Something is Wrong at UF LAW

 

The latest Bar exam results show that about 1 of 5 UF law grads fail the bar exam. Maybe that is not so bad but something is amiss.

First, remember that these students are hand picked because of their high LSAT scores and GPAs in order to raise the school's ranking. And it has worked. When last reported the School was ranking 21st.

But there is more. The school, in order to raise its ranking by also increasing bar passage, has an army of people working to make sure students prepare for the bar by pre testing and attending help sessions. But there is more. Students who are in jeopardy of failing are activity encouraged not to take the exam. Yes, if they fail he passing percentage will decline and the ranking might suffer so they are, in effect, urged to put their own goals aside because perusing them might reflect badly on the School,  the elitist, rankings-obsessed dean, the University, and even Desantis yes man, Fuchs. 

At this point in this little exercise I suppose I am supposed to say what I think is the problem. Frankly, I do not know. The smartest admitted class in the State, educated at a School ranked leaps and bounds above any other in the State, with extreme hand-holding when it comes to bar prep, and with a relentlessly elitist hiring policy still does so poorly. Actually, maybe I did just say what is wrong. You've got to wonder what is going on in the classroom. 

I Was Following the Fuhrer's Orders

 Just heard on the radio that Scott Strickland, UF athletic director (salary in excess of $1 million a year), announced no LSU like restrictions for admission to the Swamp.  In fact, no mask requirements as far as I can tell.  It's just going to be a total Covid-fest. I guess if you are in the hospital and on a ventilator you are invited too if you can find the right outlets to hook up to.  This follows along with Ken (No Spine) Fuchs' (million dollar salary too) refusal to buck Fuhrer Deathsantis and require masks while on UF campus much less so vaccinations like many other universities. 

On the other hand, there are several school boards in Florida that have decided that life is more important than pleasing the Fuhrer. Their salaries are on the range of $40-50K per year. They risk everything to save the lives of children. 

You have got to wonder, seriously, why some people have the courage to do the right thing even though it may hurt them individually in the long run. And others just follow orders. The distinction is everywhere. Take UF Law's elitist dean. She cuts off no less than 200 hard working, highly qualified, law school applicants because they might cause the US News  rankings to go down. Yes, you hear it correctly. It is not because they are not up to doing the work!  Oh,  and when hiring, if you did not go to a top ranked Ivy League School, so I have heard,  do not apply for a job. She will axe you with the same level of concern you might  apply  when  rejecting a rotten tomato in the produce section, I guess she would regard Deathsantis and Ted Cruz as highly qualified faculty if only their politics were more acceptable.

What is the common factor in all three cases -- Strickland, Fuchs, the law dean? They are just following orders, right. And that makes it OK? Not in my book. 

 You gotta wonder if there are any orders they would not follow. As for Strickland and Fuchs, they are clearly willing to carry out the orders of the Fuhrer when it comes to risking lives. The Law Dean, I think not. She just jeopardizes the careers of hard working students and the fortunes of their families and their families' families. 

I wish I could identify what the difference is between poorly paid school board members and highly paid, tenured school administrators. Was it their parenting? Is the blind ambition?   Is it because they always pleased those who could advance them personally that that got them where they are now? Hopefully, their cowardice will come back and bite all three of them in the ass. But I doubt it. There is always a market or toadies ("a person who behaves obsequiously to someone important."  

 

Structural Nepotism: On the Reluctance of Law Schools to Include Social Class Origins among their Faculty Diversity Goals

Excerpt for Ken Oldfield's,   "Structural Nepotism: On the Reluctance of Law Schools to Include Social Class Origins among their Faculty Diversity Goals"

VII. Confess’n the Blues 

Jeffrey Harrison was someone who saw beyond the cultural and social boundaries of his time. In 1992, nineteen years before Mertz et al. conducted their research, he published “Confess’n the Blues: Some Thoughts on Class Bias in Law School Hiring.”88 Harrison was a professor of law at the University of Florida College of Law when his paper appeared in a symposium issue of 86. Id. 87. Id. at 237, 238; see also Eric J. Segall & Adam Feldman, The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools, 68 J. Legal Educ. 614 (2019). 88. Jeffrey L. Harrison, Confess'n the Blues: Some Thoughts on Class Bias in Law School Hiring, 42 J. Legal Educ. 119 (1992). 252 Journal of Legal Education the Journal of Legal Education. The theme of the law review edition was diversity.89 Harrison’s informal writing style illustrates how sometimes a work such as his can expose an issue or issues in a way data rarely can. Once these writings gain a wider audience, they can prompt reformers and their allies to rectify the problem that concerned the author or authors. Unfortunately, Harrison’s folksy piece never found the reception it deserved, given the issue bothering him. Perhaps there is good reason for this oversight. First, he directed a sharp pen at those colleagues he held responsible for the problem he thought deserving of a remedy. Second, he was contradicting the nation’s bootstraps folklore, the idea that the United States is a land where those born of the poorest of circumstances can be anything they choose if only they will work hard enough.

