More Class Confessions

Dear Jeff;

I can top anything anyone has listed so far. I was getting ready for the hiring convention. I did not own a suit and had not owned one for years. I can give you details about how that happens but it's not so important. I could afford one but just did not ever need one.

I took off to the local department store to find a "good suit" for my AALS interviews. I knew nothing about conservative as opposed to sporty or anything else. I had never heard of Brooks Brothers. It's a class thing. So what a wonderful suit I found. Double vents, wide lapels and something going on with the legs of the trousers. I am not sure what. YES! I had bought the pinky ring of suits. I would have probably worn a real pinky ring like my uncles but I could not afford that. To top off my fashion statement, at the convention, I wore a tee shirt under my dress shirt. It had a message that could be read right through the dress shirt. I did not realize it at the time having no need to check myself out in the mirror. I knew I looked good.

So, off I go to the convention. When I see my old law profs they do not really seem like the want to talk. In fact, it's almost like they do not want to be seen with me even though they wrote wonderful letters on my behalf. The interviews go OK but with 30 interviews I get only two callbacks -- oddly, one from a top 15 school and one from a below 50 school.

Flying back home I run into a prof of mine on the same flight. We are the only two people from our school on the flight. He does not want to sit together and keeps looking around as I attempted to engage him in conversation while waiting in line.

I got a job and wore the suit for years to all faculty social events. There was always a hush when I entered the festivities. Then one evening at a very posh affair one of my colleagues got a little loaded and said "Just keep wearing that suit and eventually it will be appropriate."

Huh? I was stunned. Was it possible I was not the coolest dressed guy. I went home and began looking on the internet and entered "business suit" which led me to Dress for Success and I realized that I had probably been laughed at for years.

But how was I to know? No mentors, no professionals in my family. And, evidently, not very observant.

So, can someone top that?

More Class Moment Readers' Email

As you can see from the last post, I am publishing comments from readers about moments of class recognition. Here is another one:

Dear Jeff:

I can top those. I was 19 in 1974 and an undergraduate. I spotted this girl and we talked after class a few times. I finally asked here after sociology if she wanted to go have lunch. She said yes. I was confident I knew the perfect place. A new mall had been built in town and it had a Sears. I had been there once already and the Sears had a cafeteria. To me it was heaven. In the dessert section bowl after bowl of cubed Jello with dabs of Cool-Whip. Lots of mash potatoes and Salisbury steak. Yum!!

Yes, you guessed it. That is where I took her. When we drove to the mall, all was fine. As we approached Sears she was walking slower. By the time we got to the cafeteria there was just something about her expression and posture that told me this just was not right. I told her to "eat up." I had the works including two desserts. I tried to keep the mood upbeat but it was not working. She picked at her roll and salad for about 30 minutes. I took her back to campus, she thanked me and that was the end.

Class Moments from Readers' Email

1. I was in 8th grade Algebra. The teacher was using an example that involved allocating a fixed amount of money to buy several items. In the course of it, she says, “Now if you were buying good shoes, you would never go to Sid’s.” [Sid’s was the local discount shoe store.] I had never been to any shoe store other than Sid’s not, as far as I knew, had any member of my family.

2. I was in 12 grade and I needed a pair of shoes. I was feeling happy. My girlfriend had shoes called Wejun’s. I think they were the “in’ shoes at that time. We were going to shop for my shoes and drove by my house to get money. My mom was there. It was Friday early evening and shoe had just cashed her pay check. She reluctantly handed my $10 and I asked for more. She said “That’s enough for shoes. You should go to Penny’s.”

3. Age 19 in 1970, being transported for a draft physical. I am the only white person on the bus.

4. I am a law professor. A privileged colleague and I share a taxi from the airport to a conference site. On the way in she sees that the cabbie has a radar detector. The cab and the cabbie look beaten up. The radar detector is dented. My colleague tells the cabbie she just ordered on from a pricey catalogue. He looks at her not understanding. He has never heard of the catalogue.

5. A colleague and I are law professors. We invited our classes to meet after exams for a beer. Some white students and no Black students show up. She concludes that the black students must not be able to afford a beer. She has no view on why some white students are not there.

6. I am in law school. Because we are from the same small town I befriend another student. His face is pock-marked, his teeth chipped and some are brownish. He is a smoker. I notice people are friendly to me unless I am with him. They tend to avoid him.

1970 - 2005 -- Class Consciousness

I am not surprised anymore about class differences but I am surprised by the lack of sensitivity to class differences especially among the privileged. One of my first real experiences with this goes back to being an undergraduate in the late 60s. Periodically there would be meetings of all sorts of leftish, anti-war types. It occurred to me then that the group could be broken down into three categories. There were the rich kids for whom being a “revolutionary” was fun. Like a role playing game. When the marches and arrests were over they headed to Europe or on ski trips. The working class kids, those who could pay a heavy price of being too revolutionary, struggled to find summer or holiday break jobs. In these groups were also Blacks – a handful of students and some towns people. What did they think? My sense is that they rightfully were not fully trusting of their allies. They understood that, at least for the rich kids, nothing was on the line. Grow long hair, smoke dope, get laid, paint your face, march, and the safety net was always there in form of mommy and daddy. Only the rich kids seem to be completely ignorance of these differences.

Now flash forward 35 years and the same rich kids are in charge of legal education and still protected by one safety net or another. More importantly, they still remain utterly insensitive to class difference. They is by design. To recognize class difference is to accept the fortuity of their status. If a seed of recognition creeps into their consciousness their instinctive reaction denial. For most privileged people, recognition the their current status is a result of the luck of the parental and genetic draw and not merit can result in ego free fall. Think of it. Where to they go – emotionally, that is – when they give up the idea that they are entitled to what they have.

Just Wondering About None of the Above

Over on Moneylaw I have posted my annual objection to multiple choice machine graded exams (MCMG) for law students. To me it is a sign of laziness. And, since it denies the students the opportunity to communicate that they know law is imprecise, fuzzy, and inconsistent, it is also demonstrates a disregard for students. (Of course, students may like them but that is a different question than whether they are consistent with the best possible evaluation.)

One of the consistent themes of this blog has been that elitists have a powerful sense of entitlement. In law teaching it translates into "what is in my self interest must be right." There are many ways this manifests itself, one of which is the all out effort to avoid merit-based decisions. The example of this I have stressed lately is elitist hiring policies. These policies are not supported by a molecule of evidence that an elitist education makes for better law teaching.

If the sense of what is good for me is good for you extends to hiring policies, could it also apply to testing. Is there a correlation between reliance on MCMG exams and elitist tendencies? It stands to reason. MCMG exams save time, do not permit student communications and do not test what law school is supposed to teach -- reasoning and analysis. The only way to get to the conclusion that they are acceptable is to view law school as all about the professors as opposed to the students.

So, as an empirical matter is reliance on MCMG tests correlated with class? If so, does this also mean that missing classes then up went it suits the professors as opposed to the students is also a class related matter. How about traveling on the the School's tab when the travel is actually more for fun than work. Let's add support of programs and centers that are unrelated to the welfare of law school stakeholders.

I cannot conduct that study but if I could my money would be on all these things being more prevalent among elitists than among the few non elitists found in legal education.

The Informal World of Non Elites

A friend suggested to me that class bias is so powerful that it never really wears off. What he meant was that even if a non elite cracks through, somehow gets a law teaching job, and then tenure, many things remain the same. The clique of the elites is never open to the non elites. You know this by the way the elites "connect" on a social level, drop the same names, and observe the same social mannerisms. It is not something I had thought about. The humorless and dull world of elites has never been attractive to me. I just cannot get the hang of the minuet.

Reflecting in this idea, though, made me realize that sometimes the treatment of non elites who do sneak in is quite damaging. I recall one non elite recruited early in my career who was quickly assigned administrative duties that placed his scholarship in jeopardy. He obviously was not taken seriously as a potential scholar. Other non elites got tenure with flying colors but just never seemed to get the recognition they deserved. The celebrations and congratulations seemed to be reserved more for elites.

On the other hand, I cannot say that I have seen a non elite run into a higher or different standard for tenure and promotion. And, at my school, the market has worked to the advantage of non elites since they have been recruited away in relatively greater numbers than elites. This I regard as supporting the idea that mid level law schools like mine would do better to recruit highly ranked non elites.

