Yale Recall

I guess by now most have seen or read the empirical study by
Royce de Rohan Barondes showing that the higher the percentage of Yale grad clerks a judge has the higher the likelihood that a decision by the judge will run into trouble on appeal. The correlation between other elite clerks and appellate problems is equivocal. In fact, the expected negative relationship between other elites and appellate difficulty only occurs if some classes of cases are ommitted. (I guess for the Yale grads you can get there by excluding all cases.)

What does this mean for the law firms that hire Yale grads, more importantly their clients and even more more importantly the law students who are taught by these graduates. I mean to the go straight from giving bad advice to their judges to teaching “not law” to their students. Do they give As based on how wrong the students are? Maybe they are just above the law – although the actual explanation may be an overdose on theory.

And, finally, what is up with the judges and appointments committees that continue to hire them. Talk about market failure!

Do'in the Legal Scholarship Shuffle

As I have noted before sometime in the mid to late eighties or early 90s legal scholarship took a shift to a race for lines on resumes. In think it roughly coincides with the ratings chase and the full development of symposia issues. I think it was June 17, 1991 but that could be off a day or two.

It was around then that scholarship stopped being counted as a feather in a law professor’s hat and numbers did. It was something akin to a mathematical breakthrough counter to the idea of not creating matter The question is how many different ways can a certain unit of actual scholarship be represented. One unit of scholarship is a amount of actual searching, reading, writing, and thinking. For the more fashion oriented the analogy may be to having one nice scarf and the question being how many ways you can wear the scarf. Or if you like squirting things out of aerosol cans (and what same person does not), its like filling a substance with air to make the volume increase.

So lets say you have completed 1 unit of scholarship. How can you make it 10?

1. You publish an article.
2. You write a condensed version for a symposium.
3. Slice it up into at least three stand alone pieces.
4. You give it as a presentation – may 3 or 4 times.
5. Looking for a job? Use it as your job talk a but list it as a “workshop”
6. Include in as a chapter in a book to which you contribute a chapter.
7. Write your own book composed mostly of this unit of scholarship and some others.
8. Edit a book of readings and include it.

So when your dean asks for things you did to put under the scholarship column in the decanal glossy, list all of these. And, there is a good chance your dean will give full credit for all of them. You are a star. You are also jerk but that is not a problem in legal education.

Are You What You Teach?

This is rank speculation based on very few observations but, do people spend their lives going against type: For example:

1. I have known a few people who are psychologists or psychiatrists. The number of them who are a bit wacky or have wacky people in their families seems higher than other people I know.

2. The people know who are physicians seen to exercise the least had have greater tendencies to drink and eat too much -- to say nothing of their personal lives.

3. Please tell me why people who work in hair salons have the worst, I mean THE WORST hair cuts, color and styles.

4. I am sure everyone has heard the joke about the CRIT in his $2000 suit and home in the Vineyard chatting it up with the Law and Econ guy in his jeans and tee shirt.

5. The people in law school teaching who specialize in ADR seem to be the most self-interested. This last one worries me most. First, because one of my ADR buddies agrees. Second, what does that mean, if anything, in other courses. Are those people as concerned in their own lives about what they teach? I mean do family law people care about families or were they mistreated as children? Do people who teach about defamation gossip with little attention to the truth? Do environmental law teachers care about the environment? Are procedure people disorganized and do they cut in line? Are First Amendment teachers quick to draw the line at what others should not say?

Please do not misunderstand. I think most law teachers can teach any subject offered in a law school whether they have any personal feeling for the area or not. I just wonder if there is a pattern of what attracts people to certain areas. How often is it honest interest, therapy, or some combination of those and other factors.

Noblesse Non Oblige

I am not sure what to think about Noblesse oblige. I guess if there is nobility, members should do something to help others. Around law schools the message somehow has been reinterpreted to mean Noblesse Non Oblige. For example, a law professor pipes up and complains that many students who want to take a course can not get in. When it is suggested that he teach an extra section for those students about whom he is worried, he gets very quiet.

Or faculty in a meeting are trying to decide whether the work in a course warrants 3 credits or not. A straight faced suggestion is that we should call it a 4 credit course because the teacher could justify teaching only one course that semester.

Or needed courses are taught at conflicting times because professors cannot teach early, late or on Friday or Monday.

