Herding to Deniability: Part 1 of a Sociology of Law Profs

In yesterday's episode I wrote about the loyalty oath being passed around at the law school that is a bit like a Soviet-era high school textbook in terms of its effort to rewrite history. This is in the form of a letter that essentially says, the search was fair and open and newspaper reports by the local paper which carefully documented the closedness of the search and faculty unhappiness were inaccurate.

I thought about what this all means from a more detached sociological perspective. The same people urging others to sign were often the ones who were very  concerned about the search. When one of those people asks someone to  sign who was also upset, it signals a norm of hypocrisy. That is, there is no shame in saying the opposite of what one said 3 weeks ago.

This mass movement to reclaim deniability or CYA has a peculiar aspect. Typically law professors and others from privileged classes achieve deniability by the way they state things in the present. I've labeled this "not really a lie." I will not go into all the details of this but it's like saying "Joe plays an important role on the faculty" and then then  hammering Joe the next day. After all, hammering Joe is not inconsistent with playing an important role. The point is CYA is a constant process but it rarely involves, as it does in this case, a effort to retroactively CYA.  A norm seems to have  evolved which legitimizes the retroactive CYA.

I recall seeing films of chimps sitting around in a circle kind of grooming each other and picking off lice or whatever chimps pick off one another. And sometimes one gets out of line and is smacked or bitten. Sociologists have great fun discussing what is actually going on. It is a bonding, mating, altruism, establishing a pecking order?

This the same with faculties. What is actually going on? What are these weird rituals and norms that evolve without accountability -- nervous laughter, not technically a lie, pretending to like people, the importance of facial civility over actual civility, looking the other way when people protect turf that benefits no one but themselves, pretending to be interesting is student welfare and acting in a opposite fashion, etc.

In the next episodes I attempt to examine some of these rituals from the perspective of an outsider with just enough knowledge of sociology to be dangerous. In the meantime, this is ground I have covered to some extent before: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931632

The Law School Loyalty Oath

The UF dean search is winding down with three good candidates still in the mix. Let's hope an offer is made to one of them who says yes.

Now, however, in one of the most ironic twists ever and a herd-like effort to claim deniability, a loyalty oath type letter is being circulated through the halls and even sponsored in a sense by the administration. It's one of those "are you for us or against us?" letters. People are even being called at home to sign.

The letter thanks the committee for its work. Fair enough. Then it goes on to praise the openness of the search and to claim that newspaper reports about the search were inaccurate.

Now lets think about this. In the fall, the Chair of the Committee met with faculty but could have phoned it in. There was no information about the level of faculty participation. No mention of how, when, or where the faculty would be consulted. No mention of how, when, and where faculty would express their preferences. Just silence. And through the weeks no committee member reported anything about the search.

In the weeks that followed, newspaper articles appeared about the search, noting the lack of information, the effort to delete information, and the lack of information about faculty participation.

All of a sudden, faculty were informed repeatedly about meetings, asked to fill out a questionnaires about the candidates, and invited to two one hour meetings to discuss the candidates. They were not permitted to rank candidates but at least could say yes or no on them individually.

I know that correlation does not equal causation but there is no doubt that when the press began to focus on the search the information began to flow and participation increased.

If anything, the letter, rather than condemning the press, should be praising it. Oh, but so many of these folks fancy themselves First Amendment scholars. I must be wrong. Or maybe this is just mass groveling.

Shush, We're Law Professors

Sometimes you do not fully understand how dysfunction a profession can be until you experience it through the eyes of someone else. That's what's happened to me and here is the background.

I have been pretty outspoken about the Dean Search at UF. Not so much about the candidates but about the process and the faculty reaction which is basically to mutter to themselves in the hallways.

 I've brought up the fleecing of the University by a search firm that charged $90,000 for a list of 24 names that could have been thought up by a couple of law professors having lunch. This seems to have been just fine based on the silence of others.

