Wednesday, December 17, 2008

Outliers, Class and Law Professors

Malcolm Gladwell's newest book, Outliers, is an interesting read. It is devoted to the reasons some people succeed and some don't. The reasons are often not what you would expect. On the matter of class, he captures the difference in impact "wealthier parents" and "poorer parents" have on their children very nicely. He sums up his discussion with "the sense of entitlement that has been taught is perfectly suited to succeed in the modern world."

Those who are intrigued by class differences will not be surprised. The wealthier parents encourage all kinds of special activities, have interesting reading material around the house, encourage their kids to speak up on their own behalf, etc. He quotes sociologist Annette Lareau as follows, "Even in fourth grade, middle class children appeared to be acting on their own behalf to gain advantages. They make special requests of teachers and doctors to adjust procedures and accommodate their desires."

Again, although there is little that is surprising here, I was reminded how institutionalized the "special requests" have become when I visited my son's school to pick him up after an exam that ended at 11 AM. I came across a room full of kids still taking the exam at 11:30. He was not among them. I asked if the test had run over and the answer was "No, those are all the kids who get extra time for one reason or another." And then the teacher added, "For a couple of thousand dollars evidently anyone can have a child diagnosed with something that results is extra time." Yes, the teacher was describing yet another market the wealthy visit far more than the working class -- the market for the disability advantage. In the room were kids with real disabilities and then kids who parents bought them a ticket for more time. (If you are wondering, in the article discussed in the post below, it is noted that "extra time people" score significantly higher on the SAT than others.)

The second thing that struck me about Gladwell's description is how much the entitled children behave like life is a zero sum gain. They "act to gain an advantage." Nowhere in his description of the lives of wealthy children is there a word about teaching empathy or even that one's efforts to gain an advantage usually mean leaving someone else with less. I suppose that type of consciousness is actual a form of disability.

Finally, although it goes without saying, Gladwell has perhaps unknowingly described something about law faculties. There are, of course, very few people on law faculties without the sense of entitlement he describes. For the average entitled law professors asking or demanding special treatment causes no angst because whatever is wanted is deserved. For the handful law professors who do not feel so entitled, asking for anything special is a struggle and they are still, to their disadvantage, under the impression that special treatment is something that is earned.

Friday, December 05, 2008

Over Parented (or is it Parenting) Law Professors

There was an extended book review/ article in the New Yorker a few weeks ago about over parenting and how it can result in a fairly inept adult. Over parenting, if you unfamiliar with the term, is the largely upper middle class tendency toward making sure a child never experiences a sense of not succeeding. This means the child spends his or her life in a protective bubble that hardly prepares him or her for life.

Over parenting has clearly hit law schools. At mine, untenureds are given the first and every other summer off with pay, assigned multiple mentors, and have teaching assignment tailored so they can write. I doubt it is much different at other law schools.

At first, I thought these changes were a reaction to the first wave of over parented kids becoming old enough to be law professors. In effect, their protective bubbles would continue at least until the point of being tenured which, then, is like a life time protective bubble.

This model did not fit the actual individuals hired since they seem, to me at least, to be pretty adept at dealing with life and the job. In fact, a couple have confided that what I am calling over parenting makes them uncomfortable. It would drive me crazy.

I realized then the problem may not be with the untenureds at all. Isn't it more likely that the impetus comes not from the parented but from the parenters? It seems increasingly clear that overparenting adults cannot distinguish between their own children and people who they relegate to the status of children in the work place. In the case of conventional over parenting, those engaged may get something out of it that goes a bit beyond love and caring. Or, if it is only love and caring, it is the type of smothering that eventually hurts the person who is loved.

What we will not know for a few more years is whether over parenting of untenured law professors will be as disabling as it is for children.

Wednesday, December 03, 2008

Are Law Schools Recession Proof?

The pecking order at law schools is pretty well set. First are the tenured professions then the tenure track but yet to be tenured. Next, oddly enough are the yet to be hired untenured people. After that are year to year, untenured people who typically teach skills courses. Then secretaries of various sorts and finally the maintenance crew. I suppose actual and potential students fit in here somewhere and I am inclined to say at the very bottom.

When budget cuts come, the ordering of cuts can follow the ordering but in reverse. A school may or may not save money by reducing its enrollment. If it can, the potential students will be first to have opportunities removed. Next up the line in terms of vulnerability are the people who earn the least and, thus, can least afford to lose their jobs.

Law school policy, even with respect to budget cuts, is largely faculty driven. Perhaps a test of the character and humanity of the faculty of a law school is how it deals with cuts. For example, if it is possible to preserve opportunities for students or the jobs of those at the bottom of the pecking order, are those at the top willing to teach extra hours or courses that are not their main interests. Are they willing to open classes they do teach to greater numbers of students? Are there programs that seem to have outlived their use that could be eliminated? These things mean reducing the need to replace retired professors with new ones or with visitors.

Only in the rarest of instances are tenured law professors likely to have their job security threatened by economic conditions. Their decisions, however, do affect the job security of others. Maybe they are not the Godfathers of those lower in the pecking order but they have the capacity, if they care to, to soften the blow of economic hard times.

Thursday, November 20, 2008

The Common Thread


One debate that I have each year (and lose) concerns the fascination law school hiring committees have with candidates with elite credentials. Schools at the level of mine and lower only rarely attract candidates who graduated from top ranked schools at the top of their classes. Thus, the decision is between lower (and sometimes very low ranked) graduates from elite schools and the tip top graduates from other schools. By "other schools" I do not mean bad ones. No, I mean ones maybe just outside the top 10. Still, it continues -- the brand name trumps almost every other indicator of intellect and work ethic.

This is not a matter of relying on an accurate indicator of success. A little study I did last year indicated that elite grads at mid level schools are no more productive than the hand full of non elite grads. In addition, on average I think elite grads are less well educated that non elite grads who end up teaching at mid level schools. The elites (again, on average, not uniformly) seem to be narrowly educated. Very few seem to be able to talk about art, history, politics or any thing other than a very narrow range of topics. (They also seem relatively humorless -- not an irreverent bone to be found -- but that is another story.) They seem more technicianish.

I did a little study of all this with the goal of determining why non elites seem seem have more going for them than the elites. The only factor I have been able to come up with so far is that the non elites in legal education are very likely to have been, as children, and continue to be voracious readers. They are basically self-educated. Elites can also be voracious readers and self-educated but they do not have to be to be law professors.

This means a number of things but the most important thing is that somewhere somehow, hard-wired or socialized, they were intellectual curious. Learning itself was a reward and not because to meant getting an A or performing well as a "trophy child."

So, if I were on a hiring committee, what I would ask in addition to the lists I have posted before that were designed find to lower socioeconomic class people would be:

1. What was your favorite book at age 15.
2. What were the last 10 books you read that had nothing to do with law.
3. Name your favorite opera, aria, symphony or any non pop, folk, alt music.
4. Who was your favorite teacher before law school and why?

and finally,

5. How would a Rawlsian design the faculty recruitment process?

Wednesday, November 05, 2008

O'Conner and Nader, Eight Years Later

I am not sure it is possible to have less respect for former Justice O'Connor than I do. If the newspaper reports are right she was stunned that her retirement might be delayed by a Gore victory. Think of the sense on entitlement to think you should determine who replaces you. And thing of the lack of principles among those Justices who supposedly deferred to State processes until it came to Bush v. Gore. Finally, think of the hypocrisy of law faculties who hated her opinion and understood the lack of principle but have toasted her and fawned over her since her selfish action.

But ultimately is she any worse than the Nader voters who essentially gave the election to the Frat Boy President? In fact, had they not cast their petulant votes, the O'Connor issue would not have arisen. It is too strong to say they have blood on their hands but their carelessness can be traced to suffering of thousands.

