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.

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.)

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.

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.

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.

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.