The Grading Thing

I often tell my first year students that writing an exam is the hardest thing I do and grading them the most miserable.

Now I have heard of a new way to handle both tasks. Substitute hours of constructing an exam with a few seconds of changing the date on last year’s exam. As for grading, multiply choice, machine graded (mcmg) tests are just the ticket.

Obviously, this saves an enormous amount of time but I am not sure what the grades mean. My premise here is that most first year teachers, in particular, devote a fair – if not most – of their time to critical thinking and analysis. Most issues the students see have a Rashomon like quality. I am far from convinced that a mcmg exam is a useful tool for assessing the development of those skills. Worse, if you are known to be mcmg person I think it is likely that students know not to take much of what goes in class seriously unless you are just downloading information. Mcmg people may say that there is correlation between how students do on complex essay questions and mcmg exams but that may only hold for the first couple of times giving the mcmg exam.After that, the professor is teaching one thing and the students are preparing for a test on something else.

Even if good multiple choice questions can be written for law courses and I believe it is possible beyond the first year, it is very difficult. That difficulty leads to the recycling temptation. If you recycle multiple choice questions and do not think many of the questions are “out,” please get in touch with me because your powers of rationalization are far beyond mine and I would sincerely like to escape my own feelings of regret about some of my own misdeeds.

Ok, so let me predict. Those of you who use mcmg exams are annoyed because I have called into question your work ethic and integrity. Of course not! What I am actually saying is that recycled mcmg testing in law schools "gives me pause," "concerns me," "puzzles me," "makes me wonder," "may require extra care," "needs careful consideration" or "is a good idea for some." And, if you have checked to determine whether your recycled mcmg exam actually tests what you are teaching, I am not even saying anything that harsh.

I think one of the tenets of MoneyLaw is to do all the functions of a teacher – even the grunge of assigning grades – so that stakeholders are not shortchanged. It seems to me that recycled mcmg tests and, for that matter, recycled short answer questions may be like giving $2 back to a customer who has given you a $5 for a $1 item. But then the privileged make the rules -- even when it comes to making change, don’t they?

Of course maybe I am just irritated about grading 180 essay exams.

All kidding aside, this is one thing I really would like to be wrong about. If you give mcmg exams to your first year class, how about sharing one in the comments area along with your explanation of what the question tests. I'd like to be converted to your point of view. But first, I'd appreciate if you would respond to following poll.

Do you use multiple choice questions on your final exam.
	None at all
	For less than half of final exam grade.
	For more than half but not all of the final exam grade.
	For the entire final exam grade.
Free polls from Pollhost.com

Law School Risk Factors

(I found this quiz at WebMD-LawSchool.com and am passing it along.)

It's the beginning of the year and time to take an inventory of your law school's health. Give your school a "5" if the description is dead on and a "0" if it is completely inapplicable.

1. There is a critical mass of faculty for whom the ends nearly always justify the means. The “ends” can be anything from personnel to program decisions.

2. The convenience of faculty is always an important consideration in faculty votes and administrative decision making, sometimes to the detriment of stakeholders (students, donors and taxpayers).

3. It is difficult to discontinue or even to objectively evaluate existing programs without it becoming "personal."

4. There is a great deal of gossip. It comes to you even if you are not a “carrier.”

5. There is a solid core of “Making Nice, Knowing Better, Doing Nothing” people. These are the colleagues who express the right ideas – when they express at all – but are AWOL when critical decision points arise that could send the school in a more positive direction.

6. Your administration, when it is internally active at all, is principally concerned with putting out fires but only those that threaten the administration itself.

7. There are few if any norms about making up missed classes, rigor in the classroom, publication goals, testing practices, availability to students, etc.

8. Your dean would rather delay a hard decision or pass it onto the faculty knowing that that the School will suffer as a result. See Chen, Three Deans.

9. Tenured faculty frequently discuss controversial questions with untenured faculty and while doing so make clear their own opinions and what their expectations are.

10. Faculty tend to teach the same courses from the same books for years, maybe careers.

Add up your score and please fill in the poll found below:

40-50 points. Go to the Law School ER immediately. Not for your school. It left the world of the living some time ago. You, however, have a pulse. Save yourself by writing and teaching your very best and finding a hobby.

30-39 points. Your School is in critical condition but there is a chance of survival. It will be very tricky. Retirements, hiring stealth candidates, and a courageous dean are needed. Guerilla action maybe in order.

20-29 points. You have an elevated risk of law school death but it can be controlled by diet and exercise. Do not let the opportunity slip away.

10-19 points. Enjoy your law school’s good health.

0-9 points. See a physician immediately. You are delusional.

What is your school's score?
	40-50
	30-39
	20-29
	10-19
	0-9
Free polls from Pollhost.com

The Letter, the Market,and "Easy Writers"

At times like these I sincerely wish I knew how to take a poll of MoneyLaw readers and law professors generally to see if they agree with what follows. I do not claim to know whether it is accurate or not.

Recently a friend at another school and I discussed how his faculty would react to a less-than-glowing tenure review letter. In the course of the conversation, he made two observations. The first was that Tenure and Promotion Committees and outside reviewers generally understand that outside reviewers are supposed to help the committee “get the candidate through.” Then he went on to name some well-known scholars who were not asked for review letters because, as he put it, “they will actually say what they really think.” This was not the first time I had heard that the job of Tenure and Promotion Committees is to “get the candidate through.” It seemed to be the case at my school until relatively recently. (I assume this is primarily a middle or lower ranked school phenomenon.)

