Dylan: Is there A Way Out Of Here

"There must be some way out of here," said the joker to the thief,
"There's too much confusion, I can't get no relief.
Businessmen, they drink my wine, plowmen dig my earth,
None of them along the line know what any of it is worth."
B. Dylan


No, I do not mean UF where I teach and have what I think is the second best job in the world -- reading, writing and talking about interesting things.

I mean the confusion of legal education. Think about it.

Those wanting to improve teaching rail against the Socratic Method. Problem: No one uses it.

Law Professors want to be regarded as academics but have become sales reps for themselves and rarely search for answers. Instead, consistent with their training, they start with the answer and research in order to prove they are right.

Schools are torn between making legal education widely available but have their national rankings depend on the homogeneity of their student bodies.

Appointments Committees talk about diversity but hire nearly exclusively from elitist school even though there is no relationship between productivity of any kind and credentials. When push comes to shove the real questions is: Will this person add to my comfort level.

Law Professors fight for tenure and waste it by being the ultimate conformists in their research, positions, and well . . . everything else.

Dean's operate schools to please faculty while the actual stakeholders -- students and taxpayers -- are largely ignored.

Law Professors talk about the rule of law and then use all the tricks of the adversarial trade -- omissions, half-truths, ambiguous words -- to avoid the rule of law. The often live by a perversion of the saying "Do not do anything you would not want reported in the New York Times" Instead it has become, "Don't write anything down that you would not in the New York Times."

Think of what legal education could be like. You cannot get there from here. Sorry Bob!

The Dean Thing

I have from time to time written about law school deaning as have Jim Chen and Nancy Rapoport over on moneylaw. When they do it is with a perspective I cannot have. There are things I just do not “get.” In fact, I have four questions and an observation.

Questions 1. Who decides who is an expert on deaning?

Lately there have been books and symposia on deaning. Does just any dean get to participate? Is it like symposia in other fields where someone calls up a bunch of pals whether or not they have anything to say? For example, when I read one of these articles or book chapters they are usually written by a dean at a so-so school which did not distinguish itself during the writer’s tenure there. So, who is qualified to write about effective deaning? Just anyone?

Question 2. Am I imagining it or does Jim Chen seem like the opposite of most deans?

I mean he says what he means, announces his values up front and says he will work for those goals. If this type of behavior will not cut short his tenure as dean, why are other deans so afraid to say these types of things? Or course maybe they do not hold the same values or any values other than maintaining their jobs. That is scarier than just being silent.

Question 3. Can a Principled Person be a Dean for very Long?

When I observe deans closely, and I have only been able to do that a few times, there seem to be strategies for keeping the job. These strategies have little to do with the welfare of the School or students. Here are a few:

1. Do not come even close to doing anything that might remotely mean you could be called racist or sexist. The issue is not whether you are racist or sexist but do you make any decision that opens you to that charge. I have seen too many decanal candidates get passed over on the basis of rumors, murmurs or idle chit-chat dealing with race and gender.

2. Reward those who kiss your behind. Why not? The only people a dean cannot afford to loose and keep his or her job are the butt kissers. Every other person is expendable.

3. Reward the self-promotional. So what if Professor X writes 4 good articles and 17 short pieces in symposia or Professor Y takes 3 articles for which he was rewarded 5 years ago and turns them into a new book or Professor Z has written variations on the same topic of ten years. Numbers, not quality, good scholarship or originality fill decanal glossies. University presidents do not know the difference.

4. Always appease the biggest voting block. So what if you agree with Professor X and believe he or she is right. The critical question for the dean is how many people also agree with professor X.

5. Keep former associate deans happy. Once they go back to the faculty they can be appointed to important committees and given other assignments. It’s like having two layers of associate deans – current and those that act as though they still are working on behalf of the administration.

Is this unfair to deans? Almost certainly it is to some. In addition, to the extent these strategies exist it is result of the bizarre allocation of power within law schools.

This leads to question 4. Why be a dean if it requires any of the above strategies to keep the job?

"I am SO mad" and Efficiency

That line appears in a children's book I must have read to my own kids a few thousand times. Like every other parent I know I would try to vary it. Sometimes I read the title, author and all publication information including the ISBN. Other times I just added things like "I am so mad [I just got my hankie caught in a weasel's woofer.]

Now it is coming back. I think it was a book that featured the "little critters." Their chests were pumped up and their little arms straight down and fists clenched. BOY they were really mad!

At my law school we have had an nasty incident. Someone who may or may not be a student here (I don't know since I avoid the gossips) wrote a blog that most people (including every single person I know) will think tasteless and cruel. I will not give you the site because I'd prefer not to be someone who aids in this. Plus, I do not know it.

Now remember, every person I know and I think have ever known would be put off and even angered by this blog. I'd go a step further. I think every person every law professor knows would find the blog offensive at some level.

But that's my point. If everyone everyone knows would find it offensive what kind of courage, thinking, or risk is involved in all the complaining emails that have bounced around my school and others. I mean, where are these heros when there is some risk and actual controversy?

It's just way too predictable. Its' like pushing buttons on a panel. Push the right one and 15 people pipe up. Push another one and zero pipe up. In fact, on my campus there was another speech issue and the targets were a less sympathetic group than the target of the blog I have described and I think there was one person on the faculty who spoke up.

