
4. Graham Cracker Lindsay
5. Little Ricky
6. Publicity Hound
7. The Can Kicker
8. Grumpus
(Number 9's name at this point is Hope.)

Only two of them were God awful. One handed out semesters off on the basis of standards that were never clear. Another was the king of side deals so much so that if you had only one side deal you were being screwed. Those two had in common a dislike for transparency and straight talk.  I suspect that there were issues of transparency with respect to all  of them but the lack of transparency was so complete that you could not even see the smoke screens. I would love to see all but the last one in the ring for an all out Texas Grudge Match.

Starting with Pippy they were mostly a jumpy lot and good examples of the Peter principle. By jumpy, I mean a really big consideration was "but what will the faculty think." That is an important consideration but at least 4 of them would have asked that before rescuing a drowning puppy.

The odd thing is that I cannot think of one of them, even the awful ones, who did not seem like a decent person. Outside of the law school environment I shared some laughs with almost all of them. Thus, I wonder if there is something inherently corrupting about being a law school dean. A good friend of mine believes that is the case. At some point even the best intentions with respect to fairness and transparency seem to fade. Put differently and more harshly, they sell out. If they had the best intentions with respect to fairness and transparency they cave in. They usually cave in to faculty demands some of the most outrageous of which will be the subject of my next blog.

Since I have only taught at two schools I do not want to generalize but maybe, rather than being flawed, deans mirror their faculties. Take the same deans, make him or her dean at a law school, if there is one, in which the crowd (to use a term another colleague used to describe the one at Uf) is not as "rough" and most of those former deans might have "different" deans.

This is a fairly tenuous theory but could it be that deans, whoever they are, are ultimately faculty mirrors. In the case of my law school, the nature of the deans changed at a point when the faculty took a turn to the nasty side. It's pretty clear that no law school can become better if the dean is simply a mirror of the faculty.

The kicker is this. If deans begin to mirror their faculties and the deans fall out of favor, isn't it really an exercise in faculty self-hatred.

Here's hoping our new dean does not become the faculty, that side deals are over, transparency restored, and that those who object move out.

Wednesday, June 10, 2015

Wasteland in the Law School Industry

Several years ago I wrote an article equating law schools to a form of regulatory capture. As in the case of a captured regulated utility, law schools seemed to be run for the benefit of the faculty -- those supposedly regulated. Think of it having shareholders stilling on a panel deciding whether the utility in which they own shares should be permitted to raise rates. It's not quite that bad of course. Ultimately someone else holds the purse strings. But the day to day use of those funds is clearly faculty not student oriented although sometimes those intersect.

I'm sure others disagree and I hope they are right -- law professors  just want what is best for the students even if it means working longer hours, taking a hit as far as teaching evaluations, giving up some pet project to pitch in for the benefit of the school, and not spending hundreds of thousands confercating.  [OK,  enough of that.]

One thing, though, that seems completely out of wack is the massive advertising budgets found at public law schools. I know some of this is for fundraising but much of it seems to be designed to make the schools seem more attractive to applicants. Some of it makes lawyer advertising look dignified by comparison.  So money is spent to find people to accept a school's subsidy. Huh!  Or students are actually paid to go to one school as opposed to another.

That seems crazy to me but lets suppose the competing schools are both state schools in the same state. In my state, the chief public law schools are UF and FSU. Other states have the same set up -- Arizona for one. It may make sense to have to have more than one  state law school in a state as large as Florida although locating them as far away as possible from where students  live and have always lived seems odd.

But now look where we are. FSU and UF draw mainly from the same pool of in-state students. Probably FIU should be in the mix as well.   I would bet that the quality of education from all three schools is equal. So whichever one the student chooses, he or she will leave in three years with the same thing. Yet, all schools spend zillions on attracting students with glossy publications, orientation programs, accepted student days, follow up phone calls and, in some cases, straight up payments.

Obviously all the money spent has nothing to do with students.  Instead about the institutions as ends. Who benefits from the spending -- not the students, not their clients, not the taxpayers. What a waste.

Tuesday, June 09, 2015

Pet Rocks: James and the Giant Weed Machine [embedded trivia question]

Within minutes of posting yesterday's piece making a wee bit of fun of the idea of having a program called "Law and Mindfulness," I was told that  such  a program does exist. I thought immediately of the Pet Rock or, more precisely, is this another law school marketing gimmick, a  fad, or is it something else.

First, though, this is not a rant against mindfulness although I am happy to find no one still claiming it has any connection to the ideals of Buddhistism. After all, mindfulness, as it is currently marketed, is as useful to a monk as it might be to the most materialistic money grabber or serial killer. In fact, it is the emptiness of a moral component that puts me off but that is another matter. At least an honest economist will concede the same emptiness. In fact, mindfulness and economics are made for each other -- efficiency is the goal.