If my friend is right, there is in legal education a "market" for letters. The demand side is composed of Committees that are candidate advocates and steer clear of reviewers who “say what they really think." Suppliers are reviewers who, although moaning and groaning about the work involved, give the committees what they are asking for – all in coded terms, of course. Those frequently asked to provide reviews, under this theory, need to ask why they their services are in high demand. Would they be just as popular and their opinions so valued if they were a tad more candid?

If the theory holds and everything else is equal, the number of letters requested and written could be inversely related to a reviewer’s candor and integrity. Perhaps salary increases should be granted in inverse relation to the number of review letters written. This would not work, I know, because money is hardly the motivating factor. More importantly, I have seen many letters in which reviewers do say what they think. In fact there may be two markets: one for the easy letter and the other for the "what you really think" letter. Only the reviewers themselves know which market they are supplying. The problem is that the "easy writers" surely have erected an elaborate matrix of rationalizing mechanisms that protect them from self awareness.

We have all seen a version of the "easy writer" when students stampede to fill the sections of courses taught by teachers who require little and give high grades. I feel certain that even "easy writers" frown on student shopping. My school and others have imposed grading curves to respond to the high grade suppliers. If the "easy writer" theory holds, it's unfortunate that a comparable control cannot be applied to review suppliers.

In a way, the "market for letters" theory is, at least intuitively, my friend's. So, here is the question: Is there a demad for "easy writers?" Your replies are anonymous and a simple yes or no will suffice.

Greeks 0, Choir 0, School 0, Umpire 0, Stakeholders -1

It’s not often that you see a score like that but it does happen. I have seen it recently. This all goes back to my view that law schools are especially susceptible to capture by faculties who then operate them without much regard for stakeholders (students, donors, and the community).

Critical to the success of capture on this scale is log-rolling. When you get right down to it log-rolling is just another name for white collar, political barter. It all works fine for those who have captured a law school as long as there are goodies to which the rollers attach different values. For example, one group really wants a new LLM and does not care one way or another about foreign programs. Another really wants that new foreign program in Nice but does not care much about a new LLM. Each needs the other’s vote to get what it wants and, as long as there are sufficient resources, we have a bit of a Coasean happening. Eventually, years of relying on informal procedures that allow groups to get what they want through side deals and barter create expectations and can replace more formal procedures. If this School were a person his or her physician would be saying “I know you feel fine now, but … we need to talk.”

The problem is that log-rolling just does not work when the game is zero sum. This, I think, is the more important point for MoneyLaw and Classbias people. Leadership and formal procedures – determined in advance to be fair -- are needed. If a school that has no leaders and has, for all practical purposes, dispensed with formal procedures runs into a zero sum decision, the illness becomes evident and the harm spreads beyond those battling.

At my school we have experienced such nastiness. The Greeks – so named not for ethnic reasons but for sorority/fraternity close-knitness – wanted something really badly. The Choir – so named for singing together but having a limited repertoire – wanted the opposite. (Now don’t get the impression that someone is always a Greek or always a Choir member. There are floaters and pretenders who move in and out of each group, not unlike mercenaries--only the pay-off is social acceptance. These are the ones about which to worry.) In any case, these parties had made for some mutually beneficial log-rolling.

When the inevitable clash occurs -- as it did-- you get the score with which I started. In this case the Greeks lost. But so did the Choir because, in the absence of open and fair procedures, the losers feel betrayed and may not be as eager to log-roll on the next issue. The Umpire? If the Umpire does not show up what can you give him or her other than a zero? And, finally, when faculties make decisions through winks, nods and nothing in writing that you would not want in the New York Times, Stakeholders are in negativeland.

Chutzpah, Stupidity, or Privilege

I freely admit to being a conspirarcy theorist and the principal outcome is to attribute most bizarre happenings in legal education to the indifference of the privileged toward any rule – formal or informal, reasoning, or fact that might separate them from what they want and “deserve.” I also know that there are other explanations One is just stupidity (Opps, I mean ill-advised behavior.) Another is non class related brazenness. And finally what I regard as bizarre may just be good judgment that I do not fully appreciate.

So here are seven events from recent hiring discussions. Pick how you would classify them:

1. In the course of arguing for a candidate a faculty member who knows the candidate expresses pleasant surprise that the candidate has been considered. In the file that has been distributed there is along letter from the candidate to that faculty member discussing the faculty member’s extended effort to recruit the candidate.

2. In supporting a lateral candidate, a faculty member says that if an offer is not made the candidate’s career will be ruined.

3. In defense of a lateral “instant tenure” candidate who has given a very thin job talk the argument is made that, as a candidate who already has tenure elsewhere, it was understandably that the he/she would believe a subpar talk would be acceptable.

4. In defense of a candidate who graduated in the bottom 15% of his Harvard class the argument is made that for all we know he or she would have graduated near the top of the class at another school.

5. A faculty member opposes a candidate because he (the faculty member) feels “uneasy” about the candidate but cannot say why. He just did. (I do not know if this is relevant but that faculty member and another expressing the same “uneasiness” are Harvard grads and the candidate is from a mid level law school and does not have a polished demeanor.)

6. A faculty member announces in reference to a candidate: If Professor X, was willing to work him, that's all I need to know.”

7. The faculty is asked to vote yes or no on a group of candidates but instructed not to rank them because that would invite “strategic voting.” (I know this is true but who gets to decide that the strategic behavior that is continuous stops at a particular point?)

All About (the) Money

Two articles, in the December 12th NYT, when viewed together, describe what those concerned with class bias are up against.

The first, on the front page, notes that colleges have found that raising tuition can and has led to increases in applications and admissions. In what amounts to retilting the conventional demand curve, the explanation is the price is used as a signifier of quality.

