Not Even Cake

A few days ago yet another Harvard underachiever scoffed at a colleague who suggested interviewing promising candidates from The University of Minnesota Law School and the University of Texas Law School. Those who went to public schools did not have their feelings hurt but considered the source.

That incident made me think about the flip side of Moneylaw. Much has been written about the positives of a Moneylaw approach but little attention has been paid to the damage done by what I regard as the opposite approach – Faculty Capture. (I am aware that Moneylaw groups could and maybe have captured some law schools but my definition of Faculty Capture means operating a law school largely to benefit incumbent faculty.)

Yet on a day-by-day basis the cruelties that occur when a law school is captured by those for whom Moneylaw is frightening are astounding. Here are some examples:

1. A student from a foreign country for whom English is not even a second or fifth language approaches the teacher for help understanding some complex material. The stress the student is feeling is obvious. His enrollment was not an inexpensive thing -- for him at least. You might ask what he is doing here. Well, a small group of faculty members decided to start a program for foreign students to come and study American law. What did this mean for the quality of the school or the fortunes of those enrolling? No one knows and after several years, no one has checked. What did it mean for those who created the program? Travel at the school’s expense spreading the news of the Program, a better office, a secretary. And, most importantly, lowered expectations as far as teaching and scholarship.
(Think of it this way. Tony LaRussa has tenure as coach of the Cards. No one can fire him, no matter what. He is not that interested in winning games but has grown fond of Indian cuisine. The team will not let him hire a chef so he puts the Indian chef at third base with promises that this will open up many opportunities. So the chef catches a few line drives in the throat. That’s okay; Tony is getting the food he likes.)

2. A number of students get to the middle of their third year with average grades (B+ or so) and they have no job offers. The School starts a new program – a specialization that takes an extra semester. Students sign up thinking this will mean a better chance of finding jobs. They are wrong and the School knows it. The cost to them is high. What is in it for the capturers? An office, the title of “Director,” lowered expectations as far as teaching and research, and travel opportunities to conferences devoted to the specialization.
(So maybe this is not a line drive to the throat. Maybe it is more like selling diet plans to Mick Jagger or Nicole Richie.)

3. Everyone reading this has experienced this one. A student comes up after class – probably near the end of the term – and asks THE question. Sadly, the question is the one that communicates to you that the student has no clue and that he or she is not going to get one between now and the exam, if ever. Further conversation reveals that the student had a pretty good job before law school. Then loans were taken out, his or her spouse is working, and the kids are in daycare in order to realize the law school dream. You wonder, first: is there anything I can do soften the crash? Then you wonder why the student was admitted. Was it because you admit 300 students every year no matter what? Or, was this particular student important – even if only as a token – to the law school?
(Line drive to the throat? Can there be a slow line drive to the throat that results in pain that lasts for years?)

4. A faculty member meets a warm and friendly lawyer from Prague and falls in love. Obviously, this means a great deal of travel and expense unless, unless. . . . Yes, by golly, the Law School, which is in a small American town in a state with no connection whatsoever to Prague or the Czech Republic, for the benefit of mankind, could set up a Program in Prague. And who would be the perfect director? – no need for a search in this case. The Czech students pay their tuition to listen to lectures in English that most do not understand and at the end they get a certificate that, well, is suitable for framing. And the capturers get many trips to Prague with stops in between and, most importantly, a sense of being oh-so cosmopolitan.
(Line drive to the throat? Hardly. A paper cut? Who cares when you are helping the world?)

Moneylaw can cause disappointment. But the victims of a captured law school seem more vulnerable and the cuts to them go deeper.

In Praise of Incivility: Priss and Circumstance, . . . and Neville Chamberlain

Obviously, a Moneylaw approach to administering a law school scares the hell out of people, especially if they are comfortable being a Devil Ray, Royal, or Rocky. But it's also likely to worry those at higher-ranked schools when the conversation turns to ignoring credentials and other symbols of institutional authority, conducting serious and substantive post-tenure reviews, or auditing pet programs.