So what does this add up to. First, non elites are virtually closed out of law teaching. Second, if they somehow get their foot in the door, I cannot say that I have seen any out and out discrimination in terms of tenure and promotion. This may simply be a part of the overall characteristic of elites never to admit they have made recruiting mistakes. Third, I am convinced that non elites do work in a very different world. For example, law reviews make publication offers on the basis of credentials. Elites can call on the elite networks and old professors to read their work and to be thanked in the name-dropping acknowledgement footnote. And elites seem far happier to see elites succeed than they do to see non elites succeed. It is an affirmation of their own claims to be entitled.

Mainly, as I told my friend, "Why worry about this?" Would you really rather be one of them?

Playing the "Fairness" Card and Rawls

Recently, in a comment, I was accused of not being fair. It made me realize how specialized a sense of unfairness can be. I have no idea who wrote the comment and the identity is not important because I am sure a narrowly focused sense of fairness is something we all possess. I am not talking here about accusations of unfairness that are actually generated by some other disagreement. After all, it’s always nice, at least strategically, to start any criticism by saying the other person is “unfair.” It’s a first cousin of “you are uncollegial.” Both often mean, “I don’t like what you did but do not want to confront the merits.”

One of the most interesting narrow senses of fairness I witnessed was several years ago when faculty had family members in class and, as I recall, family members tended to do very well in those classes. It was a big deal and after months of faculty grumbling and people trying to get other people to raise the issue, there was a meeting and the faculty voted unanimously, or close to it, to ban family members in class. Then the question was what do to about family members already in class. Someone said they should be graded pass/fail. Someone else argued that was unfair because those students registered for those classes more or less expecting to make A’s. That view carried the day. I could not see what was unfair since it seemed like common sense to me that children. should not be in mom or dad’s class..

Mainly, though, fairness seems to be granted first to those we know and people we do not know get short shrift. Like the commentator to my post of mine about a faculty candidate, there was perceived unfairnes to that candidate, but evidently no unfairness to dozens of unknown people waiting patiently for phone calls and excluded by the process and the biases of those running it. Similarly, I could count on two toes (that would be twice) the number of times I have heard someone object to a faculty program, research grant, or tenure because it would be unfair to the taxpayers and tuition payers. In fact, I have heard programs defended not because they are fair to those paying for them, but because not that much money is involved.

Sometimes I do hear the argument that something would be unfair to the students but it’s usually as an added justification for doing what a faculty wants to do. For example, I have not heard, at least publicly, that it is unfair to the students to make up several classes during the last week, not teach needed courses, to schedule courses so they conflict in order to appease faculty or any of the other faculty-favoring practices that make life tougher on students. My hunch is that this would change if discussed at faculty meetings with students in attendance. Unfortunately fair or not fair seems to be a function of the visibility or invisibility of those affected.

I wonder if there is any way to make law school governance decisions behind the veil of ignorance.

Answer from Harvard Professor

Those of you who read the immediately preceding post know that I wrote and asked a Harvard Prof about an empirically verifiable statement made with respect to a candidate. The statement was that the candidate had 28 call backs within a few days of the recuiting convention. As it turns out, the reference indicates she confused call backs for campus interviews with interviews at the hiring convention. I attribute no bad faith to anyone involved but the whole incident made me smile. Do you realize the difference between 28 call backs and 28 convention interviews? In the first case, it would mean that nearly every school a candidate met with in DC invited the candidate to campus. I am not sure but this could be a record. The second case is probably about average. That is, I expect having 28 interviews in DC would be about normal. In the word of shopping for cars it would be like losing track of whether you were shopping for a 500 series BMW or Ford Escort. I wonder what kind of environment a person lives in to confuse the two. Again, no doubt at all that it happened just as reported but very very big difference. I do not know but my hunch is that Harvard is one of those schools that hire "off menu" -- S.Ct clerks before and outside of the conference.

Letter to a Harvard Reference

Dear Professor . . . :

I have not communicated about this until the recruiting effort in connection with [Doe] was completed because I did not want to interfere in the process. What follows is an effort to transcribe a telephone interview with you. The comments are what one expects these days except for the claim of 28 call backs within 3 days. This was evidently news to [Doe] and she corrected the error. The 28 interview claim became a selling point here by both the hiring committee and, evidently, the Dean. There are many explanations for such a statement. Most likely someone here misunderstood your comment in his or her effort to embellish the record. Or, perhaps, call backs got confused with interviews at the hiring convention. Another possibility is that you did not have the facts correct but shot from the hip nonetheless.

It is extraordinarily difficult for productive and deserving students with non elite degrees to find jobs in legal education. The bias is overwhelming and unjustified by any measure of teaching or scholarship success. In fact, schools at the rank of my schools have an abundance of elitist underachievers whose references were as enthusiastic as you were only without the possible misstatement. (Again my assumption is that the error was at our end.)

If the error was at your end, it is my sincere wish that in the future you will give some thought to the candidates who do not have an elitist connetion but are just as talented as students who do. There will be no equal opportunity for those students but it need not be made even less equal by the use of incorrect appeals to market demand as an indicator of potential and quality.

The note provided to our faculty is as follows: ". . . . (Harvard Law School): "I spoke with Professor . . . . at Harvard about [Doe].
Professor . . . was very effusive in her praise of [Doe].. She described her as “terrific,” “really
strong,” “smart and interesting.” She believed we were right to rank her highly as a candidate
and noted that [Doe] had been offered 28 callbacks within three days of the hiring conference
[actually the number is more like 10](this was inserted by the Committee after the interview although the actual number remains unclear). She really became aware of [Doe]’s potential as a scholar
when she supervised her third-year paper. . . . Professor . . .
stated that the paper was extraordinary. [Doe] did lots of leg work to find the cases she reviewed
as well as the factual setting for the cases, and “then she wrote this enormous paper.” . . .
was so impressed she asked [Doe] to present the paper to her . . . course,
something she never does. She gave [Doe] an A+ on the paper, only the second time she has given
such a high grade in 15 years of teaching. Professor . . . said that there are many intelligent
and highly motivated students at Harvard, but even by Harvard standards [Doe] “went above and
beyond what students usually do.” Professor . . . believes [Doe] will be a solid teacher and scholar."

Moms, Dads, and Deans in the World of Elites

I have been pretty critical of deans in my blogs and I may have been unfair. My sample is small. I have only worked closely enough with 8 deans to have any standing with respect to criticism. In that 8, I have seen only one dean who tempted to reshape the work ethic of the faculty. He was canned by a sorry University President who was shortly thereafter canned but not before appointing a dean who knew about as much about law schools as I do about brain surgery. The difference being that if I were asked to do brain surgery, I would decline.

What’s up with deans? Again considering my small sample I have never had a dean who would have been sought after as a lateral hire. Thus, to some extent they have been overplaced and paid substantially more than they would have been paid as a teacher/scholar. This leads to defensive deaning and means that it is foolish to expect a dean to tend to much more than managing the deanship.

BUT, even if my small sample is not representative and even if all the deans I have had were equal to the worse one, the cannot possibly be expected to teach faculty what their moms and dads evidently did not teach: do not take what is not yours without paying for it, tell the truth, share.

On my faculty and I assume most or all others, most faculty do these three things. When a critical mass does not, however, other faculty tend to look the other way or begin to take on the character of those whose moms and dads failed. Here is what I mean:

1. Don’t take what is not yours.

This comes up in the context of tenured professors who do not write or write infrequently. Whether they ignore the obligation, wring their hands over it and still do not write, or refuse to write as a protest, it’s taking money that they have not earned. Isn't this stealing? Some will teach extra to make up the difference but many do not. I guess the lesson around the dinner table at those houses was “It’s OK to take what you want as long as you can get away with it.” If their parents did not teach them not to do this, does a dean really have any chance?

2. Tell the truth

In law teaching there are elaborate ways to avoid telling the truth. The bad NYT rule – do not write what you would like to deny having said later – is an example. The use of words that are deliberately vague. Puffed up resumes. Tenure letters written that are not truthful or omit important information. Claims by a Harvard professor that a candidate she is pushing has 28 call back interviews. An appointments committee that promotes a candidate on that basis knowing it is nearly impossible. Where were the parents on this one? Was the dinner conversation actually, “Only say what benefits you and if it is truthful that’s nice too.” The best dean cannot change this.

