Friday, December 30, 2016

Trump: Karma is a Bitch

When I was in college we raged against the war, some sincerely and some because it was the thing to do. Around the fringes (for whites, that is) it was also about race but I always had the feeling that Blacks knew in their hearts that whites were fair weather friends.  Toward the end of those years it was about gender and the environment.

Class was never the focus. It could have been different. If there was anything that characterized the war it was race and class. Minorities and working class kids fought the war and paid a huge price. Nevertheless, the movement against the war never really attempted to enlist working class and poor people. After all, they were not taking semesters off to study in Spain and they might have short hair because they did not have the safety net that permitted rebellion. (Is there was way to spell rebellion with an even smaller "r" or maybe it was just a middle and upper class temper tantrum.)

I've never really regarded the women's movement has having much to do with class, except by coincidence. Yes, data about wage differentials sweep in class issues but, for the most part, it is not what feminist focus on. Let's face it, the elitists who write about feminist issues are mainly interested in middle class and upper class women. Thelma, a single mother of 2 in need of dental work and who cannot afford to see any doctor other than the 5 listed in her plan (if she has one) is hardly the subject of many feminist law review articles.

And, what exactly was the plan environmentalists had for coal miners once the mines were closed. Or were they just collateral damage not to be worried about since they hardly count anyway.

Class has always been of very limited interest to liberals and Democrats.  After all, low class people are not interesting, have no eloquent spokes people, have not been to Europe, do not read the New Yorker, might have some acne scars, may be missing a tooth, wear clothes that are too loud or faded.  and you would not want your son or daughter marrying one.

Feel that pain in your ass that looks like Donald Trump? Guess what all you do gooders of the past 50 years. You just got a shot to the gut compliments of the people you ignored and walked over.

I once asked a friend why Law Professors were not more interested in issues of class. His answer, "It's too important."

Thursday, December 08, 2016

Your Loss, My Gain, and Purposeful Externalities: Rethinking Responses to Spite

David J.J. Wheatstone

               Schadenfreude and spite are similar in that they involve deriving pleasure from the misfortune of others. They differ in an important way that has implications for the law. For the most part, in the case of schadenfreude the pleasure is a windfall. The person finding pleasure in the bad luck or poor decision making of another may not play any role in bringing the events about that lead to the unpleasantness. Spite, however, means actually playing a role in making others worse off – purposely creating an externality.  In fact, in some cases, acting spitefully means both parties are worse off but the spiteful person is willing to pay to make the victim worse off because of the satisfaction derived.
               The fact that spite requires a cost and that cost leads to harm, even if only psychic, of another makes the phenomena different from other areas of law in which externalities are involved. For example, torts are often the result of one party attempting to save money by not taking preventive measures. In contract, the harm from a breach is a direct result of the benefits the breaching party seeks. The spiteful person is rewarded too but a different relationship exists.  The money saver in the case of torts or  contract breach would just as soon that the harmed party not be harmed. They derive no pleasure from that. The spiteful  person only derives pleasure if another person is worse off.
               From the perspective of the spiteful person, spite can be efficient or inefficient. Efficient spite comes about when the spiteful person gets more pleasure from the discomfort of another than the cost he or she incurs to bring about that displeasure. Two types of errors may occur. To illustrate take the case of someone who touches his or her brakes lightly to annoy a tailgating driver. The first is the inefficiency error. For example, you may touch your brakes lightly to annoy a tailgating driving only to see him or her speed off around you without a care in the world. There is little satisfaction in incurring the cost just to see the target actually benefit by your purposeful pokiness. The second error is a misperception error. You touch your brakes but do not realize the tailgater was in no hurry and actually did not even notice. In the spirit of “I’ll show him a thing or two,” you showed him nothing. In some broad sense is this not inefficient since you think you have incurred less cost than your target but pleasure is based on an illusion.
               Consequently spite can be put into three categories. There is actual efficient spite in which the  harm to the target and the satisfaction derived exceeds the cost. There is unrealized inefficiency in which the spiteful person assumes incorrectly that the harm exceeds the cost. Finally, there is the obviously inefficient spite in which it is clear to the spiteful person that the victim has not been affected at all.
               Regardless of the form and from a broader perspective it is difficult to justify spite on any grounds. From a purely ethical standpoint it means using others without their consent to satisfy one’s own ends. For those with a Kantian point of view, this is enough to take measures to deter spite. From a Rawlsian perspective spiteful behavior would be rare.  
Even those with an economic or cost benefit view will have to concede that there is no possibility of knowing whether spite driven activities do more harm than good. The person making the cost benefit decision about acting spitefully can only assess how the activity makes him or her feel and there may be a sense of a net benefit. For spite to be efficient, the harm to the victim would have to be worth it even after the spiteful actor him or herself internalized those harms.  In other words the sum of the cost to the spiteful person plus the cost to the targeted person must be less than the satisfaction that the spiteful person derives.  In effect the full cost, including internalization, will always exceed the external harm. That does not mean that overall all spiteful acts are inefficient. This all turns on how deeply satisfied the spiteful person is. A person who craves harming certain other people may actually get such great joy from harming others that even after internalizing the harm caused they would find it beneficial to act spitefully. Because spiteful people do not internalize the harm and might not act spitefully if they did and because, in any case, such an efficiency analysis involves a highly complicated and suspect interpersonal comparison of psychic cost and benefits, there is no economically based justification for permitting spiteful activities.
               In conclusion, by raising the cost of spite,  justice, in all of its forms, is advanced.


Announcing a New Law Review

Yes, what the world needs now is a new law review so here it is. The Class Bias and Random Things Law Review (Class B. & Ran. Tgs. L. Rev.)

This is online referreed journal that accepts only works (meaning not just articles but poems, short stories, drawings, photographs, etc.)  that are short and without footnotes.

Single submissions only but guaranteed turn-around time less that 24 hrs and publication within the next 24 hours.

Wednesday, November 30, 2016

Scholarship, Rush, and Still Waters

I ran across the term "normative scholarship" in an article in the Journal of Legal Education by Robin West. It is, of course, and I think she would admit, an oxymoron. I've looked up every definition of scholarship I could find and no where is there any mention of normativity. Scholars search for information, inconvenient and otherwise, and report it. When they do, it is scholarship.

When they add the "should" element, it stops being scholarship and it becomes advocacy. This is not  true just of your run of the mill article in which someone tries to convince you that the position they hold is the "right" one (usually by reporting what others have written that supports that position and not reporting what does not.) It also applies to any empirical work in which the author interprets the results with a certain "correct" spin without coming clean about other possible interpretations.

This is not to say no law professors produce scholarship. Some do. And, this is not to say all normative scholarship is bad. But it is to say that it is not scholarship, it is advocacy. Why don't more  law professors do scholarship? The easy answer is they do not know how. They were not trained to be scholars. That is not good enough. All of them were law students and all of them, I hope, were taught to be critical thinkers. Even on their exams I think they were told to spot the issues. This meant exploring the strengths and weaknesses of both sides of the issues. I am going to make the not so wild assumption that every law professor did well in law school and that every one learned to be critical even of his or her own thinking.

So, did they become advocates by practicing law? That does not wash either. Anyone who wrote a brief in support of one side of  case certainly, if he or she hoped to effective, thought of every response to the arguments and reasoning presented.