Some courses are desperately under staffed meaning that basic courses go untaught. When hiring season starts the candidates hired teach yet another fringe course and limit the enrollment to 25 because the people who teach those courses share their politics, travel plans and the absence of a sense of humor of those doing the hiring.

Faculty hired to teach first year or mainstream courses suddenly have a change of heart a year or two after being hired.

Multiple choice machine graded exams are used exclusively because, well, it means not having to get your hands dirty by examining the actual analysis of the students to see if the reasoning is good or bad and, if so, where it went off the tracks. This could come handy if a professor cared to discuss and diagnose what happened on the exam.

Every year law schools clamor to hire Noblesse and get precious little in the Oblige department.

The Faculty Meeting Bouncer

When I was an economist I attended my first faculty meeting. After about 20 minutes of inane discussion about the exact wording of a course description I felt myself getting angry. I actually thought highly educated people were above petty speech making. Disillusionment would not be too strong a word. I think I lasted 30 minutes before I left.

When I went to law school, my fellow students were demonstrating to be permitted to attend faculty meetings. Having at that point taught economics for 5 years and avoided the spectacles of faculty meetings, I did not get it.

Nothing changes. Now I also avoid faculty meetings. It's not that the issues discussed are not important. Sometimes they are and I'd like to have a say. Its the posturing, long-windedness and the indirectness that drives me away. Does it all go back to class and entitlement? To some extent. For example, I recently attended a meeting that was scheduled for one hour. Maybe 5 people were able to speak because two or three, once they are called on had no apparent consideration for others. In fact, one habitually long winded fellow was mistakenly called on -- hand not even up -- yet manage to speak anyway like he was being paid by the word. He probably took all the food for himself when he was a kid but it really wasn't all the food because mommy or one of the staff quickly replenished the serving trays.

And then there is the posturing. Name dropping -- "when I was at Harvard," "I was just talking to Guido or Randall" or "When I was testifying before Senator ________'s subcommittee" and the broad and boring displays of irrelevant knowledge -- "In know in the Equine Psychology literature it works this way." Pleeeeze, no one impresses anyone when these games are played in faculty meetings. How about a 3 minute limit on comments. This is actually 2.75 minutes longer than necessary for most.

And then there is the BS. A committee comes in and recommends a new program and is asked about the need. "We determined there is a very high need." And how did you determine that? "Oh, well, several students actually inquired about it just last Thursday when I asked them about it." Huh? Then the question is what will the impact be on the curriculum. Answer. "We examined this and except for ordering one new book for the library there will be no impact." And how did you determine this? "Associate Dean Jones who is not here, surveyed other schools and I have a letter from Professor Smith who retired three years ago and he says it is a good idea." And this question can come up. "Isn't this actually against the law?" Answer "So what?"

Every faculty meeting needs a bouncer with one of those big hooks that yanks people right out of their chairs and out of the room if he or she talks for more than 3 minutes, drops a name, says anything irrelevant (the bouncer should be well versed on evidence) or claims to have studied something but cannot produce tangible evidence.

Introducing myself

Jeff has been kind enough, or careless enough, to invite me to contribute to Class Bias in Higher Education. When I started my own blog a few months ago, I called it Lucky Jim, J.D. in homage to my favorite comic novel. Lucky Jim recounts the misadventures of Jim Dixon, a working class lad who finds himself navigating, without noticeable aplomb, the class-bound currents of academia. Though set in post-WWII Britain, the novel raises themes that resonate in U.S. academia today.

In my sporadic contributions here, I plan to explore the various ways in which class issues get short shrift (and often no shrift at all) in legal education, from admissions to career placement and at all points between. I'm grateful to Jeff for giving me the opportunity to share his platform.

Even More Careful

One theme of this blog has been how elites want you to believe that there is give and take in the world and that life is a series of negotiations as in "we can work it out." It is a strange negotiation because they actually rarely negotiate in the sense of giving anything up. This is the result of a sense of entitlement.

In my last post I noted that one element of carefulness, with respect to oneself that is, is never taking position on the basis of principle but to wait and see which was the wind is blowing. The wind is never blowing in the direction of questioning authority. Thus, I used the example of the "I have to assume the administration knows what it is doing" in the context of a staff member being fired after decades of service. "Having to assume" is a non sequitur. Instead people choose to assume when it suits their self interest.

