Fussy is as Fussy Does

A colleague of mine described law professors as "fussy." That's a great word. Basically it means hard to please. Fussy law professors want things like this:

1. I really must have my office repainted. Right now the light blue on the walls interferes with my scholarship.

2. When that visitor passed me in the hallway he only nodded hello. Shouldn't he have engaged me in a discussion of my work.

3.  You cannot possible expect me to hold class on Mondays or Friday. Those are the day I write (at my condo at the beach).

4. The carpet in my office is getting a little dirty. I'll need to have the carpet replaced by hard wood floors. Otherwise I will have to write even less than I do now which will mean actually unwriting.

5. My office 30 feet from the nearest printer. Please have a new printer installed in my office.

6. I can't possibly be available to students after classes end and before exams. I need that time to write my exam and to spend time with my family.

7,  If you make us offer a 7 semester JD/LLM program we will be demoralized. Please make a therapy dog available.

8, What, I have to share a secretary!? But my work is so important!

9. I cannot attend faculty lunches because some people there are not vegans and it offends me.

10. That painting on the third floor of Mother Teresa "concerns" me. To our students it could be seen as endorsing the possibility of a God.

11, Please arrange for me to attend the meeting by skype. I'll be home feeding my parakeet.

12. I'm deeply offended. The Dean did not mention me in her Twitter feed.

13. My classes must meet at 11 AM. Please do not schedule any other classes at that time.

14. I am offended. Not sure about what right now but I will think of something momentarily

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]

Platform Failure

The big topic in antitrust these days is two or more sided platforms. These are things like Open Table, Amazon and both Scholastica and Expresso. They serve two markets and reduce the transaction costs of having those markets interact. For example, in the case of Open Table, diners do not want to call several restaurants to find a table and restaurants would prefer not to spend hours on the telephone so they join the Open Table listings.

In the case of Scholastica and Expresso, writers of law review articles would prefer not to print out, address, and mail articles to law reviews and then wait for post card acknowledgments. And law reviews benefit by a standardized method of receiving submissions. Given the lower costs to submit, they are likely to receive more submissions as long as they are signed onto the system.

Here transaction cost reduction means reducing quality, in  a sense raising barriers to entry. In the olden days, professors send out articles by mail, maybe a batch of 10, then a batch of ten more as they work down the rankings. I explained this to a law review editor several years ago at a very low ranked review and he asked -- due to the paucity of submissions the review had received-- when the review could expect authors to finally send drafts. Yes, there was a time when a 50 or 60th ranked review might  get only a  smattering of manuscripts.

Recently I asked a colleague how many reviews he had submitted his latest to. The answer was 90. I recently submitted a piece to 99 reviews. Why? Thanks to the platform, the cost in terms of time and dollars is inconsequential especially if your school picks up the tab.

But what does this mean. Law reviews receive, in many cases, thousands of submissions. They are swamped. Do they read each one? Can they even begin to read each one? Of course not. This means the flawed process by which articles are selected is made even worse - editors rely on institutional authority more than ever. They count citations of those submitting articles,  they consider the schools at which authors teach as well as those from which they graduated. It is even harder for authors who depend on substance to gain entry to the elite reviews.  There is no known correlation between the quality of a work and institutional authority. There is a known correlation between citations and the rank of review as well as the rank of the schools professors graduated from and attended. If citations are correlated with reading then articles are read on the basis of who wrote them, not the quality of the ideas.

Can you blame the editors? Hardly, what are they to do? Can you blame the authors? I do not see why. If someone is submitting to 60 reviews it's best to do likewise.

Killing them Softly

The State of Florida, as do most states, runs a controlled experiment each year -- the bar exam. Why is it a controlled experiment or, at least, somewhat controlled? Each fall eight or so law schools admit students. Three years later they are given the same exam. Pass rates differ dramatically. Some schools do very poorly. Others have students who, though seemingly less qualified, do much better.


