Tuesday, December 15, 2015

Poor Pitiful Me.

Since it is the Holiday season I tend to think about those less fortunate. Oh, you might think I mean people with these problems:

My boss may lay me off.
I hope I can make this month's car payment.
I hope that check does not clear before payday.
I am not sure what I can put under the tree for the kids.
My tooth aches but the dentist would cost $100.
I have no health insurance and Billy's earache has been going of for two weeks.
If it gets cold this winter, how will I pay for heat?
Judy needs new shoes but that will have to last until after the first of the year.
I wonder if I will have to work the night shift.
Where will I sleep tonight.

Or, then there are the truly needy whose unfortunate lives have lead to an obsession that is close to physical pain. Their problems go like this: (you will get more of if this if you also listen to this

1. I may have to teach my class on Friday.
2. What if not enough students do not sign up for my course, "All about Law and Me."
3. Was Jim disrespectful to me in the faculty meeting?
4. How can I get by without my own personal really fast printer next to my desk?
5. What if I have to be on campus more than two days a week?
6. How can I convince the Dean to get the school to pay for my trip to Honolulu.
7. As I walked by Jack's office did I see he now has a triple monitor set up?
8. If  have to teach 50 students it will interfere with my very very important "work."

For the first group there is never enough under the tree, For the second group there is too much and they want more, more, more. (you are supposed to click on that underlined part)

Monday, December 07, 2015

The Best v. the Most Useful Scholarship

I've had my say on the huge wasted investment in fancy scholarship. On the other hand, if  I had to rank scholarship in the basis of difficulty it would go something like this. There are caveats and another bigger problem.

1. Single authored full length books that are not primarily descriptive. (This assumes carefully done research, not advocacy dressed up as scholarship, and certainly not a compilation of previously published articles.

2.  Single authored full length articles that are not primarily descriptive. (This assumes carefully done research, not advocacy dressed up as scholarship, and certainly not a compilation of previously published articles.)

3. Treatises. Purely descriptive I know but there is something to be said for the ability to fit it together in a meaningful way. (I do not mean yearly updates, supplements, and the like)

4. Single authored casebooks that are widely accepted. Actually, I've only seen two casebooks I would regard as scholarship at all -- the old Kessler and Gilmore Contracts book and the Areeda and Turner Antitrust book.  On this, though, I have  seen only a few casebooks and certainly there may be more that can be regarded as scholarship.  I  rule out casebooks that have multiple authors since this is mainly a marketing tool. It guarantees multiple adoptions and the casebook publishers will publish (and have published) even the worse casebooks if the adoptions are guaranteed. Also ruled out are editions beyond the first.

5. Articles that are advocacy. The equivalent of briefs only with far more irrelevant material.

6. Nutshells and all the new versions of Nutshells. I have to admit, though, that some are quite good at doing what they are intended to do.

7. Edited books of readings. I do not mean any essays by the editors but otherwise it is an administrative task.

This is pretty simplistic because within each category there will be variations in quality and low quality may mean a work in a higher category is no better than works in a lower category.

I do not know if anyone agrees with this list. Nevertheless,  now I will list the same works in terms of the actual impact or influence they have on others.

1. Treatises

2. Casebooks

3. Nutshells and all the new versions of Nutshells

4. Articles that are advocacy.

5. Single authored books.

6. Single authored articles.

7. Edited books of reading.

So here is the problem. First, focus on a law school The first ranking is probably the ranking one would go by if the goal were the enhance the reputation of a law school. The second ranking is the one to go by if the goal were to increase the actual impact of a law school.

Now focus on faculty rankings within a law school.  If you go by the first list, you will rank highest the most difficult and the most useless work.  If you go by the second list, virtually everyone in the law school is the same -- none of the top impact types of "scholarship" are difficult.

It's  a problem. What does a law school want to be? How do you rate faculty?

Thursday, December 03, 2015

Letter From Home

Dear Jack:

I just thought I would write and let you know what is going on in my life. I am still teaching law and living in a small Southern town. We have Fresh Market but not Whole Foods. We make up for that by having more Walmarts per capita than any other city in the world.

Things used to be fine at the law school but now we have fallen under the rule of a new dean who makes ridiculous demands. Just listen to this. He expects us to do research when we have research grants and actually have something to show for our efforts.  Well, so much for academic freedom! I really may file a grievance because our old dean never really asked for anything. I guess his view was that part of our job might entail doing nothing because, evidently, that was his job definition.

And then there are the forms we have to fill out. Oh my God. Some take as long as ten minutes to fill out which means that is time I could be devoted to my very, very important research. In fact, this semester alone I had to fill out a form to explain what I do for the money the school pays me and to indicate what classes I will teach. OK, I know it is probably OK to ask what I want to teach but, GET THIS -- I am asked to only list courses that students sign up for. Really, that is so over the top. People like me who teach in highly specialized courses may only have 5 or 6 students. I fear for what will become of those students who will now be deprived of my expertise.

Some of our best work comes out of various centers, foreign programs, and advanced degree programs. We have had all of these for years. Eleven years ago they were all studied very closely and it was determined that they were all first rate. That was good enough for me. Yes,  in some cases we have several faculty devoting all their time to a hand full of students while the remaining faculty teach several hundred students in massive impersonal sections,  that is just they way to goes when you want to have quality.

The changes are really upsetting. Teaching more students and writing. When exactly did that become part of our jobs. It is so discouraging and I am feeling so very sad that we cannot go back to the day of being true intellectuals.


Tuesday, December 01, 2015

Brad Paisley: Social Scientist

I like Brad Paisley and the song Online: You probably never heard of him. Some of  lyrics to "online" are as follows:

I work down at the pizza pit
And I drive an old Hyundai
I still live with my mom and dad
I'm 5'3 and overweight

I'm a Sci-Fi fanatic
Mild asthmatic
Never been to 2nd base
But there's a whole nother me
That you need to see
Go check out MySpace

'cause online I'm out in Hollywood
I'm 6'5 and I look damn good
I drive a Maserati
I'm a black belt in Karate
And I love a good glass of wine

It turns girls on that I'm mysterious
I tell 'em I don't want nothing serious
'cause even on a slow day I can have a three way
Chat with two women at one time

I'm so much cooler online
So much cooler online

I get home, I kiss my mom
And she fixes me a snack
I head down to my basement bedroom

And fire up my Mac

You get the drift. This guy lives in a fantasy world in which he is a star. Sound familiar? Well let's change a few words and see how law professors have built a similar fantasy world. Just sing it to the tune of "Online."

I work at the law school.
I drive a sensible car
I'm a big deal in the sec pool
I scoff at being member of the Bar.

I am a Harvard fanantic
A little out of shape
Often feel I am taken for granted
But there's a whole nother me
Check my law School bio
And you will agree

cause in my head I am so intellectual
I'm well known and influential
People consult me at the highest levels
My work is so important
Excuse me I'm off the to airport. 

My articles are read by everyone 
Especially students when I test on them
I know others read it too
Or at least I claim they do.

I am so much more important in my head
Partly because I am so well bred.

I have no sense of humor.
My irreverence  is nil.
I love a juicy rumor.
No courts ever cite me
But  I am important still.

In the real song,  opposed to this admittedly pathetic attempt at satire (not parody, a different thing), it goes on and on to explain with great insight how people lose sight of where they are in the scheme of things and take the "self justification" remedy. 

Brad Paisley -- keen observer of the fantasy life. 