Mindfulness is taught at my law school but we do not have a Center, at least at this point. But here is what I do not get. If mindfulness is good for you in terms of everything from killing on the battle field to tending to the poor, why is it part of a law school as opposed to a core course for all  students. I mean, everyone wants to do whatever they do better.  Right ?! Of course, they do!

But there are many things that can help you do whatever you do better. Perhaps, for example, a little weed "for your personal use" [imbedded trivial question] would relax you and make you more effective. I don't see any weed machines but they are much more effective than comfort dogs which we do have. How about a good night's sleep, good nutrition, exercising,

Nevertheless, if law schools are now in the business of replacing the self help magazine aisle at the local bookstore I have a few suggestions:

1. Install Weed dispensers.
2. Install sleep pods and have someone lecture on how to sleep well or, in the near future, develop a Center for Law and Sleep.
3. Basic Nutrition 101.
4. Exercise for Law Students 101
5. Proper Pet Care for Law Students 101

 I imagine a perfect law school Center with the label "YOU." Students who complete 15 hours in YOU courses get a certificate. They can then join that with 6 hours outside the law school, 6 hours of independent study, and 12 hours of pass/fail courses, and 34 hours of externships for which they are not paid but the school is (go figure).

Intimate fantasies: a four act play (and coda)

Intimate fantasies: a four act play


Dean DeSpenser: Reginald Yu
Professor Been Madov: Clifford Irving
Professor Prince Towne: Jake Oz
Professor Kennedy Armstrong: j.j. Getty
Professor Ann Colt45: Fawn Hall

In tonight's performance the role of Professor Prince Town will be played by Hank Hu.. Mr. Oz was called away to a conference in Costa Rica with the highest level people.

All scenes take place in a well furnished office at a moderate sized law school. The plaque on the Door says "Dean DeSpenser." Each scene begins with a knock on the door.

Act 1

The Dean: Yes. Come in.
Professor Colt45; Hi Dean, I see you are busy as usual. I was just telling everyone in the Lounge that you were once almost cited by the Supreme Court.
The Dean: Actually I was almost cited 300 times but go on.
Professor Colt45: I want to present the School with an opportunity to host a conference on International Patent Law and its Implications for SubSahara Africa.
The Dean: Now there's an idea.
Professor Colt 45; Only the highest level people will be there and with airfares and lodging I think I can do this for $50,000.
The Dean: Conferences! --- why didn't I think of that? In fact, several people who have not asked since they are not as , , ,  energetic as you may have great ideas for conferences. I'll get a memo out right away asking for proposals. Please include yours when you get the memo.
Professor Colt45: But Dean, suppose you get many proposals and there is not enough money for mine.
The Dean: My point exactly!. Hey, I think I hear your mother calling you.

Act 2

The Dean: Yes. Come in.
Prof Madov: Hi Dean. You are busy I see but this is really an important opportunity for the school. In fact, I was just talking to Obama and he sends his best,
The Dean: [Yawning.] My my,  you know so many people and I am so impressed. Go on.
Prof Madov: I want to offer a course in Reading the Law in Flemish. The problem is I do not know Flemish but I an eager to learn so I think the school would be happy to sponsor my Flemish lessons.
The Dean: Intriguing
Prof Madov: I've draw up a budget. $3000 round trip airfare to Holland. Room, board, etc. It all comes in at about 150,000$ not including the actual lessons.
The :Dean: Fascinating idea, Been. I am thinking there may be others who want to learn a foreign language but did not think to ask. And since we cannot fund everyone, I'll get a memo out to the faculty indicating that we will consider all proposals.
Prof Madov: But Dean some people may apply who have really bad ideas
The Dean: Thanks for that tip. Somehow I realized that already.  As soon as the memo goes out, please send your proposal.

Act 3

The Dean: Yes, Come in.
Professor Towne (walking with  a slight limb): Hi Dean, Golf game Ok? I wish I had time for golf but, you know me --- work, work, work.
The Dean:  I do not play golf. So what's up Prince?
Professor Towne: Dean, I have  used my travel allowance for the year but now how an opportunity to attend a conference in Prague on Post Modern Contract Law.
The Dean: Used it up. On what?
Professor Towne: Oh yes, I did spend some on the AALS convention. And then there was the Conference in Rio during Carnival which was on Carnival Law. I co chaired a session by Skype from my cabana,   Now this Conference has come up at the last minute and my secretary neglected to tell me about it.
The Dean: It is really important for us to attend conferences but I wonder if other people have used their funds and might want a supplement. I'll get a memo out saying we have a little extra travel money and asking others indicate if there are important conferences they might like to attend.
Professor Towne: But Dean, if they did not ask evidently they did not think it was important.
The Dean: Yes, on the other hand, Maybe they took me seriously when I said there was no extra money so didn't ask.

