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.

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.

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

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"

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?

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?

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.

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.

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.

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.

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 café 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.