Well, maybe, maybe not. Two other possibilites, more in keeping with MoneyLaw and Classbias discussions, are possible. The "Veblen effect" or conspicuous consumption occurs when people pay for a high price. Yes, the price itself becomes a desired characteristic of the product. The higher the price, the more you are willing to pay. "Snob effects" are a little different. Here we are talking about a desire to create the impression that one is different and, usually, superior to others. "Veblen effects" are more about demonstrations of wealth while "snob effects" are more closely connected to "better" taste. Both involve communicating to others. The point is that the "high price equals higher quality" rationale initially offered by the Times may miss what is really going on. What the article may tell us is something known by advertising people: There is a huge market for interpersonal signaling devices.

But hold that thought for a minute.

Article two describe a marketing/psychology experiment that has been performed repeatedly although maybe not with beer. In any case (pun intended), the experiment consisted of tasting two beers, identical except that one contained a few drops of vinegar. People who tasted the beer before being told that one contained the vinegar preferred, on balance the invinegarated beer. People who were told ahead of time what the difference was found the invinegarared beer clearly inferior. This article tells us about the importance of preconceptions in forming opinions.

Together the articles tell us a complete story. The message is that that signals -- elite school credentials -- have a value to buyers that is independent of the substance of the product underlying the signal and that that those who recieve those signals are highly vulnerable to their preconceptions.

The Rites of Privilege

Privileged people do not like failure. Afterall, they have always been told they are the best. I have already discussed how this means stakeholders in a law school take second place to the needs of faculty.

One place this plays out is in hiring decisions. Failure is defined as setting out to hire new faculty and coming up empty.

For example, if your Appointments Committee is like mine, it has invested countless hours and tens of thousands of dollars searching for new faculty. The appointments process is like a train and the destination is to making an offer that is accepted. The problem is that sometimes there is better destination -- one more in keeping with stakeholder interests: Do not make and offer.

There are three factors at work here. First, let’s face it, an offer, even to an entry level candidate, is an offer of life time employment. I do not know the numbers but, at my school, tenure denials are very, very rare. Yes, some people move on for one reason or another but, for the most part, the decision to make an offer is more like a marriage proposal than like . . . well, actually, most actual marriage proposals.

The second factor is the sunk cost problem. What’s done is done and making a decision on what has past makes little sense. Yet, as we know from our own lives and experimental economics, people continue to make decisions based on past expenditures. You know how it works: “I don’t want to go to the game but I already paid for tickets.” There are also tragic outcomes like those related to foreign policy decisions in Viet Nam and Iraq.

Third, privileged people and their "making nice" allies get what they want. When they are on appointments committees, they appoint. Why? Well, because they are entitled to do what they want.

Bring these factors together and you have the makings for disaster. Having made the investment, leaving the market without a hire is viewed as a failure. No one wants to “fail” and powerful rationalizing processes kick in. Unless a campus visit is a disaster, the Committee becomes vested. Marginal job talks are downplayed. Candidates who do not quite fit in terms of curricular needs are recast as potential teachers in areas where there are needs. Only one destination is acceptable and that is the one that allows Committee members to point to the people hired. Little credit is given for mistakes avoided. Committees become agents for the candidates and not for stakeholders.

It is hard to walk away from the table having invested so much but often the best decision is to do nothing. Those with a sense of entitlement and their "making nice" friends do not think in these terms. Afterall, they are only spending the money of others.

Give Me That Cake

This year, for the first time in a number of years, I am serving on two University committees, one of which deals with grievances and professional ethics. Surprising as it may seem, what I have learned makes me feel better about what goes on at the Law School. Here is one example of a scam that seems over the line.

A Professor teaching hundreds of students requires them to hand in homework on workbook pages custom made for his course. The books are available at the local Kinkos and sold at a profit. Students may not hand anything but the actual purchased pages. Evidently, handing in the correct workbook pages has an impact on the final grade. The professor takes a cut of the sales. The Dean of the College where he works is evidently unconcerned. (This newest practice is evidently a replacement for one that required buying CDs with codes in them so that actual purchase could be verified.)

Outrageous! . . . In the words of Lee Corso, “Not so fast my friend.”

Hasn’t the professor simply perfected the casebook editor/casebook publisher scam. (Sorry, Jim, I know how you feel about casebooks but I just cannot use the term “casebook author.”) Think about it. Is there a principled distinction between that professor and thousands of authors (clearly not just in law) who happily issue a new edition every third year whether or not there is enough of a change in their field to warrant it? (Oh, I know Mr. Casebook editor reading this, you would never do it.) In addition, since the demand side of the market is, for all practical purposes, composed of professors who dictate which books will be bought, how are those professors different from a stock broker who mishandles a client’s portfolio?

I'd like to pin this indifference on class bias but I am not not sure I can. My own behavior is similar to that of the privileged. When the memo comes out each semester asking what the assigned materials are for the following semester is to name the book and say “latest edition.” At the same time, I teach contracts and change books every two years because the change forces me to be a bit more on my toes when preparing, but I can honestly say that changing books or upgrading to a new edition has rarely if ever made any difference. I think I could almost get by with the classic Kessler and Gilmore (now that was casebook scholarship!) I had as a student many years ago. If so, that means I have cost 20 years of contracts students many thousands of dollars that went to publishers and editors without any substantial change what goes on in the classroom.

I admire the very small handful of my colleagues who keep using an older edition of a book even when newer editions are created in reaction to the used market. I wish I had followed their example. I admire even more the casebook editor who, when Thomson or Aspen comes calling about a new edition, says “there is no need for one.” At least in one area I teach – contracts -- I think all the editors of these books could say that for at least 5 years, probably 10. (And, no, you do not need to have a new edition to include the 15 pages on the CISG you want to add to your book. Just put it online.) Isn’t legal eduction, where the choir claims to be so concerned about the welfare of others, the best place to begin drawing the line when to comes to exploiting students via the casebook scam?