I have raised the issue of one Committee member's assurance that emails about the search had been deleted although all communications are public. Again, this seems to have been fine with everyone else based on their silence.  In fact, in this case, the deleter was subsequently  praised by another faculty member as a great First Amendment scholar. (You can figure that one out.) But actually, and I know this is a bit of a tangent, the source of the praise was a faculty member who appears to have undergone some kind of ethical lobotomy and thought the New York Times rule, a ethical guideline, was actually the opposite and stood for hiding things.

I am also the only person of a tenured faculty of 50 to actually write  down with no expectation of secrecy (YES, the revolutionary act of putting something in a form that means no deniability) the pros and cons of each candidate for dean with a ranking.

Now a few thoughts on this.

 First I rest my case on whether law professors need tenure. Why would they? Even with it, they are for the most part (I have to add that to avoid commentators pointing out very isolated instances in the past in which a law prof actually said something controversial to people other than other law professors) gutless and say nothing. OK, maybe without tenure they would say less than nothing.

Second, does this appear to be bragging? Well, is it bragging to describe what normal, non paranoid, not conspiracy addicted, non quaking in their boots people generally do? I don't  think so.

So back to my opening line. I was describing all the shenanigans to an outsider -- a professional person with no experience with law faculties. You lose perspective with you are in the middle of these things but this normal regular person 's reaction, while not laughing,  was disbelief and befuddlement. And he added, "you guys are supposed to be law professors, right? Speak up and question authority? Do you any of you ever do that and, by they way, do you actually know anything about law?"

Smarmy or Unctuousness

Once  when I was talking to a colleague about a professor at another school the colleague said "he is really unctuous." I had to look it up. I knew smarmy and knew it was not swami but did not realize unctuous was high class smarm or as a Facebook commentator explains -- people who say unctuous scored higher on their SATs.

I guess they both mean oily for the purpose  of endearing yourself to someone else. Man have I seen smarm is my business! For example,  there was a  jerk on the faculty who is pretty darn nasty, monopolizes faculty meetings, etc. Then one day I say him teaching and he was like Dr. Phil (the epidome of smarmy). It's like he has a Smarm switch attached to his side. He was Mr. All Care and Understanding.

There are so many kinds of smarm. One that is quite prevalent is law school name dropping. "Now when I was in Harvard." I much prefer a colleague who says, "While is was doing time in State prison." That is not smarmy. Related is "When I was Editor of the Law Review." Of course there were 37 editors of the law review.

Smarm is pervasive in email but it depends on the email. An email to just one person, it is said, often reveals the worst side of a person. For me it is the opposite. I reveals the best. The problem is that the best is not so good. Mass email is like a Facebook posting. Then you write in the way you want to be perceived (smarm) So, as a friend tells me, neither form of communication is the real you. I'll gladly take a little nastiness over a stomach turning smarmfest.

One of the smarmiest moves goes like this. You see someone in the distance who would like to impress. Your brain goes into high speed smarm gear. You need to say something. So out it comes: "Hey, I was just thinking about you because I was just talking to [name drop] about your wonderful last article."

One version of smarm I call "know one thing." This is a good one  for deans or others who know everyone's name like you just mated the night before. But the key here is to remember one thing. For example, let's suppose Smarmy Phil meets Jane and for 2 minutes they mentioned how much they love La Traviata (expectially the Bob Marley version). Even though they have talked about 37 things since then, the conversation always begins with "Jane, how is your collection of La Traviata coming along." Now the truth is that Phil knows nothing about La Traviata, least of all the Bob Marley version, but he thinks Jane is  stupid enough to think because he remembers that 2 minutes he is her best bud.

I prefer smarm on rye toast with just a little Tabasco.