I've got an idea. Just to be efficient about it, on every email where you have your phone number or maybe just on your business card or tattooed to your arm have this:

"If anyone has said something racist, sexist or hateful about (here you add what ever you want -- environmentalists, vegans, Federalist society members, Republicans, Latinos, pizza tossers) whether or not I know about it, I am SO mad and I want someone else to do something about it."

Now you never have to worry about missing a chance to chime in and you yourself never take a risk or make a sacrifice. In the alternative one could decide not do this because, as I said, no one reading this blog or any other blog by a law professor and no one any of those people know do not already agree. This would leave you the time to think about actually taking a risk someday.

Doing Chen Ups

Most people reading this blog get here via Moneylaw. If you have not read Jim Chen's latest post over there please do. There are two aspects of Jim's post that are important. One is his general message. As a former construction laboror and someone who pays attention to the background of his colleagues, I agree that you cannot fully appreciate a law teaching job and treat it as the privilege it is unless you have worked at the other end of the spectrum. I have written before that I think law schools would be well advised to hire people who have experience the other side of the socioeconomic line. I have nothing empirical on this but it would be interesting to study. The other part of this general point -- althought not made by Jim -- is the expectation those who have not worked hard expect those who are working hard to pay for their life time jobs of leisure. I am talking about the belief that there is justice in asking the convenience store clerk, secretary, tire shop worker, or bus boy to contribute to a lardass law professor's salary. One thing I have discovered in the world of law professors is an inability to feel shame.

The second aspect of Jim's post is not the message itself but his willingness to state his values and to let it be known whose side he is on. I have not worked at a law school with a dean that comes close to this. Evidently the prevailing "best practice" is to say nothing and certainly not to state what one's expecations are (of course this assumes there are expectations). Most deans seem to hide. Jim does not. What a breath of fresh air!!

The Tenured Life, Part 5: Complacency and Blaming the Students

One thing the tenure life breeds is complacency. There is one test that determines most of the decisions that may people make: what does this mean for me?

In two articles by Robert Lloyd, both of which are now over ten years old, he captures the idea of going with the flow. The title of one article "Hard Law Firms and Soft Law Schools," 83 N.C.L.Rev. 667 tells the story. Law schools are soft, teachers are not rigorous, they teach "soft courses." In a wonderful passage found in the other article he writes in reference to higher and higher grading curves, "When it reaches A+ there will be nothing left to give, and faculty will have to find new ways to ingratiate themselves. " 45 J. Leg. Ed. 551. Actually legal education, although not arriving at the A+ curve, has found out a way to give something new. When grades can't go any higher, the only thing to do is to expect less in class. When you have life-time employment no matter what you do, teaching (I mean actually teaching) less becomes easy.

And teaching less seems to be generally accepted. One colleague in a committee meeting noted that students 1) do not read and follow directions, 2) do not carefully read fact patterns 3) merely state the law without applying it to the facts (this is a big one, they seem to not understand what legal analysis is or why the facts are important) 4) fail to spot large issues. Not a single person in the meeting disagreed. And yet, many of these things are what law teachers are supposed to be teaching. No one suggested the problem actually begins with what takes place in the classroom.

The topic of teaching rigor is evidently off limits. As far as I know, nothing came of Robert Lloyd's warnings 12 years ago. In my own school, and I am willing to bet 90% of other law schools, conversations about rigor have not taken place and I doubt can take place. Call it a lack of leadership, complacency, or whatever but students will only learn what they are taught.

The Tenured Life, Part 4: Anti-intellectualism

As discussed so far, the the tenure life can mean rewards for poor teaching, less writing, and small ideas. It aslo leads to anti intellectualism. What do I mean by anti intellectual or intellectual? I have no idea if this is an official definition but for me it means that all ideas are explored, all questions asked, and the answers respected. I do not mean they become a guides to life but they are faced up to rather than discounted. All of this takes place even if it is morally and socially uncomfortable. And, principally an intellectual is not only interested in questions and answers that are self-referential.

Anti intellectualism may exist in all fields but in law it is particularly widespread. If ask what their specialities many law professors answer not with an topic but with the name of a, generally well-intented, political movement -- race, women's rights, environmental law, law and economics, ADR. How can these be areas of "scholarship" when nearly everyone is preaching to the choir, one must hold certain beliefs to be part of the research circle, and the goals lean more toward the promotion of ideas as opposed to their analysis? The literature in these "fields" reads more like position papers than the work of open minded researchers. In all of these areas some answers are unacceptable and any question that would lead to one of these answers is not asked. In the world of legal research a statement can be supported by citing the fact that someone else said it. It really does not matter as long as it was in print somewhere.

How is this a product of tenure? Tenure allows individual to persue self-referential research goals. A tenured professor has freedom and that generally means ignoring all interests other than self-interest.

I am indebted to one of the very few true intellectuals I know for showing me this from Noam Chomsky: "The professional guild structure in the social sciences, I think, has often served as a marvelous device for protecting them from insight and understanding, for filtering out people who raise unacceptable questions, for limiting reseach -- not by force, but by all sorts of more subtle means -- to questions that are not threatening."

Noam, take a look at legal research!