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.

Class Difference: Part 3, Replay from 2006

Then 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.

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.

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.

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.

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."

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.

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?