It will take years to pull out of the eight year nightmare but for the first time in eight years I do not feel like I have to explain myself and the US when in the company of foreign friends. Finally, I can repeat to the truly upset McCain/Palin/NRA/Swiftboat people a phrase that was popular years ago and addressed to me: My country, Love it or leave it.

Tuesday, October 28, 2008

Germany? 1930s?


It is sinister. Dark skies and a stormy ocean. An announcer warning against a nation in hard times turning to (or is that overtaken by) an unknown leader who has experienced a "quick rise to power." "Rise to power" -- what a frightening and evocative phrase. It makes one think of dictators and kings. What are you thinking about? Germany? 1930s?

Wrong, it is the latest McCain ad. "Rise to Power" must be in honor of Halloween. It reminds me of the TV ad for I do not know what product that has the baby who made enough money to hire his own clown. He says he had underestimated the creepiness. I have always regarded clowns as creepy. On the other hand, I did not realize that a political ad could be creepy. Not, at least since the hydrogen bomb was shown just behind fair-haired Sue in 1964.

To me, Rise to Power goes right to the top or bottom along with both the anti Goldwater ad of the sixties and Willie Horton.

Thursday, October 23, 2008

Support for the Sarah Voters

Today I voted in Florida. The act of voting here increases the probability that your vote will count

But to the topic of this post:

No I do not support her. I have already stated that to me Sarah Palin is like 10,000 finger nails scraping along a black board or 1000 cars with mega basses tuned up to brain damage level surrounding me at a stop light. And, I still think her selection is one of the all time most cynical political acts I have witnessed. Really, it is like John "I am so Mad" McCain has told the American voters what he thinks of them and it isn't a good thing and they have taken it as a compliment. (But is it cynical if he is right?)

But the Sarah voters have earned your respect if they vote for her just because they like her. Does that put personal comfort ahead of the welfare of the country? Yes but who cares? Or more specifically don't complain if it is what you do. I have witnessed many many faculty votes and discussions about hiring, tenure, promotion, and salary in which the likability factor dominated. Questionable teaching, borderline scholarship, and concerns about law school stakeholders are ignored or explained away if the candidate is likable enough.

If this were a Budweiser radio commercial I can hear the "real men of genius" theme playing and the salute to those who vote for friends beginning. Right there along with "rolling cooler roller man" and "scoreboard marriage proposal man."

And now the best news of all. Many law professors have something else in common not just with the Sarah voters but with Sarah herself. Yes, it appears her family vacations are timed when she is on "state business" and, guess what, the whole family goes on the state's tab. Does this reflect a sharing of principles that could finally convince some law professors to move over to the Sarah column?

Wednesday, October 15, 2008

Is the Dachshund a Working Class Dog?


I always thought so. I mean how could any self respecting elitist own a dachshund when he or she could have a golden retriever. Or maybe the working class dog is really a tiny poodle.

Now I have to rethink the dachshund after reading this Don Burness Poem from Brutal as All Olympics Are.

The Meaning of Life

The painter Bonnard knew
Picasso and Andy Warhol knew
Henry James knew
Dorothy Parker knew
P.G. Wodehouse knew
E.B. White knew
Queen Victoria surely knew
And I know
and I taught my students
that the meaning of life
is
the dachshund!

Thursday, October 09, 2008

Bitter Hearts: Stephen Crane and Donald Burness


One of my favorite poems is by Stephen Crane:

The Heart by Stephen Crane

In the desert
I saw a creature, naked, bestial,
Who, squatting upon the ground,
Held his heart in his hands,
And ate of it.

I said, “Is it good, friend?”
“It is bitter - bitter,” he answered;
“But I like it
Because it is bitter,
And because it is my heart.

Somehow when a friend who always prefers not to be mentioned by name referred me to this poem about academics, I thought of the Crane poem. This one is by Donald Burness and can be found in his collection, Brutal Like All Olympics Are.

MY ENEMIES

gnathonic toads infesting fleas
this is the tribe of my enemies
joyless drones self-righteous frauds
they honor each other with false applause
jealous knaves consumed by hate
ever eager to extirpate
dull lifeless they cannot soar
on winds of dancing metaphors
what a paltry pathetic thing
to honor Mediocrity as your king
and when the king lets out a fart
they love the smell with all their heart
I wish them scrofulous days ahead
and may they rightly be remembered
as zeros when they're dead

Burness is angry about the people he dealt with in academia. I do not feel nearly as strongly in part because to be that bitter you have to take them seriously. And, for my taste his brush is too broad. Still, for anyone in the college teaching business, things like "false applause," "joyless drones," "Self-righteous frauds," and "mediocrity as your king," must ring some bells.

Monday, September 29, 2008

Are One Chance Students the Victims of Unlimited Chance Professors?

In the last two posts I presented excerpts from The Disadvantages of An Elite Education by William Deresiewicz.

Perhaps the most powerful observation from that article follows:

" . . . [T]he way students are treated in college trains them for the social position they will occupy once they get out. At schools like Cleveland State, they’re being trained for positions somewhere in the middle of the class system, in the depths of one bureaucracy or another. They’re being conditioned for lives with few second chances, no extensions, little support, narrow opportunity—lives of subordination, supervision, and control, lives of deadlines, not guidelines. At places like Yale, of course, it’s the reverse. The elite like to think of themselves as belonging to a meritocracy, but that’s true only up to a point. Getting through the gate is very difficult, but once you’re in, there’s almost nothing you can do to get kicked out. Not the most abject academic failure, not the most heinous act of plagiarism, not even threatening a fellow student with bodily harm—I’ve heard of all three—will get you expelled. The feeling is that, by gosh, it just wouldn’t be fair—in other words, the self-protectiveness of the old-boy network, even if it now includes girls. Elite schools nurture excellence, but they also nurture what a former Yale graduate student I know calls “entitled mediocrity.” A is the mark of excellence; A- is the mark of entitled mediocrity. It’s another one of those metaphors, not so much a grade as a promise. It means, don’t worry, we’ll take care of you. You may not be all that good, but you’re good enough."

What happens when unlimited chance people teach one chance people? They are likely setting them up for failure. Unfortunately, when law schools hire they salivate over elite, unlimited chance people who are likely to treat their one chance students as though they too have unlimited chances. As I have described over on Moneylaw, the effect is to create disabilities. When teachers have no deadlines, give out only high grades, and have low classroom expectations, they lead students to believe there are no consequences for being a slacker. That is true if mommy and daddy supply a life long safety net. But for students who are not similarly situated it can be a trap.

Friday, September 26, 2008

Does an Elite Education Produce Anti Intellectuals

In my previous post I quoted the initial two paragraphs of The Disadvantages of an Elite Education by William Deresiewicz. Maybe the most important passage of that article for those in legal education comes near the end.

"But if you’re afraid to fail, you’re afraid to take risks, which begins to explain the final and most damning disadvantage of an elite education: that it is profoundly anti-intellectual. This will seem counterintuitive. Aren’t kids at elite schools the smartest ones around, at least in the narrow academic sense? Don’t they work harder than anyone else—indeed, harder than any previous generation? They are. They do. But being an intellectual is not the same as being smart. Being an intellectual means more than doing your homework."

Deresiewicz follows this paragraph with a description of elite school students as roughly the equivalent of grade grubbing drones. My sense is that this is a relatively recent thing. At some point in time, attending an elite school could contribute to the development of real intellectual curiosity and a love for ideas. I am sure that still holds for many graduates of elite schools but that is more a testament to their resistance to the elite education than anything else. From my perspective, and it is an admittedly narrow one, I am surprised at how anti intellectual newer elite grads are, especially the double elites. In fact, in many instances they seem to have little or no knowledge of history, philosophy, art, etc. Nor do they find much that is interesting outside of their personal niche.

