The Commodification of Legal Education and Those Who Supply It

If you have been in legal education for over 20 years you have witnessed the commodification of the industry. It is evident in so many ways -- massive investments in advertising, gaming the rating systems, self promotion of individual professors, teaching evaluations that so far have not be connected to teaching effectiveness,  desperate efforts to stay in business even when the market has said "enough." The industry in which ideas were valued, effective teaching was more important that popularity, and professors displayed some level of humility is gone.

Maybe it should never have existed.  The study of law could have been a graduate program  like history or literature. A training program for how to be a lawyer would be different. One department would be about ideas; the other about commodities. Like other graduate programs, the one in law would have shrunk and the commodity program would have grow and then as shrunk as demand declined.

In the commodification of legal education, professors sell themselves like dish detergent. The don't go to "conferences;" the go to conferences at the "very highest level;"  they announce on facebook every time they write anything; they hustle the students for high evaluations, their deans regard any quotation in a newspaper as deserving of praise; they create conferences that are quickly filled up by those desperate to put on their resumes that they attended a conference and then regard it as an achievement. There is little sign that they love ideas. Instead they love downloads and lines of resumes.

Law Schools do all the same things. The competition is no different than infomericials. Glossy advertising that is superficial in terms of useful information and overstates virtually everything from the attractiveness of the location to the accomplishments of graduates and professors flow like the waste from a broken sewer line.  Every professor is nationally known. Every law school is on the cutting edge but they never say what is being cut.

In the course of this change, I have yet to hear anyone ask if any of this means law students will be better prepared for their careers. And, the  fact is, many of these activities do not contribute to the well-being of the students or their clients.

In keeping with this theme, I have but one thing to say: BUT WAIT, THERE IS MORE, if you apply now we will discount the application fee.

Pardon Moi, No Class Allowed

Nothing represents the class bias in higher education morethan the tendency of academics to avoid the issue of class. I suspect it is, as a friend once told me when I complained about it. "too dangerous." I mean it is not threatening to make amends for racism because it does not necessarily undermine one's own claim to elite status. You cannot, however, make amends for classism without facing the fact that but for class most law professors would not have their jobs.

The latest example of this bias is a study purporting to show that letters to professors are answered or ignored based on gender, race, and ethnicity. The way professors "knew" the category each letter writer fell into was by the name on the latter. For example, it was shown that most people regarded Latoya, Lamar, Terrell and Keisha as African American names. On the other hand, Clare, Meredith, Steven, and Brad were white names. Thus, these were the names used to show a difference in responses based on race.

Given the design of the study it could not show much if it did not use names that are stereotypically regarded as white or African American.  Of course, the fact that they are stereotyically white or African American does not mean the are the most popular names for each group and, as it turns out, they are not. Moreover, suppose you asked someone to rank the 8 names by social class. I suspect the African American names would be regarded as lower and the white names as middle or upper class. So, were the researchers checking a race or a class distinction. According to the them, it is race but, then again, they did not consider that class could be a factor. It is not that they got it wrong but that class, again, is not to be considered. Why is this?

Perhaps this would be a good study: Let's see how professors react to this list:
Clare
Meredith
Steven
Brad
Wayne
Thelma
Travis
Betty-Jean

Please, do not get upset if your name is among the final 4. It means nothing about any specific person. In fact you can make up your own list. What what's the use?  What could be more boring or threatening to today's elitist scholars than a test for class?

The Veil of Ignorance and the Veil of Civility

People may disagree what the world would look like if designed behind the veil of ignorance but there seems to be no disagreement that it prevents one from making rules that play to their self interest. In terms of a law faculty it would be nice if all procedural rules could be made with an eye to fairness and without knowledge of who will be better off or worse off. Law faculties, however, seem to dislike making any kind of rule without assessing how it will affect them. The veil of ignorance is something to be avoided whenever possible.

If  a faculty should stumble into acting behind the veil of ignorance, they forget about the purpose of the veil when convenient. This came up a few years ago when the faculty decided that Visiting Associate Professors (VAPs) could not be hired after finishing their one or two year stint. Not long after that, the Dean and the Appointments Committee advanced a candidate for a VAP without a search. They also did not disclose that the candidate was the spouse of a faculty member. (One of the people who knew this information but did not disclose it is a frequent player of the "collegiality card.") Within a few short months as the couple endeared themselves, the rule against hiring VAP did not seem like such a good idea and pressures built to jettison it. But wait, you might think, isn't the rule designed to ensure no one will hired because he or she merely "liked." You would be right to think that but any if raised it you would then encounter the "veil of collegiality."