Monday, November 30, 2015

I Just Might Leave!!!! [Much Foot Stomping]

The emptiest   threat academics make, if they are silly enough to try it in this era, is the "I want my way or I might leave." My reaction, if I were a Dean would always be, "TaTa, do you need some boxes for packing?"

There really are only about 26 law professors whose departure from any school would make a difference to the students or the reputation of the old or new school. And remember, I am not saying which way that difference would run. It is just as likely that the spoiled prof's departure will make the school better off. For example, maybe the person is a good scholar but has so many side deals going that he lowers the moral and productivity of others. Or maybe she is, according to the students, a spectacular teacher but the students are really learning much and, generally, there are demands and an aura of drama wherever she goes. As a generally rule, I think every school is better off if the foot stompers leave because it is likely they are a pain in the ass in other ways. And there are 0 professors  when it comes to actually making a difference in terms of the welfare or people generally. 

Yet, I hear this all the time in various forms. Often it follows that Deans make counter-offers without even thinking that for the amount of the counter-offer they could get someone much better. This strikes me as odd for a different reason.  The counter-offer means "We always knew you were worth more but did not have to pay it so we did not." If this ever happened to me the counter-offer would have to account for all the years the school now admits I was underpaid.

Nearly all of the people who could leave for a better job left already and most of those who get offers for better jobs will go. Every school goes through this.  That means the threat makers are saying, there is another job for me but I did not take because it was not a better job but whatever irks me has now meant that this job and that job have changed places.  Really? Sorry I am not buying that the other job is now so much better that they would actually go through the trouble of leaving.  First, for the most part the threats are the product of people who are over affirmed, bought into their own publicity and have a sense of entitlement. Second, it's just a spiteful temper tantrum -- you have hurt me and I am going to hurt you back even if it ultimately makes me worse off.

I guess these snits have paid off in the past for them but only a woeful dean would allow them to change anything that did not need to be changed already.

Thursday, November 26, 2015

Psst, Hey, Over here.

I need to tell you some things I found out today.

1. A certain first year dean at a large mid ranked law school is already interviewing to leave the school.
2. Jackson, that guy we just hired, is interviewing at Tennessee for a chaired position.
3. Janet said she smelled liquor on Jim's breath this morning.
4. Linda's students have been complaining about starting class 15 minutes late every day.
5. Did you hear the new dean is going to discontinue, dissemble, and destroy, the LLM in Law Finance. There is even some talk that he may torture the faculty.

Actually I made that all up. Or maybe I just changed the names. Whatever the case, one thing I have observed is that people love to have information. Actually, that is not quite right. More accurately, people love for others to think they have information, especially information that is not widely known.  This is probably true of all groups but, in the world of academics, seeming to know things others don't  raises status and, to some extent power.

But there are other interesting aspects of information status. First, as already noted you may know nothing but be good at appearing to know something. Second,  suppose you do know something and it's sort of interesting but not likely surprise anyone. A common practice is to ratchet the information up a notch. It goes like this: You overhear two students talking about how hard Professor Jones is. Ratcheted up it becomes, "I heard a bunch of students complaining that Jones is their worst professor and they are going to the Dean."

Or this: You are in the faculty lounge and Tom and Buck are discussion whether restitution can remotely be called a form of damages. Racheted up: "My God, I thought Tom and Buck were going to get into a fight. They were screaming at each other about teaching assignments."

Steve comes to school on a non teaching day wearing dirty clothes. Ratchet version: "Have you seen Steve lately? I've heard there are mental problems."

Sadly, although these are made up, I have seen  worse. Too many people thrive on drama and the appearance of being in the know. The ratcheting can be up or down like when the effort of one faculty member to push the hand of another away became the "slap" heard round the world and then was widely investigated as though the administration as nothing productive to do.  Ratcheting down means something like this, "oh but she/he is a really nice person". This comes right after finding  out that the person assaulted a student. I should mention that some information comes  from actual research into, let's say, the salaries of everyone who ever taught law or what someone far away said about someone's latest article. Don't trust these people either. They almost always present only part of the research.

So now you know how to (shall we say) "gather information." What do you do with it? Three possibilities. 1. Just impress others that you are so in touch with what is really going on in the faculty. This works mainly on the insecure untenureds who are just getting used to how unstructured things are. But that's Ok, the information peddler is usually also insecure. 2. Take it to the Administration because after all you are trusted, in the know, would never ever ratchet and, oh, by the way, maybe the Administration will look favorable on you. After all, you are not just any faculty member.  (Any administrator who encourages this at all or  without triple checking the informants information will be the death of your law school unless chased off.) 3. If it is really important and could actually have an impact on a person, go to him or her and discuss it. (Only a fool does this because it means no status and sense of importance for you.)

I really wanted to call this post "Information Whores" but I am not sure that term has evolved to be gender neutral which is the way I would have meant it.

Tuesday, November 24, 2015

Law and Economics People:Don't They Suck?

Of course they do. They are the worst, aren't they. Always talking about efficiency, consumer surplus and the like. Heartless people who are not in touch with real values. "Bean counters."

I think I would be regarded as a law and economics person by anyone who has not read anything I have written and that's fine. With respect to most of the people who have rolled their eyes, accused me of have a law and economic agenda or whatever I stand with Rod Stewart. I would not let them tie my shoe.

There a couple odd things about being or not being a law and economics person. First, in actual real life it seems like the non law and economic types are far more likely to act like self-interested rational economic people. My observations are they are more inclined (or at least no less inclined) to worry about getting the best teaching load, the right number of students, enough money to travel the world, the highest salary, the best deal on a car, etc. And if you think for a second this is in service to the institution, forget about it. It is over-the-top self interest regardless of the impact on the community. In the words of Toby Keith, it is about "my, me, my." OMG, the stories I could tell of programs, certificates, LLMs programs that all reflect personal as opposed to institutional and student welfare. This is demonstrated most when they have outlived their usefulness, if there was a use in  the first place, and yet individuals cling to them.

So when it comes to individual self interest it's all about "law and economics." They should be teaching a course because they live in the shoes -- whether tied or not -- of the economic man. Interestingly this applies regardless of whose money is spent but the difference is this:

1. If the decision affects the individual, the hard nosed economic man comes out.
2. If the decision is spending the money of others the "it's not about the money, there are other values" comes out.

Well here is a little news: IT IS ALWAYS ABOUT THE MONEY!!! (Unless, that is, there is an unlimited amount of it.)

The only way to believe it is not always about the money is to be born without a part of the brain that understands opportunity costs. And since everyone I know understands opportunity costs when it comes to personal decision making, that part of the brain is in good shape. So what explains ignoring then in all kinds of other contexts? For example:

1. You want to run a summer foreign program in Poland, France, or Santa Barbara. You say it is  enriching for the (mostly already well-to-do) students. You send faculty there and say it does not cost anything because they would have been paid anyway. Yes, but the cost is in terms of what they would otherwise be doing. And if you say,  "They otherwise would be doing nothing" then the opportunity you missed was not paying them at all in the summer or paying the same money to some who actually does do something.

2. You want to have a Program in Intermediate Snooker Law because someone deeply interested in snooker wanted to teach it and then add advanced courses (total enrollment 30). You cannot have a program without a director and a director cannot possibly teach a full load what with all that directing that goes on. He or she is taken off the schedule for one course. The loss of that course is the opportunity cost.

3. You have an LLM program that wants teach its courses over a 60 minute class period even though the 95 per cent of the school teaches 50 minutes classes. The teachers really, really want it. It means dedicating a classroom to their use even though the room is rarely full and, in fact empty several hours a week. The opportunity costs? Classes that students want cannot be put in that room even when there is no other room for them.