Here are two more elitist cop outs. The apology that goes like this: "If I hurt your feelings I apologize." This is the deniability apology. It accepts no responsibility and involves no admission of fault. Of course you have have to actually corner the elitist to get even this worthless apology. Can you hear George Bush saying "If I caused unnecessary loss of life in Iraq I am sorry." Thanks George, that really takes care of it.

And this is one I have seen more recently. Suppose someone has been turned down for tenure or does not get an article accepted at a top law review after it seemed to be definite. That someone is disappointed and the response is "I am sorry that you feel bad." Notice how surgical this is. First it is probably not true that the person is sorry. Second he or she is careful to stay miles away from actually recognizing the validity of the reason for feeling bad. How about "Getting rejected really sucks and I wish it had not happened to you." The "I am sorry that you feel bad" is a bit like someone coming upon you while you are double over with acute appendicitis and saying "I am sorry your appendix seems to be causing you discomfort."

Remember as an elite, say as little as possible, let the others to the work whenever possible, and never commit. But this leads to the question. Do law professors who have no passion really only lead half a life?

Being Careful

Close to the vest: I am not sure of the origins of this phrase but for me it means the tendency of people to disclose as little as possible and to commit to an identifiable position as infrequently as possible. These are two different types of behavior that are common to law professors and elitists generally.

Let's take the information matter. Having information others do not have is a source of power but it only works if the "others" know you have the information. The strategy here is to let people know you know but then withhold. Here is an example. At my school meetings of the appointments committee are open. Everyone can attend even someone walking by the School on the way to the grocery store. So one professor says to another who is a member of the appointments committee:

"Are we finished hiring this year?"

The reply, "Actually we are talking about bringing in one more candidate."

"Really, who is it?"

The reply, "I don't think it would be appropriate to disclose that."

Thought of person asking "You really are a complete a**hole."

Information hoarding gives rise to a great deal of gossip. In fact, the same people -- very often administrators -- who are annoyed by the gossip, create the vacuum it fills. So you get announcements about "retirements coming up" or "financial problems" but no details although there would be no downside of the disclosure of the details.

The other characteristic of the elites is not to commit to virtually anything that is not ultimately self-serving at some level. Recently at my school a staff person was fired. Been here for long enough for the firing to have retirement implications. Could be he/she deserved it meaning that after decades of work something happened that meant he/she was now out of bounds. I do not know but I was curious because staff firings can be based on some over-affirmed professor getting into a scuffle with a staff person. I asked some people who knew the soon to be former employee what was up. The answer was "I have to assume there were good reasons." Let's consider that response. First the idea of "having to assume" anything seems a way to avoid the issue. Precisely what would that assumption be based on? But what is really going on? This is the sort of mentality that leads to driving by an accident or ignoring an injured animal on the side of the road.

The elites are very careful which means hoard information like your grandmother stocked can goods and never questioning authority.

Haves and Have Nots: Law School Classes

At law schools there tend to be three divisions. One is between faculty and staff. And then there is the tenure track/non tenure track faculty division. Finally the high paid and low paid tenure track people. This last division is not necessarily between tenured and untenured people. Sometimes tenured people make only slightly more than untenured faculty and much much less than the highest paid faculty.

Obviously law schools operate as though staff are second class even though the have families, children, hopes that those children go to college, etc. I have rarely seen a faculty class person stick up for a staff person when an injustice occurs. In fact, most of the elitists in legal education probably cannot image the life of someone making 20-30K a year and whose job depends on being subservient.

The tenure track/non tenure track division is only slightly less stark. Sometime non tenure track people are hired because they provide a buffer in times of economic woe. Since they are on one-year contracts, they can be fired thereby sheltering tenure track faculty from economic downturns. It's a bit like diversification except it means using people. Generally tenure track people doubt that non tenure track people can cut it primarily because those folks did not attend the "right schools."

The high pay/low pay division is less obvious but not when you think about it this way. Do the high paid people want to rock the boat? Not on your life. The high paid people are likely to think an existing administration is responsive, thoughtful and doing a fine job. They may look at an inexplicable salary structure and decide its not all that bad. The idea of taking a risk or speaking out on behave of the "low classes" is just not in the cards. Of course, they will call for collegiality when they want help. But they do not "give" collegiality when it means the outcome may upset the class system. Do not get in a fox hole with a high paid law professor.

