The Tenured Life, Part 3: Wasting It

In the last post on this topic I discussed faculty who fake it while untenured and run out of steam shortly thereafter. It is a huge cost to the public in two ways. First is being locked into paying a lifetime annuity with a low return. The other is the opportunity cost. For every non producer who is locked in, there is possibly productive person a school cannot hire.

Tenure is also wasted on another way. Tenure is granted on the basis of a very small sample of work. Still, those with tenure are given the freedom to take risks in research. Reading about a topic an finding there is nothing to say would be fine. Or working through a theory that turns out not to catch on or which is subject to flaws would also be risk free. Tenure is supposed to lead to big thoughts, deep thinking, taking risks, and at least once in awhile writing something provocation. People who do anything else are wasting tenure.

That idea of the tenure professor has given way to a race to fill resume lines. Law professors (and maybe others, I do not know) have gravitated to the quick fix – short symposium articles in which they repeat something they have already said and preaching to the choir in the process, casebooks, descriptive hornbook-type efforts. Many if not most law professor books that are not purely descriptive or casebooks, are recycled old articles. The point is even many people are “productive” in a quantitative sense are not really productive in the way that tenure would permit. Tenure is wasted squandered by these people.

I am hard pressed to understand the new emphasis on numbers of line on a resume. Deans typically have little money to spread around. Movement from school to school is rare and even more rarely based on article churning. One possibility is that faculty do not trust administrators to appreciate risk taking and quality. They do trust the same administrators to be able to count and this leads to the assembly line mentality.

The Tenured Life, Part 2: Prodigal writing

In the last post I described how poor teaching is tolerated in the tenured life and how there are incentives not to be an effective teacher. Scholarship is a little different. I am already on record saying that the scholarship requirement for law professors is probably overdone. 7200 articles a year is far more than necessary to express every original or useful thought all law professors combined have to offer.

Still every law professor I have known has made an implicit promise to carry on a research program. It was part of the exchange when he or she was promised life time employments. It has been shown that law professors generally write less once they get tenure. Some stop writing completely and do not make an effort to offset this through extra teaching.

Does it make a difference? It's unlikely. This faculty member may or may not be viewed as having fallen from grace. This all depends on whether he or she is politically useful to the administration or one faculty group or another. Being a good political ally will make up for massive levels of underachievement. Politics and decanl job security outweigh individual accountability.

Plus, deans generally have little discretion with raise money and even less courage to use it to signal non writers that they are not keeping up their end of the bargain.

But there is another quirkly thing much like the bad teaching is good for the teacher problem. Suppose one faculty member is a steady producer. Another does not produce for years and by accident or by shaming does produce something. Because the second professor has so thoroughly lowered expectations, he or she is instantly viewed as having "made good." Even though the non producer may still be in debt to the school to the tune of 5 or 10 years of scholarship, it's just far simpler to ignore it. No one is holding anyone accountable anyway.

The Tenured Life, Part 1: Is Bad Good?

Once a person hired to teach at a law school, life time employment is nearly assured. With few exceptions, everyone who makes an effort gets tenure. The only people who do not are those who have not made nice and who have utterly failed in the scholarship department. Note that teaching barely counts. There are prearranged class visits by peers that always result in positive reviews. How could they not? For the teacher its like taking a test that you have been given the answers to. Student evaluations are unimportant unless they are consistently negative and the faculty is already predisposed to dump the candidate.

The risk of false positives is high. One of the consequences is the cost to students and faculty. The problem is not so severe with scholarship. After all with 7000+ law professor articles written each year, a few less is probably a blessing. Teaching is another matter.

Non producers are often asked, urged to, but never required to make up the slack and earn some of their life time annuity by teaching a little extra. To understand how this works, think of the last time you looked over check out lines at the grocery store to see which one was moving faster. That's the one you picked. In effect, being fast or efficient is its own punishment -- more people in that line. Being slow is a benefit -- your line is shorter and may be avoided altogether.

Now shift to tenured law professors. What does a school do with them? There is virtually nothing that can be done salary-wise. When it comes to teaching, students shy away from their courses as much as the teachers shy away from teaching a little extra. One reaction is to put them into required courses. Yes, think of it. Deliberate placement of so-so teachers in high enrollment courses. Another pattern that emerges is to create courses or to allow them to teach electives where they teach fewer and fewer students. Just like the slow check out person, if you are really bad, things get better for you. In the meantime other classes are overcrowded and better teachers, unless they have managed to specialize themselves into tiny enrollment courses, work harder.

The tenured life is great for the false positives

The Unbearable Lightness of Utility and Ranking

We are all familiar with experiments in which subjects cannot tell the difference between a high priced wine and and low priced one. Now comes a study showing that knowing the price ahead of time affects the ranking. Not surprisingly, they rank a wine as better if it is more expensive. The is as one would expect. Price is a form of information; high price can mean high quality. What is more interesting about the newest studies is that those ranking the wine are not making it up. In reality, pleasure receptors in their brains actually did react more to the higher priced wine even though it was the same as the wine marked with a lower price.

Replace high price with a candidate's law school and I think you will find the same response in law school hiring and law review placement. Take the same person, send that person to one interview armed with a super resume and to another with a second level resume. Don't you think that the first interview will be perceived as having gone better than the second? Send the same article to law reviews. One submission identifies the author as from a highly ranked school with all kinds of name-dropping acknowledgements. The other submission says it is from a professor at a mid or lower level law school and delete the acknowledgements. My bet is a different set of acceptances.

I do not know of any one who has tried either of these experiments. Years ago I heard of a Houston attorney, whose name I will not disclose since this is hearsay, who provided a bartender with a super resume and sent him to interview at his very prestigious law firm. The result was an offer.