If law professors were critical thinkers when they were students and had to be critical thinkers to the extent they practiced law, how did it evolve that they lost the one ability that distinguished them from politicians as well as the Rush Limbaughs of the world? What exactly about being hired onto law faculties qualified them to be moralists? Is it just arrogance that propels young Jane or Timmy into thinking making high grades at an expensive law school made them minor gods? In fact, nothing made them any more qualified to say what should happen than (dare I say it, oh what the hell) that orange guy with the dead dog on his head who will soon be President.

But here is the good news. In the vast uber vast number of instances their moralizing goes no further than other law professors who share the same points of view. Their scholarship is like a pebble tossed in a pond and results in not a single ripple. In legal scholarship, still waters run deep.

Friday, October 21, 2016

Faculty Governance (Capture) or Student Welfare

[At my school there is an interesting dialogue about faculty governance. It includes many issues: Do we have faculty governance? Have we ever had it? If we had it, did it serve the interests of students] There were a number of exchanges and, with permission, I am uploading this one by an anonymous faculty member.]

As you can see from the various mailings, I am at odds on the faculty governance issue with
 Linda, Jake, and, I expect, a majority of the rest of the faculty. Linda and Jake are two of the
 people on the faculty I respect the most and so I believe this really is a disagreement about 
principle and not anyone’s pet project.

The heart of the argument by Jake and Linda at one level is that faculty governance works 
and has worked well in the past. At another level I read their argument to be that faculty 
governance is an end in itself that must be protected even if we do not like the outcome. 
For example, we would not end our democracy even if Trump were elected. (OK, actually
 I would.)

My view is quite different and it is that type of governance that best advances the goals 
of the law school – which I take to be the welfare of students and other shareholders but 
not faculty except as a means to an end –is the one to adopt. And that might change
 depending on the dean and the ability of the faculty to internalize the goals of the 
institution. This disagreement is about as fundamental as it gets.

I firmly believe faculty governance at the law school has failed as a means of improving
 the lives of students and stakeholders as much as possible. Probably the turning point
 on this for me came 12 years ago. Jon, in his last year, I think, appointed a programs 
review committee. During deliberations I heard from more than one person on the
 committee that some proponents of various programs, centers, etc., would not 
cooperate in presenting full information about their programs. The committee spent
 a year or longer reviewing every program except I think CGR and Tax that
 were off-limits. Bob then stepped into the deanship and the hard work of the
 committee came to naught.  It is possible that one of the numerous programs was 
eliminated and it was no coincidence that it had but one proponent. When Bob pulled 
the plug on the programs review it was clearly an instance of faculty governance. 
Since then I do not have enough fingers and toes (and I have all of them) to count 
the number of times in casual conversation a program, speaker series, center,
 concentration, course has come up and the second line of discussion, after the issue
 is broached, is “but Jack, Jane, Stu, Bill, Cosmo, will be unhappy.” That has become
 our form of faculty governance – if enough well-like peopled will be upset, we do 
not do it.  Rarely do I hear discussions that focus on what is best for others.  
 For faculty governance to work faculty have to  internalize the goals of the institution over self interest. I believe a majority of faculty here do this. They are actually able to vote in a counter-preferential way for something that may make them personally worse off. A critical mass though, does not do that. Instead the question is how does this affect me, will my center be eliminated, will I still get to teach my pet course, can I still select my speakers, will I still be able to spend summers of Vermont, will I still have the title of director, will this encroach on my research time, will I have to grade even more papers, will I have class more than 3 days a week, etc. I do not know what size that group needs to be to distort the process but I believe we exceed it. And with our history of door-to-door gossip, exaggerations, and egging each other on, that group has disproportionate power. I cannot identify the group because it can shift and likely includes me at times. It is difficult to escape the powerful influence of self-interest.

To me, working faculty governance means adopting a veil of ignorance perspective in a Rawlsian sense. As you know, behind the veil you do not know how the decision will affect you personally. Behind our veil we would only know one thing – our decisions can positively or negatively affect students and stakeholders. And, I would add we should assume that all those stakeholders are our children or loved ones for whom we want the best possible outcome.

In any case, would anyone in his or her right mind allow a group dominated by over-affirmed, elitist, children of privilege to govern anything that touched on the lives of real working people without some assurance that their values were aligned with those most directly affected?  


Wednesday, October 12, 2016

The Chronicle Comes to Florida

OK, this is really important. I mean What the Fuck. According to the Chronicle of Higher Education my dean uses profanities. We cannot tolerate this shit! Actually, to tell the truth, I can tolerate it and I want more.

 Today I did  read with some interest the long article in the Chronicle of Higher Education about UF Law. I'd provide a link but the article is in the premium section and you need a subscription. I actually do not have one but got a copy anyway.

According to the article, the Dean here yells at people and frankly I am really pissed off about that. What do you have to do around here to get yelled at? I have tried and it's beginning to look like a conspiracy to keep me from getting my fair share of yelled-at-ness. Is it because I am male?

Speaking of conspiracies as I was just in the last line, according to the article, the Dean has the Associate Deans spying on faculty. I've checked my office for bugs and other Jack Bauer devices. Nothing. Not a damn thing! What do you have to do around here to be spied on. I am beginning to feel that I am not getting my fair share on spied-on-ness.

No respect at all!

According to one person the reporter spoke to, the dean is "degrading" us. Now I could be catty and say "no, maybe you finally got the grade you deserved" but I am not saying that. Forget you read that.  I do not care to be degraded but I wonder if she could go over my paper and tell me what I did wrong so I could do better the next time (and, by the way, if you could raise my grade, that would be OK too.)

But there is even more bad news, according to one colleague, with a very short memory, this is the "most distressing" he has ever seen. Wow, I guess he fell asleep during the last administration during which everyone was respected, got their grade raised, and the ship was sinking with all hands aboard. (and which led to the highest bar failure rate anyone can remember.)

How about this one.  Allegedly, someone said it was like the Dean came into "your house" and moved everything around. First, since when did a law school belong to the faculty? Second, what if the house is falling apart?

When I think of the Dean at Florida and her actions so far I think of the saying, "It's not a revolution if you ask permission." I wonder why the sample of people who talked to the reporter (many of whom remained anonymous just as they do when spreading gossip  office to office as opposed to the Chronicle) think they were entitled to give or withhold permission.

Tuesday, October 11, 2016

Allocative and Distributive Effects of Shared Governance

Just had to leave a faculty meeting on shared governance of which, according to some, we have too little. I, as usual, disagree and think we have too much. In the shared governance peak of my law school we  had all kinds of odd programs that seem more designed to please individual faculty than to actually advance the interests of shareholders -- students, taxpayers, the public. Makes you think twice about shared governance and it makes me think about copyright law.

As most people know, the Copyright Act is long. The goal of copyright is to encourage creative efforts. If you took the Act, about 1/20 of it, at most, has anything to do with encouraging people to be creative. The other 19/20 of it are about who gets the dough when they are. The difference in economic circles is between allocative outcomes and distributive ones. Allocative means increasing general welfare (or the size of the pie) and distributive means cutting up the pie even if it means a smaller pie.

What does this have to do with discussions of shared governance -- everything. A faculty may meet to decide whether to hire someone. Mr. Allocative might think "will this person make the school better for the students and others." Mr. Distributive might think "Does that candidate agree with me politically and will she want to teach something I teach." Or suppose it is a new foreign program in the South of France. Mr. Allocative would think, "is this the best learning experience we can offer for the money." Mr. Distributive, on the other hand, could think, "I'd really like to teach in France in the summer" or "If I vote no on this, Phil (sponsor of the France program) will never vote to approve my spring break program in London."