Thursday, September 25, 2008

The Disadvantages of the Elite

The following two paragraphs are taken from The Disadvantages of An Elite Education by William Deresiewicz. It is from the Summer 08 issue of American Scholar.

Elite schools pride themselves on their diversity, but that diversity is almost entirely a matter of ethnicity and race. With respect to class, these schools are largely—indeed increasingly—homogeneous. Visit any elite campus in our great nation and you can thrill to the heartwarming spectacle of the children of white businesspeople and professionals studying and playing alongside the children of black, Asian, and Latino businesspeople and professionals. At the same time, because these schools tend to cultivate liberal attitudes, they leave their students in the paradoxical position of wanting to advocate on behalf of the working class while being unable to hold a simple conversation with anyone in it. Witness the last two Democratic presidential nominees, Al Gore and John Kerry: one each from Harvard and Yale, both earnest, decent, intelligent men, both utterly incapable of communicating with the larger electorate.

But it isn’t just a matter of class. My education taught me to believe that people who didn’t go to an Ivy League or equivalent school weren’t worth talking to, regardless of their class. I was given the unmistakable message that such people were beneath me. We were “the best and the brightest,” as these places love to say, and everyone else was, well, something else: less good, less bright. I learned to give that little nod of understanding, that slightly sympathetic “Oh,” when people told me they went to a less prestigious college. (If I’d gone to Harvard, I would have learned to say “in Boston” when I was asked where I went to school—the Cambridge version of noblesse oblige.) I never learned that there are smart people who don’t go to elite colleges, often precisely for reasons of class. I never learned that there are smart people who don’t go to college at all.

It's a terrific article.

Monday, September 22, 2008

The Clarence Palin Problem

One of the most discouraging things I have experienced in my profession was the realization that "diversity" did not really mean diversity. Several years ago a recruiting committee of which I was Chair made what is to my mind the most extreme effort ever made to hire diversity candidates. Of course, not everyone was on board. We were, however, able to find a candidate who was willing to interview with us who seemed to cover every base -- elite school, high class rank, minority. Who could oppose such a candidate especially after a fine job talk.? Actually, to my shock, those opposed were the most aggressive about diversity. It seems the candidate may have uttered a few words in an interview session that indicated he would not always toe the line when it came to political issues.

The idea that I had often heard that even "facial" diversity was important went out the window when he was revealed to have conservative views on some issues.

It really is amazing how calls for racial or gender diversity grow silent when the candidate fails a particular litmus test. As we know from the Clarence Thomas episode, it never really was about being an African American. Politics was more important than race. Having gone through that experience, what was John McCain thinking. Was his thought process really that Hillary voters were so wedded to gender as her main appeal that they would switch to Palin when Hillary was not nominated. Give me a break!

Race and gender may carry some weight with the choir but they are always second to ideology.

Friday, September 19, 2008

Is Sarah Palin Uppity?

"Uppity" is a word I have never heard used except in the context of discussions about the word "uppity." I see in the press that it is used from time to time to describe people who are asking for greater respect and deference than they somehow deserve. I think someone in Georgia was quoted as saying Barak Obama is uppity.

I looked in the dictionary for the word uppity and it was "affecting an attitude of inflated self-esteem; haughty, snobbish; rebelliously self-assertive; not inclined to be tractable of deferential." I would not have been surprised to see the same definition after the word "elitist."

Clearly this is not Barak Obama. In fact he is the opposite. He appear to be "affecting an attitude of a deflated self-esteem" so in can appeal to the rank and file.

In reality what uppity means (how can the dictionary get it so wrong?) is not knowing that one's place is below that of those calling you uppity. Thus, when applied by a white person to a black person because the person is black is it is unconditional racist.

I suspect, though, that if white upper class people ever used the word in the disparaging way is it is normally used they would be referring to Sarah Palin. In fact, most of the pot shots and eye rolling from elitist whites are clearly ways of communicating that she is uppity.

For me she is like a thousand finger nails scraping across the blackboard, two hundred cars next to me at a red light all playing the bass so loud that my fillings are rattling and a really large person next to me on a 8 hour flight but not uppity. Slap a Harvard degree on her and change nothing else and she would not be uppity to them either.

Friday, September 12, 2008

Sarah Palin and O.J. Simpson

I am not sure I have seen anything like the Sarah Palin phenomenon since O.J. Simpson. Most of you are old enough to recall that the evidence against OJ was overwhelming. Whether you though he "should" be found guilty as opposed to whether he was guilty seemed largely a function of race. (I have to exempt myself on this because I think it is possible that reasonable doubt did exist.) OJ became a symbol, so much so that he transcended guilt and innocence. Eye witnesses would have made no difference.

Now there is the O.J.'s opposite in Sarah Palin. No matter how utterly ill-prepared she is to be President or Vice President, it does not matter to her supporters. Like O.J. she is a big "screw you" from one group to another. The "evidence" is irrelevant. Well, not exactly. The more it is revealed how unsuited she is, the more she becomes an even better big screw you from one group to another and, thus, more popular. In fact, the delight in her nomination is directly related to how much angst she stirs up in those who oppose her.

Hopefully Palin supporters who could not fathom finding OJ not guilty can reflect a bit now and see that they are engaged in the same kind behavior. They can offer explanations just as OJ's apologists did but their "reasoning" will be just as shallow.

My only question is how long people like myself will be required to pay the price for so many admittedly ill-conceived initiatives in the 60s.

Monday, September 08, 2008

What to do about Levi Johnston?

When it was revealed that Sarah Palin's daughter was pregnant, I, like many parent did not jump to condemn mother or daughter but thought "there but for the grace of God . . . ." I don't have daughters but it's the same thing when you hear of a son who has been caught drinking underage or smoking dope or far worse things. Until you have teenage children, I am not sure you can understand how little control you actually have.

On the other hand, I do not know a sensible parent who does have some feel for the values of the people their kids hang out with. It's impossible to police and you can call it helicoptering but it falls well short of real helicoptering -- like the mother who calls to complain about her son's grade.

So what to make of Levi that gun-toting, "I don't want kids (who thinks they do at 18), "Ya f - - - with me I'll kick [your] ass," I'm a f - - -in' redneck," maybe future son in law of the maybe future President? It is possible for a daughter to be close enough to someone so angry to be having sex and not have attentive parents notice? Or maybe Levi and the possible future first dude just hang together.

For me at least, executive experience starts at home and, if you try, some but not all things can be averted. Having your daughter hang with someone who definitely appears to be a bully and cannot find a condom suggests screwed up priorities or bad management.

Thursday, September 04, 2008

What To Do About Sarah Palin

A colleague who is a regular reader came by my office today. "Jeff," he said, "I cannot believe some of the things people are saying about Sarah Palin. You and I both know that if she only had a degree from Harvard or Yale, most of that criticism would go away."

When I challenged that comment, the response and one that I found hard to answer was "All Bill Clinton needed to clean up his act in the eyes of elitists was a fancy degree. She is no more a "bubba" than he is. This is all about class."

I think he is right in one respect. And I am also sure that her selection for VP by McCain is the most cynical act I have seen recently by a politician because of what it assumes about the basic American voter. The one respect in which he is right is that the discussion is all about class. In fact, it has reached ridicule level.

I am not even remotely tempted to vote for her despite my Schadenfreudidan tendencies that rage when the analysis of the elitists go no further than where she went to school, her pregnant daughter, her snowmobiling husband, and all the other things that they find appalling. Wouldn't it be wonderful to see them sweat if she had all of that and her Yale degree.

I cannot vote for her because I disagree with almost everything that comes out of her mouth. From their discussions it seems that elitists will not vote for her, not because of her ideals, but because she should know better than to aspire to something outside her reach.