Am I saying summer programs, snooker law certificates, and LLMs taught in 60 minute class periods are bad. Nope, not at all. I am saying the reasoning, or lack thereof, that results in those decisions conveniently  does not reflect the same law and economics analysis that the same people apply to themselves when trying to maximize their own well-being.

Yes, those law and econ people do suck but they may not be the ones most people think of.

Thursday, November 19, 2015

The Programs/Ranking Scam, Self Esteem, and Helping Your School

Did you ever wonder how important those rankings of specialty programs in law are. You know what I mean -- tax, IP, environmental law, international law, and on and on. This occurred to me, and I am sure others, some time ago. Let's say you've got 4 people on your faculty who teach Immigration Law. They actually are not very distinguished but then they create and LLM in Immigration Law. I am not sure how many of these programs exist but let's say 5, so now they are 6th. BOOM, U.S. News and World Reports announces that the program is the 6th best Immigration Law program in the US.  You know what comes next -- It is plastered all over the Law School web site, brochures are printed, and massive quantities of law porn hit faculty mail boxes across the country.

There is a slightly different way to think about it. Suppose your school has a program in Immigration Law that is ranked second in the nation. (Just in case, it is important to know that I have no knowledge about immigration law programs.) You look around at the actual professors in the program and maybe they are not so hot. In fact, it dawns on you that 50 other schools could take their existing immigration law faculty and form a program and yours would instantly drop to 52nd. What should you do. OK, I am going to get a little fancy here and bring in the Coase Theorem. You pay them not to start a program!

That is disappointing and costly but there is good news here too. Everyone actually should not get stoned but should start a specialty program instead. In fact, I think I may hang a sign outside my door that says: "Institute for Study of Law School Craziness." I am the director so I get time off and I will enlist 12 people as Associate Directors so they can put that after their signatures on all their correspondence. I'll also probably move to the mountains near a nice trout stream and "work at home" because as director I actually do not have to do much teaching.

You can do this too. Help the ranking of you school by forming up a program. It's good for your school and for self esteem. It does not matter if the actual people teaching are 20th best in the country. The program will be in the top 5 and then the teachers will likely believe they too are in the top 5. After all they are sooooo special. Or at least they are now.

So, how important are those rankings? If you think they tell you much of anything about the actual instruction that goes on I need to talk to you about some precious metals I would like to sell.

Wednesday, November 11, 2015

Double Pranking the Law Faculty: Am Empirical Work

Years ago I heard and believe it to be true that super lawyer Steve Susman pranked a law firm by  bringing in a bartender as a interviewee for a position with the firm. The bogus candidate was supplied with a resume  that was just right and coached enough to know what to say and not to say. In the version of the story I heard, an offer was made.

This led me to wonder if you could prank a law faculty. The best version of this would be a faculty hiring experiment. An articulate bartender would be supplied with the perfect resume, the right names to drop, and all the other dressing.  He or she would be coached on what to say and not to say. Frankly, I do not think it would work. Somewhere along the line a question would be asked that exposed the prank or, at the very least, a reference would be called. The job talk would likely be a disaster. Of course, if the success of the prank hinged on the job talk and references being called, I guess you could conclude that it did work in some measure by surviving the office interviews.

There could be another type of prank. This one would be conducted by a law professor looking to write a paper on the prankability of law professors. Here is how it works. The professor who is the pranker/researcher is invited to a workshop at a much lower ranked law school. This is important because law profs are very impressed by credentials. If you do not believe me, listen to the way they introduce each other.

The speaker/experimenter presents an empirical paper. This is also important since empirical would is both threatening and impressive to law profs. And, although  the questions they can ask based on intuition and logic can potentially expose the prank, for the most part a decent empiricist can fake it be saying, we used the "Himstead r-test to make sure that bias was not present" or "Hmm, that might be worth looking into."

The paper must be complete B.S. -- something like "Do Americans Like their Flag: Implications for Nationalism, International Relations, and Community." The actual empirical work could be fabricated or actual done. If actually done, people from all states could be asked:

1. Do You Like the U.S. Flag? (scale of 1-10)
2. Do you like your state's flag? (scale of 1-10)
3. Do you really, really like your flag? (scale of 1-10)
3.  What symbols do you want on your state's flag? [This is follow by a list of things ranging from eagles to Ronald McDonald.]

This would all be done by questionnaire. The data would them be compiled and correlations found based on race, gender, income level, average state temperature, party affiliation, etc. The results would be presented in graphical form with different colors for states where the flag was very popular and places where people did not care much for their flag. A very long table with all kinds of correlation coefficients, SSEs,  t-values, and R squares would be available.

The research questionnaire does not ask if the subject has any knowledge of what the state flag looks like. Why? Actually I do not know why but that is part of the prank. The researcher actually does not know if the people who have opinions about the flag have any knowledge of the flag. So among those liking or disliking the flag are completely different groups -- some are just making it up and some may have studied their flag closely.

When asked what this is all about the speaker says it has important implications for patriotism. No one asks, "Could you have just asked the subjects how patriotic they believe they are."

The  test in terms of the prankability of different faculties would be how long it would take for someone to say, "You are kidding, right?" or "Is this a prank" or "Is this being filmed for TV show." Perhaps everyone would just sit there, ask polite questions, and nod knowingly because, after all this is a faculty member from a highly ranked school delivering an empirical paper. 

Schools could then be ranking on the prankability scale -- how long it takes to detect the prank.  That ranking would them be correlated with the race, gender, socioeconomic class of the faculty, time of day, size of law school, density of population, per capita income of surrounding area, number of Walmarts in town per capita, height of the highest flagpole, etc.

I could then write up that paper and go on the workshop tour with an all new paper: "The Prankability of Law Faculties: A Comparative Study of Manners and Deference to Authority"  which itself could be a prank especially if I made it all up. 

Wednesday, November 04, 2015

VAPorized: The Demise of Individuality

For several years now, one way to a permanent law teaching job is to be a visiting assistant professor (VAP) at a law school. It's a temporary position that allows those who aspire to be law professors to write and teach while they are prepped, groomed,  advised, shaped, molded, etc. by people who are already law professors. A good idea, right? 

I'm  not so sure. In fact, what I see is a process close to mass production in which individuality is hammered out of otherwise interesting people. VAPorized candidates are very polished, well groomed, friendly, accomplished, (all in the same way)  and can thank everyone from Woody Allen to Jeff Lebowski in their invariably very long acknowledgement footnotes. Their job talks are impressive both in substance in style -- well rehearsed I would say. And their schools -- both the elite schools from which they graduated and their VAP homes -- cannot say enough good things about them. What I want to know is what is inside that dressing, that is, if there is anything left after they are told by law professors how to be law professors. If they were rooms, I would try to find the doors. But what they are taught while being VAPorized is not to show themselves.

Let's face it, the cloning effect in legal education was severe even before Vaps. So what do they bring to legal education?  I don't want to paint with too broad a brush here but in some sense "nothing new." (Is there something less than nothing new?)For the most part they have locked  into a specialty or sub specialty. They take on the characteristics of a mid career person. They do not seem that interesting because they have already arrived at one-dimensionality and lost interest themselves in anything other than a narrow field.  I preferred the old days when new hires were a couple of years out of law school and still, in a sense, learning.

Let's face it, the worse thing about law professors is a cultural sameness -- dress, vocabulary, mannerisms, appeals to authority, appearance of reflectiveness, law schools from which they graduated, socioeconomic class, passive aggression, close to the vest, never admitting mistakes or regrets, life is a life time negotiation, excessive self interest, blah, blah -- I know I am a broken record.