It is, in fact, the veil of collegiality that law professors love, not the veil of ignorance. Rather than prevent rules and actions that are designed to further self-interest, the veil of civility or collegiality is used to keep everyone else from observing what are wholly self interested acts. It is also used to demonize those who raise the issues of fairness and self dealing.

For example, for years at UF Law, parents taught their family members and it went on without comment, most especially by any administrators. It was almost a tradition. People would grouse to each other but no one would say anything publicly. The practice existed because of the veil of civility. Had anyone raised the matter publicly the "collegiality card" would have been played. The same is true for a certain  pet foreign program. What would be said in the real world about the program is "You are fucking kidding. Have you lost our mind." What actually happens is office to office grousing because to make a public issue of it would be to pierce the veil of collegiality.

In fact, the collegiality card is played over and over usually by the same small group. It is a signal to others that says: Do not talk about this because you might ruffle someone's feathers and this cozy you scratch my back and I'll scratch your equilibrium could be upset."

When you think about it, the veil of ignorance and the veil of civility or collegiality do have something in common. Under the former, you actually do not know what will happen in the future. Under the latter, you pretend not to know.

The Law Prof Wrist Band: Sociology of Law Profs: 6

Remember those wrist bands that said "What would ____ do."  I think they started out being religious in nature but then became funny. The one I wear says "What would Crazy one Eye do?"

I was thinking there could be wrist bands for all University faculty to wear that would say "What would a Law Professor  Do" and the law school would be a standard  for the right and ethical thing to do. You, know -- like the ubiquitous Lance Armstrong wristband above. Just kidding.  But then I realized that, if those bands existed and people wore them, when they read the little message it would be translated into "What would Tony Soprano,  Dick Cheney or Bernie Madoff  Do." Between cheating on the USN&WR rankings, hiring pals, crazy hiring, and tenure standards, vanity courses, and on and on, what else could they possible think?

This also made me think that law profs could have second careers as football coaches but certainly not as golfers.  Specifically, in football, there are rules but the idea is to get around them and try hard not to get caught. If holding can help you win, hold as long as you are good at concealment. Pass interference is also dandy, just don't get caught. In golf, believe it or not, players often report to the officials when they have broken a rule and take what ever penalty there even though it can mean a loss of thousands of dollars. Which of these approaches do you think most parallels that of law professors? -- football or golf. Actually, now that I think of it, which is more similar to many of the the folks locked up in jail. Of course, law profs do it with great civility where civility is the big blanket behind which you must not look. And, when caught they are silent.

I think I may go over the the Med School and check out their faculty. Suppose I find they are all  smokers, grossly overweight, and having lunch everyday at KFC. If so, I'll get rid of my "what would a Medical school professor eat." I've already thrown away my "what would a law professor do" wrist band.

Should You Be a Law Professor? Sociology of Law Professors: 5

Over on Facebook I have taken a slew of quizzes that are "designed" to tell me what color I am, which TV character I would be, what country I should have been born in and on and on. I realized that there needs to be a test for whether you would be viewed as doing a good job being a law professor. Here are 10 questions. Each question has two options. You are to choose the option that is the worst between the two. I'll tell you how to score after you take the test. OK, which is worse?

1. a. Not grading your exams carefully.
b. Objecting to  not grading carefully.

2. a. Recycling old exams.
b. Objecting to recycling exams.

3.a. Posting a job opening notice for a job that is filled.
b. Objecting to posting job notices for jobs that do not exist.

4. a. Recommending to the faculty to hire someone without a search because the person is married to a current faculty member.
b. Mentioning that it is not a good practice to conceal why someone is being recommended especially if the reason is unrelated to teaching or research.

5. a. Rehiring people with consistently awful teaching evaluations.
b. Objecting to hiring people with awful teaching evaluations.

6.  a  Dropping the names of elite schools and well know people you barely know as a way of impressing people.
b. Objecting to name dropping and appeals to authority by mentioning fancy  schools whenever possible.

7. a. Deciding to reject someone's application of a job you know they would be good at because they noted you were doing something illegal.
b. Objecting to rejections of applications based on spite.