Act 4

The Dean: Yes, Come in.
Professor Armstrong: Hi Dean. Thought I could find you here. I just saw the Provost and he said this is a great idea to bring up with you.
The Dean: Did he say it was a great idea or that it was a great idea to bring up with me.
Professor Armstrong: Oh, good question. It is a great idea and I'd like to give the Law school a chance to get on board.
The Dean: My ears are your ears.
Professor Armstrong: Many of the student want us to begin a Center on Law and Mindfulness. I will, of course, be director to get things off to good start. And then we will need to hire a couple of junior faculty, and a secretary.
The Dean: Law and Mindfulness? [said with wonder]
Professor Armstrong: First Dean let's think about breathing. [silence for 60 seconds] Now [talking very fast and loud]. Law and Mindfulness raises issues of malpractice, licensing. and ethical issues. For example, should mindfulness be taught to a serial killer who just wants to be more effective in his work?
The Dean: Kennedy, Kennedy! Hold on, hold on! You've convinced me. And you know what? There maybe other people who can think of new Centers. Maybe we should decide among all the possibilities, not just yours. I'll get a memo out to everyone asking if they have ideas for enriching the student experience and you be sure to apply.
Professor Armstrong: But, But, Mindfulness is so important!
The Dean: Yes, Yes it is. And it will be considered. So why don't you try to relax and I'll be back to you.

Intimate Fantasies: A Coda [from an anonymous contributor]
Scene takes place in around a table in an expensively furnished restaurant. Madov, Towne, Armstrong, and Colt45 are all seated around the table in relaxed postures. The table contains the remains of meals, half-full wine glasses, and at least two empty bottles of wine. A well-dressed Waiter stands at Madov’s elbow as the scene begins.
Waiter, holding out a check folio to Madov: Here is the bill, sir. 
Madov waiving a credit card at the waiter, rudely: Here, just put it on this.
Waiter takes the card and Madov immediately ignores him. Waiter walks off stage left. 
Towne: Was it expensive?
Madov shrugging dismissively: I just charged it to the card the school lets us use for conferences.
Towne: Oh, right, of course. What was I thinking?
Colt45 interjecting loudly: But, like I was saying, DeSpenser needs to go. I’m sure he didn’t take my proposal seriously because I’m a woman! He just rejected it out of hand! It’s so blatantly sexist.
Armstrong: Oh, I entirely agree. I think he’s probably a homophobe too. Why else would he reject so progressive a suggestion as a Center on Mindfulness?
Towne firmly: You should tell everyone on the faculty. Who knows what other sentiments he secretly harbors?
Colt45 proudly: Oh, I already have!
Armstrong also proudly: And I sent an email about it to the list-serve for my entire field!
Waiter emerges from stage left, looking nervous and holding the check folio in one hand and the credit card in the other. He walks very slowly over to Madov, occasionally checking the inside of the folio.
Towne: That’s great! The whole school should know about him. I can’t believe we all voted to hire him last year.
Madov: I think we should not lose sight of how serious a threat to our academic freedom he has become. This is indefensible!
Waiter leaning over to Madov and in stage whisper: Excuse me, sir.
Madov ignoring Waiter entirely and forcefully tapping the table with his finger: I am going to write a letter to the ABA explaining how DeSpenser is prohibiting us from taking professional development courses. 
Towne: And prohibiting us from going to important conferences!
Waiter, still leaning over to Madov (stage whisper): Pardon me, sir.
Colt45 ignoring Waiter and speaking to Madov: I’ll sign that letter! Just be sure to list everything.
Armstrong also ignoring Waiter: Me too. That sounds like a great idea. 
Waiter standing up straight and in regular volume louder now: Sir.
Madov still ignoring Waiter: Maybe we can get someone to blog about it . . . 
Towne: Wonderful idea! 
Colt45: Absolutely!
Madov: After all, this is about more than just us.
Armstrong: No indeed! This is an attack on the very soul of our law school.
Colt45: On the rule of law itself, really.
Towne: The world really does need to know all about this.
Madov: Right, so I will write it up. You talk to the other faculty . . .
Waiter loudly: Sir!
Madov turning slowly to look at Waiter, with a disgusted look on his face: What? Could you not see that we were in the middle of an important conversation?
Waiter holding folio and card out to Madov in one hand: I’m sorry sir, but your card has been declined.
Freeze. Lights hold for five seconds, then down. 


Monday, June 08, 2015

Why Law Schools are Mismanaged

Four factors account for disastrous law school management.

1) Allocations based on Asking.
2) Deans with Little Relevant Management Experience
3) A Dean's Term is directly related to the number of "yes" answers given.
4) Limited Resources.