3. Share

Evidently a number of people in law teaching had this experience. You are 6 and on the playground with your mom and dad and using the only swing. Five other kids are waiting and your parent says “Don’t worry about them Johnny. You got here first and can use the swing as long as you want.” Those must be the same people who now demand to teacher the fewest classes as possible. Unnecessarily cap classes. “Volunteer” to teach in an interesting summer program before anyone else knows the opportunity exists. Again I am not sure the best dean can change self-dealers into considerate people.

The fact that I do not think most of the deans I have known have done a very good job remains true. It is also true that I may be expecting them to reprogram faculty when it is not possible. Mom and dad had the chance but also failed.

Still if you are at a school where the bad actors have enough clout to affect the culture then a Dean could at least stop facilitating bad behavior. I have seen little of that. And I have never seen a faculty do anything but make nice.

Hiring Bias and Public Legal Education

Elites tend to view themselves as ends rather than means to an end. This is especially the case when it comes to law teaching. Unless public legal education is viewed as a huge and ill-conceived method of redistributing income from lower and middle income groups to relatively higher income groups, its only purpose can be to enhance public welfare. In this sense, both faculty and students are means to an end. Both are necessary components and their efforts should complement each other.

Within the faculty student relationship, though, there is a huge imbalance. Students are relegated to a distant second place. The bias in favor of faculty desires undercuts this complementary relationship and also reduces the return to the public investment. For example:

1. The courses offered are what faculty want to teach, not necessarily what is needed to best prepare students.

2. Teaching times are dictated by faculty. Generally they want to teach from 10-3 on Tues. – Fri. Thus, classes conflict while there are stretches of time when classrooms are empty.

3. Scheduling is dictated by faculty. For example, a 4 credit course may be offered in two two hour sessions. Especially for first year students taking standard courses (as opposed to a skills course) this is pedagogically indefensible and only exists because of a desire to minimize student contact days.

4. Faculty cancel classes for any number of optional activities, often for weeks, and then make up classes (if they are made up) at the end of the semester when students are otherwise swamped.

5. Faculty are often craven about teaching evaluations. Part of effective teaching may be to challenge students yet the prevailing trend is to make them feel good even if this is inconsistent with classroom rigor.

6. Faculty support of grading curves is often motivated by a desire to avoid hard decisions or to avoid “hurting the feelings” of students. The result is that students do not a have a realistic assessment of their progress. For example, at my School, students with a GPA that is even a fraction below a B are very likely to fail the Bar exam.

7. The use of machine graded, multiple choice exams with recycled questions can hardly be reconciled with an education designed to stress analysis and critical thinking. Law School is, after all, a graduate level education. Those exams, however, can be reconciled with a desire to avoid grading.

These policies are consistent with a sense of entitlement most frequently possessed by those in control of legal education. In a context of low accountability and ineffective management (primarily because management serves at the pleasure of those managed) everything hinges on the character and sense of duty of faculty. Here is the good news: It could be even worse and will be unless hiring policies change.

Not as Much as You Think

In my previous post I asked the question “Do Elites Think.” I asked facetiously knowing that they do think, at least some. The point I was making is that they are enamored of institutional authority -- Harvard is automatically better than Florida and the recommendation of a Harvard professor more reliable than a Florida professor.

If you have followed this latest series of posts, you know that the UF hiring committee elected to invite exclusively graduates from elite schools plus a couple of people from expensive schools. This is a policy that makes no sense for any school and especially for schools at Florida’s level. One has only to look at the past and current members of the UF faculty who would have been passed over if the policy were in effect at the time of their hiring...

The first interviewee was a Princeton/Harvard product who was touted as having over 20 interviews. In fact, according to the candidate’s Harvard reference, she had 28 callbacks within three days of the hiring conventions. (For those not familiar with the law school system, there is a 3 day meeting of candidates and law school hiring committees. The committees interview about 30 people and some are invited back to campus.)

For those who rely on others and are drawn to bandwagons, this must mean the candidate could not miss. If others want her, surely we want her too. Evidently the Dean and Committee members stressed the number of callbacks as an indicator of how great the candidate must be. Other hiring committees might have read the scholarship, talked to the candidate longer than a 30 minutes, and discussed her with contacts other than the ones identified by the candidate. Some or all of this was done but all in the giant shadow of Princeton/Harvard and 28 callbacks in 3 days. No one dare disagree with Harvard credentials, Harvard references, and 28 other schools. (Did I mention that Harvard profs evidently don’t need to worry about the truth. After all, they create “truth.)

To make a long story short, the actually number of call backs appears to be “closer to 10.” Although the information comes from the candidate herself, I am not sure why it is not an exact number. Could 10 really be 8? And, will it be announced in a few days that it was 5 or even 0. Who knows? More importantly what happens now? Does exactly the same candidate become less desirable?

Do Elites Think?

Jake: Hi, do you want to talk about that issue some more?

Jeff: Yes, right now I am trying to find some distinction between being content and being happy.

Jake: As it turns out, I was just talking to some people at Harvard about that.

Jeff: Why are you telling me they are from Harvard?

(Long Pause)

Jake: I am not sure what you mean.

Jeff: Am I supposed to attach some significance to that?

Jake: They are smart people.

Jeff: Just because they are at Harvard? If they had said the same thing and were at Weaver State would you tell me that they were from Weaver State and that, therefore, you do not know how much to rely on what they said?

So far Moneylaw has been about operating a law school – hiring, tenure decisions, how to best spend money to serve stakeholders. As we know, and has been debated for some time, appeals to institutional authority as a substitute for actual thinking are pervasive. Teachers who make it known that they went to an elite school when teaching are essentially saying – no need the think critically about what I say because I went to Harvard, Yale, wherever. Authors who submit articles thanking “authorities” with whom they had only slight contact do the same. So too authors who submit articles and make sure editors know where they graduated from or are currently teaching. To finish writing the number of examples would mean a post longer than any every published on Moneylaw and that is saying something.

I find two things interesting. There are people who actually defend this. And even when I convince people that it is wrongheaded, they cannot stop it. Maybe, as Woody Allen said in the voice over at the end of Annie Hall, “They need the eggs.”

The Fall Election: News for Law Students and Alums

Each fall an election is held. It’s an unusual election in that it involves actual votes and then marketplace “votes.” In both cases, the voters are law professors and the election is held to determine which people will become law professors.

In the vast majority of instances the voters vote against their own students. Instead, their votes are cast for students and alums of a small handful of exclusive and expensive schools. That’s right, collectively they decide that their own students or students trained by their counterparts at similarly ranked law schools are not qualified to be law professors.

So, what is the rationale for slapping the “unqualified” label on these people? One possibility is that these students are poorly trained. Is it really possible that law professors are humble enough to concede that they cannot cut it and are unable to teach effectively enough to prepare people to teach? I’m going to take a wild guess that that is not the explanation.

OK, so maybe the students are just too dumb, ignorant, or lazy that even incredibly good teaching cannot overcome their shortcomings. If it’s not the teaching, it must be the students. Right? So, law professors must be so turned off by their own students that they conclude they are all right to handle the affairs of others – you know, unimportant things like death penalty cases, planning huge estates, arguing the merits child custody battles – but not possibly up to teaching. Think of this message: You are beyond help. Whatever I do “for you” you cannot be as qualified as I am (unless you go through the LLM “cleansing for dollars” process). They must be teaching difference students than I see every year. In fact, right now I have 180 contracts students and I am convinced that some of them in five years could be doing a better job than I am.

So, if it is not the professors and not the students, what is it? And, how did elitist professors come to know whatever they rely on when casting their votes without actually talking to a single applicant in Washington. Arrogant may be the right word here if that means not realizing that you don’t know what you are doing but doing it anyway.

Another thing that puzzles me is why the 90% of students and former students who are not buying or did not buy a brand name legal education are so accepting of being sent the message that they cannot cut it. Is it some kind of Stockholm syndrome whereby students admire those who dismiss them? A power thing? Do they believe the press of their professors? Do they believe what their professors are telling them about themselves? If so that is unfortunate because it is flatly wrong. Hopefully the professors are truthful with the students about other matters.