Now suppose you have a faculty of 60. Some are Allocative -- they want to increase the quality of the School in the best possible sense -- and some are Distributive -- constantly making sure they get as much of the pie as possible. If the are all Allocative, shared governance make sense. If the are all Distributive, shared governance means reliving (or living for the first time) something out of the Lord of the Flies.

Unfortunately, it is not that easy. Suppose the split is 80% allocative and 20% distributive. This may sound like a good place for shared governance but like I said it's not that easy. If it is a tough issue and splits the allocatives close to evenly, the distributives will determine the outcome. Luckily, many decisions are not that close and with only 20% distributive things may work out. This just begs the issue, though. Where is the tipping point? What proportion of a faculty can be distributive minded and still be entrusted with the obligations of shared governance?

Monday, October 10, 2016

Pigs in Blankets, Trumpian Truths, Wanted Truths, and Law Faculties

What are Trumpian Truths? These days I hide from CNN and Presidential debate but even I know what Trumpian Truths are. They are misrepresentations (lies, exaggerations, etc.) that people believe because they want to even though if put to some sort of life and death test they would admit that they do not really believe it. So, let's say Donald says "HRC is responsible for 9/11." Some people, desperate to hate HRC, believe it or act like it is true. In acting like it is true they repeat it and it becomes real. Unfortunately, people used to believe anything that was in print. Now some people believe anything that is spoken as long as they want to believe it. And, yes, here I am again on my rant against faculty gossip and the gossipers.

Sometimes a Trumpian Truth is wrapped in a layer of deniability, something like a pig in an blanket. Call this a Trumpian Truth with a Side of Deniability. It would go something like this: "I recently learned that Hillary was responsible for 9/11" or "Many people are upset about HRC's involvement in 9/11." So, the repeater cozies up to a lie and veers off at the last minute. They may or may not have heard exactly what they repeated. As listener you cannot say he or she has lied or, in fact, that anyone has lied. Maybe the originator said, "Well at least we are pretty sure Hillary had nothing to do with 9/11" which then becomes "I heard we cannot be sure Hillary was not involved in 9/11" which then becomes "Hillary might have been involved in 9/11" and ends up at "I've heard that Hillary took part in the planning of 9/11." And, of course, the haters act as though it is the truth because they want it to be the truth.

Yes, now you recognize it as very close to gossip and how gossip is invited and consumed by those who want to believe. Some time ago I saw this in terms of homophobia. The pig in this case was "Jake is homophobic" but once wrapped in its blanket it became "I was told Jake was homophobic." So the speaker knows not to go full Trump because that would mean accountability. Plus, maybe someone did say Jake was homophobic or they at least they heard Jake was homophobic or they thought it was possible Jake was homophobic. In fact, we could all be homophobic so I guess you have now heard that we cannot rule out, dear reader, that you are indeed homophobic. How does it feel?  Ah yes, law school gossip. It has more legs than a conjoined caterpiller.

 In some case, the pig is not only in a blanket but coated with a crust so you have double deniability. How about this one for a starter "If accurately portrayed, I believe an informed observer would deem these measures to be of academic character and to constitute a downgrading of the . . .  program within the college" Yes, I am not kidding, a very worried person and litigious I suspect (but do not know) because who else would be careful enough to invoke double deniability. Does not know the facts but heard them! Evidently no effort to verify them. Does not necessarily think this but maybe someone would! So, what the hell, I'll tell you what someone else might think about something that might have happened.  

[By the way, while I am at it, "if it is true that Jeff  was seen wearing women's clothing a reasonable person [not me God forbid] might think Jeff is transgender."] 

Why say anything at all if you do not know the facts and can only speculate about what someone would think? Herein lies the Trumpian connection. Law faculty members do not lie outright, nor did this one. but they will throw some bait out  there so those that want to believe have something to point to as the basis for wanted beliefs.  To me they are no better than Donald himself, maybe worse. Donald, at least, has balls. 

Saturday, September 17, 2016

The Trumpian Approach to Discourse at Florida

A few days ago Rob Rhee wrote AND SIGNED a  report that was highly critical of Florida's LLM in tax program. To be honest, the wording of the report bothered me just a bit. I like to hear the analysis but I want to come to my own conclusions. On the other hand, the general reaction to the report makes the Trump campaign look like reasoned discourse as opposed to the mob scene it is. Disgusting is one word I hear. Misrepresentations is another. And then there is the hacking-like activity of sneaking around the faculty copy machine to send out anonymously copies of the report and posting anonymous comments.

There are two reasonable responses to a report like Rob's. You can disagree with the numbers, all of which came from the Tax Department to the extent it has kept records  or the Chief Financial officer of the Law School who scores a ten in the competency and honesty departments. Or you can claim that his assumption that the tax program should general a profit is wrong.  Since I do not understand why taxpayers should subsidize a program that trains people to assist people and businesses with money to  avoid paying taxes, I personally think it needs to generate a significant profit. But we could debate that and I already know some good counter-arguments.

Privately several members of the tax faculty concede that it needs to modernize. A starting point was to assign it to classrooms that fit the number of people enrolled and to find a director to ensure the program flourished. These changes and others were unacceptable to some and the Trumpian, name calling, and accusations of distortions started. Those most terrified by change and most willing to sacrifice the program to suit their personal desires revved up alums many of whom did not need to hear both sides of the story because, like Trump, their heros could do no wrong. They had joined the ranks of true believers for whom truth was irrelevant.

Like I said, if people support the UF tax program they need to deTrump their approach and put on some evidence that disproves Rob's points or makes a compelling case that he has misunderstood what a graduate tax program should do. So far I have seen one commentator do that. Frankly I could be convinced by either approach, but as long as the best supporters can do is name call and attribute motives to Rob Rhee (who cares if he has a ax to grind if he is telling the truth) I have no choice but to assume they have nothing to say. There is plenty of "deplorable" behavior afoot but none of it is Rob's.

Friday, September 16, 2016

UF TAX PROGRAM: Messenger Beware and POST SCRIPT

Over on on tax prof blog Paul Caron has dropped the bomb as far as UFs LLM in tax program. He has published excerpts from a very thorough report by my colleague Rob Rhee. The news is not good. If I hang out the dirty laundry of UF Law, Rob has more or less uncovered a nuclear waste site. Since I am always a cynic especially when it comes law professor reports and while I trust Rob and sincerely believe the program is in many ways caught somewhere is the 1950s, I also think the quality of what the program did in its prime was unmatched. So I am not in the mob that evidently thinks law professors should not speak what they see as the truth. Nor am on the side of those who think the Program is dead or have its plug pulled.

On my blog I generally focus on the craziness of the behavior of those who feel entitled -- law profs. This incident appears to have more irrationality that the typical brouhaha. For example, it started with people supporting the program spreading  rumors that there would be changes and making it sound like it would be the end of the program. While doing that they exposed the weaknesses of the program. I think there is a term for this that has to do with pooping in your own nest.

So that got the alums all in a tizzy because the program seems to have a fraternity like shtick going -- great camaraderie, many group photos, lots of glad-handing -- "How is your mother-in-law's poodle doing. I'll never forget that day at the lake."