I can think of two possible explanations both of which may fall into the category of no good deed goes unpunished. The first is the availability of courses and the freedom of students to opt out of courses that are tested on the bar. At one school that tends to underachieve, the selection is enormous. Students can go to China over spring break and pick up some credits. The can go to the beach to study environmental issues. The can take a long list of course on a pass/fail basis or spend semesters away and take no classes at all or classes that have no relation to the bar exam. Many of these "opportunities" are vanity courses. These are courses that would not exist if there were not a professor promoting offering the course. I would bet that bar passage rates vary inversely with the number of vanity courses available and directly with the number of required courses. This nonchalant attitude toward bar passage may make sense in private schools (not that any could survive long with dismal pass rates)  but for those that are subsidized by taxpayers it makes sense to prepare the students to actually become licensed. The rub is that funneling students into bar courses likely displeases some of them and would require faculty to give up their pet courses.


The other explanation is more tenuous but what the hell. In a year of teaching I have seen faculty hand out candy, cookies, ice cream, pizza, donuts, coffee and I am sure I am missing something. I personally want to take all of my students to Disney World but cannot afford it. I tell them that is my hope because it is, after all, the thought that counts. My reason for taking them to Disney World is that I want them to realize what a good guy I am. And, if I could just prove to them that I am a good guy maybe they will give me high marks on my course evaluations. OK, I know you are thinking "shouldn't your evaluations be directly related to how much the students learn in your class." In fact, studies have shown that the correlation between evaluations and learning is tenuous and sometimes negative. In one amazing study student were asked to evaluation professors after seeing a short soundless video. Then they were asked to evaluate the teacher after the course. As I recall the evaluations were the same. Actually experiencing the course was irrelevant.  Probably the best evaluations are for those who appear to be rigorous (but not really) and caring. So, if the appearance of caring is positively related to evaluations and your evaluations determine how productive you appear to your bosses, you know what any rational person will do -- stand back the swag is on the way.


Oh, that's Roberta Flack singer of Killing Me Softly.

There is No Limit Except on My Availability

There is no limit to the number of "Future of Legal Scholarship" conferences that can be held. I am not sure how many there have been so far but my guess is hundreds. We are only scratching the surface. The second generation will be a Conference on Conferences on the Future of Legal Scholarship. And, then (you know it's coming) the Conference on Conferences on Conferences on the Future of Legal Scholarship. The funny thing is that, as a matter relative to most legal scholarship, these will be no less useful than most of what fills the majority of law reviews.


Law professors, if nothing else, are fussy. In the dictionary you could have a picture of a law professor beside the word fussy and that would tell the whole story. I mean they are fussy about the food they eat (when we have lunch at my law school the caterer has to have 22 varieties of food for every diet: my favorite is the selection for low-salt-vegans-with-peanut-allergies-and-soft gum disease),  when they teach, the days they teach, the rooms they teach in, the arrangement of the chairs at a conference, the location of their offices, the art on the walls, and so on. I am not making most of this up.


An emerging version of fussy is when they will be available after classes end and before the exam. Today I was asked in class,  "How late is too  late to ask questions?" My answer: "Once I hand out the exam, no more questions."  There was a gasp. I asked,  "What's up. Is that surprising? "Oh," a couple informed me, "Our other teachers have cut off dates." I asked why.


Reason one: If I do not have cut off date everyone will ask questions at the last minute and it will be too crowed. I smiled at this one but I wondered, once you have a cut off date won't there be a rush to make it by the cut off date creating the very same issue.


Reason two: I might be writing the exam and if you ask a question it may affect how I answer the question. I thought "so what." Plus writing the exam a week or two before the end of the semester might address this supposed problem.


Reason three: If I answer your question it may disadvantage the students who did not think to ask the same question. As I understand it, under this line of reasoning you would never answer any question with out recording the answer (video, of course) and playing it back for the entire class.


Reason four: Hey, this is my time off. Don't bother me!!

Back and Even More Annoyed

Been taking a break and now I want to see of this blog still works. Here is a riddle: How many conferences can be held on the future of legal scholarship? Answer tomorrow.