Please express no outrage about Mr.Workbook until you do.

Using Resumes as a Guide

Most of the resumes law school hiring committees allow the rest of a faculty to see are those indicating that the candidate has elite creditials. Given that, is there any real way for the class bias conscious law professor to make a distinction. I think so. First, of course, the most important information on a resume is about scholarship and teaching effectiveness, although I have yet to determine a way to evaluate the latter. In fact, I think it is pretty well settled that student evaluations are not dependable indicators of effectiveness.

Beyond the “hard” information, can a resume tell you something about what kind of colleague the person will be and how important it will be for that person to perpetuate the myth that credentials make the man (or woman) ? I think so. I really liked what the form told me about a recent candidate. First, although the candidate had “pure elite” credentials, they were found near the end of the resume. In the publication section, the symposia pieces were listed in a separate category apart from books and articles. To me this signaled modesty and honesty because, all things being equal, I do not value symposium pieces as much as standard articles. It can vary, of course, but generally the symposium article is accepted before it is written and it would be hard for the sponsor to refuse to publish it. And so many symposia are choir practice. The resume was relatively short, meaning it did not include an entry for every Rotary Club speech. The image I formed was of a low maintenance, confident colleague who was likely to be a good listener and unlikely to spend hours in the dean’s office demanding extra travel money and special teaching loads. More importantly, here was a candidate who put productivity over credentials when it came to what would be impressive.

And then there is the resume that, fairly or not, creates a negative image. “Pure elite” credentials are listed near the top. “This is who I am,” the resume seems to say. The list of publications is long and stuffed with everything that could remotely be called a publication – a panel discussion that was taped and then transcribed, an op-ed piece in a local newspaper, a three-page descriptive book review, a two- page introduction to a symposium. The resume is long because there is an entry for every law-related event ever attended whether a presentation was made or not. And don't forget every law school and university committee. I see this candidate as self-absorbed and constantly on the look-out to promote himself whether or not it is of benefit to the school. You know the type: constant demands for extra travel money, all kinds of special needs, etc. This candidate is in a defensive stance and not likely to be friendly toward lower- credentialed applicants.

If the relevant information is the same, I will pick the first candidate every time. It is not just a matter of what type of colleague I prefer. If I must hire someone with elitist credentials, I want the person who does not puff and does recognize that productivity trumps all. I think that choice is also consistent with MoneyLaw rules. If there is a tie with respect to productive potential, the lower-cost candidate gets the nod.

I’m Mad as Hell: PrivilegeLaw Users’ Manual

First, thanks to Jeff Harrison for allowing me to post this on Classbias. Entering the debate is sometimes the first sign one is losing the argument but, really, this has gone too far. Is it possible that MoneyLaw/Classbias may some impact? I don’t think so, but it's never too early to restore the balance.

PrivilegeLaw players: Are you using all of your richly deserved advantages to choke off the threat? If not, here is your check list:

1. The AALS is your friend. Make full use of all the boxes on the meat market form that stress credentials over substance. Remember, the shorter the form, the better off you are. You actually prefer the one line form that asks one question: School granting J.D. degree.

2. If you have a high class rank, say so. If not, say “not available.” Don’t worry. You went to a top ten school, right? Don’t undercut yourself by revealing something that is only relevant if you are actually in the top ten percent. You are helping recruiters by not confusing them.

3. For references, list people who are most likely to impress even if they do not know you that well. Remember, you are paying in part for a chance at a law teaching job. Those big names will write great letters even if they barely recall you. They owe this to you because this is part of what they are selling.

4. Before you send that first article out, be sure to touch base with anyone who would impress a law review editor when included in your acknowledgements. (Yes, that long exercise in name dropping at the bottom of the first page.) Thank them even if the only contact you had was a return phone message of encouragement. (“I am deeply grateful to Professor __________ for his continuing support.”). This is your birthright.

5. Your cover letter must drive home your credentials and the names of those important professors who “commented” on your work. Also, mention your last “piece” in any prestigious law review even if it is a five-page co-authored book review.

6. Remember, other members of the Club are on the faculties of highly-ranked schools. Call them. Ask to speak to the editor of the review about how important it is to put your submission at the top of the queue.

7. If the person you call actually did read an earlier draft, be sure he/she tells the editor just how much they liked the article. Otherwise they can just say, "The competition for this article is sure to be fierce."

8. Are you on the appointments committee? Remember this rule: Grads from top ten schools are always better than grads from lower-ranked schools. Sometimes a sigh or a raised eyebrow is enough to stop any silly effort by a colleague to be a bit more open-minded. And, no matter what, remember the PrivilegeLaw credo: Never write down anything you would not want to see on the front page of the New York Times.

9. Has your law school made the mistake of hiring a MoneyLaw person? Make sure the person knows right away who you are and how lucky they are to have a job that rightfully belongs to someone who was more properly prepared for the job. How many ways can you work Harvard, Yale, Stanford, etc., into the conversation? The current record, by the way, is eight per minute and that was wind assisted. (Actually, I am surprised it is that low.)

10. Express your sincere regrets when the MoneyLaw colleague proudly announces that his/her first article was accepted by a law review below the top ten. Something like “Oh, I see,” or “Next time, try to leverage it up” will work.

11. If the MoneyLaw candidate actually survives six years of being dismissed as the runt of his or her law teaching class and makes it to a tenure decision, express concerns about whether the candidate really has “the horse power.” Forget about that pesky study suggesting the only clear determinant of post-tenure productivity is pre-tenure productivity. Quickly add how much you personally like the candidate.