'Nuf Said

Based on data provided to the faculty and my far from always accurate calculations, The University of Florida hiring committee interviewed 31 people in Washington. Here are their law schools:
Harvard – 8
Yale -7
Columbia – 4
NYU - 2
Stanford -2
Chicago -2
Vand. - 1
Penn. – 1
Mich.-1
Virginia -1
UCLA -1
Case Western – 1 (this candidate also has a tax LLM from NYU)

Nine of the schools listed, accounting for 28 of the candidates, are what would be regarded as elite schools. Yes, UF missed by only three people of having an elitist only interview line up. Only 3 candidates came from public schools and two of those are regarded as elite law schools.

The nine schools responsible for 28 candidates were included in a study I made of scholarly productivity of faculty found at 4 Law Schools that are at the bottom of top tier of law schools. I compared the productivity of graduates from those elite schools who end up at the bottom of the top tier with productivity of faculty from all other schools. My results indicate that there was no correlation between level of School and scholarship. There was, however, anecdotal evidence that level of school was correlated with high levels of self promotion and resume building for the same of resume building.

I suspect that the list looks a great deal like that at other schools and that it is roughly like the lists for all schools for many years.

At this point in one of my posts I might attempt to explain why legal education needs another elitist education professor like it needs a lobotomy which is, by the way, what this type of hiring has done for many law schools. But, when you think about it, the burden should be the other way around. In the absence of any evidence of people from these schools make better law professors, why persist. We know why: they look, talk like and have experiences like the people hiring them. But I am asking why they would be the exclusive focus of hiring efforts if one had the best interests of the students and stakeholders in mind.

And the Campus Visits Go To . . .

First out of the box for a campus visit is -- do you want to guess? -- You got it. Princeton/Harvard. I don't want to be too quick to be negative. After all maybe this is a person with a story to tell. Overcoming barriers, a zillion dollars of student loans. You never know.

But there is a another variable. Every law school candidate who goes through the normal recruiting channels fills out a form. On the form you are asked to list major publications. I think that excludes things that are not published and especially things that have not been written. Is it too much to attribute to someone who takes this opportunity to list those kinds of things a willingness to bend the rules in the favor of self-interest? And, if that is true, what will this person be like as a colleague? Is this the next person to insist that everything he or she has done -- from an 80 page article to a doodle while having latte at Starbuck's -- is scholarship?

So much for the lessons of history.

Dancing the Minuet

Then I thought it is actually all about class bias because to the extent a school is not like the ideal school it means there is a hubris often found among those with a sense of entitement.
1. Hiring is designed, in part,  to create an intellectual and philosophical balance so faculty can debate and hone their ideas about important issues. (At many schools, intellectual diversity is threatening.)
2. In hiring, performance, diversity, and energy are valued over credentials.(Most schools place high value on credentials even though they are as reliable as cubic zirconium as an indicator of value.)
3. Discussion can be had about everything – class, race, sexuality, the Middle East – without the discussion becoming personal, or people pouting, or stomping out of the room. (At most schools these matters are taboo because of faint hearts, fears of being labeled, and wanting to avoid complex issues.)
4. There is real collegiality as opposed to facial collegiality. (At many schools the appearance of being “nice” is sufficient and can be used to mask a great deal of self-dealing, free riding, externality production, and closed-door mischief.)
5. The administration and faculty announce and internalize goals and stress accountability. (At some schools, the administration takes whatever happens and spins it in order to claim success.)
6. There is an on-going effort to match the efforts – courses offered, degrees offered, foreign and domestic programs -- of the school with the needs and expectations stakeholders. (At other schools, there is no on-going assessment if someone’s turf would be disturbed.)
7. The faculty abide by the real NYT rule: Don’t do anything you would not want reported on in the NYT. (Many faculty, including some on my faculty, go by the “other” NYT rule: Don’t put anything in writing that you would not want reported in the Times.)
8. The ideal curriculum is planned and professors make sure it is offered even if it means extra effort. (At some schools, teachers are asked what they are “willing” to teach and when and that is what is offered.)
9. The dean has principals and principles. He or she considers the best interests of students and shareholders and does not comprise with self-interested faculty to achieve those ends. (At some law schools, deaning means displeasing the fewest number of faculty.) (Remember the old saying “It’s not a revolution if you ask permission.” How about, “It’s not deaning if you ask permission.”)
10. There is a sense movement, excitement, intellectual ferment, and even some dancing Monday – Friday throughout faculty offices. (Some schools have gone to a Tues – Thurs schedule, faculty are elsewhere, or suffer from the institutional Valium effect.)

Classism and Racism in the Small Southern College Town

I do not know because I am white but if you could assign a number to the disdain white elites feel toward blue collar whites – say 5 – the disdain those same people feel toward working class blacks would have to be 5 with some exponent. I mean like 5 squared or cubed.

One of the more subtle forms of classism/racism is attitudes of Northerners and Westerners toward the South. It plays off this disdain. At my law School, in the deep South although others would argue otherwise, we tend to recruit from all over the country and when we get upper class whites, they often hate it here. In fairness, many also blend right in, love the freedom, clean air, and having a choice between the Atlantic and Gulf.

Why don’t they like it here? Mostly, it's not enough independent coffee shops, Panini places, and quaint shops where you can buy special teas and the like. Or, more accurately, what all those things represent. We (here I mean Southern college towns) have as many cultural events as any other college town or at least more than anyone can do. If you are thinking it's an urban rural thing, you would be wrong. Most often they long for some other college town. Recently I looked at some demographic data for the most desired college towns – Chapel Hill, Ann Arbor, Boulder, Eugene. Unless I read the numbers wrong, the African-American population of these cities is 12%, 8%, 1% and 1%. In my town it's 24%. And the 24% and the 76% (including Hispanics and other minorities) frequent the same places. (I did not check the income levels of minorities in Southern college towns but I have a hunch what that would show.) There is one mall, one downtown, one strip of car lots, two movie theater complexes and one tiny airport. In other words, we actually do live together – all classes and all races.

What this makes me wonder is whether those Northerners and Westerners who thumb their noses at the South and who, more than likely, claim to crave diversity only crave diversity for others but want no part of it themselves. I have written that it seems to apply in law faculty hiring decisions. Why not in where you live?

Did You Get Your Prius Yet?

The other day I told a friend I was thinking that my next car should be a Prius. His response, "Don't be silly, let someone else by a Prius." This person is not a law professor and probably has never heard the term "free riding." It was, though, a great example of free riding. That made me look around the parking lot at my School. Not a single Prius or other hybird car. I have written before about the fact that those with a sense of entitlement are most likely to be free riders.

One way it shows up is in the decanal glossy or law school porn, it is also called and the near uniform lack of law professor response to the waste. You know, that oversized postcard in the mail from another law school announcing that this year the Benjamin Robinson speaker will be Horst S. Butt from Harvard or Yale. Or the glossy announcing who is visiting that year. You can bet that I was just wondering about that. Or the big juicy glossy listing faculty publications right down to every op-ed piece, one-page introduction, tape-recorded commentary and speech to the Elks Club that every law faculty member insisted was scholarship and worthy of publicity and that every dean could not have been happier to add to list. Most of these come off a negative advertising both for the schools and for many of the faculty -- and I do not mean just those with very short lists.

Each day it comes and, like other matter, is shoveled from the mailbox to the trashcan. Yet, no matter how much you throw away, it comes again. It’s like the scene in Sleeper when Woody Allen is still pretending to be a robot and does something in the kitchen – I’ve forgotten what -- and it keeps expanding and expanding – and he is left to try to beat it to death with a broom. I do not recall if of prevails because at about this point in the film he discovers the orgasmatron.

Where does this stuff come from? No, I know who mails it: Panic-stricken law school administrators afraid their schools will drop a slot in USN&WR and the faculty, students for alums will be up in arms. I mean the paper, the ink, the labor, the money to pay the salaries of those assigned to prepare and mail it. Also,where does it all end up once it is carried away, largely unread, by the trash person? Most importantly, were is the outcry from potential Prius buyers who are oh so sensitive to the environment. Why aren't they demanding that law schools do something more useful like, for example, digging holes in the sand and then filling them back up and then using the money to put back together some 19 year old that Bush and Cheney sent off to be blasted apart.

I know why. The porn is about them. Stopping it is not.