Friday, August 29, 2008

Teach Your Children Well

What do you teach your children to best equip them for the world? You might start with work hard, be honest, do not brag. Isn't it amazing what bad advice this can be. Take for example the world of legal education. There are many hard workers here, but in a "no good deed goes unpunished way," what their hard work becomes is a way for others to free ride. Have you ever been at the grocery store and had to pick which line to go through. Chances are you picked the line with the fastest cashier. At the end of the day that person's hard work will be rewarded by having to check out twice as many people as his or her slow moving, life-is-one-big-chat, neighbor. The same principle applies in legal education (the only world I know) and I expect everywhere else. In law school those do not work hard force those who have a work ethic to work even harder. Hard workers are often the servants of the goof offs.

Honesty can be a real disadvantage. The close-to-the-vest- do-not-disclose-anything- do-not-write-down-anything mentality prevails and works for those who use it. Very clearly it gives them a boost over your silly honest person. (Or to adapt a phrase from Amartya Sen, the "honest fools.") Somehow the theory that that type of behavior will be sanctioned and eventually eliminated just does not always work out. The prevailing climate is that it is all one poker game and you never disclose your cards. The problem is that the honest people are not playing the game. The concept of honesty as a principle is over. Instead, honesty is meted out in small portions to the extent it advances an individual's interests.

Do not brag. What bad advice that is and what better example than legal education. Self promotion -- whether individual or institutional -- is a way of life. Various entities actually facilitate it. Take SSRN which has so many categories of "top tens" that it is hard to write an article and not receive an email indicating your are in the top ten -- even if it is the top ten articles on elder law and restitution. Resumes are padded so much that could could sleep comfortably on most of them. One page introductions to someone else's article get as much billing as a 200 page effort. And have you noticed some email signatures -- associate this, associate director of that, Director of this or that. Somehow in all of this I think there is a Toby Keith song: "You talk about your degree, your article, your directorship, your summer conference in Rome, your quote in the Dade City Gazette."

Work hard, be honest, do not brag. Think twice before you give your kids this advice or you may be sentencing them to a very hard future.

Wednesday, August 27, 2008

Class Difference: Part 3, Replay from 2006

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

The River, Springsteen

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

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

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

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

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

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

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

Tuesday, August 26, 2008

Class Differences: Part 2, Replay

Keep you doped with religion and sex and TV.
And you think you're so clever and class less and free.
But you're still fucking peasants as far as I can see.
A working class hero is something to be.
Working Class Hero, John Lennon

In part one of this three part series, I discussed the different perspective of those who were economically disadvantaged people. I also noted that I am not confident that e.d.p.s (OK, no pun intended) share a view of how specific issues should be decided. Instead, I wrote about bringing a needed perspective to teaching and research. I should have included service as well, especially faculty governance. At the outset, however, consider the proposition that is opposite of the one I will discuss: The quality of legal education is increased by systematically excluding e.d.p.s from the profession. I doubt many would say they agree with that view. On the other hand, maybe actions speak louder than words.

With respect to governance, I have noted that when in the company of other professors with working class backgrounds, we seem to have a greater understanding of the fact that we are making decisions about spending the money of others. Colleagues with senses of entitlement, on the other hand, are less likely to have a vision of those who actually pay the bills. (Do they ever think of the convenience store worker or stock person at Wal-Mart when deciding that a summer program in France would be just the thing?) Recognition of concepts like “can we afford” something or “is this the best use of the money” seems to follow more readily when someone has been forced to deal with those same issues in his or her own life.

This sense of fiduciary obligation affects the way in which e.d.p.s approach teaching as well. A sense of entitlement seems to go hand in hand with canceling classes at the drop of a hat, taking off a couple of weeks in the middle of the semester for a foreign conference, teaching a self-indulgent course with a tiny enrollment, and feeling annoyed if students ask too many questions. It comes down to a view, shared by the children of privilege, that law schools exist for the faculty as opposed to the reality that faculty are but an input. Think how everything changes when faculty realize that they are not there to be served but to serve – and their jobs depend on serving. For those who have had a lifetime of being served, this an alien perspective.

When it comes to the substance of teaching and research, it is not that e.d.p.s are better, only different, and that teaching and scholarship are enriched by different perspectives. For example, a contracts teacher who has experienced being on the losing end of an exploitative contract is better able to understand the illusion of Pareto superiority and discuss, in real terms, the failings of contract law (as it has been shaped to serve those of privileged classes). My hunch is that this same perspective carries over to any course in which there is an interactive element.

Finally, on scholarship. Where do the ideas for articles come from? What fuels the analysis? That spontaneous flash that leads to questions or that leads to analysis and research is akin to “taste” – here a taste for which questions one will devote his or her life to. Taste is hardly the result of eight or more years in college. Different life experiences result in different tastes. Look at most faculties. Which people are writing about race? About woman and families? About environmental questions? There is a self-referential and oft times a self-interested element to how tastes are formed. In each case, there is a story that connects the person’s life with the direction his or her research has taken. Now compare a faculty that has screens out an entire segment of life experiences and compare its diversity and quality with one that purposefully includes all qualified people, whether or not they increase social comfort. My case is simple: when it comes to the analysis of law and the teaching of future attorneys, the second faculty is superior.

Sunday, August 24, 2008

Class Differences: Part 1; A Replay From Two Years Ago

Give me your hungry, your tired your poor I'll 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.


Professor Brophy has put me on the spot by asking about the specifics of class-sensitive hiring. As I see it, there are three questions. What do I mean by economic diversity? Second, what does economic diversity bring to the table? Finally, how would one go about hiring for this type of diversity? (I’d prefer not to use the term “affirmative action” which seems to have different and shifting meanings.) Before addressing these issues – one per week – I want to add a qualification. My focus is purely utilitarian. Will an increase in economic diversity (assuming the premise that it does not currently exist is correct) enhance teaching and research? Although I personally feel that children of poor and working class families have been excluded and there are issues of equity to consider, that is not my concern here. For now at least, I am not willing to ask today’s taxpayers to compensate today’s working class children because of what may or may not have happened to their parents. In the context of public schools, that may be nothing more than an intra-class redistribution.

To me class differences in the classroom and in scholarship are not about likely positions on specific issues. If that is what I were after, I am not sure economic diversity would get me there. (Plus, to be honest I am weary of hiring decision based on how the candidate is likely to vote on specific issues.) I am thinking about a different perspective or sensitivity. I know this gets uncomfortable but a good example of what I mean by sensitivity or awareness involves an experience I had a few years ago when I shared a cab with a very privileged colleague – one I have enormous respect for. It was a battered cab with a driver whose clothes and demeanor said “working class.” She noticed a radar detector on his dash and attempted to engage the driver in a conversation about it. He nodded in response to her attempts. Somewhere along the line she announced with a big grin, “We got our radar detector from the Sharper Image Catalogue!” (This was several years ago when the Sharper Image had just come on the scene and carried with it some status.) She said it as though they had now bonded and would begin sharing Sharper Image stories. He was deer in the headlights. She was clueless that she was from a class of people who were inundated with Shaper Image catalogues and he was from a class that had not heard of the Sharper Image. This is all very dated now. Shaper Image has been exposed is now discounting on Ebay. So, substitute in this story something like the Design Within Reach catalogue. Or, virtually anything from San Francisco, of course.

This is just an example but I see the same disconnect played out repeatedly. I have talked to students who were turned down by my colleagues for research assistant jobs, but I did not tell them that jewelry, wide lapels, crooked teeth, and make-up make law professors nervous. Similarly, I have been in job interviews for teaching positions that were dismal because the candidate could not connect with interviewers by name dropping Guido, Cass, Eric or Ian; discussing biking in Italy or anything in the New Yorker; and let it drop that having a brand new car, as opposed to a fashionably old Volvo or Mercedes, would be cool.