 Harrison began his piece by recounting a conversation he had had with a colleague about faculty hiring. He wrote, I telephoned an old friend the other day at another law school. “What’s up?” I asked. “Faculty retreat,” he replied. “Sorry to hear it. Any topic, or just a weekend of touchyfeely?” “Serious business,” he said. “The theme is ‘Recruiting for Diversity.’ One session on race, one on gender.” “What about class—you know, poor and working-class candidates?” “Are you kidding?” he responded. “Too important.”90 

Believing class origins should be weighed as a diversity criterion, Harrison said when he interviewed someone applying for a position in his program, he looked for signs the person likely grew up working class.91 (Apparently he did not feel comfortable asking for this information directly.) Harrison said he regarded a candidate’s class background as a worthwhile concern because faculty of humble origins can bring novel perspectives to the study and teaching of law.92 During his formal and informal interactions with every applicant, he looked for social class markers. He listed a few examples, such as 89. Mertz et al., supra note 78 (did not cite Confess'n the Blues: Some Thoughts on Class Bias in Law School Hiring in their study). 90. Harrison, supra note 88, at 119. 91. Id. at 120. 92. Id. Structural Nepotism 253 whether the person had a crooked or discolored tooth,93 had been an assistant manager at a fast-food restaurant,94 wondered out loud whether a relative is entitled to food stamps95 and if a nephew might be paroled soon.96 If he detected any signs the person had likely overcome long odds to earn a law degree, he considered this evidence the applicant had the qualities necessary to become a successful academic.97

 Harrison saw his thinking as synonymous with that of his colleagues, only upside down.98 He interpreted a candidate having grown up disadvantaged as evincing merit, while the others were relying on traditional indicators, such as a high GPA from a top law school or a clerkship.99 Drawing on his then fourteen years of teaching law, he argued that his colleagues favored the standard determinants of what it means to be qualified as nothing more than an excuse for hiring the people Mertz et al. depicted as coming from “educated and privileged backgrounds.”100 Harrison characterized the other faculty’s reasoning as little more than an “instance of self-referential wishful thinking,”101 or just another case of like hiring like.102 Harrison believed his approach mirrored that of his colleagues in the sense he and the others were playing the odds, only he was betting on a different set of odds. In his mind, he was willing to wager that his approach would yield a hire who could bring some long-underrepresented thinking to the profession. Harrison, like Bowen, Kurzweil, and Tobin, preferred to put a thumb, or a thumb and a half, on the scale in favor of what he called “blue-collar diversity.”103 

Harrison was not done. He went on to suggest why law schools, and so many people in the United States for that matter, are leery about questioning the effects of social class inequalities on various aspects of life. This reticence discourages most law school professors from weighing socioeconomic origins in faculty hiring. Harrison said this same hesitancy helps explain why workingclass people generally fail to see “themselves as victims of any sort.”104 They tend not to envision how “the opportunity deck” has been stacked against 93. Id. at 121. 94. Id. 95. Id. at 123. 96. Id. 97. Id. at 122. 98. Id. 99. Id. 100. Mertz et al., supra note 78, at 7. 101. Harrison, supra note 88, at 122 (citing Derrick Bell, Application of the "Tipping Point" Principle to Law Faculty Hiring Policies, 10 Nova L.J. 319 (1986)). 102. Schmidt, supra note 8, at 64; Michels, supra note 2, at 245. 103. Harrison, supra note 88, at 122. 104. Id. at 124. 254 Journal of Legal Education them.105 Instead, the American dream misleads them to believe they are fully responsible for their station in life. They are never urged to examine critically how structural classism, although he did not call it that, influences their mobility chances, versus those who inherit considerable sums of Bourdieu’s three elements of wealth. He reasoned that people born working class think if they exert enough effort, they will make it to the top or, if nothing else, get there by winning big money in the state lottery.106 Unlike other disadvantaged groups, working-class people have not established “consciousness-raising groups.”107 Failing to question the consequences of inherited advantages, versus inherited disadvantages, working-class people assume, according to Harrison, that without enough labor, they will not get a high-status job, or maybe become a law professor (if they even know about this possibility to begin with).108 Meanwhile, today’s law faculty “wallow in the benefits of [these] . . . misconception[s] and most know that it is in their interest to leave well enough alone.”109 This willingness to “leave well enough alone” is another example of Bachrach and Baratz’s second face of power: preventing an item from being considered.110

Legal Scholarship, Citations, and the Rankings Obsession

 

I have not thought much about legal scholarship lately but a few months ago my elitist and ratings-obsessed former dean send out a memo to the faculty promoting the idea of writing things that will be cited. The reason -- think about it. It is in the air that USNews rankings may soon use citations as one of the measures in determining rankings.

This brought to mind an empirical work my coauthor, Amy Mashburn, and I did a couple of years ago. Citations were correlated at statistically significant levels with the ranking of the school from which you graduated, the ranking of the school at which you teach, and the ranking of the law review where your article was published.  Why is this? Likely because law students making publication decisions know they do not know much about law and rely on institutional authority. In fact, it is a common practice when a manuscript arrives to check where the author has published before and their citations. 

This means that citations have almost nothing to do with the quality of the work. Yet, in the rankings-obsessed world of my former dean, (who I am told also vetoes any entry level candidate who does not come from a ivy league school) quality is irrelevant. 

But maybe it does not matter that quality is all but irrelevant because law professors rarely engage in scholarship. By that I mean actually trying to discover something that advances our understand of anything. Instead they write OP-ED pieces or legal briefs that are devoted to one side of the story. That is what they were trained to do in law school.

