Ethics, Citations, Gaming the Law Ranking System: The Circle of Deceit

I was chatting with a friend at another school and the subject of an up and comer in a mutual area of interest came up. In the midst he suggested he had questions about the ethics of the up and comer. I pressed him and his story was that he had run across a footnote in the up and comer's work that did not seem right to him so he looked at the cited source which actually was just another law professor making a more general statement. Then he looked at the work cited by that law professor and found that the statement was not supported. He felt the up and comer should have checked to see if the person he cited had any basis for his statement.  Of course, now that the up and comer has made the same statement, it is likely that will be cited and the incorrect information will be carried forth until it becomes truth when if fact it may never have been fact.

This raises the issue of the care that goes into citations and a small irony. Law review editors want authority for virtually any declarative statement in an article. On the other hand, they do not seem that concerned about the quality of the authority. Consequently authors can write that declarative statement and suggest that it must be true because another author said so and, of course, that author cited another author who cited another one.A vast amount of law review writing is build on a stack of hearsay. I am not sure the hearsay citation raises an ethical concern although, before citing someone, you can argue that an author has an obligation to assess whether that person he or she is asking the reader to depend on knew what he or she was saying (especially if others have said the opposite). Think of it as a reference letter recommending someone you barely met. When I think about it in those terms, I'd say it does raise an ethical issue. Perhaps it is this type of research -- find someone who said this somewhere and cite it-- explains why legal scholarship is often viewed as inferior.

The hearsay citation matter and over citation  feed into another problem. As most know, law reviews are ranked and those rankings are determined in large part by citations to the review. The more citations and, perhaps where cited, determine a law review's rank and the law review's rank becomes the the driving force in selecting articles.  Thus, when a manuscript arrives editors look at the school where the professor teaches, the source of his or her degree,  what he or she has published, where it was published, and how often that author has been cited. Articles of equal quality bubble up and down the law review ranks depending on these factors and the cycle continues. Those that did rise to the top by virtue of institutional authority and the law review's own obsession with rank, are cited more often and those sinking down cited less often. And the cycle goes on. And on.

In the past few years many have accused law schools of being unethical with respect to what they disclose about the legal profession and what they do to game in the rankings. The apples do not fall far from the trees and in my view law reviews that do any of the things listed above are also gaming the rankings. It becomes unethical when they solicit articles without disclosing exactly what their selection process is like. But, there is good news too. Since so few people, aside from those of us in the law school terrarium, care at all about what law professors have to say, the damage is not as great as it might be.

Inside Dean Candidates: Pandering, Apples, Experience, Hard Decisions

When a law school looks for a dean there is always the possibility that inside candidates emerge. For some there is no chance. Are there any at my school right now? I know some people able to do the job who have emphatically said no way. Otherwise, I do not know.

Having gone through many many dean searches led me to think about the ups and downs of inside candidates. If they are viable at all they have a head start because faculties are afraid of change. In fact, people who are contacted as potential outside candidates are often less interested when it is revealed that there is an inside candidate.  It's not that anything is rigged, It's just that the insider will have friends and will be better able to discuss things people can relate to.

I am putting aside my misgivings about hiring anyone to be dean who wants to be dean. [Similar to my view on gun control: If you want one, you are disqualified from owning one.] I've never understood why someone who, in the interview, promised that his or her life ambition was to teach and do research all of a sudden decided they preferred management since, for the most part, none of they have managed anything beyond household finances in the past.

But that applies to all aspiring deans. Basically, they realize they are not who they thought they are and they  want more  money or have the perverse view that becoming  a dean is a promotion.

So back to inside candidates. Here are some guidelines.

1. Experience. Has the inside candidate occupied a position in which hard decisions were make and there was widespread faculty interaction. In that position if everyone came away happy, do not let this person become dean. Many law school decisions are, in fact, zero sum.

2. How long has the inside candidate been at your school and how many deans has he or she worked with. This falls in the apples not falling from the tree priblem. If the candidate has seen a limited version of deanships then expect prior styles to be repeated. What else would the candidate learn from? So, if last dean was terrific there could be more of the same. If the last dean was subpar, expect more of the same.

3. While a faculty member did the candidate always check the way the wind was blowing before making a statement or were most statements things like "Great idea," In other words if the candidate was unwilling to stand up for anything controversial then get ready for a dud of a dean. A faculty member who has been campaigning for years is not who you want. The campaign to please the right people at the right time will never end. So think back, can you call any position he or she took in a faculty meeting with conviction?