You would be right if you think you see a silver spoon on the cover of this book. It has been out about a year now. It is The Price of Admission: How America's Ruling Class Buys Its Way into Elite Colleges -- and Who Gets Left Outside the Gates, by Daniel Golden.

This is part of a review for the Washington Post's Book World by Jerome Karabel :

"That virtually all elite private colleges give preference to the sons and daughters of alumni will come as a surprise to no one. But preference also extends to wealthy applicants whose families have been identified as potential donors -- "development cases" in the parlance of the trade. Golden documents that even Harvard, with its $25.9 billion endowment, is not above giving preference to the scions of the super-rich. His primary example, however, of development cases being central to the admissions process is Duke, where the university embarked on a systematic strategy of raising its endowment by seeking out wealthy applicants. Golden estimates that Duke admitted 100 development applicants each year in the late 1990s who otherwise would have been rejected. Though this may be something of an extreme case, special consideration for applicants flagged by the development office is standard practice at elite colleges and universities.

Also enjoying substantial preference at elite colleges, both public and private, are varsity athletes. In a fascinating case study of women's sports at the University of Virginia, Golden shows how the effort to comply with Title IX, a gender equity law that has the praiseworthy goal of ensuring equality between female and male athletes, has had the unintended effect of giving an admissions edge to female athletes who play upper-class sports. Between 1992 and 2002, the number of college women nationwide in rowing, a sport highly concentrated in private schools and affluent suburbs, rose from 1,555 to 6,690; more recently, the number of female varsity horseback riders increased from 633 to 1,175 between 1998 and 2002. The net effect of the rise of these overwhelmingly patrician sports, Golden argues, has been to further advantage already advantaged women.

A recent study by the Century Foundation estimated that only 3 percent of freshmen at highly selective colleges came from the bottom socioeconomic quartile, compared to 74 percent from the top quartile. Growing awareness of this shocking disparity has led a number of leading private colleges and universities, including Amherst, Harvard and Princeton, to take measures to increase the number of low-income students. But Golden is surprisingly ambivalent about these efforts, fearing (perhaps justifiably) that the admission of more poor and working-class students will be accompanied not by a reduction of preference for the rich, but by a decline in the number of middle-class students. The Caltech model that he finds so appealing is utterly inadequate to address the problem. Given the magnitude of class disparities in educational achievement, only affirmative action for the disadvantaged -- what former Princeton president William Bowen has called a "thumb on the scale" for low-income students -- promises to produce significant results.

The Price of Admission estimates that the end of affirmative action for the privileged would open up roughly 25 percent of the places in the freshman class at elite colleges and, in so doing, free up spaces for aspiring students of modest origins. Based on my own research, I would estimate a figure of 10 to 15 percent -- still a considerable number. But the main beneficiaries of such a shift -- absent a more profound change in the prevailing definition of merit -- would not be the socioeconomically disadvantaged, but rather the children of the upper-middle class."

This Place

There is a wonderful book about the working class academics: This Place So Far From Home. It is a book of essays by working class people who find themselves in the foreign work of academia. A strange land, to be sure. Several of the essays remind me of trying to explain to my grandmother than just because I had a doctorate, I could not prescribe medicine for her aches and pains. The editors are C.L. Barney Dews and Carolyn Leste Law. Published in 1995 by Temple University Press. It's nice to read about a common experience.

A Strategic Life

A few days ago, I wrote a blog about volunteers. It was inspired by an incident at my school that involved a person in charge of a cushy assignment “volunteering” to do the assignment himself. Here are some other examples. At my school, because we do not hire people to teach what the students need, 5 people are now teaching two large first year sections. I think when we all agreed to do it, it could be legitimately be regarded as volunteering because it looked like it would be difficult. Now a few of us have decided it is a breeze. One prep and 6 or 8 hours of your teaching obligation is done for the year – hardly anything that should create in the School a need to “compensate” us in one way or another. But a person employing the volunteer strategy will continue "I am doing you a favor" charade. I do not know if anyone is in this case.

Here is another one. In my second year of law teaching I was on an 8 person appointments committee. At our weekly meeting it was announced that the budget allowed for 6 people to go to D.C. Now we all know that profs moan and groan about going to the meat market but they really love it – be a big shot for a few days, drink, clown around. So, at the meeting the Chair asked, “Who wants to go.” Not a single hand went up. At the next meeting the Chair announced that every person on the committee had contacted him privately to “volunteer” to go. Wanting to go created no implicit debt but a “volunteer” deserves something in return.

Where is this going? Actually I know and I may be manufacturing something here that does not exist at all. But, can the volunteer schitk be part of an overall pattern of professional strategic behavior? If it is, is it a law professor thing, an upper class thing or just something everyone does.

The overall strategy has three components. First is the voluteer. Second, you are always working hard and overburdened. Even if you just finished an hour of spider solitaire, webboggle, or surfing the net, when you come of your office you are in the midst of something pressing. So many things to do! Third, there is the “show no passion” strategy. Best to appear indifferent. Basic bargaining -- no one has any leverage with you when you do not care. Be sure to use words like “Aren’t you concerned about X” as opposed to “I really do not like X.”

Am I describing my school? Actually, I can only think of a few people that consistently fit the model and you would be hard pressed to convince me that my School is different from any other. Have I used these strategies? I am sure I have from time to time.

But think about the hell of keeping all of these going all the time. Such is the strategic life and my hunch is that it is a behavior found mainly among the privileged.

Smile

Low socioeconomic class professors can experience one pleasure that is not available to their elitist counterparts -- out performing them or doing more with less. Not that all do but many do and I sense there is an underlying sense of pride when this happens. On every faculty I have served on there have been faculty members who did not have an elitist background and who ran circles around their colleagues. They overcame not only the initial prejudice in hiring but the documented biases of law reviews and a strong tendency by the elitist to discount their research. It has to be inferior, right? After all, they are not graduates of Ivy League schools.

I do not want to generalize too much here. It is not every elitist, by far, who wraps him or herself in the trappings of eliticity. On the other hand, I have heard that in actual experiments Harvard graduates mentioned that fact within, on average, 3 or 4 minutes of a new discussion. And, how many Ivy League law professors attempt to impress their classes by letting it "slip" that he or she is and Ivy League grad. My guess is that it is a high percentage.

But this is what really puzzles me. What exactly goes on at these elitist institutions? In my limited experience there appears to be no correlation between the level of elite education and the ability of a person to discuss art, music, history, or anything else. I could be wrong but, if not, is it possible they were so worried about grades that they forgot about the education itself. Or are these esteemed institutions simple selling repuation?

So you lower socioeconomic class achievers, stop feeling sorry for yourselves and feel sorry for your elitist colleagues. They can never experience of joy of doing it the hard way. Nor will they ever know if they could.

Are Students Exploited?

My view is that a legal education is an enriching experience even if it does not turn into a $100k plus starting salary. For many students, though, I think it is an investment in human capital. Based on the entry level salaries and placement data it is hard to believe it is an investment that is justified by the rate of return. Yet, I hear little discussion of either decreasing admissions or even placing in the recruiting literature a disclaimer that law school may not be a life changing efforts -- for the better that is. Some of this can be found in US News and World Report but that data is questionable and the massive advertising and student recruitment budgets, even by public schools, are hardly full disclosure.

The reason, albeit not the complete reason, is that lower enrollments mean fewer jobs and if there is anything the privileged are entitled to it is a cushy job. The fact that thousands of law students may be burdened with debt is simply not part of the equation. So let me ask you this: If some portion of law teaching jobs are made possible because students with incomplete information go into debt, or forgo incomes, or have two jobs, is there a moral distinction between those making law school policy and the coal mine owners of say 1920?

Prince Charles, Entitlement and Diversity

I was just looking over Prince Charles' official website. (As far as I know he is not blogging, say, on moneyroyalty or prinzblog or any of the other blogs run by present, past, future, or pluperfect royalty. But think about it. Because some genes got mixed with some others we have the randomness of a Prince Charles. I have no reason to think he is not a humble guy and fully cognizant of the randomness of who we are and and even if we are. If he is about to be objective about himself he cannot have a sense of entitlement although I in fact I am sure he does. (Which raises the question at one level of whether all babies in hospital nurseries should be randomly handed out to parents so that each has a equal opportunity of having a decent family life, or we could just tax people on the basis of IQ.) Now switch to those in higher education who have a sense of entitlement -- as though they earned something -- when all they did was fall into the right gene pool and luck into the right parents. Crazy, isn't it for a kid with middle-class or higher parents, a high IQ, and a privileged upbringing to develop anything other than a profound sense of gratitude.