12. Now this is really important. Right now, and I mean this. No delays. If the students in your class do not know you went to Harvard, Yale, Stanford, etc., do not leave another class without them knowing. In comparison to your MoneyLaw colleagues you will automatically become a better teacher.

Best of Luck

Chadsworth (Do not call me Chad)

PrivilegeBall or MoneyBall

If I apply the idea of a MoneyBall baseball player to a MoneyLaw faculty hire I come up with a candidate who did not attend a prestige school, is not smooth in a “good old boy/girl” way, does not come from a background of privilege, radiates no sense of entitlement, did not practice for a big firm, does not whine or boast, and has done research and writing for the love if it as opposed to filling up lines on his or her resume at the instruction of a mentor whose name is instantly recognized in our incestuous world. Obviously, candidates who do not fit all of these characteristics can be just as productive and I added some of my own preferences for greater socioeconimic diversity. The point, however, is that the MoneyLaw candidate (however defined) is undervalued in the market.

Being undervalued is one thing but what if the undervaluation is not simply the result of market imperfections and self-referential, possibly narcissistic, hiring practices? I mean, is it possible that, just to make sure the undervalued MoneyLaw candidate stays that way, the privileged make a point to disparage the product.

I am ahead of myself here because the MoneyLaw candidate has to get interviewed in the first place and this is not easy. Sometimes a small committee that is not overloaded with elitists can be shamed into inviting a MoneyLaw candidate. Other times, quirky things happen that permit them to sneak in. One current professor at another school realized that he interviewed at the hiring convention with a school that did it as a courtesy after mistakenly scheduling him. He ended up getting an offer. In other instances, candidates who are otherwise MoneyLaw candidates are mistaken – because of a name, an entry on the resume, or a mix up – for a different type of candidate.

It is when the MoneyLaw candidate gets to campus that the devaluing occurs:
1. Why doesn’t she/he have other offers?
2. Why are his/her articles not in better journals?
3. I have not heard of those references.
4. Wasn’t she/he a legal writing professor?
5. I am not sure I have heard of that firm.
6. Wasn't she/he on the ten most wanted list? (O.K. maybe not this one.)

Devaluing someone who is already undervalued for no particular reason related law school productivity is not only cruel but is yet one more explanation for why PrivilegeBall trumps MoneyBall and stakeholders in law schools are worse off.

What About Ideological Diversity? Is the Lack of it the Problem?

A number of readers assume that my posts are always about my home School here in Gatorland. Yes, much of the time I am inspired by Gatorland events, but judging by what people at other schools tell me, their schools have the same basic anti-MoneyLaw tendencies. Based on statistics I have seen, one way my School clearly is not different is in the lack of interest in hiring to promote ideological diversity. The resulting lack diversity is hard on old fashion lefties like me and the smattering of conservatives who are on a faculty. (Here, I think, we have 1 conservative and no libertarians, but maybe some are in hiding.) Who are we supposed to argue with and how do we test our ideas? It makes for a very uninspiring environment. Writing for and talking to the choir is as boring as talking to a rabid pro-lifer about what constitutes a person – there is only one acceptable answer. I do not understand why this is tolerable to so many. The thrill of intellectual adventure seems lost. In addition, the lack of ideological diversity may be connected in a direct was to the lack of socioeconomic diversity.

I am not sure how we (I mean so many schools that have also dug this hole) got here. It’s way too easy to attribute it entirely to selective appointments committees. I just have not seen a concerted effort to exclude those with a different point of view. Then again, I have seen no effort to seek these people out nor any evidence of widespread believe that ideological diversity is a good thing.

I do not know the answer, but here are some possibilities:

1. Choir people are found in the AALS sheets in higher numbers than lefties, conservatives and libertarians.

2. There is some conscious and unconscious filtering of intellectuals with ideas that are contrary to those in control. These people are threatening.

3. Many areas of specialization only attract choir people. For example, is anyone with the view (not one I have) that a few zillion species are extinct and we have not noticed the difference likely to be attracted to environmental law? (On this read Julian Barnes’ The History of the World in Ten and a Half Chapters, where we learn what many of us had expected all along: that there were two Arks and one was lost in the flood and, for the most part, no one has given it a second thought.)

Maybe you disagree with my premise. That’s fine. This is one case where I want to be wrong. But if you agree, what is your explanation? What accounts of a lack of interest in ideological diversity? I think MoneyLaw rules require this type of diversity. I also think greater ideological diversity would lead to greater socioeconimic diversity.

The Grading Problem: Are They All American Idols, or Where is Simon When You Need Him

A few days ago, without much success, I asked readers if there were different MoneyLaw rules for public and private schools. Now I have a different question for which I also do not have an answer: Is there a MoneyLaw approach to grading?

Grades are signals. First to students on how they did and, second, to employers on how the School evaluated the students. The problem of articulating a MoneyLaw approach is illustrated by two conversations I had recently.

Conversation one was by email. The registrar wrote to ask whether a student who had missed a month of contracts due to illness could return to class. My answer was: 1) I had no limit on excused absences, 2) Because of our curve (3.2) the student would like get a passing grade and 3) I could not promise the student would know much about contracts.

Conversation two was with a first year student who said she was anxious to get her grades to find out how she was doing. My response was to tell her that even after grades she would likely not know. With a 3.2 curve the pattern in a 110 person call is about 15 A’s, 10 C’s and all the rest are B’s or B+. In short she was likely to find she had the same grade as 40 others.