Rob's report was, as far as I know, initially distributed to tax people. Within a day or two someone -- most likely a tax supporter -- sent it to Paul anonymously. And now the world knows about Rob's report. Sure, it was a public document but, since the anonymous email came from a law school fax machine and only tax people got it first, it appears that pooping in one's nest is too mild an analogy.

But it gets crazier. Now that the word is out, the plight of the tax department is apparently Rob's fault. Or even worse the Dean's because she did not stop Rob. Yes, like she could have ordered Rob to stop his work, which, by the way, I think was prompted by the misinformation already out there courtesy of the nest poopers. I guess she should have stopped that misinformation too.

Wait it gets even crazier. So the response is not that Rob is wrong but that Rob is a traitor. Remember people, these are law professors. As far as I know there are no briefs in the works that disassemble Rob's work. In fact, some of the data amounts to simply counting. Nor does there appear to be an effort to address the ills he identifies -- you know, like cleaning the nest up after the fact.

So far the response seems to fall in two categories. 1) Rob you have been a bad boy as though Rob should have looked the other way when he saw an accident and 2) What poop? Not a productive start to saving what was once UFs star program.

After I wrote this comment:

1.There is on tax prof blog an excellent rejoinder to Rob's report in the comments.
2. There have been calls to fire Rob. For what? Speaking his mind? Sending out a report? My goodness one of the few times a law professor actually makes use of academic freedom and there are calls for dismissal. Jeez!!!

Wednesday, September 14, 2016

Faculty: How To Avoid Sinking Your Ship

When a law school ship sinks faculty are almost always the reason. That is because they behave like they have the moral development of a 4 year old. As an example, think of Kolberg's stages of moral developing. The first stage is a total individualized cost-benefit analysis. It reminds me of my 5 year old who was told by his mom he could have one cookie when she left. I spied him with 4 and when I asked about it he said "But mom is not here." This is also the law and economics level of moral development.

The second stage is when people realize their interdependency. For example, I will not leave my banana peel on the faculty dining room table because if everyone did we would have a slipfest. At this level of moral development full bore self interest is limitied a bit in the hopes that if everyone sacrifices the whole will be better off. According to Kolberg most people reach this stage but then again I doubt Kolberg ever served on the Titanic or on a law faculty or at least some law faculties.

So for law faculties stuck at stage of moral development and do not want the ship to sink, here are some hints:

Stop Listening: Virtually everyone of your colleagues has an agenda. Is may not be evident from what they say but relying on them can lead to some nasty results. So the guy next door to you has been caught red handed and his response the same old "poor me" ingratiating office visit. Stop listening to those whiners who come to enlist your aid by telling you half the story. Glaze over. Jump up and run out for a cup of coffee (also know as a "pick play".)  This rule goes double if they want the door closed while filling your head with their outrage or fear "for the school." Ignoring what they are saying almost always leads to a better outcome than taking it seriously.

Demand the Truth: Next time someone weasels in and you decide you will listen, demand the truth. As in "You really mean the Dean just up and canceled your class without explanation." "Are you really saying you did not call in a tip to Above The Law." "And the dean offered  no reason for why you might not be the best law review advisor the school can provide." "What, without provocation the Dean decided students should not have to write 4 papers to be on a law journal. Are you serious? Why would she do that?"

Stop Communicating: Really, it gets embarrassing. The less faculty talk to each other, the smoother the sailing. Everyone knows your story anyway. The Dean thinks your LLM program with 2 students may not be worth the resources and you complain because you have too much administrative work to do keeping up with those two students. Duh.  Just stop. No one cares unless this means they can enlist you to support their little wad of insanity. The Dean won't schedule your 8 person class on calcium buildup on ancient documents. No one cares.  Please stop it. Your communications especially to those outside the law school are patently self serving and destined to sink the ship with you on it. No one trusts you unless suspending their usual disbelief is in their self interest.

OK, Here is a completely novel why to think about it. All faculty are deckhands on the Pequod. The last captain ran the ship aground through inattention, cowardice,  indifference to anything but his own survival, and chasing an imaginary white whale.  The new captain comes aboard the now sinking ship and discovers holes in the sails and the keel and asks some of the faculty who are on the sun deck to stop tanning and patch the sails. The do not like that. "Tans are what we are known for. Just ask anyone," they say. "Oh and we are offended because you are being so top down."  She asks some of the crew who are fishing for now extinct cod, for which there is no demand even of they existed, to begin fishing for highly  demanded flounder. They don't like that because in the past they were so good at catching cod. And they add "YOU MUST NOT BE LISTENING. IF THERE WERE ANY COD WE WOULD BE GREAT AT CATCHING THEM." Eventually all these righteous faculty succeed in making the new captain walk the plank in public. In the meantime they dredge the ground under the ship so it can sink even deeper.

Ahoy mates!!

Tuesday, September 13, 2016

Hair Flip and a Giggle

It was not until I saw About Last Night (it happens about a minute into the preview of the movie)  that I realized the hair flip was an official female move. Thinking about that and the recent events at my school concerning possible sexism (see below)  made me recall when I first started law teaching over 35 years ago. I was on a large faculty that was nearly all men. Some of the women  relied on what I then called "Perky" to get along with the men. Part of perky was animation, hair flipping, bobbing around, and laughing at anything a man said that was within ten miles of funny. The hair flip queen of those days is now a VIP.

 I both disliked the perkers and felt sorry for them.  I disliked them because it was hard to be perky as a man.  Men who did not go to elite schools who were just as discounted as women had no similar tools. Somehow bobbing around and giggling led to being an outcast. No amount of hair flipping could overcome second rate treatment.  I felt sorry for them because increasing I realized the men on the faculty were eating it up and this was -- whether consciously or not -- a way to be noticed, to be invited to a conference (as a junior attendee, of course) or get one's name on an article or case book, (as a  junior author.)

Thanks goodness that the hair flippers and gigglers are now almost extinct and, as best I can tell, women in legal education, if no where else, get a fair shake. Of course, I cannot know if it is equal treatment yet but all indications are that it is heading that way with the exception of one possible worry I will address below. Even better is that the number of men susceptible to the hair flip has greatly declined. In fact, a colleague the other day expressed anger at a hair flip move by a female colleague. "Who does she think I am that that would work with me," he said.

While I happy to see the suppliers and demanders of the hair flip decrease it is not completely gone. Plus I have another worry that may or may not be justified and it may be that the events at my school are indicative of reason to worry. Recently blogs tend to announce with some fanfare when a woman has been appointed dean. It occurred to me that the case may not be that women have risen through the ranks to become deans but that the position itself has been demoted in the eyes of some men and women making it OK to "elevate" women to a thankless position. The outcome is that when the women try to assert the authority that men holding the job in the past did or just expect equal respect they are viewed as out of line, easier to criticize, and quick to be judged. Whether it is because they are women or because the job itself has been demoted, I do not know.

Wednesday, September 07, 2016

My Take on Young and Vivacious

It's been a really long time since I was called young and vivacious. In fact, I don't think I have ever been called vivacious because that is mainly for women. Thus,  using the term vivacious is sexist. Is it sexist to note someone looks young for the job he or she has? I don't think so. To me it is a complement along the lines of "you must be really accomplished to have this position at such a young age."