Who should have a sense of entitlement? The people least likely to have it. These are the people who overcame the lack of all those factors that those with a sense of entitlement seem to have. If those with no sense of entitlement were found more frequently in law teaching, the profession would be more diverse. In my own effort to increase diversity I think the first question to ask any faculty candidate is "What did your father do for a living."

Don't Get in a Fox Hole With an Elite

I really like John Kerry. Think he would have been a terrific President and respect his war record. But, if you have seen the news lately you have seen the tape of a University of Florida student being mugged by the UF police. It's grim and alarming. One only hopes UF does not have a real emergency.

The episode began with the student attempting to ask Kerry a question. As the police descended on him and pinned him and then tasered him, you can hear Kerry's voice in the background. "That is an important question," he says. "It deserves to be answered." As far as I can tell he does not shout STOP THIS or make any truly assertive move to intervene.

I could not help but think how much this is what one expects from an elitist. As I have written before, elitist rarely show passion or an inclination to get involved. (I am not sure they have the capacity to.) Showing passion would mean someone would know you feel deeply and it would also expose a weak spot to foes. The elitists are ultimately bystanders.

Are the Taking Rules the Same?

Several years ago, some lines from another law professor’s scholarship were discovered in a former colleagues own scholarship. My former colleague was not a popular guy and was not a household name. He was a very hard worker and terrific thinker. He lost his job and, to my knowledge, has not found comparable employment. I had no doubt that it was inadvertent. He tended to write everything on note cards and then incorporate it into his work and one thing led to another. Plus, as much as law professors are interested in whether they are cited, wouldn’t it be crazy to lift from their work?

If you have been in this business long you know the importance seeking out the other side of the story and getting the facts straight. Nevertheless, as I recall, the work or language of others has been found things written by Lawrence Tribe and, now, Ian Ayres (see today’s NYT’s book review section). In England, fiction writers Julian Barnes and, again, if my memory serves, Ian McEwan, have also had the words of others show up in their own work. Although McEwan and Barnes seem to argue that lifting from others was standard procedure, in the case of law professors I do not see how it can be anything but carelessness. It’s not, as if Tribe and Ayres need outside assistance when it comes to writing or ideas. Nor are the pressed enough for publicity to not be careful.

So what are the rules with respect to inadvertent copying? And are they different depending on how much people are liked or how high they are placed? My very small sample suggests they are.

Wired

Here is an interesting article about how law review editors select articles. As you would expect institutional authority -- credentials and prior placements -- are very important. Not surprising.

http://www.stthomas.edu/law/faculty/bios/pdf/articleselectionchristensen.pdf

It seems clear that hiring is not quided by moneylaw priciples. Nor is the selection of articles. Is anything in law teaching not wired? More importantly, what would a moneylaw system of law reviews look like?

People's History

Jim Chen's post on MoneyLaw about the language as an identifiers, a New Yorker article on micro burst expressions several years ago, Wolf's, Radical Chic, Zinn's History, and my own posts some time ago on 1) signaling and 2) that I am not convinced that Law Schools are really interesting having faculty who are both African American and diverse all seem to come together.

Can I tie altogether in a blog length post. Not a chance, but here is where it ends up. As a totally amateur sociologist I sense that elitist dominated hiring committees feel comfortable with candidates in the following order:

1. White elitist educated male
2. White elitist educated female
3. African American elitist educated male
4. African American elitist educated female
5. White non elite female.
6. White non elite female.
7. Non elite African American female
8. Non elite African American male.

First note that elite always trumps non elite. Second, Committees like 1s and 2s because they have more in common with those folks and they will find room for 1s and 2s.

They will also, in the quest for non diverse diversity, search high and low for 3 and 4. I am not saying 3 and 4 are always not diverse. Maybe they are faking for sake of the interview but my sense is that, the less diverse they seem, the higher their ranking and some do not seem to have to try very hard to seem not diverse. I actually feel for these candidates. Many have the street creds of Mr. Rogers but they have to please everyone. A smattering of people on a faculty looking for "deep" diversity may be put off by too much cozying up to the 1s and 2s by the 3s and 4s. On the other hand, it is important to please the 1s and 2s.

Now we get down to 5-8 and Howard Zinn. You know the story -- whether the American Revolution, the Civil War or Viet Nam-- the elites take care of their own and they use the non elites to get there whether it means using them to fight their battles or pitting them against each other.

Is law school hiring Zinn's version of history playing out in a different context. Why wouldn't it be?

Irrational Hiring

Over on Moneylaw I described the outcome of an empirical study comparing the output of scholarship of elite and non elite law school grads who are now teaching at mid range law schools. In another post I listed some of the arbitrary decisions one must make in attempting an effort like that. Although I plan to redo the study and attempt to refine it the bottom line is that there is virtually no difference in the quantity of scholarship produced by those with highly elite credentials and those with out. This means that those law school hiring committees that allow themselves to be swayed by the school from which a candidate graduated are relying on a short cut that has no particular meaning and, frankly, are being lazy.

The study considered only 4 mid level schools for two reasons. First, I wanted to hold constant for the school at which the prof teaches. Second, it is hard to find non elite grads at highly ranked schools.

Hiring Biases -- Yet Again

It's law school hiring time and nothing much changes. My impression is that the hottest entry level candidates are those with elite degrees and Supreme Court clerkships. In fact, these candidates often do not make it it the AALS convention. Next are the top ranked grades of elite law schools.

While I do not know that those people turn out to be more productive than others and I can think of examples when they have not, it seems to me that the more crucial issue for a mid or lower level law school arises with respect to the next level of hiring. The choice for these schools is between second tier elite school graduates and the top graduates from non elite schools.

I do not know what every school does when faced with this choice but my impression is that a fair number of them go for the second tier elite school graduate. What I do know is that this bias cannot be based on any empirical comparison of the productivity of second tier elites and top tier non elites. No, it's purely self-referential hiring because God only know what would happen if the top ranked non elites were hired and out-shined the elite. We couldn't have that, now could we?

Elite Signals

People go to a great deal of trouble to communicate nonverbally. Clothes, haircuts, cars, houses, furniture. Very often they are trying to tell you something. For example, the beard. What does it mean? Some say it means, “I may be bald but I can still ‘do it.’” Or it may by saying “I want you to think I am not as conventional as I am.” And the Volvo of which I have owned many. For many it meant, “I am paying a really high price for a car to demonstrate that I am not a conspicuous consumer.” Now I am not so sure since the post-Ford Volvos ones feel tinny to me. The point is that you communicate either what you would like to be like or what would not be evident from just getting to know you.

So what is one to make of elite school signals. Ties, bumper or window stickers, etc. I think I read somewhere, although I could be making it up, that in timed experiments, graduates of Harvard mentioned it or worked it in someway within 4 minutes of any conversation. I know this is not non verbal but it does fit in the category of an appeal to a symbol as opposed simply allowing a person to know what you are really like.

But this is the question. If, as I believe, non verbal communication is really about something you are not or is generated by a fear that a basic unvarnished interaction does not portray you how you want to be portrayed, does that mean the elite school signalers actually realize that but for their symbols, no one would know the difference?

Safety and Excesses of the Captured Law School

I think there is an analogy here but, if not, the message is the same. One of the issues that came up in airline and trucking deregulation was whether competition would lead to lower safety. The idea was that lower prices would mean cost cutting. The neoclassical economist's answer was to discount this by noting that the profit motive -- in the interest of shareholders -- would have already led to cutting costs as much as possible.

Now switch to law schools or any school in the middle of a budget crunch. The argument similar to the less airline safety argument is that the budget crunch will affect the quality of the law school. Less revenue means lower safety. This, however, requires one to assume that before the crunch spending would have been cut to the lowest possible level consistent with the interests of shareholders.

I do not know the outcome as an empirical matter when it comes to transportation deregulation but everyone who is at a school that is going, has or will go through a budget crunch has a chance to test the theory about whether the school was operated in the interest of shareholders before the cuts. Let's say the snacks in the lounge are less lavish, the travel budgets a bit smaller, there are fewer "free lunches," not as many luncheon speakers, a couple of unfilled faculty positions and that faculty are asked to teach a few more students or a few more hours, and so on. Are shareholders worse off? Maybe there are some connections between luxuries for the faculty and the welfare to stakeholders but a budget crunch can reveal how tenuous that connection may be and how cavalier schools can be when spending the money of others.