Apart from my view that current grading is a result the disastrous decisions of the 60s generation in which I fully participated. (At one time I consciously practiced affirmative action in giving grades and tutoring. Something I would not do now even if it were necessary, which it most certainly is not at my School.) It is also a response to the implicit bargain between professors and students that entails given high grades and then being viewed as fair or “a good guy” which then may show up as higher enrollments and teaching evaluations. Curves take out of play the “grade bribe” but do not take out of play the “less rigor bribe.” By the way, I do not think a great percentage of law professors fall prey to either of these but it only takes few to create the externalities to which others react.

So, do grading policies fall within MoneyLaw concerns?

Public and Private: Do the Rules Change?

My discussion with Orin Kerr leads to an issue that I think MoneyLawyers need to address: Are there different MoneyLaw rules for public and private law schools? Put differently, should there be different rules depending on whether students are paying full cost tuition or are enjoying taxpayer subsidization. If there are, the argument would be that the identity of the principal shifts and with it the programs, courses and opportunities a school might offer. In baseball terms, one could see it as whether the fans should vote on who is invited to the All-Star game. That decision – allowing the fans to vote – can be linked to a simple private sector desire to increase profit, not to a duty to present the highest quality play. Maybe private law schools should operate in a parallel fashion. Perhaps they already do. I concede that I have not done a comparison of public and private school offerings.

An argument that the rules should be the same and that student demand should not play a different role can be made by comparing law professors to any other professionals who are paid for their assessment of what is in the best interest of the client. Most physicians, do not just dispense whatever medication the patients think they need. One the other hand, could it be that private law schools should operate more like cosmetic surgeons and do more of what make students feel good? Is it even possible that the students know best?

I have already put my two-cent’s worth on this by saying that I do not see the rationale for public schools to offer a Tax LLM. I would add to the Tax LLM any relatively non public service oriented LLM unless the idea is to charge above cost tuition in order to cross-subsidize other programs. In fact, ideally, I would like all public law schools to vary tuition depending on a post graduation requirement of some form of public service. Yes, this means private law schools would have a better shot at relatively affluent students and that seems fine to me. This suggestion is impractical and not likely to happen but it illustrates the complexity of what it means to have fiduciary obligations in the context of public and private suppliers.

Personally Annoying

Orin writes in response to my turkey awards:

"Jeff, is "privilege protecting" some kind of MoneyLaw code-word for things that you find personally annoying?"

Not exactly, Orin. Just to stress the difference, here are things that I find "personally" annoying but have not included in the list of Top Turkeys:

1. Faculty and students talking on cell phones outside my office door.
2. Faculty who leave the board in the room I am going to teach in covered with their notes.
3. People who gossip carelessly without any thought to the damage caused.
4. Really awful art in law school public places.
5. People who take up two spots in the parking lot.

See, Orin, these are annoying things but they do not seem to me to have all that much impact on the capacity of a law school to give stakeholders a fair deal.

My theory is that being a law professor is a privilege largely enjoyed by children of privilege who have developed a sense of entitlement. This sense of entitlement results in a massive network of norms that have far more to do with protecting their privileged existences -- many of which are in my top ten list to which you responded-- than observing their fiduciary obligations to students, contributors, and the community.

"Annoying" does not quite capture how I feel about those things. It is more like wondering what the distinction is, morally that is, between those privileged faculty and folks doing time for embezzlement.

There is an important qualifier. Even at failing law schools there are many, maybe a majority, of faculty who are not part of the problem in a direct sense. But the informally, but well organized, block sets the norms.

I hope that clears things up for you and others who have not followed the thread.

2006 BIGGEST TURKEY AWARDS

Yes, Turkey Day means turkeys and there are many to go around. So, the ten worse privilege protecting decisions, people, or programs for 2006:

1. The Sloan Foundation Grant Program designed to increase job flexibility for university professors. (Not kidding. It's like growth hormones for Yao Ming.) The is easily number 1.

2. Appointment Committees that pass on candidates who graduated in the top ten from non elite schools in favor of "honors" grads of elite law schools.

3. Initiating a summer program in a western European country. (The supply already exceeds any possible measure of demand by students.)

4. Publishing yet another symposium issue composed of members of one choir or another preaching to each other.

5. Initiating (or electing not to discontinue) an IP program or Review. That bandwagon is completely full.

6. Initiating another specialty journal that is not refereed. Why would you do this???

7. Any Dean who views him or herself as an "agent for the faculty."

8. Allowing anyone to teach a 9 hour or lower teaching load who is not publishing the equivalent of a major (and new, not recycled) article a year.

9. Allowing paranoid tenure candidates to influence or complain about the selection of their reviewers without being swatted. This does not mean that they should not be permitted to reply to unfair reviews (if any actually exist).

10. You, if you let personal gain or social considerations (positive or negative) influence your vote on anything taken up in a faculty meeting.

11. Tax and other non public interest LLM programs charging less than full cost tuition.

12. Choosing Dante over Drew. Ok, so there are 12 and this has nothing to do with legal education. Get used to it. In the "Law Professor and Law Dean Actual Code of Professional Conduct" it actually says: "Professors and Deans are entitled to 100 Truth Mulligans per year or as many as necessary which ever is higher." That's section 203.11 (or so).

Yum!!

Counter-Preferential Choice and Shirking: Deans and Other Administrators

This is the final installment of my series on the potential failures of law faculties to observe their fiduciary obligations to law school stakeholders – tuition payers, contributors, and the community. I say potential because I have only taught at two law schools long enough to have standing with respect to what goes on. Still, as I noted previously, the conditions are probably riper for widespread shirking in legal education than in any other context – academic or otherwise.

The last critical piece of the puzzle is the lack of any effective sanctions for shirking. When I have observed sanctions directed at fellow faculty members it has rarely centered on duties to students and those outside the school. Instead, it is usually about not adhering to group shirking norms.