Before a candidate is VAPorized. there is a chance. Slim, I know, but there is a chance to see the real thing and a chance they will bring some element of diversity to a faculty. I would like someone to start a program for Vaps that deVAPorizes them.

Thursday, October 29, 2015

Dean is Rile Killer

Yep, I've got to face it. I have not much more to say about class bias in the legal academy In fact, I am drinking the Kool-Aid. It's a good thing to have class bias  in the legal education since it  keeps a certain number of people with a massive sense of entitlement spending their time having no impact on any thing that matters.

And, I have to face something else. When our last full time dean departed, a breath of fresh air blew through the law school -- first in the form of a first rate acting dean and then in hiring a permanent dean who is smart, a quick study, and, as best I can tell, confident enough to at least try to do the right things even if it ruffles some feathers. I am sure she will irritate me at times but I am willing to bet the number of side deals and scams will dwindle and that when she is done, UF will stand taller.

So where does that leave me? I got so much out of bitching and being rile free has taken it away. My friend Eric Fink says it's not worth writing something if it does not piss off someone. So here I am writing. Let me take a stab at some mini bitching in hopes that someone will be a least a little annoyed.

1. You probably know that most law professor are "liberals." Liberals mind you, not left. There is a ocean of difference. You know what they like to do with money for scholarships. Go out and compete for students with the highest LSAT scores. Rich or poor, we don't care as long as that number is helps the rank of the school. Have a good number that does nothing for our ranking and you are too poor to afford law school. Tough. If you don't make us liberals look good when rankings season is bloom, take a hike. (I really appreciate those Deans and University Presidents who have created funds strictly for people who would not be in school without help.)

2.  A couple of weeks ago an article I wrote with Amy Mashburn came out. It was the one showing that citations of law review articles were correlated with the rank of the publication, the rank of the school of the author, and the rank of the school from which the author received a JD degree. We also discovered a shocking lack of reliance by courts and other scholars.  That's all old news. We were very polite when people were negative (actually most were positive)  but some comments just seemed stupid. How about the one that said our conclusions should not be trusted because we did not use a random sample of law reviews. Yes, no random sample. No instead we selected a sample of articles that was most likely to disprove the hypothesis that legal scholarship was not reaching people. But thanks for your thoughtful comment.

3. The rules in my fantasy league. How screwed up is this. Say you've got at QB Cam Newton. He goes 20 for 40 and 350 yards and 2 TDs but throws 2 picks, one a pick six. The picks do not count against you. So the QBs performance is distorted. In fact, he could throw 10 picks and you get the same credit as someone with a QB who threw no picks. Crazy.

Tuesday, October 27, 2015

Theory of Second Best in Law Schools: Maybe

The theory of second best may be the most overlooked concept in economics and in life. That's a good thing because it can make things very complicated. As far as I know, it originated in economics but as a general matter it stresses the interdependence of things. In economics it might work like this. There is a legal monopolist raising prices and restricting sales to a group of scattered buyers. The buyers then decide to band together and say they will buy nothing at all unless prices are lower (as in closer to competitive levels). Now a do-gooder antitrust enforcer come along and thinks, not out loud I hope, "I can't do anything thing about that monopoly but at least I can put a stop to that price fixing." Or, "I cannot do anything about that monopoly but the second best thing I can do is stop that price fixing." He or she does and things are worse than if there were price fixing. In reality the actual  best solution is to  turn a blind eye to the price fixing by buyers.

Or how about his one. You gather all the ingredients together to make cup cakes. You realize you are missing an ingredient and you think "So they won't be perfect but I have almost everything. I won't have perfect cup cakes but these will be almost as good."  Your cup cakes are a disaster but you could have made some damn fine cookies. Making cookies might have seemed like second best to you but they were actually first best.  You neglected the fact that that missing ingredient pulled everything together like the Dude's rug.

So, does any of this apply to law schools? I am not sure but consider this. You want to have a externship program. You say it is so students will be more employable and will get "real world experience." (Actually come to think of it, it is a real world experience -- they are not paid.) In fact, not only are they not paid but they must pay the law school for the right to receive credit for working for nothing. (No, I am not making this up.) To get your hypothetically-working-full-time-but-otherwise-not-that-interested faculty to arrange externships you pay them based on the number of externs they can line up. Where do they find the time? ( Remember law faculty often fall in the category of working full capacity while having excess capacity.)

Call it faculty welfare -- students (the ones working) are taxed and the money is transferred to faculty (the ones kinda working)   Pretty soon you are paying hundreds of thousands of dollars to support the students-work-free-and-keep-others-from- being-paid-but-professors-rake-in-the-dough-while-not-writing-or-teaching Program.

Not every catastrophe is the result of making a decision without considering all the variables that must be in sync to assure a good outcome.  In this case, starting an externship program might have made sense if all your assumptions about faculty willingness to participate held. Once that was not true, your second best solutions was to pay them. But, given all that, paying may not  have been the best solution. In fact, the funds might have been used for a completely different endeavor that would have benefitted students even more. (deb, we need to stop meeting like this.)

Wednesday, October 14, 2015

Oldsters, Charity, and Innovation

Two things I have seen on blogs lately seem to me to be related. One is this great post in the tax prof blog  about the inverse relationship between innovation and the pressure to publish. It is about scientists and how the pressure to get something into print discourages risky and innovative work because it may not produce anything publishable. I have to think this goes triple for law professors who have the same pressure and have to write on topics and on a level that second and third year students do not think is too risky (especially if you teach at a mid ranked or lower law school). It helps explain why the vast majority of law review articles are irrelevant.

The other thing that pops up from time to time is the call for older law professors to step aside and give the younger folks a chance. I guess this is based on some notion of charity or the "right thing"  to do.  Actually, many law profs would not know the right thing to do if it bit them in the ass. Yes, the same folks asking the old folks to do the right thing are likely teaching two days a week, minimizing their course loads, confercating ten times a year,  running scams on foreign programs, and bragging about their influential articles that no one reads. "Do what is best for the community is a great idea when someone else is doing it"  is the rule they live by. Of course, I do not mean you personally.

But back to the connection. I really do think the pressure to churn out yet another article does cut down on risk-taking and innovation. So who are the folks who are most inclined to co author yet another 20 page article in order to put another notch on the old resume -- those at the beginning or at mid career. And who are the ones who can take risks and actually attempt to do something meaningful -- the oldsters who are not worried about career building and getting tenure. That's not to say there are not loafers at every level but the clutter now found in law reviews can largely be attributed to those who are on the make and just want to get something placed somewhere.

My solution to the law review clutter problem. Each law school will only consider one article a year per professor for the purposes of any merit decision. And my solution to the no innovation problem. Fire everyone under 50. Thank you very much. And, I too have tired of hearing about your damn emails.

Monday, October 05, 2015

Message or Messenger: The Rise of Professor Porn and the Death of Ideas

Gone are the days in which law professors could be viewed as people who lived a "life of the mind."[Not being quite old enough, I am not sure they ever lived a life of the mind as much as other academicians and I suspect not.] In those days, teaching, thinking, and writing were the principal activities. Professors put their work out there and it spoke for itself. They might attend a conference or two each year and mail out a few reprints. It seems old fashion now but the process of thinking was in itself a reward. Personal recognition was a side effect.