Nothing Like a Good Budget Crunch to Clean the Sinuses and Assess Management

Most law schools go through it from time to time – budget cuts, call backs, etc. The truly unfortunate part is that they are likely to hit untenured people hardest. Staff people can be fired unlike the privileged professors they work along side.

There is an upside. If a faculty is bloated with special interest and boutique courses, a freeze can mean trimming some of the fat and requiring the privileged ones teach what they promised to teach, indeed what the craved to teach, when they were hired. You remember those interview -- "I just love to teach," "Of course, I would teach torts."

And there are the programs. We all know law school administrator do not like to say “no” to the faculty regardless of how wacko the program. After all, faculty approval, not doing what is best for stakeholders is the principal decanal focus. So what if there is a $50K program that is largely a subsidy for summer vacations? (Put up your hand if you took at least one summer vacation trip largely on the dime of your law school. Whoa. Keep’m up -- it will take some time to count all those.) If you have the money to spend -- after all it’s always about spending someone else’s money -- terminating anything what would lead to faculty outcries is a bad idea. Funny how spending the money of others always leads to a skewed cost/benefit analysis.

Yes, a budget squeeze is just the ticket to test the pulse of an administration. Is it willing to require the hiring committees focus only on high need areas? Is it willing to cut programs based on benefit to those who pay the bills or will the old favorites favored by members of the administration or its closest friend be the ones that go?

Watching Classist Behavior

Just watch and you see class bias/privileged behavior everyday. I keep wondering, "who teaches these people that the world was created to serve them."

Case one: The Barber Shop

So I am in the barber shop and in comes -- let's call her Mitzy -- and says, "My husband just called from Chicago. He will be back in town on Wednesday and will go to Munich on Sunday for a week. Can he get a hair cut on Friday?"

Greg the Barber: "I am not going to be open this Thursday or Friday."

Mitzy: (Standing there) "But he will be going to Munich for a week on Sunday."

Greg: (long pause) "So, he will only be here on Thursday and Friday? . . . . And I will be out of town then."

Mitzy: (stands there and no one is saying anything and I am thinking "What the fuck does it matter that he is going to Munich? Is there a fresh haircut requirement.") "Yes I understand but he cannot come here on before Thursday and he is going to Munich for a week."

Greg: "I am not going to be here."

Mitzy: (after another long pause) So, you cannot give him a haircut. . ?"

Greg: "That's right."

Mitzy: (Yet another long pause.) Oh. (she leaves)

Case two: The Casebook

Law professor goes to teach in an overseas summer program knowing what he will teach in the fall. Toward the end of the stay at the overseas site an emergency call to the secretarial pool. "Could you go into my office and mail me my casebook for the fall. Oh yea, make that an overnight delivery" (yes for the 10 pound book) so I can begin preparing my syllabus for the Fall."

Huh!!?? Anything outrageous about this? If you do not see it, it can only because you have the same sense of entitlement.

Moreover, think about the climate set by an administration that looks the other way.

No More Hiding

Higher education has long been the principal hiding place of shirkers. Not everyone, but there are layers and layers of children of privilege working half speed and taking up positions that could well be occupied by those with a work ethic.

But don't rely on me for this. Rely on higher education itself and the trend with respect to summer research grants. Under the old style, professors taught 8 months and then got "research grants" to help them with their vacations trip to all parts of the world to attend conferences where very little took place.

More recently schools are saying no pay with out actually physically producing an article or a book. The only possible underlying premise for the change is that professors are goofing off in the summer. Otherwise why change now? Is it only the current generation of professors who shirk? That is hard to believe. Instead with various high profile ranking systems around, the pressure may be on. University Presidents and College deans may find themselves job shopping if their schools dip in the rankings. So finally they are will to press for real life results. And we are clearly into the age of piece work higher education. Keep in mind it is only the threat of outside scrutiny that made this possible. Without that, administrators were perfectly willing to allow the party to continue.

The problem is this: While new pay structures for research are based on shirking, there appear to be no similar efforts to address shirking on other aspects of the job . Teaching tiny classes that are of limited benefit to students. Teaching only a handful of hours a year. Even being around only a few days a week. These privileged job practices continue even though the same privileged mentality that leads to shirking in research carries over to every other aspect of the job.

Looks like even more outside scrutiny is needed.

Ranking Finagling: Is There a Class Impact?

Everyone remotely involved in legal education knows that many Law School policies are now set by the US News and World Report rankings. Alums, students, university presidents, deans and law faculties appear to desire high rankings at virtually any cost. The biggest cost, to some extent, is the integrity of the schools as they figure out ways to game the system. The ways of doing so are far more numerous than this list but include:

1. Generating massive applications even from those who have no chance of acceptance.
2. Altering the weight given to LSAT and GPA in making admission decisions.
3. Temporary hiring of grads in order to report high placement rates.
4. Lopping off the "bottom" of first year classes and admitting more summer students, transfer students, or part time students.
5. Operating what are, in effect, in house bar review courses.
6. Printing huge numbers of announcements, brochures, and magazines at great expense that are little more than advertisements.

When all the shuffling and spending is done, it looks like the same numbers of students will enter law school and the vast majority will have the same legal education they would have received before the arms race. And, if all schools follow suit, they will stay in roughly the same place ranking wise. The only way to break the cycle is for law schools not to cooperate with USN & WR or for new and better rankings to emerge. I doubt either will happen.

I worry about two things when law schools turn over control to a magazine. The first deals with state law schools. Has any one of them determined whether the price paid is justified by the benefits for those who pay the bills? Or are deans simply responding to noisy faculty and alums. Second, is there a particular group or class of students most likely to be affected? If law school lop off the "bottom" of the class in order to rise in the rankings do those students -- other than not having performed as well on the LSAT -- have common characteristics. My hunch is that somehow those form lower socioeconomic class will ultimately pay. So what else is new.

Lucky Jim

I generally prefer Martin Amis to his father Kingsley but no book captures class bias more accurately that Kingsley's 1953 book, Lucky Jim. It is a humorous book and brilliant book. I think brilliant because even those who do not occupy either side in the world of academic class warfare can enjoy it. The book centers around Jim Dixon, woefully out of place in the British upper classes of academia and knowing it. In the edition I have there is an interesting preface by David Lodge. How appropriate.

The photo is from the film version. Can you tell which one is Jim? It was a bit of a flop at the time but deserves a look today. You can find it on Amazon but it's a bit pricey.

Caterina in the Big City

This Italian movie has a wonderful and dead center take on class that repeatedly plays out in law schools. As the title suggests, it is about a young girl's problems when moving to the city. She is torn between the lefties and the righties at school. (This all takes place in Rome.) Two characters are parents of two of her school chums -- one left one right. One parent is a lefty intellectual and the other a right wing politician. At one point there is a conflict at the school and the parents are gathered together. Caterina's father, a pathetic lower middle class character who craves being recognized by the privileged, is there too. He best scene of the movie shows his awakening when he sees how close the two other parents are even though publicly they are arch enemies. What he realizes that that they are united by privilege and privilege is stronger than any professed convictions.

It is good to remember this in higher education and legal education in particular. The self anointed liberals (there are no lefties) may from time to time find conservatives to argue with. But where they are rock solid united is in their rejection of non elitists. Do not their battles fool you. When faced with non elitists they will close ranks faster than you can say hypocrite.

Low Income Admissions

The May 27 issue of the New York Times includes an interesting article about the efforts to colleges to recruit students from lower socioeconomic class backgrounds. The factors taken into account are family income, parents' education and occupations level. The article includes some stunning statistics. For example, 75% of the students at what the article calls top colleges are from the top 25% socioeconomic quartile. Only 10% come from the lower 50% socioeconomically. Yes, that is lower half. Yes, that is only 10%.

Perhaps more interesting is the that a study of 28 universities nearly 10 years ago revealed that affirmative action programs mainly attracted middle class or upper middle class. In fact, 86% of those admitted under affirmative action programs were from the middle or upper middle class. One wonders just how interested the schools recruiting black students were in diversity. It their affirmative action efforts were any thing like faculty hiring efforts I have seen, diversity actually means "not all that diverse." God forbid that the elitists who run higher education actually experience real diversity.