8. a. Never speaking about about illegal and irresponsible activities by the school, the administration, or the faculty.
b. Objecting to the fact that colleagues never speak up about obviously irresponsible or  illegal activities.

9. a. Name calling in a faculty meeting.
b. Objecting to name calling in a faculty meeting.

10 .a. Leaning on untenured faculty to vote for your favorite candidate for a job.
b. Objecting to leaning on untenured faculty to vote for specific faculty candidates.

Here is how to grade. Give yourself 1 point each time you selected "a." Give yourself 2 points each time you selected "b." If you engaged in a and selected b, give yourself 3 points.  A perfect score 30. If you made 30, you are as qualified to be a law professor as is humanly possible. And, what's more, you are probably lying so give yourself another 10 point bonus. You are truly elite.

A score of 20 also means you can expect to be a success as a law professor. As your scores drops below 20, your fit will diminish and, if you are below 15, I do not think you will cut it as a law professor and you might just check under your car each day for an explosive device. Do not expect raises; do not expect plum assignments.

Some people may think the scoring is backwards but it is not. The most cherished characteristic for a law professor is civility or collegiality which in the world of law professors means this: Do anything you want. Do not utter anything that would in any measure suggest anyone on the faculty ever did anything that was less than honorable.

I guess that is what elite schools teach since  graduates from elite schools are pervasive in legal education as is "civility."

Protecting the Untouchables

I do not intend to equate law school administrators with the Tallahassee Police Department or the FSU administration as reported in this article  nor to equate law faculty with football players but there is a similar pattern -- protect or turn a blind eye to what I will refer to as the "untouchables." The untouchables fall into two categories: "yes" people and people who can make a credible threat to sue the administration or, at least, destroy its reputation.

I will list a few instances of things untouchables can do that draw little or no response. While the touchables can do very little and be called in for questioning.
1. The director of a program that is required to list its costs and benefits leaves out $25,000 of the cost. 
2. A faculty member or administrator posts a announcement for a job opening for a job that does not exist.
3. In a faculty meeting one faculty member refers to two others as "insane." 
4. A faculty member on the appointments committee misrepresents the reviews of a candidate as all favorable when they were not.
5. A faculty member copies entire books.
6. A faculty member uses independent study  credits to, in effect, hire students as research assistants. The independent study is largely running errands and tracing down materials for the teacher.
7. Students are given externship credit for summer appointments where the so called supervisors do not know who they are or what they are doing.
8. Faculty members publicly state unlawful reasons for favoring or disfavoring a candidate. 
9. A faculty member misses blocks of classes that are not made up.

How long to do you want the list? It could no on and on. 

What accounts for this? Why are some faculty untouchable while others can be brought in for questioning?  In the case of the football player it was either incompetence or a sense that even investigating carefully would be politically unacceptable.

On law faculties, it's a bit different. The reason for the special  treatment of the "I will sue you" people is obvious. What about the others? Here is my theory and it is only that. The untouchables seem to have a few common characteristics.
1. They are from elite backgrounds.
2. They are part of "groups" or over lapping "groups" in that if one were sanctioned the others might be upset.
3. The are masters of facial but not substantive collegiality.
4. They are secretive.
5. Most important, they never ever question authority. This seems to be the crux of the informal contract between administrators and the the untouchables. If you never question authority nothing else you do matters no matter how deceptive, unfair, or damaging to the welfare of the students. 

The result is similar to that of the football player but the reasons are different. In fact, the football player would be closer to faculty if he were cut some slack because he is an informant. 

The untouchables are comparable to informants in that they have an informal understanding with administrators that they will follow orders and never question authority as long as there is reciprocity in the form of peachy assignments and freedom from scrutiny. You do not want to be in a fox hole with any of these people. 

A Public Apology

For several posts now I have been complaining about my law school posting a notice for a job that was essentially filled or at least was only available to the spouse of a candidate another department wanted. I have been harsh in my criticism and I have not even discussed that vast majority of the faculty who evidently thought it was the upstanding thing to do.

The ad drew about 20 applicants some of whom went to substantial trouble to prepare their application. My first inclination was to think my Law School had been deceptive, wrong not to admit its misdealing action,  and insensitive to those who might spend an afternoon or longer getting their materials together.

Now, through the miracle of a home made BLT and a good talking to by myself, I know I am wrong and here are the top ten reasons to send out a fake job ad.