Over the last 30 years, probably to coincide with the rankings race, this changed. Law schools and law professors began to sell themselves like soap powder, beer, and used cars.   The louder the "commercial" or  the noise, the more likely that a school or a person will be "heard" regardless of what he or she has to offer. In fact, sales tactics by professors have become so intense it appears that sales are made simply by being persistent to the point of pestering.  Recognition  may come just to make the pestering stop and the professor quickly reports it to the Dean and the world as an accomplishment. These profs are constantly on the road, no conference is too far away. They blog and write several articles a year which typically reveal little deep thought. Every thing they do is reported as important. At the extreme it is almost a frenetic effort to make one more sale. Promoting oneself is far far more important than any idea. Ideas,  in fact, are passe.

These are the two ends of the law professor continuum -- the "life of the mind" and the "soap." I am not sure anyone fits at either end of the continuum although I think I have known  and know people close to the "life of the mind" including some on my own faculty.  Increasingly I know people crowding the soap seller model.

I have a bias against the soap sellers and I think this is not only because I am lousy at selling. To me they are like the kids in little league who hung around the coach saying "put me in, put me in, please coach" while others just worked their asses off in practice and quietly  hoped their work would be noticed. They made so much noise they practically drowned out anyone else.  On the other hand, the idea of the life of the mind in which little effort is made to connect with others seems wasteful especially in a discipline that is supposed to address real world events and problems.

I do not claim to know the right balance but fear the future means more soap. As long as the soap sellers are reinforced others will feel they must follow. Those who follow might be talented writers and researchers but will have little choice but to raise the noise level and this means less effort devoted to actually solving problems.

Mainly I see a parallel between the law school rankings race and the law professor "recognition race."
Think about it. Among law schools the tail began to wag the dog as they adopted policies to increase rankings without making sure it mean better teaching and research. With professors it's more articles, more presentations, more everything to advertise one's name regardless of whether there is underlying value. With law schools it meant fudging the numbers. Law professors pad their resumes and claim everything they do is evidence of recognition and influence. In articles they include meaningless footnotes or ones who do not relate to what they claim the cite supports. Law schools disseminate gobs of law porn. Professors look for every chance to have their photo in law porn and many many articles exist simply to exist and not because there is conviction and hard work behind them They are professor porn.

In the process  the underlying raison d'etre is lost unless there is value in simple being someone other have heard  of or being able to drop the names of those you claim to know you.

Friday, October 02, 2015

Antitrust Assassins

Antitrust law has increasingly become anti-antitrust law. This is generally the influence of those who claimed to be well-versed in economics but who apply basic principles inconsistently to favor big business.

For the most part we want businesses to compete by offering the best they can to consumers at the lowest price. Sometimes being competitive means also being anti-competitive or so the theory goes. In fact, most of the examples of this are duds but let's take the example of college football. The theory is the college football is a product and the market for sports entertainment is better for it. If colleges competed for football players by paying them, so the theory goes again, the rich schools would get the best players, beat all the less rich school and college football would not be a very interesting sport. So the schools can agree not to pay the players at all. That is their logic, not mine.  (There are other justification but they are even sillier than this one.)

The cost of having college football is largely put on the back of laborers who are not paid.  This cost is like the cost of uniforms, balls, and coaches except that those costs are absorbed in some measure by those who profit from college football. The cost of labor, though, is paid by the players, not by those who profit from their labor.  It is exactly like a producer of cars that pollutes, factories that put toxic substances in rivers or employers whose employees are injured because of unsafe work conditions. In economics the costs imposed on others are called externalities. The fact is that we have a massive network of environment regulations, tort law, and the like that force those who give rise to externalities to absorb them.

In every area but antitrust,  businesses are given the choice -- reduce the externalities or pay for them even if they make you more competitive.  In short, produce what you want but pay all the costs of production. Now a contingent of law professors and judges have decided that rule does not apply when it comes to the costs of anti-competitive activity  It's fine for business to force everyone from football players to consumers to absorb the externalities. They do this my refusing to ask businesses to reduce the costs of their antitrust externalities  as much as possible. In fact, they argue against the position they generally support for other costs.

The message from these folks is to "trust business."  Yes, you know, like we trusted BP, Volkswagon, Enron, Exxon, and all the others who, in an effort to maximize profits, shifted costs to others. It is the nature of business to try to cut costs they have to absorb  to make a profit. On the other hand, why cut costs you impose on others, like the costs of  being anti-competitive.

Inconsistent is probably too nice a way to put it when thinking about why the anti-anti-trusters  say business should internalize all costs, even in the interests of producing better products, except when it comes to the costs imposed on the public by anticompetitive acts.

Make no mistake. These folks want to kill antitrust and their economic principles go by the boards when it comes to anticompetitive activity. Yet, don't you just know when looking for a car, house, or shirt, they want the best deal possible for themselves.

Thursday, October 01, 2015

Class Bias In Sport: Academia and the NCAA

If there is better example of class bias in academia than support of any kind for the NCAAs exploitation of mainly African-American and relative poor 18-21 year olds I do not know what it is. And since most academics identify as liberals there is more than a smidgeon of hypocrisy. In fact it is the ultimate in unliberalness found on College campuses. Let's count the ways.

1. First is the wacky anti-trust matter. Although there are major cracks in the NCAAs wall of exploitation, it continues to insist that it is seller a different product (amateur sports) and increases competition. I guess if you were in the South in the 1850s and you found buyers who wanted slave-picked cotton and you joined other slave owners and agreed not to pay slaves anything you would be fine under the antitrust laws because slave-picked cotton competed with cotton picked by non slaves.  In effect, if there is a market for anything, even if it only exists through exploitation, capitalism gives it the stamp of approval. Of course, there is no real proof that there was a slave-picked cotton preference any more than there is a preference for football games played only by the exploited players, ( I am not using the knee jerk notion of exploitation but the actual official definition of exploitation -- look it up if you do not believe me). Nevertheless, at the top of the season ticket holders list you find college presidents and professors. And, many of them will even support the NCAAs right to keep on exploiting and desperately seek credit for it.

2. There is also the twisted logic. Why are football players amateurs? Because the people who hire them refuse to pay them.  Somehow it seems like being a amateur should be a choice. If you are forced to be an amateur are you still rightfully viewed as a amateur?  To me, amateur means you do not ACCEPT money. Being willing to accept money but having a club of fat cats refusing to pay hardly makes you an amateur in any meaningful sense.

3. I love this one.(not really). You have probably heard it: "They are paid. They get scholarships." Now if you really believe they are paid you are conceding that they are not amateurs. That's fine    but to be consistent you must actually mean "They are not amateurs but I oppose giving them any more money." Somehow those who make this argument run out of gas at this point. They have no argument for why the amount currently paid is enough or should not be determined by the market as it is in the case of their  own wages.

4. Frankly I am not sure where millions of dollars go from college football and basketball but I do know many college sports to not generate the revenue it takes to run them. So they are subsidized. Maybe the money does not go directly from football to the golf team but let's face it, the football money makes it easier for those sports to exist. Now let's think of some of these sports -- swimming, golf, tennis, lacrosse, etc. I am willing to bet that the kids getting those scholarships on average come from a much different socioeconomic class that the football and basketball players. Do academics have any objection to the redistribution from those less well off to those better off. If so, I have not heard a peep.

Tuesday, September 29, 2015


I have written so often about the racket of being law professor that I get sick of myself. Sometimes I hear myself saying "Oh just shut up!" "Oh come on" and other things.  Sometimes, though, you come across a gem of an article that sums it up in a  way you never could. In this case, it is an article by elites about elites. Here is the scaled down version as I have not been able to crack to code to get into the full article in Science.