Ten Reasons UF Paid a Search Firm $90k for Dean Candidates Who Were Just Under Our Noses

10. Tim Tebow asked nicely.
9. It was a great deal. Marked down 10% from 100K
8. The search firm agreed to throw in the Brooklyn Bridge.
7. The search firm agreed to throw in some swamp land in Florida.
6. UF had to get rid of 90K and could not find an understaffed department or underpaid staff person to give it to.
5. UF management thought the contract said $9.00.
4. They Knew William Proxmire could not be watching.
3.  Obama made them do it.
2.  They relied on the genius Rick Scott.
1. Global warming. (I did not understand either.)

The Fleecing of UF:

According to the local paper today, the University of Florida paid $90,000 to a search firm in its effort to replace law school Dean Bob Jerry. What they got for that was a list of 24 names along with CVs and application letters. Some of the names were DOA. In fact, it took the 11 person search committee only 2 hours to go from 24 to 10. Now also consider this. The firm likely did not start from scratch. If it had conducted any searches recently, it's likely UF got a recycled list. It's like paying new car prices for a used car.

Two words come to mind here -- fleeced and incompetent. Fleeced is what happened to UF. It got 24 names that my 22 year old could have found in half the time. This is not a rap on the 4 finalists. I think all of them are up to the job. The problem is that there was utterly no need to spend 90K to find them. One has to wonder what the 11 person search committee was expected to do.  What a display of incompetence at least with respect to the decision to hire the search firm at this price.

But it does not stop with 90K. There are 11 people on the committee. I do not know if the University foots the bill for their visits from out of town but if so add a little. Add a great deal more for 10 campus visits for the ten left after the culling the list. And some of them evidently flunked the interview. Maybe an initial conference call could have weeded them out.  Now there is full bore campus visits (at which, by the way, the law faculty only meets the candidates in faculty meetings) and wining and dining candidates, committee members, alums and all that. My prediction is a total tab pushing 140K.

If academics ever wonder why funding is short and why those of us in the business are viewed with distrust, here is one small example. UF buys a Cadillac search that is unnecessary and, as usual, passed the tab on to others.What the hell, You can always raise tuition.

90K pissed away.

(no) More Dean Talk

I think I have said enough about possible new law deans at UF. The truth is that it will not matter much since UF is huge and inertia is powerful. Plus, the challenges ahead are pretty clear. The curriculum must be designed to be relevant for today's practice. What is a far more interesting subplot is the reaction or lack of reaction by the faculty to the candidates.

I've been here many years and witnessed all manner of liberal (not left, oh my goodness way too squirrelly to do anything but dabble) shenanigans in programs,  hiring, tenure, courses offered,  and so on. Don't get me wrong, if things were controlled by the conservatives I would expect exactly the same thing only going the other way. Plus, some of them were good for students but I cannot say any correlation was intended except in the minds of the proponents.My friend Eric Fink reminds me of Phil Ochs' take on liberals -- ten degrees to the left when things are good and ten percent to the right when it affects them personally.

Still, although reputed to be charming, one of the candidates appears to be a Bushie who tried hard to suppress voting while in public office. I know, the other way to put this is that he  wanted to suppress illegal voting.  Fact is, it would have been mainly African American voters affected if he had been successful.  And, no one seems to argue that contacting a judge directly to plead your case was appropriate. So what would you expect to be the take of  so called liberals on this? Let's just say,  I've seen faculty candidates go down for far far less.

But where is the UF faculty on this? First, a fair number, perhaps most, realize their lives will not change no matter so why bother. But where are those who claim to feel strongly and, in most other instances, are carefully guarding the purity of the institution?  What's wrong? Cat got your tongue? Or is it just one big game?

More on UF Dean

Since I wrote my last post a few minutes ago, the list has gone to 4 -- Acosta, Brennen, Huebner, Donaldson. Interestingly, my first and last choices -- Brennen and Acosta -- remain in the running. Joining them are two tweeners. One pick strikes me as odd. Huebner seems to have no  connection to Florida, UF, or the South. But he does have the most elitist credentials of the pack. Another, Donaldson,  could be the sleeper.  I know of no negatives except possibly on the matter of experience.