If you agree that there are differences, the next question is whether having people on a faculty with this different sensitivity would make teaching and research richer. I will have a go at that next week.

Wednesday, August 20, 2008

Generosity and Counter-Preferential Choice

A couple of things came to my attention today from completely independent sources that appear to me to be connected. The first is a short article in the August16th issue of The Economist about experiments connecting physical contact in the form of massages with generosity. The second was a phone call from a friend telling me about an article. From seeing the abstract he concluded "your work should be cited prominently." It wasn't which seemed ironic since the article itself was promoting less self-dealing by law professors. This was annoying but has happened to every law professors and is probably easily off set by the number of times we are cited when our work or ideas are only remotely related to the subject or are a friend just does a favor.

What these two generosity incidents made me think of more generally is the number of times we claim or want to be one way but our actions demonstrate the opposite.

Generosity is good example. I have yet to find any correlation between those who teach in area that stress empathy, "win-win," outcomes and human relationships and personal generosity. In fact, at my School I suspect the most personally giving person in real life situations would be classified by many as "tough" and maybe even intolerant or unenlightened.

I do not want to overstate this. My faculty is brimming with kind people but I also expect that most faculties exhibit a great deal of facial generosity -- kindness that is expected to accrue to the benefit of the giver and make him or her at the very least "look good." This conditional generosity is really nothing more than a trade.

This opposite-of-what-you claim-to-be pattern is reflected in two other ways. One is that the first people to express outrage at supposedly bad conduct are also the first to exaggerate it and gossip about it. And, then there is the top not-being-who-you-claim-be-category -- professionalism. Read all you want on the AALS and AAUP websites about professionalism and ethics and then compare it to your faculty. Most of them will have high ideals but the ones who talk professionalism the most are often just the opposite.

This is actually all uplifting. What it means at one level is that people know better and if they could learn to exercise counter-preferential choices they could be the people they claim to be.

Thursday, August 14, 2008

Behave for Success

It's not an official term but what I use to describe those with working class backgrounds who end up in the world of academics is "socioeconomic displacement." In other words, your parents did not go to college, you are the first in the family to do so and your natural career path might be middle management somewhere. Instead you end up is a strange world. The big advantage of the displacement is to observe the behavioral traits of those born to privilege and choose whether to imitate them. If you are willing to imitate, here are some sure fire tips some of which have appeared before in this blog.

1. Be careful not to overuse "please" and "thank you." These are words of weakness. They suggest you are asking for something to which you are not entitled or have received something that was not rightfully yours all along. So you write to a college and ask, "Could you explain the difference between Marx and Ted Koppel." When the careful answer comes back do not instantly write. "Thanks. That really helps!" No, say nothing or if you feel really pinned down when you see the person say "Thanks for your response." This does n0t mean that the response helped -- that would be too much to concede -- but gets you off the hook from expressing any sense of obligation.

2. If you do anything ever, no matter how greedy you were about it, remember to express it as "volunteering." You know. "I am volunteering to let you pick you the tab for lunch." Or, "I volunteered to fly to Paris for the law and fashion conference." Volunteering means someone owes you, not the other way around.

3. Never oppose the administration on behalf of someone other than yourself. A faithful employee gets fired, not your problem. The dean says he is giving his buddies a raise and asks you what you think. It looks good to you as long as you were not eligible for the same raise.

4. Take no position unless you have a great deal of company. This is important. There is no right, wrong, good or evil. It is all about protecting your options. Even if you teach professional responsibility, talk about ethics or attend church or temple. Lying, half-truths, nondisclosure are all permitting in service to yourself no matter how low the benefit to you or high the cost to someone else.

5. If you take a position, show that it does not matter that much. If you show passion or caring you show weakness.

6. Use information strategically. If you have information that someone else wants it is of value to you if only because someone else wants it. Even if it seems worthless to you, hang in there. Some one may ask you and instantly your importance increases.

7. If you are in a discussion and feel you are not convincing the other person, quickly pull out one of the old favorites -- incivility, bullying, offensive behavior. Forget the fact that overuse of these words minimizes real instances of cruelty and inequity.

You are on your way to being a true "professional."

Saturday, August 09, 2008

Two Perspectives

Recently a perceptive reader wrote the following comment:

"Doesn't the assertion the law professors are always looking for an order to follow contradict the notion that they always look out for themselves? The posts preceding this one talk about Professors teaching only what they want and not what is needed. This seems the opposite of looking for orders to follow."

It's good question and one that suggests my class observations are not as nuanced as they should be. And they are also too broad. They do not apply to all people or even all people with elitist credentials. Plus, I find it especially bothersome that people immediate think my observations are based on my own school. Some are some are not but mostly they are designed to describe a culture.

In response to the question, I think I overstated things by saying the are looking for an order to follow. A far better way to express it is that they are very conservative people. I do not mean politically but in their behavior. They do not question authority. Many will talk big privately but disappear when it is time to take a risk.Questioning authority, except as a large group, is seen as too risky in terms of being in favor with the administration. Thus it is very rare for an elitist-thinking member to challenge the decision of an administrator as long as that decision affects others. The notion that there is right and wrong and fair and unfair in any sense that is not ultimately self-referential is just not there. I have used the example of a staff person who was fired. He identified faculty and ex administrators who he had worked with and who had been pleased with his work. None of those people expressed any concern about his dismissal except to say "I assume there was a good reason."

How can that roll-over-and-play-dead attitude be squared with a sense of entitlement when it comes to what and when to teach and various other matters? First note that at this point the issue is personal comfort, not principle, right or wrong, good or evil. In fact, to choose a teaching schedule because it would be better suited for the students or institution would be comparable to helping a stranger simply because it is the right thing to do. I have mentioned the example of a faculty member who claimed that a certain course should be 4 credits not because of the time or work involved but because it would mean that it could then be regarded as the equivalent of semester's teaching load.

This leads to two conclusions. One involves not going out on much of a limb. The unifying theme is narrow self interest. The other is one I am not sure of and it is the possibility of a quid pro quo between faculty and administrators. When faculty members stand up for a cause that is focused on students or taxpapers, by implication it is criticism of the administration. The informal exchange is that administrators appease faculty selfish needs and faculty look the other way on issues that affect others. I am out on a limb here and I mean it. I do not know for sure this occurs. From my albeit narrow perspective, however, I believe I have observed very starkly evidence that faculty who play ball with administrators -- even when it means abandoning students and tax payers -- are rewarded.

Saturday, August 02, 2008

Communication and Class


I hope the handful of people who read this blog do so with a critical outlook. If I've got something wrong, I am interested in hearing why. It is true that if you send a mindless or insulting comment I will not "print" it but anything substantive and on point is welcome. I mention this now because I have a theory about class-based means of communication that could be dead wrong.

Over the last few months I have run into instances in which people said the prefer to talk about something "in person" and not in email. Putting aside those cases in which they are simply adhering to the greasy version of the New York Times rule -- "Do not write anything down that you would not want to see in the New York Times." (Real version, as a Moneylaw colleague pointed out to me -- "Do not do anything you would not want on the front of the New York Times.")

Putting that aside I assume people prefer the mode of communication that favors them. People who get away with interrupting, sending visual cues of disapproval, use different tones of voice to say something but in a way that they can claim is misunderstood prefer face to face. There are also probably good reasons for liking face to face but ultimately "like" equates to some version of self interest even if it is just personal confort. I prefer face to face in most informal communications but even when an argument arises with a friend I go for email. I think I do better at email. At least the listener cannot interrupt email. Plus, I am a sucker for disapproving looks, a raised eyebrow, etc.