Anyone generally familiar with behavioral economics (or has taken a decent course in law and economics not taught by an ideologue) knows about the dictator game. Basically it tests whether you are selfish or not or, in more specific terms, do you exhibit self-interested behavior as economists predict, or at least assume.

Ray Fisman, Dan Markovits and other authors varied the game a bit and applied the test to three groups -- Yale Law Students, Berkeley undergraduates, and a panel selected to represent average folks.

The test revealed two things. One was greed as opposed to fair-mindedness and the other was an interest in efficiency as opposed equality.

It will not be a surprise to anyone on a law faculty but the Yale law students and Berkeley undergraduates were far less fair-minded and greedier than the panel of regular folks. Yale law students were efficiency obsessed, even more than the Berkeley students and both were more efficiency oriented than the panel of average people.

I know if no reason the same result would not be found among students of other elite law schools. [I do have one reservation in that they do not appear to have tested law students at schools other than elite ones. This leaves open the possibility that, on average, all law students fall in the greed/efficiency category.]

Look at the law schools most law professors attended and you know the reason law schools are bastions of greed, self-promotion, self-interest, bogus conferences that are vacations, misleading resumes, demands to teach vanity courses, demands for special treatment including two day teaching schedules, truncated semesters, and extra pay for just doing the job.

It was never a mystery to anyone who thought about it but law school hiring committees fish only in the ponds of the greedy and hypocritical.

Best of all is the final part of the article that I think is wishful thinking more than anything else:
"Elites—in both parties—remain baffled by Donald Trump and Bernie Sanders’ appeal; and they prayerfully insist that both campaigns will soon fade away. Our study suggests a different interpretation, however. These bipartisan disruptions of elite political control are no flash in the pan, or flings born of summer silliness. They are early skirmishes in a coming class war."

Monday, September 21, 2015

Oh No, Say it Ain't So Cass

When writing my article with Amy Mashburn devoted to finding empirical support for the huge investment law schools make  in legal scholarship, the silliest defense I saw was one by Richard Posner. He likened law review articles to salmon swimming upstream. As I understood it,  some turn out to make it and some don't but that's the way the cookie crumbles. If we change the process, even the good swimmer may not make it.

Of course, Salmon have no choice. Plus, when they swim upsteam making it or not making it does not depend on the rank of the school they were once in. Instead it is quality of their effort. Perhaps I have misinterpreted Posner and what he is really saying is that articles in the reviews ranking below the top 20 are just floundering salmon.

But now here comes Cass Sunstein of HARVARD and other fame writing a defense of law reviews and legal scholarship or that is what the title would lead you to believe. Before I go any further, I want to tip my hat to his courage. Can you imagine the risk of asking a law review (if he had to ask) to print an article in defense of law reviews and putting the name Cass Sunstein on the piece. That takes double balls. And it really takes courage to label the writing with which he most disagrees as  smug and anti-intellectual. (Actually he only says there is a whiff of anti-intellectualism but I could not figure out how to get that in one sentence.)

If fact, his defense is a bit puzzling. As I read it I kept thinking maybe the real Cass Sunstein, whose work I have read, learned from, and admired did not really write this. I mean it's a bit like seeing Ted Williams take a job as a carnival barker and making the points of his critics without knowing it.

Here are some of the problems.  First is the fallacy of composition. The core of his argument is the example of seven book he refers to as some of the best recent law books. These books are all based on or derived from works published in law reviews. So, therefore, we should as he puts it "praise law reviews," Really? All of them, some of them, the top 20, the fourth review of the 177th ranked law school? Why would we praise law reviews on this basis?   This is an echo of every critic of the article Mashburn and I wrote who has thought of an article that influenced something and cited it as defense of a terribly screwed up and expensive system. Not you too Cass!

Second, if we praise law reviews for containing the articles that led to the seven best books, what about the tens of  thousands of articles that law reviews published that used up the time of students and professors, destroyed a few forests, and amounted to nothing except a line on a resume?

Third and this one it a real corker. Sunstein explains how each book was the result of prior law review articles. So you are probably thinking Professor A wrote something in one year and 5 years later Professor B added to the idea and then the authors of the 7 great books wrote their books. That is what I was thinking and actually looking forward to reading.  Not quite. As best I can tell, as it turns out the books were compilations of articles and essays of the same authors.(I attempted to cut and paste the paragraph here but it only shows up as one word per line but it is the first full paragraph of page 4)  Yes, the law professor recycling issue and definitely not standing on the shoulders of those who came before.  It is not as though the law reviews were repositories of the great ideas and small treasures  that were then picked up on and extended by others in subsequent generations.   Maybe I have this all wrong. Perhaps he is just illustrating that some reviews published some articles that were good enough to be on the Sustein must read list had they been books in the first place. If so, so what?

It's like Sunstein missed the debate and then stumbled into writing a big non sequiter. Or maybe he was pranked into writing a defense by someone who did not explain the real issue.  As far as I know, no one is lobbying for the end of legal scholarship or law reviews. The important and only relevant debate is about how much is too much. On this issue, he utters not a word about the possibility that we have overshot the mark in terms of investment, nor how we could make the system more rational, merit-based or accessible.

It's not as though he has forgotten that nothing is free. In fact, he devotes a good page and half to the costs of legal scholarship and concedes that most law review articles have very few readers and very little impact. [page 10].

Since the article is a "defense" it would be nice if Sunstein had defined what needed defending -- law reviews. legal scholarship, the writing style found in most articles? Perhaps just a more accurate title would help -- "Some Law Reviews Published Some Articles that Became Books that I Think are Important." I am pretty sure that is a better title.

By not being precise his worst sin is providing all future knee jerk responders to those who question the massive investment in legal scholarship with yet another mindless "See e.g." citation with the implication that it must be true because Cass said it and the Michigan Law Review printed it.

As for the fallacy of composition, the centerpiece of his defense is the description of seven well-know books that build on prior law review articles.

Friday, September 18, 2015


Dear Dean:

I do not want to take even one second  away from all the people telling you  what we need to do to  move up, make money, be nationally recognized. attract the very highest (higher than highest) level  people, place our articles better,  and  all the other great ideas law professor have because they are, after all, the elite of the elite (except, of course for those people who are even more elite, if any). And I would less than dream of taking up the time who want to bond by kissing your  . . . . . hand.

But I  have an idea to raise serious money. I got the idea when thinking of a friend of mine who spent a bundle to name a baseball  stadium  after  his company. He is a very cool guy and the best employer in the land.

I know we have sold naming rights to everything ranging from the entire operation to the toilet paper dispensers so we cannot become the Shell Oil Law School but so far we do not have uniforms with the names of our sponsors on them -- you know, like race car drivers, soccer players, golfers.

 So here is the plan:

Everyone gets measured for button down oxford cloth dress shirts in light blue and everyone gets five. (Former employees of Blockbuster may have a surplus.) On one shoulder we have patch that says "Steve Black." On the other shoulder a patch with "Winston Smith" (who. by the way. was one of the best people I have ever met). And then, a patch on the left side of the chest that says "Sweeden and Day" and so on. So like sponsors of race cars the name can be put on our uniforms for, say, 50K a year. Perhaps we could branch out -- Dairy Queen, Domino's, etc.

Your humble entrepreneur.
Chair, Professor, Director, Associated Director, and Certificate signatory
My latest books are for sale everywhere
Here is my SSRN website
I got a cool letter from a former student which is available on request.

Thursday, September 17, 2015

Law School Flash Mobs

My students surprised me today with a flash mob performance that I think was spontaneous. I asked a question and as a group they performed John Cages 4'33". You may enjoy a stirring rendition by clicking on the little underlined text just above this. It's not as good as the performance by my class which was the best I have seen.