Let’s face facts and not about the Miami Dolphins. Most law faculties are clubs. Once you’re in, it’s for life and as a tenured colleague on my faculty recently told an untenured colleague, “it’s not enough to be colleagues, you really need to at least act like you are a friend.” (Civility-speak for "kiss butt kid or you are out of here.")

Appeals to civility are critical as means of perpetuating the club and heading off a Moneylaw approach. Civility standards are, after all, invariably “drafted” to protect the positions and status of those in power.

In the prissy world of law professors-- the world of the velvet mob -- it’s nice to think civility is about respect and the form of discourse. That is a fantasy. It is just as likely to be about disrespect and anti-intellectualism. When questions of civility are raised, it is rarely about form. Instead, it is a means of defining the topics of discourse and even the positions expressed. It does this in two ways. An unpopular view expressed civilly can be ignored because no one in the club need pay any attention. The same view expressed loudly and aggressively is obviously to be ignored since it comes from a person who is behaving unacceptably.

If the quietly expressed view seems to be gaining traction at all, the response will be "I am offended!!” or “That is inappropriate”(the latest most overused word which actually means "I do not like what I am hearing"). Those charges, along with the threat of being labeled a racist, are brick wall discourse stoppers exactly at the point at which the discourse gets interesting -- most likely when something substantive is said that could have an actual impact on the club.

Let me give an example. At my school for years faculty had family members in their classes and generally the family members got A’s. It was evidently an accepted benefit of being a club member. (Think of it as a discounted green fee at the country club.) Trying to begin a conversation about whether this was a good practice – no matter how politely -- could quickly be met with “I am offended, you are accusing me of being dishonest.” Eventually, agitation embarrassed the faculty to take action and forbid the practice but appeals to civility retarded the action for several years.

Now think about the prospects for having a civil conversation about whether tenured faculty have been sufficiently productive or whether a program should be discontinued. It this really going to be carried on in carefully measured tones with appeals to reason? Or, is the very topic likely to raise the hackles of those threatened to the point that there are “friends” and “enemies” and “offense” is taken? Those threatened will be the first to raise the shield of civility. Behind that shield are some very nasty goings-on and the velvet-gloved mob. Civility is like a giant thumb on the scale in favor of the status quo.

And now for those unschooled in civility here are some translations:

1.The civil version: Your analysis is incredibly astute and I had a small concern about one little passage and I am only worried that someone else might bring it up.

Actual meaning: I don’t think your analysis is correct.

2. The civil version: You are one of our most productive people. Lately I find myself uncomfortable with what I must have done that is preventing you from doing what you love -- scholarship.

Actual meaning: One article every two years is not enough for someone making that much money.

3.The civil version: Do you think we really have a chance at hiring your son in law? Wow, being on the faculty with someone as productive as you could really put some pressure on him.

Actual meaning: I think it is a bad idea to hire your son in law until we have conducted a search for the best candidate.

The Matrix

I think everyone has seen the movie, The Matrix. If you have not, it portrays the battle between being "real" and feeling good. In effect, machines have taken over the world and cultivate humans as an energy source. They--the humans--actually grow in really yummy looking little pods. They are content because whatever consciousness they have is simply the result of a computerized reality.

Some bothersome Moneylaw-type humans are actually fighting for real reality even though it means some unhappiness. In the movie, the evil forces are those who want to perpetuate the sense of well-being. Thus, the movie assumes, counter to what the current demand for mood-altering drugs indicates, that we are instinctively on the side of those who fight for the real reality. The movie skips over a question that philosophers have addressed one way or another for centuries. Are we actually on the side of the real? Descartes saw the issue as whether our consciousness is imposed by some outside force or the result of our free will. The idea is reflected in Robert Nozick's Anarchy, State, and Utopia when he asks whether we would willingly enter an experience machine. In the machine everything is dandy, and you do not recall that you opted into the machine. Nozick makes the case that there are reasons for not entering the machine.