My theory as a general matter is that elitists or so-called well bred people (not all of which are elitists) prefer face to face because they have learned that it favors them. Take this example:

Little Billy, 4 year old son of working class family begins to pout when he cannot get roll up gum at the checkout line. The response. "Billy, get that look off your face or you will be sitting in the car and you'll get a licking and I don't care who knows it." A visit to your local WalMart on Friday night may help if you are not following me.

Now compare this: Little Billy, while going through the checkout line at Whole Foods is told "no" when he asks for an organic, free trade candy bar. He pouts. Upon seeing this, Mom says, "Oh Billy, I bet that makes you really sad" and she in all likelihood buys a carton the organic, free trade candy bars or does something else to appease Billy.

Which little Billy will prefer face to face later in life?

Thursday, July 31, 2008

Sadly, Obama

Clearly, whether ingrained or affected, Obama is an elitist. To be sure he is the candidate of the elitists. This has been no secret but the Times article (July 30) about his time as a law professor reveals things that perhaps only a law professor can appreciate. For example,"He was also an enigmatic one, often leaving fellow faculty members guessing about his precise views." Or this quote from Richard Epstein, "“His entire life, as best I can tell, is one in which he’s always been a thoughtful listener and questioner, but he’s never stepped up to the plate and taken full swings.”

Another excerpt, "Nor could his views be gleaned from scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling to put his name to anything that could haunt him politically, as Ms. Guinier’s writings had hurt her."

Sound familiar? Yes clearly Obama knew how to play the game. He was careful not to extend himself or to offend anyone even if it means passing on chances to do some good. What the Times did not say is that Obama was, in fact, the model of the type of person most sought by law school hiring committees.

There is one important distinction between Obama and elitist law professors. Even if he was totally calculating he at least had an important goal in mind. For the day to day careful law professor who is similarly careful the ends are hardly as lofty.

I will vote for Obama - don't even know who is on Socialist Workers' Party ticket -- but I don't like it.

Friday, July 25, 2008

The No Shame Zone and Shambotomies


The role shame plays in the lives of some people and not in the lives of others hit me like a love bug hits an interstate windshield. I am sure that shame is the right word. Consider the dictionary definition, "the painful feeling arising from the consciousness of something dishonorable, ridiculous, done by oneself or anothers." It's that feeling from a twinge to a deep hollowness that is you telling yourself that you or someone else has been unfair.

So a hardworking guy where you work gets canned 5 years short of cashing on his retirement and some feel shame and others do not. A secretary makes 25K a year while a law professor makes 200K a year. Some feel shame and others to not. A person "volunteers" for a nice teaching assignment while not even disclosing its availability to others. No sense of shame what-so-ever. I cannot say if all institutions governed by elites are no shame zones because I know some elites who are capable of feeling shame and do feel shame. I also know some who are capable of feeling it and fight against it with with their infinite capacity to rationalize. But, I have to admit, if there is anything that seems pervasive when elites are around it is an absence of shame.

Thursday, July 24, 2008

Are All Elites Company Men?

One thing that has always seemed odd to me is the quickness with which people begin to identify with "the man" Go to a department store where the clerk is making $10 and hour and say anything critical about the store and most of the time the clerk will take it personally. It's like they own stock in the store. Is it a power thing? An insecurity thing? I do not know but in the case of working class people who have little power and may be living hand to mouth, it may make sense

But what about your basic tenured law professor who no doubt regards him or herself as "oh so avant garde" or at least an independent thinker. Why are so many sycophants? A dean tells them to do something and they snap to it. Or more often, the dean does something and they look away. Sometimes I think a dean could fire a productive person desperately in need of a job and they would look away. Or the dean could say, "Don't comment on that matter." or "let's make up a story for how we came to have so much money" and they would clamor to join in. Not that many deans are as bad as that but so many law professors are simply looking for an order to follow. Why among elites is there such a powerful tendency not to piss off "the man." And what is weird is that "the man" is not "the man" at all. He or she cannot fire them or really affect their lives in any significant way. Is there something in the genes of the elites that renders them gutless?

Reminds of an old riddle (right now about 8 seconds old).

Q: What do you call a person who gets in a foxhole with an elite?
A. Stupid

Monday, July 21, 2008

More on White People

No doubt most people reading this will be familiar with the Stuff White People Like blog by Christian Lander. It's quite funny and now that the books is out it is getting more national press in the form of reviews. If you've read the blog you know it was not really about white people but, according to the author, "The Stuff is more about class than race." But, it is not just class, it is about "law professors." Actually, no, he did not say that. According to the L.A. times reviewer, "It's monied Caucasian liberals saturated with irony and bedecked in ostentatious authenticity and hard-earned nonchalance. It's not about wealth per se because, as Lander puts it "Wealth was always taken care of in this group of people"

Sunday, July 20, 2008

Entitlement and Teaching Schedules

At most schools (and perhaps other places) teaching loads are, in large part, allocated -- except with respect to the instances in which student needs are observed -- on the bases of sense of entitlement, level of moral development, and opportunity costs associated with time spent badgering.

Consider the following: Each year or semester law faculty are asked about what they would like to teach the next term. consider two responses at the opposite ends of a continuum of possible responses.

1. "I will teach Advanced Restitution from the Perspective of the Elderly at 1o, Wednesday. Cap 12 students."

2. "I can teach any of the following 8 courses whenever they are needed the most."

Does the first statement reflect an actual need ( like a standing appointment for an appendectomy at 8 AM or six days of physical therapy a week)? Of course not. Just a preference.

Does the second statement actually reflect no preference? Just as unlikely.

Another difference between the ends of the continuum is the willingness of the person one or those over on that end of the continuum to spend time badgering, slipping down to the dean's office and quietly closing the door, or expecting something in return for being flexible, etc. They exact a "price" for not getting what they want.

So, the differences in these statements do not reflect a difference in need or a difference in strength of preference. There are at least two other possibilities. One is a difference in sense of entitlement. The entitled person expects the school to serve him or her. The other is a difference in moral development with the first person, ironically, fitting the economist's definition of being narrowly self-interested and the second person having a sense of community. Put differently, the second person is willing to subordinate individualized preferences for the good of the whole.

In fact, those willing to subordinate their individualized preferences simply end up giving deans the leeway they need to "serve" those with a sense of entitlement.

Is there a better example of "no good deed goes unpunished" than a law faculty?

Thursday, July 17, 2008

Did the Elites Invent Tenure?

I do not know but it looks like it. Elites are very good at figuring out ways to redistribute income from those less affluent to themselves. Think about it. Tenure involves a pre commitment in which (for public schools) taxpayers through their agents (faculty) say "No matter what you do over the next 20-50 years, I want to keep employing you." It's not exactly like the many Venezuelans who voted (on the losing side) to have a permanent President but it's the same type of idea. In both cases, people give up options about the future and it is only rational to do that if there is an eventual payoff.

Here's how it works. Each year an already elitist dominated establishment of law professors examine those who apply for similar positions for a trial period. It's something like a debutantes' ball for aspiring law professors. They routinely select those who are mostly children of privilege. After a 6 or 7 year trial period they then, using the money of others -- students, taxpayers, donors -- grant to most of them lifetime membership. Sounds like a club, doesn't it? Let's think about it. Privileged people invite the children of privilege to join and then, after a probationary period, they invite those who "fit in" to stay forever.

Could they be expelled from the country club? Sure but the reasons are not things like poor teaching, inadequate research or not being willing to teach what is most needed when it is needed. Instead they would have to do something comparable to driving a bulldozer over the 9th green while drunk.

Is there any payoff at all for those who pay the club's bill? Is the teaching better because of tenure? Why would it be? Is the scholarship more meaningful? Remember the question is not whether it is meaningful, useful or influential. It is whether it is more meaningful, useful or influential because of tenure. It seems doubtful but this is not simply the fault of those writing. The truth is that, no matter what they write, not many seem to be listening.