But the whole citation based on where you went to school or are teaching gets worse -- much worse. When Mashburn and I did our study we examined what a citation really meant. Did it mean that the cite work was thought provoking, engaging, controversial, or whatever. No. Citations were almost always just for some fact the cited work cited mentioned whether or not the cited work was also just citing another work that had cited another work, none of which had actually done any legitimate research. In other words, rarely did one law professor give a hoot about what another one said. 

What this means is that professors at less than top 20 schools should probably be devoting more time to teaching and less to writing. It also means, when and if USNews starts counting citations, the ranking will not change. But, don't be surprised if raises and promotions for  law professors become dependent on number of citations. 

As an aside, Malcolm Gladwell, in his series of podcasts now has 2 devoted to the rankings. He notes that in the 70s when there was a battle between Time, Newsweek, and US News which US News was losing badly, the whole ranking thing that new rules higher education was a marking gimmick. 

Excerpt from "In the Company of Thieves": Cutting In Line for Faculty Appointments

 

Cutting in Line

You might think that law professors are sticklers for following the rules. In fact, the opposite is true. They do not regard rules, and especially University Regulations as applying to them. I have seen this applied to tenure standards and the composition of committees. I’d have to say in fairness to  law professors, it is clear that Universities ignore their own rules and even state law when it suits them.

There are many example, but one that stands out is hiring spouses. Under state and federal law as well as university regulation when a position is open it must be publicly advertised. This is in part to make sure there is no favoritism and so that people of all genders and races have a chance to apply.

The usual hiring season takes place in the fall and winter. So it was with some surprise that Dean Bob came to the faculty with a candidate for an environmental law position in the Spring. He said the University President wanted us to hire her. She  had not gone through the usual recruitment process, we did not need a teacher in the area, and we had not given public notice of the availability of a position. The faculty resisted so to some extent and the Dean explained that the medical school wanted to hire her husband and part of the deal was that we hire his wife. When asked what the consequences were if we did not hire her his answer was “catastrophic.” The faculty voted to make an offer although no one knew what catastrophic meant. She accepted the offer, basically saying to other would be applicants "Get the fuck out of my way? Don't you know who I sleep with?" and  with the understanding most or all of her salary would be paid by the central administration and the med school. In effect, a job for her was part of the salary of the hot shot med school hire. No way around this. 

After she was hired, in order to “comply” with State, federal and university regulations, a public notice of the job was issued. Twenty people applied. What they did  not know is that the School had violated the law and already hired someone for the job opening they were just hearing about. I raised the issue with several people in an effort to determine who had made the decision to violate the law and the response was dead silence. Law schools are experts at the "coverup." But this story has an even less happy ending. Within two years the hot shot med school hired decided he hated it at the med school and  the school was left with someone who would not have been hired teaching in an area that was already covered. The last I heard she had moved to who knows where with her husband but was still on the faculty teaching remotely or occasionally. 

When the rules are bent to allow spouses to cut in line one question that comes up is what to do if the couple splits up. Actually there is answer to that – you do nothing. So, in many instances, the spouse cuts in line through some unlawful act of the university or law school, is hired and then stays even though the rationale for hiring him or her has long since disappeared. Remember that the trailing spouse’s job was a form of income the person who was sought after. Evidently, that income is retained even who the sought after person is divorced, quits, or dies.

            Often when the spouse is hired he or she is in a different department. This raises the question of what happens of one spouse gets tenure and the other one does not. If one department really wants to retain the performing spouse, then the standards have be lowered for the other one.

            Maybe the most unusual spouse issue I have seen involved a professor who was hired on the merits.  His wife was hired to take the position as a legal writing instructor which is lower paying job with no promise of eventual tenure. The wife and husband desperately wanted for the wife to be elevated to a regular faculty position. She wrote articles and applied through the normal process. The husband was a decent teacher and good scholar but a bit of a jerk so there was not going to be a free pass.  After going through the process and being interviewed, she was not made an offer. It is entirely possibly that the collective hope was that if she were rejected maybe the husband would leave. The problem was his jerkiness was pretty widely known and he was not likely to be recruited. Personally, I liked him because, in his own way, he too was an outsider and spoke truths no one wanted to hear.

            It is an understatement to say they were bitter. It was a great example of the sense of entitlement of people who graduate from elite schools have. She was very upset about being a lowly writing instruction although their combined income was quite high. For some reason and  am not sure why, their bitterness became aimed at each other. Their divorce would make most messy divorces seem amicable. She eventually did get a regular teaching position at a 
low ranking school.

            Remember those articles she wrote while hoping for a job at her ex husbands school?

Well shortly after the breakup he began listing them as having been “ghost written” or ghost co-authored by himself. In short, he was now claimed that they had dishonestly represented as her work he had done as her work. The raised a bit of an ethical question. Were they both lying or just him when he claimed to have written he article with her name on them. Always wishing to make a bad situation worse, the battle between exes took to the internet when he sent an email with the subject “ungrateful bitches.” That pretty much put an end to any chance he had to move up through the law school ranks. In fact, when this all happened it was rumored that he had a visiting offer from Harvard. That was withdrawn.