This flash mob incident made me think of other law school flash mob performances.  We have one every month in the form of a faculty meeting. Sometimes, completely out of the blue, it will be a performance of MacBeth although the actual play is understated in terms of treachery that  often appears in faculty meetings. The characters are all there. The amazing thing is that the cast is so fluid that at one meeting the person playing Duncan may take the role of one of the witches at the next. Sometimes there are cameos by wannabe Tony Sopranos but, luckily they are neutered. Remember that whiney guy from Friends, Ross? Cameo Ross impersonations are very common and people are really good at pretending they do not just want to swat him or her.

Virtually every faculty meeting has significant elements of The Crucible but it is most pronounced when hiring or tenure and promotions decisions are discussed.  There is intense scrutiny with political philosophy being the way in which one is possessed and the goal is to do away with those possessed in the "wrong" way.

Sometimes at social gatherings everyone just starts doing the minuet.  The are dainty and respectful even of the people in whose backs they may have recently inserted a knife. The dance is something to behold.

But the best and longest lasting flash mob performance because it happens every day for at least the last ten years is a law school wide rendition of Catch 22. Yes a massive confluence of problems that cannot be solved without creating another problem that itself would require a rational response to solve but rationality is in short supply. I think this captures it best.

Tuesday, September 01, 2015


My last post or at least the last I can foresee about the silly process of checking cites to determine which scholars or which schools have the greatest impact. Some of this sums up what I have said before but I could not help but notice parallels to the other areas of law.  So here are some things that make simple cite counting maybe the worse way to determine impact.

1. One of the biggest mistakes cite counters do is ignore the inter-generational transfer problem. Suppose Professor Cage, now approaching retirement, does not want to work on the treatise he started 40 years ago. He finds and eager younger person who will be listed as editor or coauthor. Since Professor Cage's treatise is the "go to" source, it is cited frequently and now, in the later editions the citations are to someone whose actual contribution, and impact if any, are unknown. There is also the reverse. The old guy gets cites based on things he never thought of.

2. You've had a book out for a few years, say in the 3d edition. The publisher wants a 4th and although you could do it, why not take on a coauthor who will spruce it up a bit and maybe add a chapter. The coauthor is now routinely cited but for what? The answer: Every word in the book regardless of their origin and impact, if any.

3. You get a contract from a publisher (Hart would be likely) and under the contract you are to round up 30 other people to write short articles (or maybe just find 30 articles that already exist or let Hart find them for you) and out comes what you will refer to as "your book" and for which you will be cited but in a manner that reflects nothing about impact, if any.

4. Cite counters tend to leave things out, like judicial cites. I was surprised to see that WestLaw now has (an maybe always has had) listings of cites in documents filed with courts. So your article about post Toasties (a previously unknown cult of marshmallow worshipers who were cooped by Peep worshipers)   is cited by an actual lawyer. The interesting thing about those mundane cites is that you can bet the citer and the opposing attorney actually looked closely at the work. [Sorry, my mistake to bring this up. I realize it is rarely about real law.]

5. Where does monopolistic competition come in?   First that refers to market in  which goods are soled with minor differences. So you write an article on "unusual" or "antitrust standing" or what ever. The next article kind of overlaps a bit, and so does the next and after writing 3 of these sort of overlapping articles that are all based on a closed universe of sources you BOOM make it into a book. You are kind of an editor of your own book of readings. Sure you do not get cited for things you did not write and, yes, maybe it means reaching a slightly different and equally indifferent  audience but somehow this seems like citations for good marketing, not good thinking.

Sunday, August 30, 2015

How Many Seagulls Does it Take to Create A Pooptastrophe? Updating Counting Crows

One way to know how many crows are on a telephone wire is to count them. If fact, it may be the only objective way to know how many crows are on the wire. What do you know about the crows once counted? You know how many crows there are. Do you know if they are wonderful for people too look at? Are they tormenting some poor kitty cat? Really all you know is the number of crows. What about the impact of the crows? You would laugh if I told you that counting them tells you anything about their impact, importance, usefulness, or whatever.

In the most recent effort to rescue citation counting as a measure of the importance of legal scholarship from being completely disregarded by all but a group of people who teach law, the gang at St. Thomas has published another work that purports to measure the impact of scholarship by counting the number of citation regardless of what what a work is cited for. The jump from counting to impact is a hard one since there appears to be no separate definition of impact. In the tautological world  of citation counting, counting equals impact and impact equals counting. And, impact is reserved for citations by other legal scholars only. Citations or impact on courts (it's all the same thing to counters) is irrelevant. Your school could have 27 Supreme Court citations and 13 citations in the Bosco State Law Review and your schhool would be ranked higher in impact than a school with 0 Supreme Court citations and 14 Bosco State citations.

I thought initially that the authors were pretty good at counting but I am not so sure. For example,  if you are the editor of a book of, say, 30 articles, you (and your school)  will be cited every time one the articles is cited, regardless of your contribution, including if it was strictly administrative. If you an editor or coauthor of a prexisting treatise or book of any kind, you are cited and, thus, have had an impact whether or not you had anything to do with the material that is cited. In fact, I am beginning to think cite counting may be the worse measure of impact.

In some ways, the St. Thomas effort may reflect too much time at the counting punch bowl. First, in an effort to illustrate that scholarship does not interfere with teaching,  they cite studies showing the absence of a negative correlation between writing and teaching "quality" which is measure by -- you guessed -- student evaluations. My personal hunch is that writing does not detract from teaching but,  I wonder if they missed the numerous studies showing that teaching evaluations by students are rarely correlated with actual learning. What I took from their analysis is that writing was consistent with being a good entertainer in the classroom.

Second, as a demonstration of their objectivity they select the most recent 5 year period completely arbitrarily. As best I can tell this is done for ranking the schools as well as individual faculty. I am not sure it makes sense for ranking schools. For individual faculty, it is to reduce the impact of oldsters like me. In a sense this makes individual rankings more current although one wonders about the difference between one or two citations without regard for judicial citations or the nature of the citation -- in text, an aside etc. (This is all the less excusable since WestLaw now includes cites by scholars, judges, administrative agencies and even documents filed with courts.)

 The problem with simply counting arises more importantly when they include  new lateral hires who have written nothing or very little at their new schools. What does this mean exactly?  The only thing that it can mean is that the school that was left has less scholarly impact (but how could it?) even though every or most citations are to  works produced at that school. At the same time, the new school gets impact credit even though that particular scholar has written nothing (and may never) at the school to which the impact is now assigned -- so much for the accuracy of counting and ranking the scholarly impact of school or even its current faculty.

Since they must defend the citadel of counting,  they are obliged to take on a recent study by Amy Mashburn and myself attempting to determine not counts (which are highly correlated with where you teach, where you published, and where you went to school) but whether you were cited for anything that seemed to influence another author. I guess you might all this "actual impact" as opposed to "faith based impact" on which citation counting is based. No doubt our effort is fair game, as is any subjective effort. And, as you would also expect from legal scholarship cheerleaders (all of whom are  on the team and almost none of whom are not law teachers)  we are accused of being too conservative in our labeling. For example, if someone quoted someone else as saying "the common law is complex," we did not regard the author of that incisive statement as having a significant impact on the citing author. We were even criticized for selecting a sample composed of the articles most likely to be cited and to have an impact. That critic, who was uncomfortable with our findings, actually suggested a sample of articles that would result in a worse outcome in terms of "impact."
In our work we were particularly worried about hearsay and appeals to authority.  For example, how about this: "Citation counts objectively measure impact," with the following footnote:"See David L. Schwartz & Lee Petherbridge, The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study, 96 CORNELL L. REV. 1345, 1354 (2011) ( saying in study of citations of legal scholarship in court decisions, “measuring the use of legal scholarship by measuring citations in opinions has the benefit of being a fairly objective measure”); Arewa, Morris & Henderson, supra note 7, at 1011 (referring to “objective criteria such as citation counts and the Social Science Research Network (SSRN) downloads” for peer review  of faculty scholarship, although acknowledging these “are not perfect measures either”)."