The last possible source of sanctioning would come from oversight. That brings up the issue of law school deans. I cannot think of any circumstance in which a law school dean could “turn around” a failing law school without losing his or her job. I have elaborated on this before. The problems are both the near impossibility of the task and the generalized fear of deans to be involved in any controversy no matter how important the cause is. I have observed it repeatedly: deans arrive at a new law school with good instincts. Then they get a whiff of how the faculty will react and, all of a suddenly, they find they really prefer the money raising aspect of the job. In fact, they are so risk averse that they often pass on easy decisions that would not raise an eyebrow. But that begs the issue, doesn’t it? Should they be expected to do any of this? In virtually everyway they are ill-equipped to make a real difference at a law school that is in trouble.

But what if a dean with the right ideas were provided some backbone by a university president or provost? Maybe it happens. As I have said, my sample is small. But I have observed two things. First, a university president who has not had a legal background would prefer not to tangle with a law faculty. They are arrogance folks across campus who are simply tolerated. And, if they do not detract from the University, leave well-enough (no matter how bad) alone. Second, as one President recently told me: “The dean of the Law School is empowered to do what ever is best for the College.” It is hard to imagine a bigger misconception of how law schools work. Law school deans do what they are told by the faculty. Unless the dean is fortunate enough to have a faculty (and I think there are some) that acknowledges its obligation to shareholders, what is best for the College means what is best for the faculty. After all, some deans describe their jobs as “serving the faculty.” The outcome will be far cry from what is best for those the College and the University are obligated to serve.

So the question is whether faculty have internalized the values of stakeholders or are at least capable of counter-preferential choices. I have seen law faculty who do one or the other. I have seen many more that know what is right but are gutless. And, even more who have such a powerful sense of entitlement that they cannot help but equate what is in their personal interest with what is “right.”

You cannot play MoneyLaw without MoneyLaw players.

Happy Thanksgiving!

Redistribution in Favor of Status Quo

To say Jim Chen has stolen my thunder would be an understatement. But since I have already penned this, here goes. In a response to my blog identifying state-subsidized LLM in Tax programs as hard to defend, on another blog Professor Scott Schumacher writes: “why single out tax programs? . . . Are competent tax attorneys any less valuable to society than the competent contract attorneys that Harrison apparently believes are worthy of the public's largess? When you get right down to it, I doubt many citizens are happy to support any programs in the law schools.”

I will attempt to respond but first, a number of caveats. To begin with, Professor Schumacher has hinted at the harder question: Why subsidize legal education at all? I guess I would put it a little differently and say why subsidize without a guaranteed return on the public investment in the form of required public service? Second, I question the subsidization of the teaching of LLM students but not of the scholarship of their professors. Those who write about tax policy – both broadly and narrowly defined – may be producing the most important legal scholarship. Third, Professor Schmacher does not seem to defend an LLM program as much as say “what is the difference?” That is what I will take a crack at. Fourth, my comments are about law schools. I am similarly baffled by public subsidization of MBA programs and numerous others in which the students are likely fully to internalize the benefits of whatever they produce. Finally, this is an empirical question and I concede I do not know for sure. What I am also sure of is that responding with an example does not advance the discussion.

So, to the question: Is a tax LLM different? First, look at what law schools do. One thing is that they redistribute wealth or income from the public at large to people who jump through a series of hoops and make it into law school and to their professors. Now, unless someone thinks the redistribution itself is producing a "good" there has to be more.

The obvious "more" is that law schools should produce legal services that have value but which the market does not produce in sufficient quantities. First, this could mean that they produce legal services that are affected by market imperfections, including free-riding. Among the market imperfections, and contrary to what I think some economists would say, I include services to protect “goods” that are not subject to monetization – civil rights, environmental protection, etc. Second, to the extent we believe that all people have a right to effective representation, we operate to depress lawyer fees by making sure the supply of attorney services is high. (An inefficient way to achieve that outcome to be sure.)

I am not convinced that subsidizing post-LLM tax study contributes to the first objective. My hunch is that we could stop the subsidization of post-JD degree tax education today and there would be little or no unmet demand for the tax advice LLM graduates offer. The value of most tax advice would be fully monetized. I can think of few, if any, free-rider problems. Regardless of how the courses are taught, I think what is learned by most is Retaining Wealth I, Retaining Wealth II, and so on. Thus, the only justification for subsidization would be to depress the cost of tax advice. Maybe this is a defensible goal. If that were the goal we would have to revamp most of what is taught in an LLM tax program and include courses like “Tax Advice for the Poor and Working Poor.” But that is covered in the basic JD course. So whatever wage-depressing rationale may exist can hardly be traced to an advanced tax course. In any case, that’s my story and I’m sticking to it.

Counter-Preferential Choice, Shirking, and Moneylaw:Part 2&3:Law Professors as Agents

In previous posts I suggested that a number of factors account for the ability, of law professors to shirk from their obligations to law school stakeholders. This begs the qustions of who the stakeholders are and what law professors owe them, if anything. The stakeholders are tuition payers, contributors, and citizens. When tuition payers are subsidized by tax payers, as they are in varying degrees in state schools, a balance must be struck. The obligation shifts more toward citizens. This could change if subsidized students were required to practice some form of public interest law for a period of time after graduation but, as far as I know, they are not. Faculty are stakeholders only to the extent they are coincidentially members of the other groups. This means the check out person at the nearest convenience store -- you know the one, taking the bus to work because he has to and without health insurance -- is owed more by a law school than any faculty member. I do not mean the Kevin Smith "Clerks."