I should be happy to see the new lower socioeconomic class recruiting efforts and I am but the there is a lingering concern. Perhaps is the way the article is written and not the reality but the sense is that these lower socioeconomic class students are like curiosities. Will they fall out of fashion in few years?

Mr. Gonzales and The New York Times Rule

I have know about a generic form of the New York Times Rule for years. It came up in a more direct way a few months ago when in the midst of an admission by a faculty member that a faculty candidate had been invited to interview, in part, on a mistaken supposition about his race. In the course of the admission I asked if the faculty member would send an email confirming this. The answer, "I don't write anything down that I would not want to see on the front page of the New York Times."

Adherence to this rule is something the privileged learn at an early age -- from parents, teachers, big law firms?. When you think about it, it is not the New York Times rule that is the problem. It is the complementary rule -- "When you assert something that you may want to deny, speak it only." There is modern version of the NYTs rule that is the result of the proliferation of email. It says to ignore any question that one prefers not to answer. Think of it as taking the email Fifth. These are questions that would be answered if the interaction were in person. Somehow ignoring an email question provides the same kind of cover as the NYTs rule.

Why do the privileged prefer to disown what they say and how far does it go. For example, do observers of the NYT rule regularly lie in depositions or in public hearings as in "I do not recall having said that" ala Mr. Gonzales?

There is an economic explanation. People say and write things in order to get a desired response. It gives them power. If you can get the desired reponse at a low cost so much the better. In day to day communications, the "low cost" is saying things in a form that can be denied. The New York Times rule is yet another form of greed and excessive self-interest.

There is, however, another economic consequence. Wide-spread use of the NYTs rule means that what is uttered, as opposed to what is written, is something that cannot be relied upon. This raises the overall cost of communications.

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

[Classbias Rerun]

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.

The Privileged Play with House Money

Some weeks ago I wrote about the market for tenure review letters on scholarship. The demand was composed to tenure committees interested in glowing over-the-top reviews with a legitimizing reservation here or there. The suppliers were the letter writers willing to play the game while complaining they have too many requests to handle. (You really want to cut down on demand? Be candid.)

I am wondering about the other market. This is the market for teaching evaluations. There are two types – some from students and some from class visitations. We all know about the market for high student evaluations. Teachers demand them and students supply them provided the professor plays his or her cards right. As far as I can tell there is no evidence that high evaluations are actually correlated with good teaching so, in this market, “playing them right” probable means something other than being effective and may require not being all that effective.

This leaves the written evaluations provided by class visitors. I am not sure it is fair to call this a market. I mean, is it a market when the suppliers are giving the laudatory letters away? In twenty years law teaching I could count on one hand the number of even remotely negative letters I have seen. It could be that the teaching is excellent on visitation days. (I have heard of an incident in which the faculty visitors discovered that the teacher was teaching the same material whenever they visited. You can bet that he had that day’s material down.) Or maybe it is really easy to be a good teacher – at least three or four days a year when you know someone is coming. If the tenure or promotion candidate is a social or political favorite, you can bet that those written evals are out of sight regardless of what went on in the classroom. What does it matter? Nothing to the Law professors themselves. They always play with house money.

Not "Getting It" and a Sense of Entitlement

A few posts ago, over on Moneylaw and here in different form, I wrote about the externalities produced and, thus, the lack of actual (as opposed to facial) collegiality faculty show to each other. I listed ways actual collegiality could be exhibited. I received a few comments on the Moneylaw post, one of which is below. I have reprinted it here because it so perfectly illustrates what I mean by a sense of entitlement among the privileged.

"I only can think of one professor who voluntarily teaches extra credit hours, although I know plenty who open up their wait lists voluntarily and teach more students.They wouldn't justify it on grounds that they need to make up for their lack of writing, of course, but they get satisfaction about receiving recognition in an area in which they do excel. I also know lots of professors who don't apply for sabbaticals (even though they could probably trump up a scholarly project to meet the requirement) and therefore effectively voluntarily teach more classes than scholars. Moreover, there are dozens of examples of non-scholars voluntarily assuming larger administrative loads, in part because they recognize their lack of recognition for scholarship and get more satisfaction in the administrative side. None of this is rare at all.Of course, this isn't to say there aren't bad citizens. It's just that there are some face-saving ways in which people internalize the cost of their failure to produce elsewhere."

1. So let's take it from the top: "I only can think of one professor who voluntarily teaches extra credit hours, although I know plenty who open up their wait lists voluntarily and teach more students." First, so what? What is an extra credit hour? The concept suggests a "right" not to teach beyond a certain level. A serious conversation starts with questioning how the right was established or earned. Evidently it does not occur to the entitled to question initial allocations that are beneficial to them.

But there is more. Notice the idea that it is a sacrifice to open up a wait list. The implication is that there is a "right" not to open it. Where did that right come from? The fact that the list can be opened suggests it was not for pedagogical purposes. The compentators "good deeds" consistently flow from an assumption that the status quo is just. In fact, the status quo is consistently the product of the entitled being generous to themselves.

2. I also know lots of professors who don't apply for sabbaticals (even though they could probably trump up a scholarly project to meet the requirement) and therefore effectively voluntarily teach more classes than scholars.

Same idea. Teaching becomes an act of charity when compared with not teaching -- an intial allocation of questionable legitimacy. At my school, at least, we have sabbaticals because voted to give them to ourselves. In addition, "trumping up" tells me all I know about the expected level of accountability.

3. There are dozens of examples of non-scholars voluntarily assuming larger administrative loads, in part because they recognize their lack of recognition for scholarship and get more satisfaction in the administrative side.

Really! Yes they may not be scholars so why stay in the job if they have found they cannot do it? Only in higher education is this possible. Oft times the administrative roles are manufactured centers or programs that do little. More importantly, usually the administration role means less teaching. Remember, this is the commentators example of selflessness.

Mainly I wonder where the sense of entitlement not to do all phases the job the faculty member promised to when hired came from. Actually, I am being disingenuous. It is legitimized by the similarly entitled who claim ownership to legal education and make sure to hire the similarly inclined.

Choir Practices and Paralysis

Pedro lives out of the wilshire hotel
He looks out a window without glass
The walls are made of cardboard, newspapers on his feet
His father beats him cause hes too tired to beg

Give me your hungry, your tired your poor
Ill piss on em
Thats what the statue of bigotry says
Your poor huddled masses, lets club em to death
And get it over with and just dump em on the boulevard

Lou Reed, "Dirty Blvd."

Law School choir people do not care for Lou Reed -- too raw and too much of a reminder that privileged people have no taste for dealing with the truly nasty. How can they? They define what they see through a special lens. It blocks some things, cleans them up and, most importantly, simplifies them. Dissonance is not tolerable.

So much for a law school as a truly progressive factor. So maybe they can be bastions of intellectual diversity -- lots of ideas bouncing around. Interesting theories, philosophies, and discussions. No dice there either. Just like getting dirty, the choir people do not allow it.

On these issues -- the lack of intellectual diversity -- I have no reason to think my school is different from many others. In fact, we could be better than others -- we have one admitted Republican and a couple of others who are suspect. This lack diversity is hard on lefties and the smattering of conservatives who are on a faculty. Who are we supposed to argue with and how do we test our ideas? How do you learn anything if everyone says the same thing? 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.

Why does the choir have so much power? It is hard to say but here are some possibilities:

1. Their first allegiance is to the choir. (Think "NRA" -- that is the appropriate model.) I see many non choir people vote for candidates for jobs who are likely to be choir people. On the other hand, I rarely see a choir person vote for a candidate who obvious is not a choir person. This includes instances in which the non choir candidate may actually mean additional diversity on the faculty. (In fact, choir people strive for the least diverse diversity.)

2. Choir people are found in the AALS sheets in higher numbers than lefties, conservatives and libertarians. Maybe this as always been true.

3. Many areas of specialization in vogue these day seem to 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.)

4. The rest of the faculty. I have covered this in other posts -- one was on the knack of potentially influential faculty to hide from controversy, the other related an experience on my faculty that occurred when the usual log rolling did not work.

Will this change? I do not see why it would.