Over, Around, and Through the Cookoo's Nest of Tenure and Promotion Decisions

Suppose behind the veil of ignorance you were designing a process to determine whether someone is awarded lifetime employment (or an annuity as some skeptics would say). You do not know if you are -- when the veil is lifted- the candidate, those deciding, those paying the salary, or those who would not be able to find a job because the one that might be right for you is taken up by a life-timer.

Here is the process I am pretty sure would evolve and has evolved at a school I have only heard about.
1. The candidate's scholarship would be mailed out to experts in the field some of which are friends of the candidate, some of whom the candidate has alerted in advance they the may be asked to comment, and some simply selected by the candidate. The letters are likely to be all positive and, if any are not, the writer of the letter is ignored or criticized. The letters are passed onto the faculty without comment or evaluation. An alternative to this is to not have scholarship reviewed at all since it rarely makes a difference.

2. People would visit the candidates class to evaluate teaching. Then they would sign what might as well be a form letter saying how much the enjoyed the class and that the teacher was superior. A really negative review might say the teacher's tie clashed with his trousers. An alternative would be to forego teaching evaluations and just submit a form letter written for all candidates for every class.

3.As noted, steps one and two are irrelevant in some cases.  Suppose the candidate did not say hello to you properly on a couple of occasions. Maybe he or she was too friendly with some people you don't like. It is important to start the whispering campaign. Demonstrate your indignation to people like yourself who are only looking out for the students and taxpayers. Be sure to emphasize the clashing tie as indicative of disregard for good teaching and the fact that one of the review letters, although glowing, was late.

4. Be secretive and self righteous. Do not mention any of these concerns to the candidate or anyone other than your clique before the secret meeting at which the candidate is discussed because nothing is worse than opposing a candidate and giving the candidate an opportunity to respond.

So, there you have it. The process that takes everyone's interests into account, creates deniability and gives life time employment to the best people. Right? Yes, it is right but remember this is the Cookoo's nest and in the Cookoo's nest things are different.

There is also the not-in-the-Cookoo's-nest approach. It might go like this.

1. A committee of scholars and good teachers with no political axes to grind select reviewers for the candidates writings. The reviewers are asked to be completely frank. People who agree politically with the candidate are not selected nor are any people to whom the candidates has attempted to ingratiate himself. The names of the reviewers are not disclosed in hopes this will provide them with a spine.

2. Classes are visited but any letter that is unequivocally positive or uses words like "superior," "gifted," or "extraordinary" is rejected.

3. An evaluative committee examines all these materials and makes a recommendation to the faculty well in advance of the full meeting of the faculty and invites comments from others on the faculty and the candidate.

4. Individual faculty must voice concerns to the candidate or the evaluative committee before the faculty meeting.  Anyone who snakes around office to office to voice their indignation is excluded from the full meeting, shunned, and sentenced to time out.

5. No subjects may be raised at the meeting that were not already raised with the evaluative committee and about which notice was given to the candidate.

Please don't comment. I know the non CooKoo's nest approach is unobtainable in the world of the entitled and self-important.

Highest Priced Research Assistants in the World? More on the Scam

I have already written about the huge investment in legal research. I estimated it to be close to $3 million  a year at my school alone and probably around $350 to $400 million nation wide. This could go down if schools concentrate more on teaching and on line publication becomes the norm.

A colleague of mine and I have launched a study attempting to determine what the pay off is from the enormous sums spent on legal research and writing. We've started looking at law review and judicial citations and are as aware as anyone else that this is incomplete in terms of determining the impact of scholarship. (I mention this so no one will reply as have a dozen of our colleagues, "but there are other impacts.")

Citation counts are not necessarily consistent with impact. From that one might infer that scholarly works have a much greater impact that citation counts would suggest. That may be true and it may not be true. What if citation counts actually overstated impact? In fact, this may be the case.

To understand why, think about why most law professor write. As I have noted, they usually write with a lawyer's mentality -- advocating an idea. To do this these they offer facts (often selectively gathered), reasoning, or both that, like a well-written legal opinion, lead the reader to agree that the proposal of the author was the only logical outcome. And, in a law professor's dream world, those conclusions, proposals, suggestions, whatever will be adopted by a court or agency.

So when a court cites legal scholarship, is that what it is about? Actually no. In fact,  in the vast majority of instances in which legal scholarship is cited, the citation has nothing to do with the author's proposal, reasoning, or logic. Instead, except for very few instances the citation is to some fact found in the work. For example, it might be to "The UN Act of 2015 contains 5 sections." or "Twenty three states have laws prohibiting pit bull sainthood."

In short, the 400 or so million may result in high level thinking and important insights but, for the most part, what courts are after is not that. Courts are looking to the factual underbrush or what any decent research assistant could find for $10 and hour.

It is completely fair to ask whether this is also true of all the others ways in which people claim legal scholarship is of value. Do those impossible-to-count uses rely on the theories and reasoning of fancy articles? We have not looked at that yet but my hunch, and it is only that, is that all those other users to which law professors are fond of pointing are equally uninterested in anything other than cherry picking from the hard research -- not the ideas. We will see.