These issues have come up at my law school because the Dean wrote an article in which the decidedly  first world problem of being referred to as young and vivacious  became something of deep importance. She, in effect, named names. It was so important that she wrote:
"Even more so, I would love to hear [Frug's] thoughts on what those statements mean about current constructions of law professors, law school deans, and the legal academy as a whole."  It's all covered over on Above the Law in an uncharacteristically reasonable way.

ATL does a good job in one respect and an OK job in another. First, it notes that whatever points there were to be made could have been made without identifying the sources of the "hurtful" words. In fact, if the language really reflects on "current constructions of law professors, law school deans, and the legal academy as a whole" naming names is irrelevant. On the other hand, have you ever heard the statement that goes something like like "what goes around . . ."  There is a bit of irony or karma here and it takes some explaining.

Given the timing of the legal publication, I suspect she wrote her own "hurtful" words at virtually the same time as the incident occurred and perhaps would have second thoughts about whether the statements really had implications that stretched to the legal academy as a whole. A bigger sample than 2 might have been useful.

As it turns out, though,  if I have my timing and facts right, after writing those words and before the publication of the article,  the two people named have, in my view, done the most to prevent the Dean from addressing the many issues that need to be addressed to give students the best possible law school and post law school experience. In a sense there may have been reverse justice. She wrote the words and then later the culprits earned them. One could say justice works in mysterious ways.

ATL does a so so job when reacting to the criticisms of the Dean. Evidently she has been cited for almost slandering beloved people who are all around good guys. ATLs' response, before it spirals into a rant in favor of more political correctness than most can stand without throwing up, is how empty defenses based on likability or reputation are when people screw up. If you have convinced others that you are a great, moral, and tolerant person then by definition, you can do no harm. Obviously one does not follow from the other and perception that people are great, moral, and tolerant can be deceiving. I am more inclined to make those decisions after seeing what people do when others are not looking rather than what they do for public consumption.

Monday, August 29, 2016

The Best Job in the World

This is partly about me and not just about my faculty since I have heard these stories from many people at other schools. In fact, I've never visited a school at which I was not eventually cornered and told who the good guys and bad guys were.

Law teaching is a pretty great job. You are paid more than most academics (although this is lost on most law professors who have never lived the life of a real academic) and you get to do pretty much whatever you like assuming you are intellectually curious. A few times a week you teach a group of students and the only real downside is about two weeks of grading twice a year.

Cool job, right? So why do I see so many people who seem to be so unhappy. Drama is pervasive, Demands are made about the most trivial things. There are always conspiracies afoot. Someone else is racist, sexist, or homophobic, that is, if you listen to the gossip. High blood pressure is far from rare. Emails are sent that demand attention yesterday. There is never enough for whichever "me" you happen to be.

Is it the job or is that people cannot accept having one of he best jobs in the world? What is this with the office to office gossip, the complaints about the wrong room, the wrong secretary, and imagined slights? Really, do people need to be unhappy about something?

[Time out for a sec.  I need to see if the dean answered my email yet. After all, I send it almost 20 minutes ago and she has not answered. Who the hell does she thing she is!??]

[Sorry, I am back now but first I had to figure out why Jane's office is being painted. No one asked me about painting my office. What is wrong with these people?]

Ok, so what made me do that? Why bitch about the dean and feel slighted. Why worry about Jane's office since the paint on my office is completely fine and it would be more inconvenient to have it painted than it is worth.

Why roam the halls, trying to convince that that guy who blogs should not be hanging out our dirty laundry. If you get 10 people to agree with the obvious (of course he is hanging out the dirty laundry that's the whole point and maybe if it is hung out and it looks bad you will make it less dirty) where does that get you? He obviously does not care because he is so uncollegial. I really hate that blogger guy because he might be talking about me.

[Sorry, I need sec here to tell the dean that I gave an important talk to people at the highest level at the Gainesville Car Wash Society. Also I need to put it on my resume. Actually one person was not that high.]

Ok, I am way too pissed off about my job to keep writing this and I feel a high blood pressure attack coming on. Really, I am never treated fairly. This job sucks.

Saturday, August 13, 2016

Should Consulting Professors be Paid Less?

A recent article in the New York Times outlines how difficult it is to balance two jobs -- think tank scholar and representative of an industry or firms that have specific interests. Let's call the think tanks "think tank" and the other firms "moonlight." So is it possible to work for moonlight and not have its interests affect performance in the context of think tank? Put differently, can you serve moonlight and they switch and be a "perfect scholar" -- open minded, objective searching, etc. -- for think tank purposes. In theory it is possible but, even if it is,  the quality of the think tank product is lower in the eyes of the public.

This is relevant for law professors in that law school position is the think tank and all forms of expert witnessing and consulting are moonlight. This is hardly a new issue and was recently addressed in a "Open Letter" that suggests ethical standards for those employed by both think tank and moonlight. I think it is fair to say that proposal is two fold -- do your best not to be influenced and disclose to the reader anything that would be relevant. In fact, one particularly attractive proposal is that all sources of funding be revealed on the think tank web site. I note, however, that the ultimate way to avoid the conflict -- don't take the money -- is not proposed.

The effect of disclosure is to shift the risk to the think tank and its customers/readers to assess the extent to which the work of the moonlighter can be trusted as a scholar. This risk shifting is questionable since the party to whom the risk is shifted has no way to know just how much risk is there. But there is another problem that can be connected to products liability. Disclosure is effectively a warning label. Or perhaps it is comparable to an "as is" notice. In either case the buyer is on notice to beware.

When products are put in the market that carry warning labels their value is less than those in which the manufacturer has addresses the source of the problem. For example, if the market works, cars without air bags but containing a warning against high speed collisions (if available)  would presumably have lower prices than those equipped with airbags.  If the market works the same would be true of think tank employees who are also moonlighting. All other factors equal, those who do consult are selling a product  inferior to that of the non or infrequent consultants.

If accepting money from outside sources is not an option, disclosure makes sense but only if those with things to disclosed are paid less. It is odd that the only thing that keeps this from being the case are market imperfections.

Sunday, July 31, 2016

So Many Questions

Here is what I believe to be a reasonable comment [in Roman]over on the tax prof blog about the tax (non) "issues" at UF and my responses [in italics].  Two comments: First, I think I have never seen any instances in which people who claim to have the best interests of a program at heart have done so much to communicate that it is declining. What are they thinking? 

Second, the information from the alum comes from inside the law school as does mine. I could be wrong, thus,  I want to invite anyone who wants to from the law school to correct me. I will turn over the blog to them. For most part all of these are turf protection statements and are not relevant with respect to the quality of the program. That is not determined by who signs off on schedules or what room a course is taught in. Instead it is based on the quality of the students and instruction.

Professor Harrison: First, try and be less patronizing and more respectful. If anyone is being blindly loyal, it's you to the dean.
Now, here are the facts as presented to us, alumnus:
(Who presented them? Why does he or she hide?)

1. Mike Friel stepped down as the Associate Dean and Director of the Tax Program a couple weeks ago; he will remain as an adjunct professor this fall and for up to 3 years.
All true as far as I know. But a little context. People who retired as of June 30 received a payout of all accumulated sick leave. I do not know how much his was but mine, if I had taken it, was 75K. If you retire after than you receive zero. Was this a factor? How could it not be? Plus, the adjunct deal that the dean gave him is the richest one I have heard of. Sounds like a win win for Friel and the School. He is still here doing what he is great at and he got the retirement pay out.