1. I have noted that  law faculties are composed of asker/demanders and others. Asking is correlated with a sense of entitlement because most people do not ask for things unless they think there is a good chance the answer will be yes. The children of privilege, who dominate law teaching, have been hearing "yes" since they were born so they ask for more and, the way law schools are run, they receive more. Some folks may think this is just unfair but that is not the only problem. The problem is that it is very inefficient. As far as I know, no one has ever shown a correlation between the willingness to ask and any measure of the benefits generated by the funding or accommodation that is given.

2. Good or mediocre Professors Become Deans;  I have yet to know a law school dean who really understood much about allocating funds to get the most of them.  It's always puzzled me that most law school deans come for the ranks of the planning/math/human relations/seeing-the-big- picture impaired. If its a big law school, it would be like Wendy's looking for a new manager but saying "Prior food service experience disqualifies you." Put the "allocate to those who ask" problem with the "no prior management experience" qualification and you just need two more factors to create a catastrophe.

3.The length of a deanship depends on the ratio of yes to no answers a dean gives regardless of merits. The reason for this is easy. Deans serve at the whim of faculty. Faculty who hear yes most of the time like the dean. Those who hear no, do not. Remember, this is yes or no to the "askers" and it is without regard to whether the yes or no was a good idea from the standpoint of the institution.

4. There is that annoying little issue of limited funding. Yup, saying yes to everyone who asks means passing on better opportunities. A yes in September may mean no in May. Actually, I need to rethink this. More funding might mean even more bad decisions. Hmm.

You might ask, "How would a Dean know about better opportunities if people don't ask." That's so easy I cannot believe you asked but, since you did, how about this. A person of privilege, because it would not occur to anyone else, asks the dean to pay for his foreign language lessons. The Dean could say yes OR could, before doing that, say "You know what. It may be a good idea for faculty to learn a foreign language but we have 7 people who speak that language but no one who speaks _____. Let's see if learning ___________ would help anyone in his teaching or research." And then the Dean  writes a memo to the faculty that says " I think we should pay for foreign language lessons. If  interested let me know by writing a proposal indicating how it would help you in your teaching and research."  Obviously, the "ask" system means not even knowing if there are better opportunities. .
So let's review and, yes, the test is open book but not any book, only one by Michel Houellebecq.

The tendency to ask is not correlated with anything useful. Deans' allocate to those who ask because they stay longer if  they say yes, Ergo, Deans stay longer without regard to the actual usefulness of what people do with the money. This means crazy foreign programs, vanity courses. paying ten times what is necessary to supervise externs, unnecessary centers and directors, massive outlays for all manner of travel that is only important to the traveler (and his or her family) , etc.  On the other hand, very useful things that are not asked for are  unnecessarily ignored.

The system is rigged to fail unless you are a Dean or a faculty member with a powerful sense of entitlement. But wait maybe the system exists for them. In that case it's working just fine. In fact is very well oiled.

Sunday, June 07, 2015

Bratomania!: Sociology of Law Professors, Part 17

Many blogs ago in this series of sociological observations, I noted that that in 30+ years I have only heard a law professor apologize twice. There has now been a third occasion but I don't thing it was serious enough for an apology. Oh, wait, in a way maybe that is why it was forthcoming. In any case, they do not apologize because in their minds whatever they do is explainable and apologies are a sign of weakness (real ones, that is).   People with a sense of entitlement never, never apologize.

Something else I realize now is they abhor transparency. This is all tied up with the asking/not asking distinction which is very much class determined. Here is very old example, A working class kid from a state school through some miracle gets an offer to teach and is told there will be a $2000 moving allowance. In the very same hiring season child of privilege gets the offer and the same moving allowance. The working class kid's reaction: Holy mackerel, they  are going to pay my moving expenses. The entitled kid immediate contacts the school and says; "I cannot not possible move for that. I need several thousand more." Ok,  that is a true story and I see it repeated among facutly, students and other people all the time.

The non privileged  ones do not quibble over teaching assignments, hours taught, or side deals. They have never been in a world in which people are so important, in their minds, that they are given special consideration. They are as one friend described it "suckers" and another "dopes." The privileged ones on the other hand want more money, more travel money, more secretarial help, and to  teach exactly what they want to teach when the want to teach it. They have ways to justify the most outlandish demands and deans typically cave in, especially who mistakenly view surviving as and indicator of success. .

Put there is one more ingredient, They know that what they ask for can not be for everyone so they ask and receive privately. Their view on administrative decision making  is not more or less transparency. It is more transparency for everyone else and no transparency when it comes to them, It's got to be that way.

Isn't this just the way American works. Some people have actually bought into the notion of fairness and that equal production means equal treatment. It is no mistake that these are the least well off people.  Others know to ask in a manner that suggest there is only one answer -- Yes. To make matters worse, there is no balance on Law Faculty. The askers/demanders out number worker bees  by 10 to 1.

I do not think this is hard wired. It must have been learned first from parents and then from teachers.  Wouldn't be fun to find the parents of each one of the brats and tell them their precious little brat is a greedy pig with a sense of entitlement.