10. Good practice for when there is a genuine job opening to advertise.
9.   Practice for those applying when there is a real job to apply for.
8. Increased happiness for those thinking there might be a job for them.
7. You graduated from Harvard and you'll do what you damn well please.
6. It was almost April Fools day.
5. Toughens up those who are unemployed.
4. Being honest just wastes time.
3. It makes used car dealers look good by comparison.
2. If we don't post fake job openings someone else will have to do it.
1. Global warming (I did not understand this one either.)

So, my apologies for not seeing the silver lining.

Harvard, Humility, and the Elites

The whole elitist notion of a sense of entitlement and the disasters that it creates played out yet again at UF. As you know, if you have read this blog,  the Law School was told to hire the spouse of someone another college wanted. Whether a good thing or not, it happens all the time.

Under UF regulations, all positions have to be advertised. So what is a college to do when told by the Central Administration to hire someone but posting  an ad would be fraudulent since the position is  filled.

You might think, "since this goes on all the time, it would be odd that the University would post multiple fraudulent ads." And then, especially if you  were a lawyer, you might do some research and  find out how these things are handled to avoid a constant flow of fraudulent ads that may very well lead to some form of legal exposure. And you would discover that the posting requirement is waived in some spousal hiring situations. You might go with this logic which involves common sense and the humility to know you might learn something.

You might do that but if you are from Harvard you do not think that way. In fact, your instinct is to go the sneaky route although you do not think of it as sneaky since you are from Harvard and, thus, entitled to do exactly what you want pretty much when you want to and it becomes OK because you are from Harvard.

So when the Harvard products who ran UF law hiring this year were faced with hiring a spouse they appeared to put their noggins together (no one person has fessed up yet so I cannot be sure it was a joint fuck up)  and did what people with a sense of entitlement do -- exactly what they want to do and placed what amounted to a fraudulent ad. Yes, no one had the balls or the humility to say "can we really do this?" Or, "Isn't this unfair to the people who will  apply for this job?"Nope. After all, those folks who might apply are just riff-raff.

So once again, the Law School, rather than the place others look to for ethical standards, actually becomes a substitute for a Three Stooges movie.

Hey, Harvard, how about a course on humility? Oh, sorry, no one there is qualified to teach it.

Counting Sheep

Anyone reading this knows that UF Central Ad scuttled the search for a new dean a couple weeks ago even though the faculty was overwhelming in favor or two candidates. Later President Machen came to the Law School to explain why. It was because we need someone better. (Some cynics think it was because we rejected Alexander Acosta but who knows.) So it was a bit of a pep talk about aspirations and how great we can be.

At virtually the same time he sent over his own candidate for a faculty position. Not in an area where we needed help. And since there was no search, maybe not someone we would have hired even if we were looking in that area. Her main qualification -- she was married to a person the Med School wanted to hire. I'm trying to look on the bright side. I guess this is diversity hiring since we actually do not have anyone on the faculty married to her spouse.  But really, which is it Mr. President? Do you want the law school to be excellent or to be the water boy for the rest of the University?

There had to be faculty vote and she got a positive one. Some people voted yes out of fear after the Dean announced the reaction of the Central Campus would be a "catastrophe" if the Law School voted no.  Some, who share her area of specialty, likely voted out of self interested noting how hard they work teaching classes with as many as 30 people in them some semesters. Yes, as many as 30. At the top of this post I have provided a photo of many of the voters.

The thing that amazes me is not any of the above but  the hypocrisy of people who talk about excellence and diversity but would not waste a molecule of energy to really go after it. Unless, of course, diversity means having someone on the faculty to whom no one else is married or pulling some strings to get your own spouse hired.

But it also means these people do not give a fuck about simple fairness or equal opportunity.   Their willingness to vote to hire someone whose hubby will likely pull down 500K a year without asking 1) is she the best candidate? 2) is there someone more deserving out there? astounds me. In fact, giving 150K of someone else's money means nothing to them.  Hiring without giving all qualified candidates a chance at the job is OK in the club of the privileged. Yes, UF is an Equal Opportunity Employer but don't believe it no matter how much ass covering takes place.

Sociology of Law Profs: Part 4 -- The Faculty Meeting and the Charade

The best place to observe this species is a faculty meeting. Putting aside all the nervous tittering to signal you are a good person and not to be feared, there are many other traits. One is the it's OK to say something that has nothing to do with anything as long as it seems to support one side of the argument.

