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.