2. Professor Lidsky, a constitutional law professor, is now the Associate Dean for Graduate Tax.
Professor Lidsky is not a con law professor. In fact, she has held administrative posts before and is Dean for all Graduate Programs. She is bright, energetic, and experienced. But this statement suggests there is something wrong with Professor Lidsky. The tax program is lucky to have her. I understand this to be an interim post with a search taking place this year.

3. Professor Mashburn, a Senior Associate Dean, is now assigning graduate tax courses- which had always been handled by the Graduate Tax administration.
The way it works is this. Each year we write down on a form what we want to teach next year and, for the most part, that is what we teach. "Assigning" is a formality and such assigning always goes through the Dean's office. I do not know if Professor Mashburn will be the one who signs off but that, for the most part, except for the JD program, there is self-assignment.

4. The Tax Program has lost its dedicated classroom and the 60-minute hour class has been reduced to 50 minutes.
Two parts. The dedicated classroom seats 112. In recent years tax has had only one course that needed a room that large. On the other hand, there are other classes that are closed with students still wanting in them because of the "dedication." The classes, like all law classes will be 50 minutes, This is the same at other law schools which our faculty regularly visit with no problem. 

5. Control of student records, registration, and admissions have been removed from the Graduate Tax Administration and is now in the purview of the general law school.
I do not know all the details on this and I am struggling to figure out its relevance. I certainly hope someone with Friel's credentials was not doing this. If not, it is done by a secretary and does it matter where the secretary is?

6. Based on recent retirements (Dilley & Hudson), leaving faculty (Marian who maybe saw what was coming), and planned retirements, the Tax Program will be down from 10 to five faculty members as of next year.
These numbers may not reflect much at all. For example, Hudson also taught other courses and I think Willis does too. In addition two faculty teach tax course but for some reason (to artificially depress the numbers?) are not listed as tax. There are critical adjuncts as well. I can think of no less than 10 people who teach tax. Plus, enrollment in some classes is very very low. This year 67 students will enroll and the acceptance rate was 80%. Student faculty ratio is a better measure of staffing adequacy.

7. The Tax Faculty is no longer called the “Tax Faculty”; rather, they are law professors who teach tax-related courses.
I am not sure this is an official designation. If it is or was, I did not know it. Everyone I talk to says "tax faculty" and not "law professors who teach tax related courses." But what difference does this make in terms of the quality of what happens in the classroom?

8. The Administration has promised the Program that they can keep the tax office space for one year.
I do not know anything about this but I am confident everyone will have and office and all the usual functions will be taken care of.

9. The Tax Program’s staff administrator position has been taken away.
You might be talking about the lady who was paid by UF but determined to be living in another state and I do not mean commuting from Waycross. I heard that position could have been filled by someone who actually came to work but simply was not filled by the tax faculty.  If it was taken away and if it was the lady who lived in another state (not even Valdosta) and simply was not filled, I wonder if the position was ever necessary.

10. ½ the Research Assistant budget has been taken away, and it appears a larger cut is coming.
I have heard nothing about this but, quite honestly, I do not know what research budget means -- time off for research, research assistants,??  The tax faculty already teach lighter loads than others. To the extent it brings their budget into line with everyone else, I applaud it since, as a group, they are no more or less  productive than the large bulk of the faculty.

Are these not true? How is this modernizing and improving the best program UF Law has to offer? Please explain, I honestly want to know. I love this school, it did great things for me and I want to see it do well.

The best way to see it do well is to stop repeating those who say it is in decline. And think about modernizing seriously. This fall 80% of those applying were accepted and 45% or 67 students will register.  More attention needs to be paid to recruitment, tracking of graduates, and making the program accessible to those who cannot afford a year in residence in Gainesville. In terms of modernizing, most of the measures make the Program leaner and reduce duplication of efforts, both very much needed in light of declining applicants and students. 

Wednesday, July 27, 2016


In my previous post  I praised the new Dean at UF. Someone, perhaps disingenuously, perhaps sincerely, wrote a comment (anonymously) asking me to list what her accomplishments are. Although many anonymous commentators could not tie Rod Stewart's shoe, I responded with a list that can be found in the comments section of my past post.

To make a long story short although it is too late now, one of my answers was "modernize the LLM in tax." To that I got this -- yes, anonymous -- comment: "By modernizing the LLM program, do you mean by dismantling it and not hiring outstanding faculty to replace those that are retiring?"

This particular  phrasing has been used repeatedly by people who are being manipulated, in my opinion, to fight self-interested battles of those  terrified of changing a 50s style LLM program into a 21st Century LLM program to the benefit of all. Some of this has occurred evidently in a mass mailing. In fact, I expect to see  T shirts that say "Don't dismantle tax." The ANONYMOUS commentator is parroting a rumor possibly spread, encouraged, and, hatched by people at UF who are afraid of moving forward.

I've decided to respond to this clearly disingenuous and anonymous question, (Rod Stewart's shoe aside) as what might be called a teaching moment. Oh, that's to high minded sounding. Let say it is a blah blah moment during which I try to dissuade others from buying into every rumor that emanates from UF Law. Riling up students and alums to advance personal ends is pretty desperate.

1. Dismantling: As far as I know there is no dismantling unless that means making the program more attractive and exciting. And, as far as I know, if any retiring people are not replaced it will simply reflect the fact that we do not replace all people who retire because of budget issues. Four or five people retired from UF Law this year. As far as I know, none will be replaced except maybe tax. Again, the  commentator/questioner has been duped into thinking that tax is any different from any other area.

Since the tax program attracts many fewer applicants than a few years ago, the class is smaller, and so few JD students take tax courses (what is with that? when I when to law school most people took at least 2) most people would agree that it makes little sense to replace everyone who retires. Again, I do not know that people will not be replaced but in the interest of simple economics, I personally would not replace them.

2. Dismantling and not replacing are the same question but let's get real about the LLM at Florida. It is the third ranked LLM according to  US News but in some other rankings it is much lower. I believe the Dean is struggling to make sure the US News ranking is maintained despite the loss over the past several years of some true tax stars and a serious case of inertia.  As for how outstanding the current faculty is, I cannot say since I do not pay much attention to the area. I am pretty sure there is definitely one outstanding scholar and perhaps more. A rumor is that two others, well-versed in tax,  are more or less excluded from being "official" which in both cases makes no sense to me. Just sliding those two over into tax to replace retirements would be a big step. I hope the Dean does this but I am happy to have no influence.

So if there is no dismantling of what is one of UFs highest ranked programs (whether reality based or not) what would be the interest in not hiring the best person possible? If we hire I am sure the sights will be very high and possibly higher than some would like.

There you go bated breath commentator!!!

Saturday, July 23, 2016


For ten years my law school had a Dean who defined  his job as keeping himself as Dean. You know what this means -- for a mid level law school like my own it means avoiding any shake-ups, pleasing the majority of faculty most of the time regardless of the consequences for the students, taxpayers and other shareholders, picking battles very very carefully with only the people who are not part of any discernible constituency. Mainly, that Dean avoided any decision that could upset people. He shifted them to the faculty instead causing all kinds of ill will that would have been avoided if he had simply stood for something other than keeping himself as dean.