Excerpt from In The Company of Thieves: Conferences and Vacation: Confercationing

 

        

    Confercationing is  when law professors claim to be going to a conference on the law school’s dime but are really on a one to 5 day vacation. The biggest on of these for law professors takes place in early January when the Association of American Legal Schools  meet. Not as big but easily a bigger boondoggle is the Southeastern Association of Law Teachers Conference which conveniently takes place in the summer in a family friendly location. Palm Beach is a favorite destination as is Orlando. Since Universities pay for transportation, meals, and lodging for faculty, the only cost to the vacationer and his or her family is transportation for the partner and kids and their meals. Pretty good deal for a week in Florida. I will say this about this meeting. There is very little hypocrisy. No one attending pretends to be doing anything other than vacationing on the school's dime. 

            Three things characterize these meetings. Since law professors are, by nature, climbers whenever you are talking to someone at these meetings they are always looking over your shoulder to see if there is someone more important in the room they could attempt to smooze with. The second is a contest over who know the best ethic restaurant in town. So people with gather in hyped up groups decided were to go eat. The discussion invariable comes down to who know the hippest place to go that no one else has discovered. Third, at these conferences members of a  panel present papers to groups ranging from 0 to 50.  After the presentation people can ask questions The questions rarely indicate something the questioner wants to know but is for the questioner to impress the rest of the audience with how much they should be reckoned with. It's actually pretty easy to seem impressive because the papers are almost always duds. The papers  drawn from already published articles or recycled from previous talks. The main idea is be able to put on your resume that you presented a paper at such and such a meeting.

            These conferences are pretty much a waste in terms of producing anything for the money spend but there is a even bigger sham than these two main conferences. These are the manufactured conferences, Someone gets the idea to have a conference on British contract law or South American Comparative. The law school provides a grant that could be used for almost anything else that would be more  useful. The conferences always take place in exotic places; not some small retreat where there is little to do but actually confer but in Rio, London, Amsterdam, Geneva, Paris, etc.

Here is an example of one of these manufactured conferences:

International Conference on Latin American Issues

Rio de Janerio

June 10, 2015

Friday June 10

8:30 AM Coffee and Pastries in the Lobby

9:30-10.30 AM Session 1. Evolution of the Peruvian Constitution, Room 23

Co Chairs: Eve St. John, Berta Hurns, Georgio Penata, Julio Peso, J.J. Fields

Presenters:

Coby Claster: Early Peru

Sylvia Macado: Peru After the Early Years

Paco Smith: Peru in the 1930s: Penises

Joan Streeter: Peru and Constitutional Reform

Miquel Mendoza: Consolidation

 Audience comments and questions

 

10:40 – 11:40  Session 2. Brazilian International Policy, Room 56

 Co Chairs: Zeke Palmer, Ted Crammer, Luigi Longo, Roberto Santos, Carmen Zips

Presenters:

Lonnie Funk: Brazil and Slavery

Festus Johan: Brazil and Argentina: History and Perspectives.

Chester Bores: Brazil and Acai: The Importance of the Smoothy

Constance Vaya: Brazil in 2024

Pepe Vargus: Looking Forward

 Audience Comments

 

11:40 - 1:00 Lunch: Box Lunches Provided in the Lobby 

 

[there are also two afternoon sessions, a time for a reception and then dinner at a posh restaurant]

 

 

            This looks pretty good, right? Maybe even interesting. But let’s take a closer look. Notice the location. Rio! Who does not want to go to Rio. Since the airfare is the same if you stay one day or two weeks, no one in his right mind would only be going to the conference. So this has convercationing all over it.

            You may also notice the number of co chairs of each session. A Chair is someone who contacts and schedules the panels. Having 5 co chairs is a sure sign of a boondoggle. Each co chair can list on his or her resume that they were a co chair without revealing that they did next to nothing and also justify the law school footing the bill. Perhaps their duties involved making one phone call to ask something else if he or she too could be a co chair.

            Now look at each session. They have 5 speakers. The session is an hour long. Take some time for introductions and then some time for audience questions and the speakers are left with about 40 minutes to present their “papers.” That’s 8 minutes each. So let’s say the airfare is about $1200. Two nights at a Rio hotel is $400 and meals, say, $100 a day. Is an 8 minute talk or listening to other 8 minute talks worth $1700. Put it another way. Each session has a total of 10 people involved and there are 4 sessions for the one day conference. That comes out to 40 people at $1700 each or $108,000 for participants costs only not counting any charge for the rooms and meals. There actually may also be a fee to attend.

            You will notice that there is time for audience participation. What audience? There is actually  no audience other than the people who are participating on other sessions who may or may not show up for anything other than their own 8 minutes, It’s not like a show for the purpose of advancing the understanding of anything by anybody. In fact, I personally have been a panelists when there was no audience at all. But the school still paid for my confercation. Thanks, taxpayers!

Excerpt from In the Company of Thieves: The Senator's Visit

 

The Senator

[This is an an excerpt from the diary of one of my more elitist colleagues. (Reprinted with Permission) The particulars of the story were generally well know  by every one including me but I will let him tell it in his own words. [I have changed the name of the Senator involved because I cannot guarantee all the facts.]

At Nine couple of weeks ago, I received the following from Dean Bob:

Memorandum

To: Professor Harris

From: Dean Bob

Date: February 7, 2007

Re: Visit of Senator Faceworth

As you are aware [I was not aware] the Law School has invited Senator Jerry Faceworth to guest lecture for two weeks on the subject of Labor Law. I would like to you to serve as his host during this time. I know you have many commitments [actually I don’t] but we need to put our best foot forward given that Senator Faceworth has recently announced his candidacy for President of the United States.