Friday, June 05, 2015

The Blue Book Value for Law Professors

I have argued on this blog that about 95% of law professors are fungible. I do not mean they are the same but that they are replaceable. Of course 100% them are literally replaceable but, at least at the schools where I have taught, there have been only 3 professors whose loss would have mattered much. Only 2 of those left.  By "mattered" I mean in terms of teaching, research, and elevating the faculty generally. In fact, one of the things I noticed right away when I got into this job is that no matter how much talk there was about the downside of losing someone before they left, once they left their names were rarely mentioned, their courses were taught, the students noticed no difference, and they were increasingly referred to as "what's his name."

There are three  qualifications here, First, very few people have actually left schools where I have taught, When they did leave it was viewed, in many cases, as a blessing as opposed to a loss. And, frankly, many of us were left scratching our heads when the dean struggled to keep some people,

 Nevertheless, where I teach, I have heard there is a policy to match offers from better schools, whatever that means, In fact, except in one case, it appears we match all offers, I doubt we are any different from other schools so,  what is this obsession Deans have with matching offers from other schools. I think the answer lies in behavioral economics but I am not sure. 

Any automatic offer matching policy is just another example of mismanagement, First, you may want the person to go, so why on earth match the offer? Second, if the offer is for  marginally more than the professor is making, he or she is not going to go for the money,  I would call the bluff of everyone who comes in with an offer than is not at least 10k more than they are already making. On the other hand, if it is a better location or a better environment, they are likely to go anyway. I remember once getting an offer to go to a much nicer place but for slightly less than I was making, I wanted to go and asked a friend what he thought, He said, "I would not live where you live for $4000 more a year." He was actually giving me a lesson on psychic income. and I believe that plays a role in most moves that actually occur. Anyone who would leave for a marginal increase in salary only should be permitted to go because he or she is not that smart. Things change and funding may dry up at the new place and get better at the old place, 

There are so many inconsistencies with the offer matching practice. If it reflects a policy that we will only pay you what the market says you are worth, then everyone who does not get a matching offer each year should, I suppose, be taking a pay cut. I  agree that is crazy but why does the market matter in some cases and not in others, Plus, suppose someone is making 120K at one school and gets an offer for 130K from another and the Dean matches it. Shouldn't the faculty member  be entitled to substantial back pay since the Dean has just admitted that the faculty member was previously being paid less than he or she was worth?  I guess that sounds crazy too but it all leads back to simply paying people what they are worth in the first place so they do not need to  peddle their wares elsewhere to determine a market value.

What we really need is a Blue Book for law professors. First you identify the model -- years of experience, courses taught, students taught -- and then account for mileage which would be amount of relevant writing and any accessories,  Of course, the roles are switched from the car example, Faculty are sellers -- some with the morals of a used car dealer -- and Deans are the buyers.

I'll never understand the fear Dean's have of losing people, even the least impressive people, When confronted with a faculty member with an offer from another school there is only one thing a Dean needs to decide -- what will it cost me to get someone to do what you do. In my years of teaching, I have seen only a few people who deserved to have an offer matched. The rest could have been replaced for less. 

Thursday, June 04, 2015

The Side Deal: Avoiding Transparency

A colleague at my law school has been schooling me on the side deal. It's not that I did not know they existed. If I had not known they existed, all the exposure of UT's "loans you don't pay back" would have enlightened me.

I am most interested in the forms of side deals and the motivation.  First, though, what is the side deal?  Say everyone gets a base salary and then a summer stipend ranging for 15% to 21% depending on whether you do research or teach in the summer. If you teach it varies with the credit hours. These are not side deals because the amounts are easily found and are available to everyone who complies with some basic rules -- write something in the summer.

Two other compensation  "deals" are probably not side deals even though they are not available to all. Some folks have chairs that add to their base salary. Some people are on 12 month contracts. As far as I know these are not kept secret and everyone has a chance. Others get paid (a finder's fee) for supervising externs. At my school, however you cobble all these things together, your summer salary must not exceed 33% of your base salary. But if one of your side deals can be eased over to the base salary you can actually have all the summer deals you want.

Their are two characteristics of a side deal. First, administrators would strongly prefer not to reveal them which means, if you are interested, you have to dig around. Second, they are customized --something the law school would not have done if just trying to be the best school possible. Instead it only exists because of a desire to benefit one faculty member

A side deal could work like this: You have your base salary and your summer stipend and then the pot is sweetened by a payment that comes out of another budget line that no one would be likely to examine. For example a full time professor may be also found listed as an adjunct for teaching a specialized course that created for that person alone. Or, as we had at one time at my school -- the mystery leave. They seemed to be handed out to whomever was supporting the dean at the time.

Some side deals come in the form of release time, small sections, vanity courses, and directorship of yet another meaningless center.  You might say those are not secret so why are they side deals. First, in some cases, it is difficult to determine what the deal is exactly. The main factor, though, is that it is a custom deal.  