4. Has the candidate shown any sign of "not technically a lie," or arrogance, If so, steer clear. This includes odd memory lapses.

5. Is the candidate fair minded or  a turf protector. For example, if he or she has been in charge of a Center, Institute, or Program and, in that position, closed it to questions and people in the interests of maintaining control, this is not a person who understands that his or her needs are secondary to successful operation of a law school.

The Table I Built, Law Schools, Hospitals, and Hard Choices

It will come as news to no one that law schools have high fixed costs in the form of tenured faculty salaries. In fact, as applications and admissions fall these are rapidly becoming what regulatory economists call stranded costs.  You can think of them as hospitals that have overbuilt and have empty beds.

We also know that one way law schools are dealing with costs that would otherwise be stranded is to admit students who they would not have been admitted ten, five, or even three years ago. You could think of it as welfare for law professors at the expense of taxpayers and students who incur massive debt.  Since high GPAs mean little these days, the focus is has been on low LSAT scores. I do not know the details but it seems that, once a score falls below 150, the risk of success falls and the idea of admitting students  in the low 140s is especially troubling. But the schools need the revenue and so it goes. It's not that different from hospitals who, before insurance companies cracked down,  also needed the money and admitted people who did not need to be admitted and kept people longer than necessary for fear a bed would be empty.

People who write about law schools and are self appointed protectors of potential law school applicants moan about the ethics of admitting students who are in these high risk categories. There is a catch though. Like all averages, they know which students are at risk but not which ones will fail. In fact, I am sure there are many students with borderline LSAT scores who have done well in law school and even gone on to pass the bar, practice, and even do so ethically.

It's way too easy for the hand-wringers to wring their hands about admitting these students. This is especially true if applicants understand that risk goes up as scores go down. Just which students with a 145 LSAT should be excluded?  Should it be all of them? Should they all be excluded because some may fail? If so, should the hospital deny medication to sick people because it does not work all the time? 80% of the time, 50% of the time.  It is true that the side effects of law school can be nasty  but it is very hard to predict that on an individual basis.

No, what I sense is going on with the self-appointed protectors of 21 years olds who want to go to law schools is that they like the feeling of being perceived as as concerned  but not the feeling of actually doing the work to increase the accuracy of measures that predict law school success or step up to the bar to help students who would be much less at risk if law schools began assessing deficits and offering programs to address them. That would be work but no pub!

The Best of Deans and the Worst of Deans

If I have counted correctly and all goes well, the 8th dean will enter my career this fall. That tells me two things. First, it may be time for me to find something else to do; eight is enough of most things including law school deans. Second, I just may be in position to create from my 7 dean experience  the best and worst composite deans. These are composites because even my least  favorite dean had some good characteristics and my most favorite had some bad ones. So let's put some Lego pieces together and build two deans that never existed. Ten characteristics for each one.

The Best;

1. Has no interest in preserving the job unless that is consistent with honesty and transparency and making hard decisions.
2. Skin thicker than that on a rhino which means never doing anything vindictive.
3. Reads and attempts to understand the scholarship of others. Participates in scholarly matters like a faculty member.
4. Does not rationalize why what ever exists is "fair" but has an honest sense of what is fair and does everything possible to work toward that end.
5. Does not avoid unpopular decisions that must be made by assigning them to the faculty to decide.
6. Raises money with dignity.
7. Requires faculty to justify expenditures.
8. Keeps faculty meetings on track by controlling over talkers and those off on tangents.
9.  Does not act as social director by asking everyone to come on over and have  beer or by announcing every  birth, death, graduation, marriage,divorce, of every faculty member and his or her cousins.
10. Does not encourage self promotion by congratulating someone for making the same talk the 20th time or being quoted in the newspaper.

The Worst

1. Puts keeping the job over all else because the only successful dean is one who lasts a long time.
2. Responsive to complaints based on how embarrassing it would be if the news got out regardless of the validity of the complaint.
3. Appoints committees likely to silence views he or his  confidants do not want to hear.
4. Never ever misses a photo op and makes sure he is in the middle.
5. Adopts a defensive posture and hunkers down whenever a difficult issue arises
6. Is uninterested in scholarship.
7. Never does anything because it is the "right" thing to do.
8. Appoints associate deans based nothing indicating the person is qualified but on the basis of the likelihood it will preserve his/her deanship.
9, Is vindictive in decisions about raises, teaching assignments, etc. And rewards those who "play ball.'
10. Responds to tantrums, threats to leave, or sue.
11. (There have to be more that 10 for "worst" because there are more a"bads" than "goods" among most.)  Too interested in the private life of faculty.
12. Master of the "not quite a lie"
13. Makes side deals with faculty on teaching loads, summer compensation, all based on unknown and unknowable standards
14. Claims that when problems arise it is the first he has heard of it even though 5 people have already raised the issue.