Please advise me of your availability as soon as it is convenient. Senator Faceworth arrives on February 15th.

I responded right away feeling kind of honored. Playing host to an honest to goodness presidential candidate sounded like it would be fun.

So let's  start with Senator Faceworth. First you should know that I read in the Times that in response to some questions about his private life he dared reporters to follow him around. "You will regret it. The boredom will be intolerable."

He arrived by private jet. A squadron of reporters arrived soon thereafter and more were waiting at the hotel when I took him there at about 8 P.M. I gave him my cell number and the phone rang a midnight just as I was dozing off. "Let's have a drink," he said. "I'll be at the service ramp. Be here in 15 minutes" I was and found him, a knit cap pulled low and wrap-around sun glasses. He was very direct about wanting to go to a student "club." I had no idea where to take him but drove him to a part of town with student bars. We parked and went into something called the "Music Store." Average age 21. By now, if you know Senator Faceworth, you know what happened. After 30 minutes he found me. He wanted to go back to his room. "Of course," I said, not realizing that the two coeds - one on each arm - were to accompany him. So, at 1:00 A.M. I left him as he and his new playmates quickly scrambled from the car and darted for the service elevator. This cannot be good. And, he is here for three weeks.
        The next night the same midnight call and it was off to the same bar. This time he emerged with two more pals.  The next day Dean Bob picked up the Senator in the hotel lobby – again was the ever present   swarm of reporters--  and took him to school. My assignment? Go to the service entrance and pick up his two companions from the previous night -- Heather and Misty. They piled in the car and immediately said. "Jeffy, Gar-Gar told us you would take us to breakfast and for tanning." And I did. What could I do? I wore dark glasses but I was a little nervous about the car that seemed to be following.

        So you get the drift. The man who said people would be bored if they following him was and absolute hound for college girls. And this went on non stop. Well non stop until some rapidly unfolded events.

The Senator is off to Bimini for the week end and I am sleeping.

Senator Faceworth evidently came back late last night, having taken Monday off. Judging by his sun burn, the trip to Bimini was a success. Now he is followed by a caravan of pink faced reporters. The cocktail party in is honor is this Thursday. He has not thanked me for the selection of single malt scotches in his office. I am beginning to look forward to his departure. I have had way too many Heathers and Jennifers to escort back to their apartments or dorms.

Two more midnight calls from Faceworth and four more Gingers or Kimberlys -- who knows, who cares. Even though I pick him up at the loading dock of the hotel and he has his stocking cap pulled low, it is not always fool proof. Last night at what has become his favorite bar I spotted a pink-faced reporter who I recognized from the caravan of cars that following us each day. He definitely saw Faceworth and then left hurriedly.

Faceworth finally made his break back to Bimini for the weekend. This time he took two Jennifers who were on the same flight to Miami. I took all three to the airport but dropped them at different places. At one point we were almost spotted by reporters and Faceworth hit the floor while the Jennifers giggled and did other unmentionable things.

 I am not cut out for this!! Word has leaked out among the faculty and today someone accused me of "pimping" for Gerard.

You know the routine. A midnight run and two Jennifers each night.
I find it very annoying that on our trips to the clubs the Senator sits in the back seat and rarely speaks to me. On the way back, he is in the back with his pals.
    Faceworth  left Thursday late for Binimi, too early the see the following article in today's Ivyville Sun. First you should know that that there is big photo on Faceworth on the front page leaving his regular bar at 1:00 with two Jennifers, miniskirts and cowboy boots. I am in the photo just barely. The caption: Senator Gerard Faceworth parties with friends and an unidentified law professor.

The article:

"Senator Gerard Faceworth, a visiting professor at the Ivyville Law School, has been photographed with two companions leaving the Campus Buzz, a popular late night gather place for Ivyville singles. Senator Faceworth only recently challenged reporters to follow him around after rumor emerged that he is something of a "womanizer." According the regulars at the Buzz, Senator Faceworth has been in the club several nights, usually escorted by a law professor. The routine is that he arrives soon after midnight and leaves by 1:00 A.M. with one or two college aged women. The hotel management where the Senator is staying declined comment. The identity of his law professor host is currently being examined."

        I am happy to report that Faceworth  called in Monday morning to say that he would be unable to finish his three week teaching assignment here. The Ivyville Sun article about his late night activities -- as surely you know -- has gone national, even international.
        Reporters are everywhere wanting to know the details and trying to identify his mysterious law professor escort. So far no one on the faculty had identified me.

Draft Excerpt for In the Company of Thieves: Grade Appeals to Law Professors

 

Grade Appeals

To understand my stories is useful to know that law faculties, like most others, are assigned to committees. There are committees assigned to  propose candidates to be hired, committees to approve new courses, committees to review candidates for tenure and promotion. Some committees make long range plans, some study how to increase publications. The one I am on this year is called Academic standards. We typically handle appeals from students when something has been declined by an administrator. For example, a student can take a course at another law school and transfer the credit as long as they got a C. Those who  get a D or lower, which takes more effort than making a B, invariable appeal to Academic Standards to have the grade transferred.