What the wine study suggests is that these feeling are real. Or as real as as well . . . "real" can be. As many economists, including Amartya Sen, have pointed out in one way or another, good feelings can be "light" -- without an underlying foundation -- and fleeting.

Law Professors Do It Slower (and Later)

I was just trying to figure out if there is a better example of an elitist sense of entitlement than the propensity of law professors not to grade exams within a reasonable time. In most instances the entire grade is based on one final exam. I have yet to meet a student who was not anxious to find out the result of four months of effort. So, each professor has 25 to 200 students waiting. . . and waiting. And what are they waiting on? It’s easy. There are waiting on their professors simply to do their jobs. I am not saying they are asking for anything extraordinary. They are not asking their professors to toil away throughout the holiday. No, they have a simple request. Could you maybe, just maybe, do what you are paid to do? The answer is they cannot. When I was a student there was no formal deadline and I recall getting first semester grades in mid January or later. Now I work where there is a very liberal but formal deadline but it is routinely ignored without consequence. And I mean totally without consequence.

I wonder how many law professors who cannot grade papers in a timely way are the very same professors who claim to be responsive and "student friendly." Do they care as much when the effort requires is more than talk? Nice question, but I must admit I have no idea if there is a correlation between those who make a show of caring for students and those who do care. My hunch is that late graders do care about some things. I doubt a message to call the Harvard Law Review about a submitted article would be ignored. The same goes for a call from any appointments committee chair at any higher ranked school.

What is the thought process when a law professor looks at a stack of papers, knows of the deadline and about anxious students, but is not moved to grade. I guess when you get down to it, late grading is a sign of arrogance. What else?

Are Elites Anti Intellectual?

Are elites anti-intellectual? I will admit that this view may be a bit of a reach and involves drawing a couple of perhaps unrelated ideas together. I do not think there is any serious debate that legal education is controlled by the privileged. And clearly there is no question that law professors view themselves as liberals. (Not left. Very few that are lefties. I mean this perverse form of liberalism that is really not liberal in a literal sense at all.) And, although it is more debatable, my experience is that law faculties are generally anti intellectual. By that I mean there are certain views and hypotheses that cannot be tested. For example, an intellectual would engage in research or discussion and report whatever that research or discussion concluded. The anti intellectual looks ahead to see where things might end up and if that end point would be politically unacceptable, the avenue cannot be explored at all. Or, if it is explored and the answer is not “correct” the results are never reported.

Are there reasons why elites in particular should be anti intellectual. I can think of two. First, as I have repeatedly noted in this column and elsewhere, I am puzzled by what elite undergraduate and law schools are teaching. For them most part an elite education – at least in the last several years – seems to produce one-dimensional, flat, unimaginative people. Maybe it is not the schools but the people they tend to attract or something else. Maybe it is because law schools prepare students for a profession and not necessary to engage in scholarship.Basically, I find my students more intellectual diverse and curious than many law professors. Somehow an elite education seems to deaden many people. Second, a sense of entitlement means, at one level, a lack of a need to be introspective. This comes from having spent a lifetime of being over affirmed. In short, you are right because of your status and years of parents and teachers telling you that you are special. This means there is no need to reexamine basic premises and seriously to entertain the ideas of those who opposed your own.

When the willingness or ability to reason and research in a ways that create internal dissonance are absent, it is replaced by slogans, labels, and tried and true methods of avoidance as in “that is uncollegial” or “I am offended.”

So are elites anti intellectual? Not necessarily but they are generally conditioned not to entertain doubt and doubt is a necessary part of having an open mind.

No Misery Among the Elites

A number of law school related blogs, including Moneylaw, have addressed the idea that law professors are miserable. This does not mean miserable people – which a fair number may be – but that law professors are unhappy. In typical idle talk fashion the idea that they are unhappy seems to have been hatched in a manner similar to office hall gossip. It does not appear to be the result of any empirical research. In fact, at my University there was recently a survey and, if I recall correctly, law professors seemed to pretty happy with their jobs although my law school did rank lowest in the entire University in terms of collegiality.

One of the most consistent characteristics of those with a sense of entitlement is to never admit or even sense failure. In fact, elites appear to be brain damaged in the same way. That part of the brain that accepts responsibility or personal shortcomings is either absent or damaged. Or perhaps, through some evolutionary process, it has been extinguished.

My point is that it would be completely against character for most law professors to question what they have done with their lives. Very few that I have met seem introspective enough to ask hard questions about whether anything good will come of their efforts. Introspection can lead to doubt and elites have no self-doubt. Those efforts fall into two categories. One is to write articles virtually no one will read. Or, if they are read, it is by people in the same small group of people bend on an incestuous process of self-congratulations. Really what does it mean when one measure of success is how many other law professors have downloaded or cited your article? The other category is a life devoted to maintaining the status quo. Think about it. Why does law exist? It exists to protect property and wealth. And, why to public law schools exist? Evidently because those people who have property and wealth to protect wanted to tax everyone to help them maintain the status quo.

Pretty grim and reason to feel some level of misery but one thing elites have going for them is a near infinite capacity to rationalize. Thus, from the reality is hatched a sense of accomplishment and public service.

In sum many are not miserable because they seal themselves from the reality. These are the ones counting SSRN downloads, writing for every symposium issue that asks, network for the sake if networking, and are engaged in a constant process of self-promotion. Obviously, the essense of the job is not all that important. In fairness, though, some are not miserable because they truly appreciate the opportunity to live a life devoted to ideas. The overlap between these groups is fairly small.