This is from the St. Thomas article. In a citation count, these citations will be as important as ones noting works the authors actually grappled with. But what are we to make of these citations. Did they influence the St. Thomas authors? I doubt it. Instead it looks like an appeal to authority without any real examination of whether the "authority" is "authoritative." At also represents, unfortunately, a norm in legal scholarship and, also why it gets so little attention outside a small world. What it means is "you should believe me because I found someone who agrees with me."But who knows if they know what they were talking about?  It is, at best, a substitute for real research.  Indeed, when my coauthor and I tracked down some citations, those cited were citing a third party who also cited someone farther down the line. That amounted to a hearsay appeal to authority.

The Mashburn/Harrison work has received a fair amount of attention and, surprisingly, most of it has been favorable. (In their hearts law professors know.)  In that article we challenged defenders of counting to redo our study. The St. Thomas group did not do this opting instead to decide it cannot be right because -- well, just because. Moreover,  no one challenging our work has opted to prove we are wrong by selecting an article and indicating how each cited work was influential or did not fall in the hearsay category.

The bad news is that that the authors may be right. Citation may equal impact. If so, based on the research methods widely used by law professors, we are in even bigger trouble.

And, finally, and this time I mean it. Suppose citations do equal scholarly impact. One law professor influences another and so on. There is hardly anything useful going on unless that impact is felt somewhere outside their closed group. Unless you assess that, you have no meaningful measure of anything.

Wednesday, August 19, 2015

What Do I Tell My Friend?

A friend of mine just took job as the head of a corporation which is owned by another corporation. The parent corporation knew its subsidiary needed help and my friend understood this. No one mislead anyone.

But when my friend arrived at the new job here is what he found:

1. Employees were responsible for the product lines to be offered and they always selected the products they personally liked  whether or not there was a market for them.

2. Some employees were paid for full time work but were, in fact, only working part time.

3. Some were paid who actually were never at work.

4. Prior management knew all this but did not address it for fear of a revolt among employees.

5. Instead the prior management was weak and made secret side payments to employees for "extra work" as defined by the employee.

6, If  prior management made any effort to address issues, the employees closed ranks and defended each other.

7. When employees feared one of there product lines might be examined they formed into bands designed to spread disinformation about management and its motives.

8. The subsidiary was consistently out of compliance with some of the basic rules of the parent corporation.

9. The corporation kept no written records.

9. It was impossible to fire anyone regardless of their lack of production.

What can he do?

Monday, August 17, 2015

How Not to Lose Your Tenured Position

[Rerun] Over on Faculty Lounge and to some extent on the Caron Tax Blog a discussion has broken out about what to do with all the old (and privileged)  folks in law teaching who are clogging up the system so all the young (and privileged) folks who want to be law teachers have a hard time getting those plum jobs. My view? I'm just happy to observe the intraclass warfare.  As the John Revolting character said to the Christian Slater character in "Broken Arrow" when he set off a small nuclear device, "Ain't it Cool."

In the course of the discussion (I'd link to it but have no idea how to link to a comment) someone made a comment like "Young or old, let's have standards and if people cannot keep up, out they go."  Orin Kerr then writes: "Can you say more about how/if you would do that in a way consistent with tenure protections? Would you say that failure to reach a minimum productivity level is "good cause" to fire a tenured professor, and if so, what kind of standard would you propose? Or would you end tenure protections first?"

 And, right there we have the issue, don't we. I like the ways he phrases it -- "good cause." I think of it as "for cause."  When we think about tenure the running joke is to lose it you have to do something really awful -- kill someone, rob a bank, sexually harass a student,  Simply punching a student is not enough. In fact that gets you a paid vacation. Being a God-awful teacher is not enough; stealing from the school is not enough. In fact, and here is my punch line:

There is nothing connected to actually doing the job or not doing it that can be a basis for dismissal.

Think of this in the context of other jobs. If you delivered mail, you could be fired for punching the boss but never ever for putting the wrong mail in the wrong box. If you were a meat inspector, you could get fired for shop-lifting from WalMart but never ever for simple stamping as OK, rotten meat that then makes 1000 people sick. A physician could be canned for getting drunk and smashing his Porsche into a pedestrian but not for performing an accidental lobotomy.

I'm thinking. What kind of job security is it that says the main thing you can never be fired for is screwing up on the job you are being paid to do? 

Wednesday, August 05, 2015

Laughter and Respect

I am experiencing a relatively rileless summer. Some have noted that this is correlated with the departure of side-deal dean. I tell them correlation is not causation but, on the other hand, it does not rule out causation.

But this is not really what this post is about. It is about two different things. Yes, two for one and if you call now, you will get a pocket sized fly fishing outfit. Operators are standing by.

Laughter Lately I have been thinking a lot about laughter. It's that odd hacking sound people make when they find something funny. Surely evolutionary biologists have looked into this. What is the  function of genuine laughter? Why didn't we evolve to click our teeth  or flex our toes.

An aspect that is particularly interesting is laughter inflation.  It has devalued real laughter. I am talking about social laughter which is not an involuntary reaction at all.  It's a way to recognize others, make yourself seem impressed or non threatening, or just a way of saying I am jovial, fun loving, or what ever. It is a form of signaling. So, instead of saying "Hi, I am Phil, this what I want you to think I am like," you act it out.

I notice this at faculty meetings where there is a fair amount of nervous laughter -- "yes Phil, I am getting ready to say in coded terms that you are a idiot but I am just a nice guy." See, hear me laugh --ha, snort, ha, ha!

I was on a ship the other day and seating near a group of 10 guys just getting to know each other. It was either a laugh riot or a laugh off. Everyone seemed to signal to others that they were good guys by laughing at whatever anyone said that was within a mile of being funny. I think there must have been prizes for first laugh, loudest laugh, longest laugh, and last laugh.

After several days of meals and several hours of hanging out with each other, I noticed the laughter was infrequent. Did they all use up all their jokes? Naw, after about 40 hours of eating together the personality "marking" was over. Each had done what he could to communicate why he was likable and the other had bought it or not. The "laughter" had served its purpose

I also see it with my wife. It's  never in response to anything I say but in response to someone she does not know that well. They can say,  "Do you want a nickel, go get a pickle" and the deep laugh comes on and goes on forever or maybe it just seems forever.

Now laughter is spoiled for me. Am I laughing because it is funny or is it signaling? Are you laughing because I am funny or because you are telling me something about yourself. If it is the latter, please keep it to your self or email it.

Respect: A little over two years ago I wrote a post in which I said I respect people in inverse relationship to their power, status, and income. Yes, there can be false positives and false negatives but it's a really good starting point.

One of the things that can help you spot false positives and negatives is the way people treat secretaries. This is not fool proof. Some will be sweet as can be because that is the way to get what they want. On the other hand, those who treat secretaries badly drop off my chart of people who deserve even an atom of respect. In fact, the first level of a**holes on your faculty are those who treat the secretaries in a disrespectful manner. You might be surprised about who is "outed" by the secretary treatment check list.