Most law professors seem to crave the painlessness of the Matrix. In terms of the experience machine, it amounts to a preference for sensing that one is part of a productive endeavor over actually being part of a productive endeavor. Having gone through the contortions necessary to change perceptions of themselves, their schools and programs, they then begin to take satisfaction from those appearances as though they were real. In terms of the film, it is comparable to constructing the Matrix or Nozick's experience machine and then happily jumping in. The pull is irresistible to many. Indeed, the unhappiest people I have known in the academic world are those who are unable to suspend their disbelief sufficiently to enjoy the illusion.

Some features of the Matrix are:

1. A new professor is asked to write an article for a symposium by a senior colleague. The article is called “referried” because no law review students were involved. The article comes out and the senior colleague publicly congratulates the new professor and reviews the article for tenure purposes.

2. A popular faculty member is proposed for tenure. His teaching evaluations are good to average. His volume of scholarship is high. In the file is a negative letter from a national expert asserting, correctly, that 30% of the candidate's work is recycled from earlier work. After twenty minutes of laudatory commentary at the tenure review meeting, nothing is said about the negative letter and its claim.

3. Another popular candidate is proposed for tenure. She, her husband, and their children are regulars at faculty social events. Dinner at her house is always fun. Her teaching evaluations are average and class visits reveal that she is, at best, an average teacher. In addition, even though she has met the numerical requirements for number of articles to be granted tenure, most of her writing came in the last year. Both of her last two articles--one of which was a fifteen-page symposium piece she submitted at the request of a friend--were in manuscript form when evaluated. The tenure vote is positive.

4. A faculty member travels to Italy where he has family members. He proposes starting a summer program in Italy. None of the students at your school speak Italian, your state has little trade with Italy, and United States law would be taught at the summer school. At least two other faculty would travel to Italy, at the school's expense, in order to do the teaching. The program is approved by the faculty.

5. Your faculty teaches twelve credit hours per academic year. This translates into six sixty-minute teaching hours per week. A faculty committee proposes reducing the teaching load to nine credit hours per academic year and reducing the class period to fifty minutes. The reasoning is that you would still comply with accreditation requirements.

6. You have read this list and decide none of this has happened at your school.

Grades, Courses and Capture

I have written about the variety of ways it is clear, to me at least, that many or most law schools are captured by and run for the comfort of privileged faculty. Comfort is increased when faculty teach what they want to teach whether or not those courses have much to do with avoiding and resolving disputes -- a problem I believe is independent of any lasting Langdellian influence. Faculty comfort is also increased by high teaching evaluations and low numbers of student complaints. To this end, although the trend may be reversing, everyone is more comfortable when high grades are are given. For example, at my Law School, there is a mandatory 3.20 average and I suspect we are not out of line with other schools. At the same time, our bar failure rate is now at 20%. What this means is that a higher percentage of students fail the bar than have a C average or lower. We are evidently proof of the Lake Wobegon dream in that all of our students are above average – at least until they leave Lake Wobegon.

Some of the arguments I hear for giving high grades are surprising. One is that low grades hurt the feelings of the students. Another is that it is hard to give a C to someone you have come to know. The most compelling argument for increasing the grades is that students cannot compete in job markets with graduates of other law schools who were subject to high grading curves. The stunning thing about this is that it assumes law firms look at G.P.A. and not class rank. What an amazing example of not getting the Moneyball message. Recently hired faculty who have been involved in law firm recruiting decisions assure me this is true to the extent that a student with a GPA below a certain level will not be looked at regardless of rank. (I wonder why we just don’t raise the curve to 3.9 so they will all get jobs or create a new grade – how about A-squared.) If markets worked, those firms hiring without paying attention to the relative curves of Schools eventually should be left in the dust.

But, I digress. My real point is how the grade scam plays into faculty capture. Faculties have choices. They can offer the types of courses Jim Chen has described. This may mean retooling and long hours of preparation. Or they can simple pay off those who are affected negatively by the choice of "business as usual." What better way to pay off the students for, say, not raising questions about course offerings that seem only distantly connected to avoiding and solving disputes than to give high grades. High grades make faculty, parents, and students happy. And, law firms, so I am told, are indifferent to what the grades mean. Make no mistake this is a real payoff. If a student’s job prospects go up with higher grades, even if the student is no more qualified, it is a real pocketbook-affecting payment.