Replay: In Praise of Incivility

Let’s face facts. Most law faculties are clubs. Once you’re in, it’s for life and as a tenured colleague on my faculty recently told an untenured colleague, “it’s not enough to be colleagues, you really need to at least act like you are a friend.” (Civility-speak for "kiss butt kid or you are out of here.")

Appeals to civility are critical as means of perpetuating the club and heading off a change. Civility standards are, after all, invariably “drafted” to protect the positions and status of those in power.

In the prissy world of law professors-- the world of the velvet mob -- it’s nice to think civility is about respect and the form of discourse. That is a fantasy. It is just as likely to be about disrespect and anti-intellectualism. When questions of civility are raised, it is rarely about form. Instead, it is a means of defining the topics of discourse and even the positions expressed. It does this in two ways. An unpopular view expressed civilly can be ignored because no one in the club need pay any attention. The same view expressed loudly and aggressively is obviously to be ignored since it comes from a person who is behaving unacceptably.

If the quietly expressed view seems to be gaining traction at all, the response will be "I am offended!!” or “That is inappropriate”(the latest most overused word which actually means "I do not like what I am hearing"). Those charges are brick wall discourse stoppers exactly at the point at which the discourse gets interesting -- most likely when something substantive is said that could have an actual impact on the club.

Let me give an example. At my school for years faculty had family members in their classes and generally the family members got A’s. It was evidently an accepted benefit of being a club member. (Think of it as a discounted green fee at the country club.) Trying to begin a conversation about whether this was a good practice – no matter how politely -- could quickly be met with “I am offended, you are accusing me of being dishonest.” Eventually, agitation embarrassed the faculty to take action and forbid the practice but appeals to civility retarded the action for several years.

Now think about the prospects for having a civil conversation about whether tenured faculty have been sufficiently productive or whether a program should be discontinued. It this really going to be carried on in carefully measured tones with appeals to reason? Or, is the very topic likely to raise the hackles of those threatened to the point that there are “friends” and “enemies” and “offense” is taken? Those threatened will be the first to raise the shield of civility. Behind that shield are some very nasty goings-on and the velvet-gloved mob. Civility is like a giant thumb on the scale in favor of the status quo.

Volunteers Yet Again

One of the more fascination ploys of the upper classes is the volunteer “move.” That is, no matter how much they want something, when they get it, it was a result of their charitable instincts. Once I described asking a committee of law professors in a meeting who “wanted” to go to a out of town meeting. Not one person “wanted to.” Within days every person on the committee contacted me privately to say he or she was “willing to go.” And then when I announced I had too many people who wanted to go, I was quickly corrected. Yet each one insisted on going.

It is pervasive. I was in a meeting a few days ago when one faculty member described how he did not want to hold an administrative post, a position now held by that person with an iron grip with no signs of change. And, a past Interim Dean was described as being forced to be Interim dean and, as you would expect, the faculty nearly had to use a fork lift to get him out of the office.

My favorite recent one involves the director of a set of programs that involve traveling to interesting places. When I asked to go, I was told that he had already “volunteered” to do it.

What’s up with this. Do these people learn this in law school or at their parents’ knees? It is all part of life is a negotiation and you never appear to want something because, if you get it, you should not ask for more. And privileged people always want more.

Ways to be a Big Shot

I guess this is for new law professors because all the veterans know how to frame things to may themselves look more important. So

1. The third level law journal at Harvard has agreed to publish your article: From here after you refer to this as "My article at Harvard."

2. One of the second tier law schools near or in Boston invites you to give a talk. From here after you refer to this as: "I will be in Cambridge [be sure to book a room there] giving a talk."

3. You get a brochure about a opening for dean at a law school. From here after you refer to this as: "I am talking to the University of ________, with respect to an administrative post."

4. Your parents live in Dade City Florida. You visit them once a month. From this point forward, "I'll be in D.C. for a few days."

5. At a huge cocktail party you are in the receiving line and meet the governor. From this point forward: "I was just taking to Charlie about that problem the other night."

6. You spot Al Sharpton in a coffee shop where you are having breakfast. From now on: "I was having breakfast with Al just the other day."