After watching this dean and his immediate predecessor, I took to the internet in the form of this blog to bitch, sometimes directly, sometimes indirectly. I understood that I would be going outside the system instead of working within it. I don't claim at all that I had any part in the events that led to substantial improvement. In fact, I may have made it worse but it was therapeutic and I found like thinkers (and haters) I did not know existed. As for working within in the system, the system existed to avoid change and to silence those who suggested it. Please spare me the inside the system BS.

But now tables have turned. I think the new Dean is fabulous. I agree with every decision she has made except two minor ones. She has the courage to make decisions the system could not make and is willing to take the flack that follows instead of forcing the faculty to bleed. She regards the Law School as more important than the self-interest of petty cliques within the law school. She lives the saying "you do not ask permission to start a revolution.

A few individuals worry about top down management. We tried the opposite and it was a dismal failure. One response is the same as mine was -- go outside the system. I should not complain, right? One faculty member -- the Michael Corleone of the Law School -- and maybe others get on the phone and rile up those who owe him. So, I am wondering if there is a difference between these two versions of going outside. I think there are four differences.

1. The new version is to protect a status quo that is crumbling.
2. It appears to deal in half-truths or out right misrepresentations or, in its most benign form it evidences no willingness to correct these distortions if the advance the case.
3. It involves using others, who lack full information,  to achieve certain ends.
4, The person making the greatest outside the system efforts never speaks publicly or takes any public stands.  Instead the communicating is similar to a steady, persistent ooze.  How's that for courage?

Are there any ethical standards for those who work outside the system, even those who prefer to avoid taking responsibility?

Sunday, July 17, 2016

Charity for the Haves and Administrative Stipends

My university, in a jaw-drooping exercise of hubris, just up and unilaterally terminated payment of part of compensation already due employees. This compensation was in the form of a pay out for unused sick leave.  (As an aside (note the the parentheses) there should not be sick leave payouts. It is the ultimate class-based benefit. Why? Guess which folks in the University are least likely to use sick leave? You've got it -- elitist professors and high level administrators who are then able to cash in for upwards of 100K while staff people account for every hour.)

Ok, the plan was crazy and designed so the haves get even more. Still, it was part of the compensation package, it vested after 10 years, and many, many lower paid untenured people, who needed the pay out more than others,  got ripped off. After paying for decades UF said, "no more" even if you vested and it was retroactive. I guess University officials could say it is not compensation at all in which case maybe past UF officials should be doing time for making gifts for several decades.

If you retired by June 30th you got the pay out (or is that "pay off") and a small handful of people took the dough who were likely to retire anyway.  But some just were not quite ready to retire. They wanted the dough but they also wanted to keep their humongous salaries for a little longer.

What do to with the obvious deserving-of-more-more-more people?  You've got it. Extra paid leave or special new duties as senior envoy/assistant for the purpose of  . . . . . Well that is kind of the catch.  The new higher salary is for doing what they were doing or were expected to do. Yes, it is another situation in which professors who are working at full capacity all of a sudden aren't at full capacity when there is some money on the line. As in, "sure I have time to teach an extra course," or "sure, I can be special envoy to revise the environmental law program." Come on! Hit me with one of those   "administrative stipends."

Of course we know that haves always get more especially when the givers are also haves. So, how do the haves cut side deals to make up for the lost sick leave pay out? Use your imagination but do not doubt for a second that it occurs.

Thursday, July 07, 2016

Thieves, Rent Seeking, and Pie

In his classic 1967 article on rent-seeking (which does not actually use the term because it had not been coined at that time) Gordon Tullock explained that the cost of theft was not that one person's property was taken by another. In fact, that transaction in isolation may increase welfare. The social costs were the reactions of those attempting to avoid theft and those refining their skills. Richard Posner extended the analysis when he wrote about the costs of monopoly. Again, it was not that some became richer at the expense of others but that enormous sums were invested in bringing about the redistribution. In neither case do the rent seeking, social-cost-producing efforts create new wealth.

Still, in the case of Tullock and Posner the social costs were at least about something. There was a "there" there in the form of a chunk of wealth to bicker over. But now we come to law professors and law schools.

Law professor efforts to self-promote have exploded. Included are repeated visits to the Dean asking for one thing or another, resume padding, massive mailings of reprints, posting SSRN download rankings, or, even better, emailing 200 friends asking them to download a recently posted article, churning out small symposia articles because deans often want to see lines on resumes as opposed to substance, playing the law review placement game, and just plain old smoozing ranging from name dropping to butt kissing. Very little of this seems designed to produce new wealth. If fact, think of the actual welfare-producing activities that could be undertaken with the same levels of energy -- smaller classes, more sections of needed courses, possibly even research into areas that are risky in terms of self promotion but could pay off big if something new or insightful were discovered or said. But this is the part that puzzles me. Whether the thief in Tullock's case or monopolist in Posner's, the prize is clear. What is the prize for law professors? Are these social costs expended to acquire rents that really do not exist or are only imagined? What are the rents law professors seek?

Law schools make the professors look like small potatoes when it comes to social costs. Aside from hiring their own graduates to up the employment level, they all employ squads of people whose jobs are to create social costs (of course, most lawyers do the same thing), produce huge glossy magazines that go straight to the trash, weasel around with who is a first year student as opposed to a transfer student or a part time student, select students with an eye to increasing one rating or another, and obsess over which stone is yet unturned in an effort to move up a notch. I don't need to go through the whole list but the point is that there is no production -- nothing socially beneficial happens. That's fine. The same is true of Tullock's thief and Posner's monopolist. But again, and here is the rub. What is the rent the law schools seek? Where is the pie that they are less interested in making bigger than in just assuring they get the biggest slice possible? What is it made of?

At least thieves and monopolists fight over something that exists. And they often internalize the cost of that effort. Law professors and law schools, on the other hand, may be worse. They do not know what the prize actually is; they just know they should want more; and the costs are internalized by others.

Wednesday, June 29, 2016

Using Students

Although I crab a bit about class bias in legal education and law professor self promotion, self-interest, work avoidance, and senses of entitlement, I have little to say about what goes on in the classroom. There are reasons for this. My only observations are based on my own experience which is a pretty small sample. Plus, as a student, I found actual classroom instruction to be very high quality. I suppose I could look at teaching evaluations but my sense is that a number of factors can account for high and low evaluations that have little to do with the actual quality of instruction. In fact, as a law student I remember thinking one professor was  great who infuriated the rest of the class by not giving them "the answer."  In any case, from my own experience and the grapevine I think law professors, when in the classroom, are generally pretty devoted.

There are some exceptions, though, and I do not necessarily mean lousy teaching. I mean devoted to oneself. I've written before that law professor rarely engage in scholarship. For those who missed this which would be nearly everyone, scholarship involves research designed to discover answers. Law profs do advocacy -- they know the answers (how do they know? they just do.) and then devise ways to convince others.

It's clear to me that some professors carry the advocacy of personal beliefs into the classroom. Of course, we all do that since the notion of pure objectivity is a silly one. Still some professors use the material to promote broader beliefs that are actually not based on the material but reflects the professor's own values. For example, in my own case when I teach contracts I cover the Walker-Thomas case. I can teach it in a way that makes Walker-Thomas and others like Walker-Thomas eligible for water boarding. Or, I can teach it as though Williams is an irresponsible dupe. There is an obvious  political message associated with each side. I do try my best to stay in the middle even though my own political leanings are not close to the middle. Increasingly, though, I hear that other professors use the students to promote their personal views in subtle and not so subtle ways. They can make light of or discount student views with which they disagree. They be critical of some opinions and not so critical of others.