There is, in fact, a contract of sorts. For faculty it means less class preparation, fewer complaining students, and the illusion of being productive. For administrators it means no pressure to modernize the curriculum by asking faculty to broaden their offerings. And, for students it means a resume that, to them, looks good. And, in these days of self-promotion, glossy brochures, and symposia stuffed with pals they are learning from the best.

As an aside, isn’t interesting to watch markets work and not work. On the one hand, law firms, at least according to my recently hired colleagues, are less responsive to class rank than grades. On the other hand, private schools have higher grade inflation than public schools. (There is, however, contrary evidence.) Private school students have a more elastic demand and schools must lower the “price” of attending or raise the grade payoff to stay competitive.

Class Bias: Part 3

Then I got Mary pregnant
and man that was all she wrote
And for my nineteenth birthday I got a union card and a wedding coat
We went down to the courthouse
and the judge put it all to rest
No wedding day smiles no walk down the aisle
No flowers no wedding dress

The River, Springsteen

Parts one and two of my discussion of class bias in law school hiring addressed the different perspective that economically disadvantaged people (e.d.p.'s) bring to the job and the ways more of this perspective would improve the service, teaching and research of the institution. This last installment is about finding those people. In a sense Jim Chen has made all of this easier. I am tempted simply to say: do everything he outlined in his latest piece, but first screen out all candidates who attended private schools or high-tuition state schools.

There is also another short cut way to describe it. Most law professors know how to find good e.d.p.'s – all it takes is acting counter-intuitively. It’s along the lines of "if it tastes good or feels good, it is probably not good for your health." In hiring, if you feel comfortable with and connected to the candidate, it’s probably bad for the School. That is what it is about, right? The School? Or is it about hanging out with similarly privileged buds?

There is some profiling to be done here, but it is okay here since the only groups affected are those who are economically advantaged or disadvantaged. I concede that screening out all private school and high tuition schools can mean losing some good candidates but, if you take a look at the numbers published in the latest issue of the Economist (September 23, 2006, p. 38), you are mainly passing up on beneficiaries of affirmative action for the privileged. Moreover, what we know is that the only things positively correlated with expensive credentials is the probability of landing a law school teaching job and the level at which one’s articles are placed. There appears to be no correlation between expensive credentials and the ability to carry on an interesting conversation about art, music, history or not to be hopelessly boring.

So narrow the universe to candidates who excelled at inexpensive (some State) law schools. Then narrow your scope to the top ten – not top 10% -- in the class. Now it gets tougher because some e.d.p.'s will try pass for privileged (pfp). With hard work you can “out” most of them. You want to eliminate anyone who traveled widely in the summer, spent any semesters abroad, and did not work at some menial job for, at least, some summers. The keepers are ones with crooked teeth and pock marks. For a woman, look for a skirt that is a bit too short, heels too high, or too much make up. (For men the make up is OK only on Elvis impersonators -- in fact, maybe a per se hire.) Gold jewelry on a man or a woman is a good sign. Any inkling of a mullet is a definite yes for a man as is a jacket with a double vented back or a tie that is too wide or too narrow.

You have narrowed the universe to e.d.p.'s. Some of those who have figured out how to pfp will also be eliminated. Not a big loss because they may also pfp in their service, teaching, and research.

Now proceed to the Chen questions and you’ve got it.

Finally, a word on race. Race is not per se indicative of economic disadvantage. That’s not to say there are not arguments for considering race for other reasons but in recent years, at least in my hiring experience, there is a tendency for law faculty to feel most comfortable with minorities from private or high priced schools who have professional level parents. These folks are indistinguishable from whites in terms of their sense of entitlement. Thus, even with minorities it is important to look beyond the surface.