So, who is served by tenure? Who do you think?

Sunday, July 13, 2008

No Pain Economies

Many people do not realize that budget cuts in higher education to do not mean greater economies and care in how money is spent. All it means is that the state itself is not forking over the money. If you can get the money elsewhere there is little self-interest-based reason to cut spending or tighten your belt.

This is clearest when you consider one Law School's plan to deal with decreases in state funding -- eliminate students. How does that make sense? The funding is tied to number of students and all the State seems to care about is money spent, not the number educated or the quality of that education. It all works, depending on the elasticities of demand and raising tuition for the remaining students. In public utility terms this is simply passing on the costs. The managers of the utility (administration and faculty) don't feel a thing (except for decreased future pay raises) while the cost is shifted to admitted students and those who will not be admitted who otherwise would be.

As I have often written, publicly subsidized legal education -- especially in some specialized fields -- puzzles me. What is the public good rationale for asking taxpayers to pay for the legal education of others? (How about more special ed. teachers instead?) And, even of that subsidy does take place, why is it related to GPAs and LSAT scores as opposed to need. Given those doubts, this turn to privatization should please me.

But something seems to be missing in the equation. Jim Chen's blog on Moneylaw made me realize what it is. Budget cuts can result in one of two reactions. One is belt tightening. In that sense those affected are part of the broad community of those affected by the economy. Or it can result in scrambling to avoid feeling the squeeze. In this is the path taken, at the very least a Law School planning to apply the same funding to far fewer students should have a plan to enrich the lives of those remaining. If this does not happen, ironically, the result of a budget cut is even greater waste.

Wednesday, July 09, 2008

The Entitlement Test


There a good test for which law faculty have a sense of entitlement and should be sent on their way and which one do not. I am not sure at all that the distinction fall along class lines but there are many reasons it could.

Suppose you are teaching international dance law (This is fictional with respect to my own school a sfar a I know) and you consistently draw 5 students. You teach another course and it draws a whopping 7 students. In fairness, when the school hired you it knew these were your areas.

What is your reaction? For some the reaction it "I am not pulling my weight. What else might I add to my repertoire of courses." For others the reaction is "This is what I teach and it's not my problem if the students to do not care." In short, it does not occur to this person that there is any obligation to take on equal responsibilities even though not technically required to. Why? Because he or she has sense of entitlement.

If I could rewrite tenure and promotion guidelines, "pulling one's weight" would be near the top of the requirements. Please do not misunderstand, some courses must be offered and will be small enrollment. There is no reason that people teaching those courses could not volunteer to teach a larger enrollment course.

I realize that "pulling one's weight" is not part of most tenure and promotion guidelines. But scholarship is and, for me at least, the people who insist on their entitlement to very little student contact better have massive amount of scholarship -- and I do not mean updating casebooks or treatises --or for me it is a NO vote.

Tuesday, July 08, 2008

No Working People Allowed in Law School

If you have not seen it, please read the post by Nancy Rapoport on the latest USN&WR fuss. Briefly here is the issue. If USN&WR includes the data (GPA & LSAT) of part time (often night) students in their rankings, will schools be more likely to eliminate or not institute these programs. The suggestion is that they will.

Although I have often derided the USN&WR rankings, now I praise them. While publishing a deeply flawed ranking system, they have inadvertently exposed the cravenness and hypocrisy of some law faculties, deans, and even alums. The magazine has now shown that when between the rock and the hard place of doing what is right and what is expedient, expediency wins.

In this latest possible change in the rankings, USN&WR appears to be reacting to schools that game the system. One way to do that is to admit fewer first year students and then admit transfers. The transfer student data is not included. Another way is to admit students as part time. These numbers too, at least right now, do not count. As USN&WR tries to plug the holes in the dike, Law School officials dream up new ones and none of this, as Professor Rapoport points out, has anything to do with improving legal education.

Now, however, we can see that the burden of gaming the system may fall on the backs of working people. Having taught at an urban school with a night program, I know these people. They often have full time jobs and families and then trudge off to law school at night. Their work ethic is unquestioned. Or they may be stay at home moms or dads who can only get away when their partner comes home. Very few would not be full time if they could afford it. I wonder if the specter of eliminating these programs would be a quickly raised if those relying on them were more privileged.

Saturday, July 05, 2008

Graduate School Credit

My sense is that on most campuses, law schools are not regarded a quite up to par as far as other graduate programs. If true it is unfortunate. As someone who has done both -- law school and graduate school -- I feel that law students work harder. Plus, given the market for Ph.D.s in most areas, law schools attract excellent students especially if they cannot afford 5-7 years more of college.

I was discussing this law school/graduate school issue with a close faculty friend (really) who said part of the reason is that legal scholarship only seems to rise to graduate school level when it is combined with another discipline and involves empirical work. I do not totally agree but I think there is a great deal of truth to the observation. On the first point, so many articles are already interdisciplinary that is hard to believe this makes a difference. I doubt there are many articles in law reviews that limit their sources and influences to cases and treatises. On the empirical end, I agree more with the statement. I cannot put my finger on it but I am not sure law can be regarded as an equal to others at the graduate level unless ideas are tested in one way or another and a body of “findings” developed that only law professors have the expertise to develop. At this time, law seems to have only a derivative claim to graduate level status.

I have often written that most legal articles are actually service and not scholarship. The dividing line for me being whether the author starts with a question or hypothesis or is writing to prove a point he or she want to convince others of. The difference would be like:

a. Courts have traditionally ruled in favor of tall people (This is usually written by a short person) and I am going to show you why you should agree with me.

b. Does height affect the rulings of courts?

Law teachers are generally trained to do the former and so that is what they do. Articles that disagree are like battling briefs and if you only read one you very likely to get one part of the story. As long as their scholarship is of this variety, their schools and their students will suffer.

Aside from the advocacy writing as opposed to idea testing what other things separate law from other graduate programs?

I have a hunch that law professors give more machine graded exams that professors in other graduate programs. It’s not the exams that matter but what the teachers teach and the students learn when the evaluation tool is a machine graded multiple choice exam. I could be wrong but please do not comment with examples one way or the other. This is the sort of thing that needs to be actually tested and not go down the usual law professor path of dueling briefs and examples. Part of this hunch is based on talking to some joint degree students who observe “A multiple choice machine graded exam makes the course all of a sudden seem less serious.” I mean, are Ph.D.s handed out on the basis of multiple choice questions and answers?

Another possibility is the nature of the evaluation at tenure and promotion time. I am sure the system can be gamed in other disciplines and that there are arguments about quality, but I doubt the panic is anything close to that of untenured law professors who worry about their reviewers. They are worried for good reason. They have written briefs and people who disagree have to overcome their own feelings on the issue to be objective. I have observed that people who disagree are more willing to be objective and praise a paper than people who agree with the position are willing to note when a project has been shoddily executed. And there is, of course, the market for letters.

On hiring I suspect there is also a different although I am sure it is of degree. Law school hiring often hinges on the advocacy of a hiring committee for one candidate or another. This advocacy, which can be just a notch above selling beer (Get it before it runs out! Everyone’s favorite!), is based on knowing the candidates for 30 minutes to an hour. Campus visits are not about the candidates but about the group who invited them and their desire to be seen as having made good decisions. Of course, the faculties never see the alternatives but, more importantly, in law there is so little to go on. There is no dissertation and consequently, largely irrelevant factors come into play.

It does occur to me that the rankings of law schools might be viewed as law schools that are true graduate programs and then the rest that simply train lawyers. Even if that is the case, becoming more graduate school like would seem to increase the effectiveness of law schools, their status, and that of their graduates. After all the degree is a doctorate.