The obligations of the law school are:
1. Tuition payers are given the type of instruction that prepares them for the bar exam and, as much as possible, prepares them to provide competent legal services. In addition, they should be able to assist in bringing about legal reform.
2. Contributors are difficult to catagorize except in one very important respect. I have never heard of a contributor whose interest lay in helping a faculty member improve his or her quality of life unless that improvement increased the faculty member's ability to serve tuition payers and citizens.
3. Citizens deserve to expect a law school to produce competent attorneys who will be accessable and play a role in improving the overall welfare of the community. How else can we justify requiring them to subsidize faculty salaries?

I am sure this is obvious to most, if not all. Here is where it gets tougher. The decision to be made reminds me of something I tell my contracts students about exam-taking. I say, "Imagine I am walking through the classroom while you are answering the questions. Periodically I stop and point to a paragraph you are writing and ask 'Exactly what is the connection between this paragraph and the answer to what I have asked?'"

So, now someone wanders through your law school today and says, while identifying a program, a course, a building project, a desk, a trip, a photocopy, policy, coffee pot, library book, etc. ,"Could you tell me how that serves the tuition payers, contributors, or citizens?

Here are some things that could not pass the test at my school. (I assume you will keep them to yourself.) I'd like to hear about the ones at your school that fail the test, if you dare.

1. Operating an L.L.M progam in tax that is subsidized by citizens. Precisely what is the public good rationale here? Do you think there is any chance that many if any of these students are likely to be anxious to do public service work? Why not full-cost tuition for a program so obviously aimed at people who will internalize of the benefit of the State's investment in them?
2. Using the money from the check out person at the nearest convenience store to send a group of faculty to Poland to teach Polish students.
3. Building a $20 million classroom building that is vacant 1/3 of the time and always will be.
4. Flying in speakers for 30 minute lunch-time talks that barely scratch the surface, because if they were flown in for afternoon presentations that ran longer and included the expectation that the presenters' papers would be read ahead of time, attendance would be minimal.
5. Allowing a faculty member to teach on as few days as possible so he can have the maximum days free regardless of the impact on tuition payers and availability.

Okay, as you attempt to connect these practices to the stakeholders, assume you are dealing with a hard grader. Please no rational relationship explanation. Better yet, explain to the convenience store worker or tuition payer why you are taking their money and what the return is to what truly is their investment.

Counter-Preferential Choice, Shirking, and Moneylaw: Part 2: Us

My theory that many law schools will have a hard time adopting MoneyLaw strategies is based on the idea that some law professors shirk from their duties to law school stakeholders. When the shirkers reach a critical mass, MoneyLaw is sunk. It's not that the professors start out looking for ways to shirk, but a variety of factors come into pay to make it hard to resist. For example:
1. Many law professors try not to lead an "academic lifestyle." They do not fit the book- wormy, egghead, Napolean Dynamite profile. No way they would support Jose for President. Instead, they have material aspirations that exceed most others on campus. Instead of thinking how lucky they are to be earning tens of thousands of dollars more than the average history professor, they think in terms of how much people in practice (or at the Med School) earn. They feel relatively deprived compared to these reference groups. A sense of duty to others is the first thing to go when personal "needs" become pressing. Big houses, expensive travels, tasteful but expensive cars, fine fabrics, the latest computer, and lots of leisure time do not leave much time to fret about the little people.

2. In a fascinating study, Tracey George found that full-time law professors who were appointed to the bench were, in fact, more ideological than non-law professor appointees. You should read the article to understand what she means, but a short and simple version is that they were more likely to decide cases in a way that was inconsistent with precedent but consistent with the ideology of the President appointing them. This could actually be good if it means improving things. Law professors may actually "know best" in the sense that they may have a broader vision of and a greater appreciation for the subtle theoretical underpinnings of the law. The problem is that the propensity to vote more ideologically than non-academic judges was not found just among liberal or just among conservative appointees. Both did it. Thus, the “knows best” explanation for their decisions only works if law professor/judges know best about everything including things on which they disagree. Unless there are two "bests" this does not work. This suggests, to me at least, that some law professors are not only not inclined to begin the analysis of an issue from an unbiased perspective, they are also too arrogant to care. I can think of no reason why this would not play out in hiring and faculty governance matters.

3. As a result of their education and practice, law professors understand better than most people the substantive implications of process and are skillful at manipulating process to achieve specific outcomes. I have very rarely, if ever, witnessed a discussion among law professors about what would be a “fair process” without a significant number there calculating “what does this mean for me and my institiute or center or career?” Just a touch of this in a faculty can mean that everyone follows suit and factions are formed.

4. Having been trained in the arts of advocacy law professors internalize the ethic of advocacy so thoroughly that it affects them even subconsciously. This means a virtually infinite capacity to rationalize why things that are favorable to them are also “right.” I have one quick and harmless example of this that amazed me as a young professor. I was on the appointments committee. Early in the year the Dean met with the committee and stressed the need to hire someone to teach trusts and estates. A colleague and I were assigned to a subcommittee to find qualified candidates. We blew it off. Several months later the Dean expressed disappointment to the committee about not finding someone to cover the course. I felt sheepish and was stunned when my colleague started speaking. He was red-faced and trembling with anger. "I'll have you know," he informed the Dean, "we have conducted a nation-wide search. Based on that search there were simply no qualified candidates in this field that we had a chance of attracting." After the meeting, I quickly asked him what we had done. He reminded me that when we received resumes that were mailed in by candidates, we had looked to see if any of them taught trusts and estates. He meant it! He could have passed a polygraph test administered by God. No problem. “National search” or rationalization? Or just scary?

Is there a critical mass of people on your faculty that fit any of these descriptions? If so, you are not off to a promising MoneyLaw start.