Another form of advocacy is far more discouraging. For example, suppose the faculty is getting ready to vote on whether to have a program in Environmental law. It may be legitimate to discuss it in class or maybe it's just a way to kill time. In either case, it can be presented as an issue on which people can disagree or it can be presented in a way that fuels the student rumor mill. For example, "I thought we were going to have a good environmental law program here but the Dean scuttled it without even consulting anyone." This is the two birds with one stone move. First, you've let it be known that in your opinion the program is needed and you've managed to demonize the dean even though he or she may simply be looking for the best way to allocate funds to make the students more marketable. In fact, giving part of the story is a great way to rile the students. This is often accompanied by claims that "I am getting so many complaints about this from other faculty." When someone says many, several, or tons but does not say how many you know the numbers are actually very small.

People who engage in this second type of "using" the students are right up there or down there with Donald Trump. Their aim is to scare the students into believing something is happening that will have a negative impact when just the opposite may be true. People who disguise their self interested concerns as institutional ones tend to  be short (actually I do not know that but the Randy Newman song came into mind and I thought it could be connected). Well, maybe not but they are weak on substance. They too are water board material.

Saturday, June 18, 2016

Joe Don Looney, Personal Attacks, and Civility

I've heard it said that Joe Don Looney said, "I never met a man I didn't like except Will Rogers" but maybe I just read that somewhere. In fact. maybe Joe Don did not say it. Maybe Will Rogers, in a moment of self-loathing, said it.

I was thinking about Joe Don, Will, and my 150 page, 300 footnote law review article thanking all the tenured members of my faculty, several people  I hardly know but may have met at a conference in Barcelona, citing myself 37 times, and whether I can wring out another article from what some would say is a narrow topic, when a law school pal walked in with a problem. It was a real problem but I could not solve it   How does Joe Don fit in? Keep reading.

In the course of the conversation my pal said (and I am changing the names) "Emma told me that Jane told her that Phil had personally attacked, Lucy." Well, I was taken back because I know Phil; Phil is a friend of mine and he's  as sweet as pumpkin pie with double Karo. I wondered what Lucy had done but I realized that even if Lucy were OJ and Phil was Mother Teresa, under law professor rules, Phil was a really bad guy.

Then I realized that "personal attack" accusations are all part of the civility game -- the way the "ins" stifle dissent by the "outs." You can be dead on right about something but if the culprit kicks up enough dust about the fact that you mentioned it, you have violated law professor rule 1.23(a)

Actually lots of people have been writing about this lately (including me since this is a slightly revised version of a post from two years ago.) Other than the personal attack accusation, there are other was to use civility as a weapon. The most direct (if there is anything direct) way is "I don't like your tone," or "I am offended." It goes like this. You express alarm to see  Jack stocking up school supplies to take home, enjoying a side deal unavailable to others, or belittling a secretary.  Jack's reply is "I don't like your tone," as he closes the back door of his Volvo on 1000  reams of 8.5 x 11 he forced a secretary to load.  Another version  is "I am offended." No one asks why because the civility rule is that everything stops when someone shouts "Offense." In fact, right now I am getting pretty offended by just thinking about the "O" bomb. Unfortunately when I am offended by the "O bomb" no one really cares.

[I am stopping here to catch my breath.]

Let's go back to the "personal attack" accusation. Here is how it works. Go back to Jack's Volvo or any other transgression. No matter what the perceived transgression is, if anyone can figure out from what you say about it,  you have engaged in a personal attack.  So, Billy Joe has been running a questionable foreign program for 20 years. If you complain you have personally attacked Billy Joe. It does not matter that you would complain no matter who is running it.  You can avoid this by saying "It is possible that someone, somewhere, at sometime, is running a less than 100% indispensable foreign program" or, in the case of Jack's insatiable need for 8.5 by 11, "Golly, I wonder where all the printer paper went." In other words, say nothing.

The personal attack is different from the  ad hominem attack as in: "Bill can't be right about that because he is a puppy kicker." Therefore, so the reasoning goes, it must be OK for me to take 1000 reams of paper for my personal use.

Tone complaints, do not engage, and accusations of personal attacks are ways to protect what is and to stop change when it threatens your fussy little world.

And, Joe Don Looney?  He never met and, therefore, did not know Will Rogers. He did not know what he was talking about any more than Jane knew what  Phil had actually said. [see above]

Sunday, June 05, 2016

The Donald Trump Chair and Professor of Law

Many law professors hold this esteemed position. It is for those who sell nothing to unsuspecting buyers. Here is what I mean. There was a fellow at a law school at which I once taught. He was up for tenure and that meant class visitation. The visits took place over a 2 week period. Near the end of that time,  a student asked me why Professor Trump was giving the exact same lecture every day.  Yes, he had one particular presentation he had down pat and he went to that one whenever a visitor appeared.

And then the was the Trump professor who did his summer teaching by way of a prerecorded course. This way he could be paid for both teaching and research in the summer, a custom made side deal. One year, though, the same guy needed an extra course in the regular school year to qualify for a sabbatical. All of sudden the prerecorded course, that was offered at the same time it was always offered, was listed as occurring during the spring semester and our boy gets his sabbatical with no additional effort. He may be recruited by Trump U -- the experts in something for nothing.

A friend of mine who is a high school principal tells me that whenever he has to contract the parents of a student whose parents work at the university he call them at home. He asked me, "what is this working at home thing." Some people do work at home but some people are able to actually teach at home. One particular Trump professor, likely hired because he was the grandson of a political celebrity and former Harvard professor, managed to teach his students from home after creating a course that involved supervising students who were teaching high school students about law. Yes, no need to come in to do research or to teach. Nice (non) work if you can get it.

All of us have minor Trump appointments in the form of confercating -- going to conferences that are actually vacations. I am happy to say that the new dean at my school has a rule that you actually must do something at a conference before the School will fund it. God forbid! Great idea but there is still the moral hazard of a 5 minute minute panel appearance or recycling the very same work you reported on 23 other times.

I've blogged way too much about advocacy posing as scholarship and there is no better example of a dead weight loss. It's like throwing away money.

There are many Trump Professors who double dip. They purport to be full time academics but are actually part time while they are consulting or "of counsel." Here is the difference. Most true academics think pretty much all the time about their jobs. "'Could I have done that better in class?" "How would one counter the position I took in my last paper?" "What is a better way to measure the impact of that case?" It's not a matter of being noble. They cannot help it. Always thinking. Yes, I think I am talking about you.

The Trump professors have a time for school work and then a time for making money and self-promoting. Instead of ideas they spend a hunk of time working for others and thinking about what angles to play with book and article placement. In fact, the academic job is not full time for them. Instead they decide how much time they can afford to devote to it.  Maybe they are just bored. Maybe they are in the wrong business.  Here is the catch, when they interviewed for the job they talked about their love of teaching and research.  There is never a mention of how much time off they need for their other job. What's Trumpian? -- the old bait and switch.  Evidently the psychic income of having what can be the best job in the world is not enough.

I'll bet Trump never waits in line. His turn is always first even if more deserving people get there first. There are Trump professors in law teaching in the form of the so-called trailing spouse. Not all of them but there are instances in which positions are created, not advertised, and all of a sudden a line cutter shows up with a job that could have gone to someone who worked harder, would teach more students, but is sleeping with the wrong person.