So today  there was a big meet about hiring someone who we had not heard of in an area we had never considered but who is the spouse of someone another department wants, or so we are told. It's actually the President who wants to hire him and will pay us to do it. Yes, it's really a salary laundering deal. Before getting into the sociology I have to note that the meeting was the finest example of a charade. When the dean was asked how important this was to the President he said correctly, I do not want to talk about because our focus should be on the candidate. And then within 30 seconds  he said not hiring him would be a "catastrophy." So one might ask why have a vote at all with a gun to our head?

This will give you some measure of how law faculty react to the humiliation of being ordered who to hire: they go on with the charade that they are actually making the decision when they all also know they are willing getting their asses kicked.

People who are in this person's area really want him (or perhaps anyone) even though there was no search to find the person best suited for the job and no one has ever mentioned needing someone to cover the area.  We are all about diversity except when we don't want to be about it.  One argument  by people in the area is that they are working their fingers to the bone and need the help.  And then the next argument is that he will not actually teach anything they currently teach. Yes, the opposite argument but for the same purpose.  But this is not uncommon.

And then there are the placators. Let's just say they will not be part of the revolution. In fact, they will not be part of even a mild protest.  In fact, when they order a hamburger and are served pudding they say "This is really great hamburger." So one guy says, the President would not let us have the dean we wanted and that was like being hit by a sharp stick and if we do not hire this person we may be hit with a sharp stick again. So what is the sharp stick here? Hiring someone you do not want or getting smacked if you do not even though you have no idea if you will be smacked or how hard. Put in coarser terms, you'd rather take it up the you know what than risk maybe being hit by a stick. (Oh, did I mention these prissy people are tenured professors.)

The angriest person was the one who actually does have a trailing spouse. In fact, he may have violated the law professor rule of never showing that you care. And, Mr. "Don't hit me with that stick" does or did too. So guess which side they were on.

The worst thing about attending faculty meetings as a sociologist is that the quality of the discussion is so very low and the discomfort of watching grown ups humiliate themselves is high.

The Wealth of Visions

Around UF Law there has been quite a bit of talk about a vision for the law school. I thought we should call in Joan Quigley but no one agreed. So what do we have?  I think the same thing all law schools have. If you have 50 faculty there are probably 40 visions. Law schools are vision rich which also means they are vision poor.

What to do with a wealth of visions? One idea is to pursue all of them. Each faculty member has his or her vision and proceeds to do what ever is necessary to promote the vision. The outcome is 40 half-assed efforts to go after those  visions. It's the jack of all trades problem and the one law schools tend to pursue. Actually, that is an overstatement. For those whose vision is dozing and not being bothered, the outcomes are excellent.

You know this is the case by adding up the number of programs, certificate programs, centers, foreign programs, directors, associate directors, LLM degrees, and whatever a law school has.  By my count there are 33 directors or associate directors or associate deans at UF law. There are 27 programs, centers, foreign programs, certificates, etc. We had one center whose director was so aggressive that she made nearly everyone in the law school an associate director so they could put it on their signature lines.

A few years ago, I tried to designate myself "Director of Teaching and Research" because I thought that could be viewed as an important function of a law school. There were no Associate Directors.

So can there be vision when there are 26 different areas into which resources are poured and 26 pieces of turf that are protected by 33 people who are listed as part of one or more programs?  Well, how is your vision when you look through a pin hole and everyone you know is looking through a different pin hole?

I am not sure if the opposite of vision is delusion but I do know it is delusional to think a School can have vision and excellence when there are 26 different areas of concentration.

I only know about my law school but I'll bet it is the same everywhere and what it reflects is a lack of leadership in legal education generally  in the context of people who feel entitled to pursue personal interests at the expense of all else.

Harrison New Dean at UF

Florida President Bernie Machen finally showed his had today and revealed that he had shut down the UF dean search because Harrison was not among the finalists. Under a little known provision of the UF code of decanal appointments he appointed Harrison the new dean of UF to serve no less than 3 hours and no more than 5 hours. His explained the appointment by noting several qualities.

Vision: With corrective lenses Harrison has 20-20 vision.
Wardrobe: Although he has not seen it, he has heard that Harrison owns a suit.
Ability to work with others:  Harrison, he said, might be able to work with others if he tried.
Respect of his colleagues: Harrison, in a parallel universe, might be loved and respected by his colleagues.
Respect for his colleagues: Harrison respects 60% of his colleagues 60% of the time.