Today the committee met  and had two appeals I had never encountered before. One was from a student who had just finished the first year of school and had received and A in Contract Law. She complained that the A grade, the highest you could get, was unfairly granted. Her story was that in the class she had become friendly with the teacher Ed Freddy, who we all refer to a Mr. Freddy. The friendliness led to lunch which led to dinner (all without the knowledge of Mrs. Freddy) and well you can guess where this is going.

They had falling out somewhere near the end of the semester and their fling was over.  Then the final exam came. In law school in most courses the final exam determines the grade for the entire semester. She took the exam and received her grade which, as I mentioned was an A. Her petition to us was that she only got and A because of the “services” she supplied to Mr. Freddy and that rather be treated like a prostitute she wanted a grade no higher than a B. We tabled this case until our next meeting to give a chance to evaluate her final exam ourselves.

Our second appeal today was equally bizarre. First you have to understand that law schools and other University department hire visitors who teach for a semester or a  year are not on the permanent faculty. Last year we hired Mary McCan to teach for a semester.  She was young, an average teacher, ambitious, frumpy-looking, and  lonely in our small college town.  According to the petition on the last night of finals she when out with a few students including the petitioner and she brought  one of them home with her. They were evidently quite drunk. According to the student, when he got ready to leave she blocked the door. In his words he then “obliged her as a courtesy”. The student got a B in the course and complained he did not deserve a B. In his words he did not know if he had “he’d fucked himself up from a C or down from an A.” He said that neither was acceptable and he wanted us to read his paper to determine if he deserved either and A or a C, which he was willing to accept.

Thieves, Monopoly, Law Professors, and Law Schools

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.

Draft Excerpt From "In the Company of Thieves: The Character of Law Professors (most of them anyway).

 

For most law professors I have known, life is an extended negotiation to advance one’s self interest. They are their own clients. Their constant obsession about where they rank means a complete lack of humility and the use of certain devices. The most common device is to show no weakness. This leads to a number of things. One is to never seen to care very much about something, at least publicly. To show you really want something is to reveal a weakness. For example, when I was chair of the appointments committee, I asked members of the committee who wanted to go to the meat market. This duty is something that is usually coveted by mid or early career professors. No one said he or she wanted to go in the meeting. In a few hours after that, every member of the committee called me privately to say they were “willing to go.”

This leads to the volunteer scam. Law professors never want to demand to do something -- -- they volunteer. When you volunteer it is not like you wanted something but you were willing to help out. Helping out, in this life long negotiation, means you are owed. For example, one of the plums of my teaching career was to be appointed to summer abroad teaching program. One year the person who was set to go could not go at the last minute. I called the person running the program to see if I could go instead. I was informed it would not be necessary because the head of the program had “volunteered” to take on the assignment himself.

Another part of not showing weakness is to try to get others to do work that might expose your own weakness. This means office to office visits and indirection. Let’s say you think someone who has been appointed to chair a committee is an awful choice. You would go office to offices saying something like “what did you think of those committee assignments.” In other words, you throw out the bait and see if anyone bites. Eventually, you might find some people saying they were disappointed and then you roam the halls saying to others “I heard that several people are upset with that committee assignment.” You say "several" even if it is one. Note, you do not say you are upset but that others are. You, of course, just want to be fair.

There are also ways of disagreeing. Suppose Jack at a faculty meeting proposes that teachers have more office hours than currently required. You hate the idea but you do not raise your hand and say so. Instead you say something like “It’s wonderful to be available to students but I have “concerns” about Jack’s proposal or “if gives me pause.” These are ways of saying “that is the dumbest thing I have every heard”

No matter what, you are too busy. You have students, exams to write, phone calls to return, and papers to grade. In reality you may be on Amazon looking for a new toaster or frying pan. You may take a nap. But you never admit to anything other than being overwhelmed with how much work you have.

Being sneaky is important. You do not write down what you could say. If it is written down you have accountability. If you say it, then if it  is passed along you can claim you were misunderstood or taken out of context.

Working the students for high teaching evaluations. You can do this by being funny or radiating your deep concern for their well-being. It does not hurt to bring cookies when their evaluations of you are distributed. One neat ploy a colleague freely admitted was designed to help is evaluations was passing out his own evaluation form before the official. This communicate that you value the opinion of the students and more or less lets them vent if they are inclined to as a way of lowering the chance they will unload on you on the official evaluations.

Information among law faculty is power. If you have it, you can dispense it in the way that best serves your ends. It may be rumor, it maybe something that has very little foundation. Important things are generally bad news about someone else – their article got rejected, they failed an interview at another school, the Provost is angry with the Dean. You can use the information as currency and you spend it to get what you want – usually that is a reaction that advances whatever is in your self interest.

Law professors call what they do “scholarship.” It almost never is. You could count on one had the number of times a law professor actually tries to find the answer to an important question. Instead, consistent with their training they are advocates for their own notions of what should be. Their research skills are limited and the idea of putting anything to an empirical test is frightening to them. You might compare this with seeing a doctor. Usually you tell the doctor the symptoms and he or she tries to match with with a cause, Suppose instead you walked into the doctor and he or she said "you have typhoid fever" and then ignored every thing you said except those things that were consistent with typhoid fever. That's legal scholarship.