The Tragedy of the Grading Commons

I have posted (to some) way too many times on the closeness of faculty governance to the tragedy of the commons. I should say some faculty governance because I am confident that there are faculties that overcome individual self-interest and whims and  avoid the tragedy. (Please do not tell me if I am wrong, I need the eggs.)  Some do not. This was brought home to me over the last two days when a student described what the commons could look like and I compared that to the actions and logic of those in charge of managing the commons.

According to this student our law school should graduate the most effective and professional students possible given whatever budgetary restraints exist. This means, according to him, more competitive students, fewer disappointed employers (who will come back for more), and, most importantly, clients who get the best possible service. I have a hard time not agreeing with this.

According to him, this means that students should choose courses -- with proper advisement -- that best prepare them for practice. A factor that should not be part of the decision is "what grade will I make." He was not the only one with this view. A colleague on my faculty said just recently that one of the best things he heard when he entered law school was a statement by the dean that grades would not in any way be determined by the selection of courses or teachers. In short,  the students would be free from pressure to game the system and from weighing a possible higher GPA against taking a course that would be part of his or her best preparation.

Maintaining that notion of the commons means that each professor at my colleague's school had to agree with the plan -- not just a curve but a grade distribution.   In other words, there would not be some teachers who would achieve the required average by giving lots of As and Cs while others achieved it by giving mainly B+s. (Some of you will also note how, if there are varying ways of achieving the curve,  the impact will be felt differently depending on whether students are risk averse or risk takers.) The answer, of course, is a curve with some semblance of a required distribution. And it would also mean that some, maybe all, teachers would have to subordinate what he or she preferred in order for the commons to be established and maintained.

Everyone knows what causes the commons to collapse. Each person does what is in his or her self interest.

So what types of specific things cause the tragedy and what are the arguments for not having a required distribution. First, the first sign that the tragedy is in trouble is when a faculty member's first instinct it to see if his or her past grading would comply with a possible distribution. But beyond that how about these tragedy promoting arguments:

1. We already have a curve. This distribution thing is just too much. It requires even more math. (Oh come on! I really don't know what else to say this one.)

2. Since I don't like the curve I also do not like the distribution idea because I want to give the students what they "deserve." (You lost that argument when a curve was adopted.)

3. This impinges on my academic freedom. (Yes people who don't have the balls to say anything controversial raise academic freedom as a reason why they are entitled to help destroy the commons.)

4. Hey, why don't we compromise and just have the distribution in some classes. (The problem is not classes. It is people grading the classes. Applying it to some classes and not others does not solve the problem)

5. The students in my class all made As and they expect to get high grades. The distribution keeps me form doing that. (The curve already prohibits giving them all high grades. The distribution would only keep you from giving them all the same grade. If that is the problem and it could be, there are exceptions.)

6. I'm not saying anything because I hope to be dean someday. (Just kidding no one actually said this but in a way they did.)

Why the photo of Rick Scott? If there were a saint of commons destruction, he would be a prime candidate.

Scholar, Advocate, or Both: With a HT to Prawsblawg

Suppose you are a historian and a great admirer of Martin Luther King. By digging around in various historical documents you discover he was a pedophile. Do you write about it?   Or let's suppose you are a huge supporter of ObamaCare and know it will mean care for millions who go without. You read the law carefully and based on your understand of the Act and the Constitution, you believe ObamaCare is unconstitutional. Do you  stay silent?

Paul Horwitz over on Prawsblawg wrote a fascinating post that opens this can of worms. To some extent, the issue can come down to whether you are an advocate or a scholar, but I am not sure of  this, and the issue extends to what role a law professor should play.

As a preliminary matter let's be clear that an advocate can be passive or active. The pro Obama care professor discovering the constitutional defect who says nothing is an advocate just as the agenda driven law professor who writes thousands of pages on the matter.

But what is the distinction between the advocate and a scholar? The scholar does research to find answers to often difficult question or to test hypotheses. He or she is not driven by wanting to find something that supports his or her point of view but instead, is gratified by finding an answer even if that answer is inconvenient. The advocate presents his or her case for a position with carefully selected arguments. There is no effort to find the truth but, rather, to bring you around to a point of view that has two sides -- otherwise there will be no reason to advocate a position. I do not know if  it is possible to be a pure scholar. I know I sat on a topic for years and did not write about it because I felt the analysis would reveal something that cut against my personal beliefs. I certainly was not a scholar in that case.

What should law professors do? First let's be clear. For many "scholarship" is the process of  having ideas as clients and writing long briefs, called law review articles, in support of the client. In virtually every case the client behind the idea is the law professor him or herself in that the position taken is consistent with purely subjective political beliefs. Thus, a high paid law professor may take the salary from his law school and spend all his time writing in support of his political views in their various manifestations. These folks are simply being lawyers and now they have found a way to express themselves on behalf of themselves on someone else's dime. I know, I have done it too.

The problem is that if law schools are ever going to be viewed as legitimate graduate level colleges the trend needs to be more toward scholarship. This is hard for two reasons. First, unlike other graduate level teachers, law professors are not trained as scholars. The idea of testing an hypothesis is foreign to many.  Second, without question they can point to the hypocrisy  of  so called sciences  in which numbers and outcomes are fudged and then the outcomes reported as scholarship.

