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.