Draft Excerpt from "In the Company of Thieves:" Foreign Programs

 

 

Foreign Programs

One way mid and lower level law schools compete with each other is by offering foreign opportunities. In some cases the students can spend a semester studying at a law school in France or Italy or Germany. They get a semester worth of credit for traveling and drinking for 3 months. These are programs for the well to do, of course because there are airfares, apartments to rent, etc. Nevertheless, they can be rewarding and informative.

On the other hand, summer abroad programs are a bit of a scam. These are essentially law schools acting as travel agencies. The idea is that a couple of professors travel to Paris, London, Rome or where ever and take 15 or twenty students with them. Then the students hang out with each other, drink, travel, and spend a modest amount of time in the classroom.  They, of course, pay extra for this and that extra is what covers the housing and expenses of their teachers. In short, the students subsidize the summer vacation of the profs and they, in turn, get academic credit. Their actual emersion in local culture is kept to a minimum as they search out the closest McDonalds.

Now that you know the background, you should know that one of the committees I am chair of is the “Programs Committee”.  A summer program has to be OKed by the programs committee and then voted on by the faculty. Very often it is a fait accompli. For example, one year at a mid summer faculty meeting 17 members of the 60 person faculty voted by 9 to 8 to have a summer program in France. Unusually only 2 faculty can go at a time but most deans also feel it is their duty to stop by, at the school’s expense, for a few days. And sometimes, someone from the Programs Committee is also “obligated to go.” In the case of the France program all 9 yes voters went at some point over the next three years although at times the enrollment dwindled to 12 which was not enough to cover their expenses.

Here is the proposal the Programs Committee considered last October for implementation next summer. I’ve inserted some information in brackets to help you understand:

Re: Summer Program in Italy

Date: February 12, 2007

Supreme Senior Vice President of Foreign Programs, Hugo Valencia and I [Chadsworth Feldman] are happy to propose a new study abroad opportunity for our students. The details are as follows:

A. Location:

Three weeks in Rome, three weeks in Florence.

B. Expected enrollment and student costs.

For the first year, expected enrollment is 30 but the actual enrollment can exceed this. The program has no upper limit on enrollment. The initial tuition is $3,000 per student. This includes all housing and transportation, to the extent those are necessary.

C. Need and Opportunities

This program will complement our other excellent foreign study opportunities. Many of our students have expressed a desire to study in Italy and to learn Italian law. Many of our colleagues have connections with scholars in Italy and would gain a great deal with respect to their work in comparative law. It is critical that we have a presence in Italy.

Several members of our faculty will be invited to travel to Rome or Florence to serve as guest lecturers and to attend graduation ceremonies at the end of the term.

D. Staffing.

Professor Feldman is the Director of the Program and will go each year. In addition to the director, one other full time professor will travel to the site. Two assistants will accompany the professors. These will be the spouses of the professors as long as they accept no salary. Of course, all their expenses will be paid.  After the initial year, it is anticipated that the position of professor will be circulated among the faculty.

E. Students Activities

Students will earn six credit hours. In addition, they will be taken on several tours of important Italian sites.

F. Budget:

Airfare for Professors and assistants: $10,000

Housing: $80,000

G. Impact

This program will put us in the first tier of foreign program offering schools. The net cost to the School, other than trips of guest lecturers, is zero. The two professors involved will be paid the usual stipend for summer teaching.

            Nothing seemed unusual about the program although everyone knew it was the usual faculty boondoggle. The Committee approved it and then then faculty. Then things started to unravel. By December several students had put down their deposits.  Over the next few months some issues came to light. Two stood out. One was that Hugo and Chad, with spouses, had already, with the Dean’s permission and on the law school’s dime, spend 10 days in Italy scouting out, as they put it, suitable restaurants, clubs, spas, and coastal areas for the program. Ok, it’s like what we call in the trade convercationing. That is you are paid for a business trip but you are really taking a vacation while checking off the boxes to make it seem like business.

The second matter had to do with the budget. Usually there is a host institution that provides a  low fee some classroom space.  My curiosity piqued, I asked Chad about this. He seemed a little sheepish but something you never do as a law professor is show weakness or admit wrongdoing. His answer. “That is the beauty of the Program. It will all be conducted by Zoom with the students staying at home. Hugo and I will Zoom not just classroom activities but dining out, clubbing, sight seeing, the works. It will be exactly like they are there.” He went on. “I am sure it will be appealing to the students since they can stay in the comfort of their homes and not worry about finding housing, eating in strange places where no one understands a word they are saying.” Finally, “If there are technological problems we will send them postcards.”

I was reeling from this revelation when I got back to my office. None of this was revealed when the programs committee met or at the faculty meeting. Everyone was too busy, I suppose, booking passage to Italy for some year in the future. When I got back to my office, there was a phone message to call Linda James. I knew I had a student in my class named Tom James but I did not make the connection. I called and she told me that she had tried to reach Professor Feldman but he was not in. The secretary had directed her to me since I was chair of the programs committee and she had a question about the program since her son James was going. She started by saying how excited James was and how she and her husband planned to meet James for the portion of the course in Rome.

Her question was what types of things should James bring – clothing, dressy or not, extra notebooks, computer, and so on. I lied, I told her that I did not know. I did chair the committee that had approved the program but that she needed to talk to Professor Feldman. I assumed she did eventually because I the next day I received the following email from Chad:

Today Tom James’ mother called and asked what sort of things he should bring from his summer in Italy. I told her that the students were not actually going to Italy. She asked what the $3000 is for and I said "expenses." Then she pressed me and asked about the $80,000 for faculty. I told her that was the going rate for appropriate housing for the Professors and any guest lecturers who might join us. She seemed miffed about no students going. Isn't that just perfect!!! You try to do something for the students and you get in hot water for it.