Wednesday, July 02, 2008

Rio Lisboa and Law Faculties


I am not sure how to describe Rio Lisboa because what do you call a bakery, deli, grocery store, juice bar, snack bar, and outdoor cafĂ© that never closes on a street in the Leblon section of Rio. What’s great about the RL is the constant feel of action, movement and goodwill. Grilled ham and cheese $3.00. Two eggs, $1.50. A complete roasted chicken cut up and packaged to take home $8. All that helps too. Bakers wrapping pastries in two layers of paper all tied up with string. Waitpeople moving in and out and around people as though they had done it eons. Smooth efficiency. No one seems to be trying but everything gets done. Unlike its closest counterparts in the US, No one seems stressed and no one is yelling.

No one ever appeared to be shirking at RL. If you were waiting at the pastry counter for a slice of the amazing Brazilian version of French toast, you did not wait for long. No one appeared to be too busy chatting it up with another worker to do his or her job. Professionalism. Yes, even Adrianna serving a $1.50 cup of coffee did it like it mattered to get it right. Frequent embracing between the workers and between the customers and workers. No sign of strife. I saw no hints that anyone was interested in anything other than doing his or her own job the best it could be down. Envy and efforts to undermine seemed not to exist. I could be way off but these seemed like secure happy people and, at what I assume were modest wages, they were not being paid to fake it.

This made me thing of the recent books and articles about happiness and about law schools as a place to work. Or put differently, what do Rio Lisboa, Denmark, and Iceland have in common that law schools generally do not. For one thing smallness. It is not smallness per se that counts but the sense that you are in control of what happens in your life and have a real input into more general policies. Knowing what to expect is important. Another thing is the absence of envy. No one worries that someone else is getting more than he or she deserves or that being a butt kisses pays off. A relative lack of a fear of failure. In Iceland, for example, according to one report it is acceptable to fail. It does not define a person more generally. At Rio Lisboa I am sure that if anyone dropped a dish or served the wrong dish both customers and coworkers would have simply smiled about it. At law schools I think people often take pleasure in the bad luck of others.

Sunday, June 29, 2008

Law Schools Should be Juice Bars

One of my favorite things in Rio is the juice bars. This photo is of my personal favorite. They are on virtually every corner. Most have not just juice but what I would call diner food. Actually, I am not sure I ever ate in a diner but it is what I imagine diner food to be. Some you stand at and some have seats with tables and then some have additional tables that you can pull up to park benches on the side walk.

I never heard anyone cop an attitude at a juice bar. I never saw anyone whine at a juice bar. No one care about status. No matter who you are you get the same juice and the same seat and the same service as anyone else and no one expects special treatment.

You do not pick a juice bar on the basis of its name or the training of the cooks and juicers who work there. Performance is the only thing that counts; the better the juice, food and service, the more customers it has. As a customer, if you do not produce you get no juice, or anything else.

Law schools should operate more like juice bars.

Monday, June 23, 2008

Still Worried About Pedro

My one month stay in Rio is almost over. After a month and some reading and many questions, I am no expert on Rio or Brazil. In some respects I feel like I know less because the complexities become more evident. What I can say is that in one month I met no one – professor, student, waiter, grocery store stocker, etc, -- with what in the States we call an “attitude.” (The law students were spectacularly well-prepared and serious about learning.) I also witnessed a number of signs of informal expectations of honesty. If you rent a beach chair you pay later. If you go to a club you pay the cover charge later. I bought an item from a beach vendor but did not have my wallet. He left the item and came back much later for payment.

This not to say there is no danger here. People are mugged, there is drug violence in the favelas and I was warned not to go in certain areas. Still, your average Brazilian seems kind, polite, humble, and honest with little interest in chiseling anyone. There was little yelling or speaking in cell phones at top volume while walking down the street. People form lines for elevators and buses.

I have heard Brazilians say they do not have race problem. On the other hand, slavery did not completely end here until the 1880s and close to 40%of the Africans taken into slavery and brought to the Americas ended up in Brazil. (6% for the US) There were, in fact, no dark skinned people in the classes I taught. I suppose it could be a class issue rather than race but I think it must be both. What observed was integration of every color of skin except for the very darkest people. At a movie I saw the other night the preview was for a fair-skinned-upper-class-girl-falls-for darker-skinned-favela-dwelling-boy themed movie. So the race/class issue must be part of the culture.

What makes the race issue so complex is that Brazil is largely literally a nation of “people of color.” There are recent efforts to create quotas for “blacks” but what does it mean to be “black” in Brazil. At one university one identical twin was accepted as part of the quota while another was rejected.

Someone wrote or said something like “Brazil is the country of the future . . . and always will be.” I hope he was only half right.

(Do not be misled by the photo of the dog my local beach. The most popular dog in Rio, as best, I can tell is the poodle. This is followed by the dachshund which goes to show that bad taste in dogs is international (As a former owner of a dachshund I am permitted to say this).

Wednesday, June 18, 2008

Worried About Pedro


I am finishing a month of teaching in Rio. My first trip to Brazil. I am teaching 30-40 students law and economics in the day and going to as many soccer games as I can at night. The teaching is easier going than in the States since they have all taken a course in economics. The beaches in Rio are fascinating. If you like shopping and I do, you sit on your rented chair and the "stores" come to you -- food, including set up and cook on the spot, drink, clothes, jewelry, tattoos.

There other day one of Rio's small children who are sometimes alone on the beach was near me. He was not begging nor was he selling anything. He was thin but in a way that 8 year olds are. He was also shy. Finally, I asked one of the strolling vendors to ask the child his name. It was Pedro. We shook hands and Pedro continued to sit alone sometimes venturing into the rough seas and then hovering about. After a a couple of hours Pedro left. The last I saw him he was crossing the very busy six lanes of traffic that separates the beach from the hotels all along Rio's coast line.

Saturday, June 14, 2008

Elitist "Trappings"

Some time ago over on moneylaw Jim Chen wrote yet another terrific blog Elitist Trappings to which I wrote an fairly innocuous comment. This was when there was at least officially still a race between Obama and Clinton and I observed that the candidate with the least elitist background overall (Obama but we are really splitting hairs here) seemed to come off as the most elitist. A comment on my comment questioned what I could mean by this. He or she wrote (who knows because people and law professors in general are such wimps that even when they say nothing controversial they say it anonymously):

"I'm not sure I understand Jeff's question. In what ways has Obama taken on "elitist mannerisms?" And, what exactly are "elitist mannerisms" in the first place? I would think that an overbearing sense of entitlement would be one of them, but Obama has exhibited that far less than McCain and even farther less than Clinton.

Unless you consider intelligence, eloquence, patience and a calm demeanor (not to mention graciousness and candor) to be "elitist mannerisms" and therefore a burden to him. I suppose in America, these are indeed burdens."

This is a good opportunity for me to explain what I mean by elitist mannerisms. (I note that the idea of "burdens' was not in my comment but in typical anonymous fashion this is once again the case of "hearing" something not said and making it an issue.) First, it is most definitely not, at least publicly, "an overbearing sense of entitlement." The whole sense of entitlement means not having to demand anything. You deserve whatever it is. In fact, one of the most important elitist traits is not showing emotion. If you show happiness, anger, disappointment, etc., it signals a weak spot and since for elitists life is one big negotiation you never show where you are vulnerable. Elitists always strive to appear to be patient, calm, and gracious. They let their workers do the dirty work.

All of those characteristics the anonymous writer values cut both ways. Sure it hard to say they are bad but they also mean you know nothing about the person. When I meet elitists I nearly always come away wondering what they care about -- what makes them happy, sad, angry. What do they really value? Is there any "there" there?

I am not sure the accompanying photo is supposed to be Obama for whom I will be voting. I just thought the caption was appropriate.