In any case, did anyone imagine when law schools started that a professor making 250,000 a year, half or a third of which goes for scholarship, would then believe the money is meant to be used for him or her to promote a particular political position?  The decision to do that is evidence of a powerful sense of entitlement.

"Pills," Drug Addiction, and the Veil of Ignorance.

The other day a few of us were feeling happy that our school had reportedly done well on the bar review passage rate.  We had seen what appeared to be the official results. When I mentioned this to someone, he said, (jokingly, I trust) "wait till you see the next US News & WR rankings. You will be even happier." Of course the rankings can only make you so happy since they are only relied upon by people who have been under a rock but I said, "Why?" The answer was, "I wrote those bar results up and I will write up a the law school rankings. I just want people to feel happy."

 "What a saint!" I did not think to myself.

Yes, it was life imitating the movie "The Matrix" only it was not really the red or blue or green pills but manufactured information that no one dared to investigate because who wants to become unhappy when you can be happy. In fact, law professors rely on a clever perversion of Rawls'  veil of ignorance. This veil allows you be ignorant of the current reality.

The difference between the Matrix and being a law professor is that the profs are both the pharmaceutical companies -- manufacturers -- and their best customers.  They create "pills" and then take them. They feel better but nothing changes except perception. Here are some of the best selling meds.

1. Your article will be published by a top ten law review. That's great, right? Why? Because a group of privileged 24 year olds  who know very little about law or your area of expertise and knew nothing about law until about a two years ago decided it was not too risky and had enough appeal to authority that seemed like it was meritorious? Really, isn't that a bit like feeling joy about winning a figure skating contest judged by people who have only in the last year or so seen ice? Nevertheless,  when that pill arrives you gobble it down and try to get a refill.

2. SSRN reports that your article is in the top ten most downloaded articles. SSRN has as many top ten categories as there are law professors. So, aside from the fact that the top ten scam is like the people who say  they want to put you in Who's Who in the academic world if you pay $50 for a copy of the book, what else is going on? One thing is you helped destroy some trees. Another is that downloading is free, Think of it as more like someone picking up one of the 15 free newspapers next to the real ones. You put your newspaper out there and it was free. It is more than likely lining the floor of a parakeet's cage.

3. You look up your name on Westlaw and your articles have been cited 1500 times. That's a pretty good pill but how is it connected to reality? Did you change a mind? People mentioned your name in an effort to create their own pill that is likely to be as irrelevant as your own.

4. Several people on your faculty are asked to rank law schools. All of them rank their law school first and the one they graduated from second. Then they feel happy that those are ranked high. Actually this one happened not long ago. That's how much they need a fix.

5. Your hardback book just came out. Your mom will be so proud. Are you! Hmm. is it actually your last 4 articles loosely tied together? Is it a collection of articles written by others at your request and that were acceptable to you because of who they were and not what was said? That's all the medication you need. It does not matter that it is not evidence of new ideas or that only a small handful of people will read anything in the work, After all, others, also taking meds, will regard it as a good thing.

So, what if law profs dropped their version of the veil of ignorance and went into rehab. Are there any pills that make a law professor feel better and do so without the veil. I do not know. There is a pill can make things better but seem not to make law profs feel better since so many veiw it as poison-- teach as many students as possible and tell them everything you know. That pill is not a big seller. Not FDA or AALS approved to be safe and effective, I suppose.

The Invisible Hand and the Dangers of Famililization

It is good to start this post with this quote from the Wealth of Nations:

"Every individual necessarily labours to render the annual revenue of the society as great as he can. He generally neither intends to promote the public interest, nor knows how much he is promoting it ... He intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for society that it was no part of his intention. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good."

The question arises with the last two words. What is "public good." One look at the plight of law schools today tells you how the Adam Smith approach -- a constant battle in service of self-interest -- is working.  It is a world of low teaching loads, vanity courses, massive spending on irrelevant "scholarship," travel to do little or nothing, crushing debt for students, and dishonesty in the rankings game.

That is the good news; it could be worse. Why?  Two points. First,   I can count on one hand the number of law professors who do not attend the church of Adam Smith. In fact, I can count on the fingers of no hands the number of times I  have heard a Law professor say in response to a policy or program question, "That is inconvenient to me and will cause some changes but I can see it is better for the institution,"

Conversely I do not have enough fingers and toes to account for every time I have heard "I oppose this policy/program because it will mean I have to change what I do."

How could it be worse? Suppose faculty began acting like one big happy family. They  celebrated birthdays together, ate lunch together, and really cooperated. The cooperation was designed to maximize total benefits for faculty with the distribution of those benefits determined later. So even lower teaching loads, more travel, more vanity courses, etc.  You might call this the Tony Soprano model.

If so, the best outcome is that faculty continue to "compete" not because it increases the public good, as Smith would have it, but decreases the damage.

So should we encourage law faculties to act like families? Like that slippery notion, "leadership," it all depends on goals and values. If they are not in the right place, kinship is a dangerous thing.