More interesting than side deal and all its manifestation is why are they so popular with law deans -- or at least some Law Deans or, perhaps, former law deans.

One reason they are popular is the personality of most law professors -- everything in life is a zero sum game and the weak knees of deans So the Dean may feel that Professor X should get 2K more  than professor Y but realizes that Professor Y will have a melt down if he or she knew that X was making more than Y. So, the side deal allows the pay increase without causing Professor Y to have a breakdown or to  file a lawsuit. Of course, and I know this is the craziest thing ever, the Dean could actually be prepared to defend a salary difference.

I will have more to say about the ridiculous matching offer obsession in the next post but sometimes Professor X gets an offer from another school (at my school, usually one you would never take) and the Dean matches it, This can be a front deal or a side deal. A straight up base salary match is not a side deal but paving the way for the professor to pick a little coin that is only found somewhere else in the books and only available to that professor is a side deal

Basically, a side deal is a way a dean buys a little more time as dean, He or she makes someone better off and, if at all possible, keeps it quiet or makes everyone else feel they have their own side deals.

The most interesting thing about the side deal is the tad of irony involved. Once it is know that side deals are possible people get suspicious,  especially if they have their own side deal. They think, "if the dean is a shameless side dealer, how do I know someone else's side deal is not better than mine."  A Dean who hands out side deals to keep his or her job creates a side deal feeding frenzy because even those benefiting know not to trust that dean.

Wednesday, June 03, 2015

Random News in the Absence of Rile

Saw a play last night and after talked to my wife about how I did not care for plays. Two hours later buying tickets to see The Commitments in London next month. That's not the crazy part. The crazy part is  I will not be in London next month.

Law suit against the University and a former dean finally settled although I was hoping for a trial, Odd terms --- neither party can say anything disparaging about the other or it is a breach of the settlement. We will see how that goes.

Also, all inquiries about the plaintiff must be referred to the Provost who promises not to say bad things. OK so you call the Dean at a law school about someone and the dean says "you have to call the Provost." I am not sure that is neutral,

Wondering  if our former dean now holds the record for lawsuits filed against him as dean. Probably not but proof that sending mixed signals, hunkering down, and hoping problems disappear on their own can get you sued.

Irony? Recycling truck pick us plastics, metal, and paper and goes down the street with deadly looking blue/black smoke billowing out.

Read the worst book every written -- Bourne's Redemption. Audio CD in car, At one point there is a "reign of terror" which creates a downpour. At another, "The men came out of the room like boiling water."Similes and metaphor in every other sentence.

Search on for Associate Dean at my Law School. Unfortunate that the world's best Associate Dean will not go one more year since we will get an new dean and a new associate dean in the same year. Plenty of good candidates and some maybe not so good.

Rubber match in girls softball, I'm as nervous as a two legged  cat riding a gator's back. (not found in the above mentioned book). Gators lost 1-0 last night. If you hold the other team to one run you are supposed to win.

Sunday, May 31, 2015

Ray Rice, Tenure, Swedish Fish, and Other Matters

Ray Rice may or may not get another job but, although his stats were not so great two season ago, it is obvious that something other than on field production kept him from earning a paycheck last year. If you want to think about law teaching jobs you might say he was fine as far as scholarship, teaching, and service but had a big problem in the "being a decent human being" department.

So what about law teaching and the "being a decent human being" factor when tenure decisions are made.   Are teaching, research and scholarship all that matter? I assume people disagree about this. I remember being on a a hiring committee meeting in which it was revealed that a very attractive (in terms of scholarship) married visitor kept an apartment near campus for entertaining "the ladies." This was discussed and then the Dean who was sitting in on the meeting said, "Ok, why don't we concentrate on the substance." Some of said "Isn't character part of the substance." I mean if it is in professional football, shouldn't it be raised in the context of legal education?

Think of a few possibilities. Assume in all cases, the candidate, although not stellar, would ordinarily pass the scholarship, teaching, and research standard. Further suppose these are known facts, not rumors.

1. There is a video of the faculty member punching his or her partner in a elevator.

2. A candidate  is arrested for mistreating a dog by leaving in a very hot car for several hours.

3. A candidate is caught lying about people on the faculty and students.

4, A candidate shoves or punches a student.

5. A candidate  is arrested for shoplifting Swedish Fish from a candy store.

6.A candidate is arrested for DWI or DUI for a second time.

7. The candidate  has a consensual affair with a student. (Yes, the power relationship begs the issue of what is consensual.)

8. A candidate member has an affair with another married member of the faculty and the marriage breaks up or doesn't.

You can mix and match these. Pretend the someone is the same person for all of them or for some of them.  Are these fair game to raise in a tenure and faculty meeting or, since they are arguable "only" about character, they must be ignored? Or can character be an issue? Or is it about character or illness?