Plums and Deans

Last year my Law School went searching for a dean or maybe it was a certain person or maybe it was not a search at all. But that is not a good start to this post because actually the Law School did no searching.  Instead it was conducted by a 80K firm and a committee the majority of which were not tenure track law faculty or law faculty at all.   I bitched about the process because it seemed likely to find a DOA dean.  After all, no matter how much one says the Dean works for the President and the Provost, the faculty can fire the dean too.  In fact, in the last search it fired one before he became Dean. The President then fired the other two candidates, which the faculty had endorsed, before either of them became Dean. From the standpoint of a faculty member it was like going to a restaurant that had  only 3 items on the menu and the restaurant was out of two of them and you were allergic to the one they had or at least thought you were.

So less than a year later and another $100K search (evidently my offer to do it for a large pizza was declined) here  we go again. And as Jack Keroac wrote, ". . . and nobody, nobody knows what's going to happen to anyone beside thee forlorn rags of growing old.. . " BUT, this time it looks like there will not be DOA candidates or at least none that the faculty will fire before they arrive. Not only is there a search committee with a law faculty majority  but another faculty committee to communicate faculty concerns to the President directly. And a faculty member is co-chair of the search committee. After last year's bizarre hush-hush, faculty should not be seen nor heard, everything is on a need to know basis, I ain't say'n noth'n till I see my lawyer search I am very surprised.   I am not keen on the 100K but, this year at least, it is unlikely to be pissed away on a process that  is doomed from the outset.

But Florida's Central Administration has created an interesting situation. Last year the argument could be made that the failed search was on them. This year, if the Law School does not stick in its thumb and pull out a plum, the faculty needs to examine itself.

Is Legal Scholarship a Public Good? If So, What On Earth are We Doing?

I have often wondered on this blog what the public good rationale is for legal education. Is there a free rider problem when it comes to legal education? I do not see how. So, perhaps the rationale is that there is a need for legal assistance that is not reflected in the market because people just cannot afford it. There is a "need demand" but not an "economic demand." I've always suspected that publicly supported legal education is less about subsidizing less affluent potential clients than it is about a system for keeping legal fees lower for those who actually do have money and property -- sort of a reverse Robin Hood deal.

But what about legal scholarship? A huge amount is invested in it each year. From the public good perspective the logic would have to be that it would be "under produced" if it were not subsidized. The typical argument would be that no one would invest in legal scholarship even though it is beneficial because others could free ride off the legal research of others. So, everyone would sit around doing nothing while waiting for someone else to write about some critical issue and in the meantime all is lost.

Of course the public good logic has two steps. The first is that something is produced that actually has a positive impact on others. The second is that, since the writer cannot internalize the benefit of that positive externality, he or she will shut it down and the positive benefits will not come into existence.

My impression is that legal scholarship is very weak on both steps. I feel certain that some legal research does create positive externalities. But even here there are two problems. A positive externality probably depends on whether you agree with the information in the article. For example, I do not regard the massive amount of legal (and economic) research that led  the Supreme Court to reverse its view on Resale Price Maintenance as the source of a positive externality. Others certainly do. These are not externalities like cleaning the air or water. Their positiveness is in the eye of the beholder. The other problem is that the decision about what scholarship should be done that will lead to positive externalities and, therefore, justify the subsidization is made by narrowly educated people who in most instances have only a very limited feel for what investment in scholarship is most needed.  Instead they want to be noticed by other scholars.

On the second point, if legal research were not subsidized would it go undone? Some would but massive amounts would still get done. For example, where there is money to make by winning a case, convincing a legislature, or and administrative agency, the backing would be there. In fact, even huge and well funding non profit groups would finance legal research to support whatever cause they favor.

I certainly could be wrong on this but it would be only on the matter of degree, What I am sure of is it makes no sense to spend $300 million a year on research that should 1) generate positive externalities
and 2) would not otherwise get done and allow law professors to decide how it is to be invested.