Here are my druthers. I vote no on 1,2, and 3 even if told I may not consider them. They are dead ducks unless there is something deader than a dead duck. If so, they would be in the deader than a dead duck category.Seven and 8 are irrelevant to me -- consenting adults and all that,

Others are more complicated. On 4, I would have to know more about whether it was a fight or abuse. On 6, suppose it is an addiction. That is not character although knowing you have the addiction and driving may be. I guess that could be said about the liar. Suppose she  actually believes what she is saying and is unaware that she tells different people different things.

The most difficult is Mr. Swedish Fish shop lifter. I love those little fish with their gummy texture, the hint of cherry when you bite in, and then the every so mild after taste of fresh herring. I ate 50 at one sitting once and my hair turned blonde and I developed a knack for building Viking ships. But what if the lifter had simply though they were Laffie Taffy. Stealing those is always permitted. The lifter gets a pass from me.

[As an aside, we all know that these things will be factored in no matter what the rules are unless the person is on your side politically in which case all of this will just be rumor.]

Friday, May 22, 2015


I wish I had taken  photo. Today I got a cup of coffee from the faculty lounge which is also home to the faculty refrigerator which is the home of the faculty freezer. I wanted to drink coffee right away and it was hot so I opened the freezer for a cube of ice to cool it down.

When I cracked it open I found out that the speed of smell is faster than the speed of light because the odor was on me like cat hair on a furry sofa. I know this because I have two cats and two furry sofas. And then I looked and realized the the freezer was not a place for mixed company.

There were abandoned ice cream bars maybe dating from the fifties, frozen foods left from the ice age, and smears along the walls. I had not seen anything like it since I peered into a diaper pail.

So what was going on?  It takes no genius: it was global warming, overfishing, over hunting, clogged roads and every other Tragedy of the Commons in a one foot by 2 foot space. The first thing I though of was I will take my Law and Economics class next year on a field trip to the faculty freezer. No more field trips to Greenland necessary,  Everyone who ever wanted a freezer used the freezer as long as there was space. Spills? Who cares? [I have to be honest, though, the ice trays were full meaning that free riding in the ice tray department had not occurred.]

I mentioned to a pal who said "Why are you surprised, right there in front of you was faculty governance." He was righter than rain unless there is something even righter than righter than rain in which case that is how right he was.

Yes, everyone takes: they want their programs, their conferences, their foreign travel, teach their courses, at their times, 2 days a week max, smallest sections, blah blah blah. It is all put in terms of what is good for the commons but almost none of it is or, if it is, it is a fluke.

The Commons can be solved in a variety of ways. Private property rights supposedly encourage people to internalize the costs of their efforts to benefit. I thought about assigning to each person a designated  4 cubic inches of freezer space but some of that space would be suspended in mid freezer and not usable. As far as faculty graspiness, I do not know how you gets a person who wants to fly a dozen or so people to a continent just below ours so they can confercate to internalize the costs

There also can be contractual rights. I suppose everyone could agree to not leave anything in the freezer for more than 7 years and to clean up spills. This would not work unless there is an enforcer. There are no freezer enforcers. (I Googled it.) As far as faculty governance, few deans with ambition to last for more than a year or two or move on would dare enforce or question whether faculty governance is anything other than Jim Dandy (is that supposed to be capitalized?).

Freezer dictatorship is what we need. He or she has complete control of the freezer and it is only used with permission. Anyone abusing the freezer loses freezer rights for a year or, at least, has to eat one of the ice cream bars abondoned in the late 60s. (Actually, strike that. I'll have one of those myself.)

And, I think that is where I end up on deans and faculty governance. Faculty governance, as everyone knows is another way of saying "free for all." I want a dictator dean. One willing and able to say NO to anything that does not, in a very obviously fashion, advance the welfare of the commons.

Tuesday, May 19, 2015

Faculty Report Card

At my School where we big on counting, it is (self) report card time.  We get a form that goes on forever and asks questions about every imaginable part of the job. For example, did you read any manuscripts for students? I stopped keeping track of that . . .  actually I never kept track of it. How many people did you suggest should download your articles, How long is the list of advertisements after your signature on a letter.   How many externs did you supervise? (That one is important because that is where the students pay us to work somewhere else for nothing and we bankroll the take. )  And then there is "Did you turn off the light when exiting the men's room." I've always felt that one was unfair because someone else may be in there and you may have to fess up that you did not turn off the light. Nevertheless, even though there are no other light sources or windows in the men's room,  I always turn the light off because it is cool to hear the cursing and screaming.

There is the usual  stuff: How many students did you teach? I think they may actually have that in their on records somewhere -- Don't you think?  I always put down zero because I think it is a trick question. I know how many are enrolled but how can I know how many I taught? If you look at some of my exam answers the number is pretty low.

How about this. Did you attend any conferences at which you did not make a presentation? If "yes" where did you eat?  Another trick question. Is it to determine how much of the school's money you spent confercating or is it some kind of feather in your hat to go somewhere and sit there.

I am not sure who grades these reports but I hope is it not the little girl who sat in front of me in 2nd grade who, when we exchanged papers to grade, would always put a big X on my paper if I did not dot an "i" and then wave her hand until the teacher called on her and say, "How many points off for not dotting an "i."

We are supposed to present evidence of our impact in the profession. It's like "did you have an impact in a terrarium."  Like the tree in a forest I wonder if when a law professor says something does anyone hear it outside the terrarium. Law professor praise is the ultimate in the one hand clap. Nevertheless, the right answer is 50,000 SSRN downloads, 852 judicial citations, 3400 citations by  other scholars, 53 Papal references, and 2300 texts. I always write down that answer and then, if challenged, threaten to sue the school and the dean for destroying the only evidence I had. I really hate them for doing that and forcing me to make that threat but I know what they are up to and they know I know.

I give way too many talks to remember and organize a conference every day. In fact, what you are reading now is one of my scholarly papers. And when I am in the lounge getting a cup of God-awful donut flavored coffee, that was a conference. I had 5 cups today alone. Sometimes I give asynchronous talks. I go into the lounge alone and give my talk and people who come in later may hear the echo.

So far, my annual report is only 100 pages long but that's fine. I just changed the date on the one I have been submitting for 10 years.

One thing I am really proud of is that I always get very high marks on "getting along with others."

Tuesday, May 05, 2015

Bullying for a Good Cause: (Another Hot Potato Post that No One on Facebook will Dare Like)

When I was an even younger boy than I am now, there were two bullies in my life. I remember both their names but will not reveal them in case their family members might read this (or that they may still come after me).   When you were around them you remained silent and did not question them or even make eye contact. They ruled by how much they could hurt you. (Actually, in the interest of full disclosure one of them liked to shove you at the water fountain so your face would go into the water or your teeth would clang against the spigot. That ended, though, when for some reason I spun around and clobbered him right in the puss. It was a wonderful moment -- maybe the most important in my life.) Live was so much simpler.

Lately I have been applying the notion of a bully to law faculties and I really cannot say there are people roaming who I would regard as traditional bullies.  No one walks up and punches you in the stomach and says "for a dollar that will not happen again," Instead, it is white collar bullying and I have learned there is a huge literature on it.

 On my faculty I have seen people in fear and administrators paralyzed. No,  it's not fear of teaching 12 hours, or of a new Dean, or any of that stuff.   Instead it is the fear of being tagged with a label that could follow you forever. (And yes, you are right. It is the fear you are thinking of right now and wondering if someone is actually allowed to write what follows.)

For example, about a year ago in a prior Dean search one faculty meeting suggested that very well qualified candidate may have homophobic tendencies. Maybe someone asked why but no one pressed the issue. Evidently she just "knew" it. More than a decade earlier, also in a Dean search, someone indicated at a promising candidate had a "problem with people of color."  In neither case did anyone ask "why," "what happened" or ask for any kind of foundation. No one dared press the issue or maybe they just enjoyed watching bullying. More recently,  a person said about another person that "he was widely known to be an extreme homophobe." Was there a reaction? The victim, now deceased, could hardly respond which made it easier for those who mourned him and spoke so eloquently about him at his memorial to remain silent.

What makes this type of bullying so difficult to handle are four factors. First it is especially powerful, The victim cannot spin around, like I did at the water fountain, and stop it. In fact, in these cases any form of denial just means the bully must be right.

Second, some people  who spread the word that others are homophobic or racist or child molesters, may be right but even if they are not right they have conviction of a right wing Christian and, as in the case of other forms of bullying, there is no answer but to nod in agreement.

Third, those bullying are likely to have been bullied in the past. In fact, thinking of well known bullies throughout history, I wonder if this this a characteristic -- those bullied become bullies if it is possible. If this is the case, why didn't  the experience of being bullied result in some level of empathy?

Fourth, and this is the really tough part:  bullying, in the examples I have identified here, is aligned with a good cause. It's like bullying for better treatment of animals, children,  and adults. As for getting it wrong sometimes, an economist might say, "So there are a few innocent victims here and there but the costs of their careers is easily offset by the benefits." Some victims are just necessary collateral damage like the dead children after a drone strike designed to protect us all from another 9/11. I guess we can all understand that but it does not help those who find they are collateral damage.

The problem with this fourth point and possible justification is that it drives the evil that gives rise to the bullying underground. No one's mind is changed and on top of whatever ills there may be, there is now a further layer of resentment.

I do not like bullies of any kind because they get their way by threatening to harm people. Plus, they change  no minds and, if  they claim to be acting to advance a cause, they are more than likely to  set it back.