Later the same day:

 

So far two more  sets of parents have contacted me. It seems to have come as a surprise to them that the Summer Program in Italy does not involve their dear children actually traveling to Italy. Hugo and I designed the whole program on the theory that he and I and our spouses would go to Italy and show the lectures and sights by Zoom (or postcard). We would do the heavy lifting and the students would have time to study. Do they not get it.

             In any case the “program” ran for one summer only.  The revenue did not begin to cover the expenses which the law school ended up eating. I suppose it was a success because I received the following email from Chad:

Here is the great news. I am writing from Rome. Yes, the summer program is in tact and Hugo, Marvel, Caroline and I are here working hard for the students. It is true we are down to 5 students and it is true that those five did not actually make the trip to Italy but we are working hard.

As you know, some of the students were upset that the Summer in Italy program did not actually mean they were going to Italy -- only the professors. Some parents were quite rude and the initial enrollment dwindled to 5. Good riddance I say. Those students obviously were not cut out for foreign travel. The Law School decided we had to operate the program anyway because the American Association of Law Schools had already purchased 30 tickets for a team to come and inspect the program.

We are doing our best for the five students. Each week we send a postcard with some interesting fact about Italian law. In the interest of giving the students what they want, we have decided not to administer a final exam.

As for me, being a dedicated teacher of young people is its own reward.

DRAFT Excerpt from "In the Company of Thieves": The Tenure Process

 

Law professors are evaluated to determine if they should be tenured. Supposedly you must excel in scholarship, teaching, and service. You would think that if someone actually excelled at all three, he or she would be hired away by better law schools. Very few are. Why? Because in actuality there are three requirements:

1. write something – anything would do,

2. be politically correct, (or very quiet),

3, be acceptable socially.

(4. I have also heard isolated inane standards like “she is a good mother.” but these usually do not count.)

As noted, decent teaching is supposed to count but I have seen many instances in which awful teaching was explained away as actually an indication of good teaching. To determine  a candidate’s teaching there are class visitations by 2 or 3 professors and the students fill out anonymous evaluation forms at the end of the semester. Not wanting to offend someone who may get life time employment if they meet the above “standards” the visitors uniformly say the teacher was brilliant, engaging, showed respect for the students and so on. One has to keep in mind that the professor knows in advance who is coming and when. Not to be well prepared and energetic those days would mean you are an idiot. Still, there are some who go one step beyond. For example, at one point several students asked me why their professor gave the same lecture day after day. As it turns out these were the days when there were class visitation, and I suppose he had the one lecture down perfectly.

The students fill out evaluations at the end of each semester. These are pretty much ignored whether high or low if one passes the three part test above. On the other hand, if they are low to average, they become the hammer to justify getting rid of the candidate who fails the three part test. But even here, many professors do not want to leave student evaluations to chance. I have seen professors going into classes with the forms the students must fill out in one hand and platters of cookies or boxes of pizza in the other. Sometimes the bribes are so shameful that even the students know what is up but this does not discourage them accepting the bribe. One professor would sponsor a softball game in the afternoon for his class followed by cocktails at a local pub. The tab could run in excess of $1000 dollars. There are far more subtle bribes like not calling on students and appearing to be deeply concerned about their welfare when you could not care less. One very subtle effort involves handing out your own evaluations a day or two before the official ones. A colleague who does this says it takes the sting out of what the students may say on the official evaluations and illustrates how seriously he or she takes teaching.

Faculty who are able to turn evaluations into popularity polls take high evaluations to mean they are good teachers. Yet, the vast majority of studies find that there is no correlation between student evaluations and student learning. In fact, some find students of the highly rated professors actually learn less than those who have professors rated lower. Actually no one knows what student evaluations indicate. One interesting study showed students very short silent movies of teacher and asked them to evaluate them. After the course, they also filled out evaluations and they were about the same as the first set. One interpretation was that the students were responding to body language and facial expressions as much as anything else.

If the whole evaluation of teaching process is a joke it stands right beside the evaluation of scholarship. I am pretty sure if someone wrote nothing, not even doodles in napkins at Starbucks he or she would not get tenure. I am just as sure that a person who writes next to nothing but satisfies the three part test described above will be tenured. There are two things at work here. Letters are sent out to experts in the field. It’s a small honor or form of recognition to be asked to review someone’s scholarship. Like many things in the law professor world, it is something people want to be asked to do but pretend that it is burdensome. And, it is actually burdensome to those who are popular reviewers. Who are the popular reviewers? Typically, they are people who write positive reviews. Who are the unpopular reviewers? Reviewers who are honest. The popular ones use terms like “rising star,” “insightful,” “major contribution,” etc. The unpopular ones are not afraid to say unoriginal, not carefully researched, a repetition of his or her earlier work.

It is not a stretch to say there is something of a market for letters. Tenure and promotion committees want positive reviews for those passing the three part test. If someone fails the three part test they would prefer negative reviews. But negative reviews are hard to come by. Why? Because if you write  negative reviews you may not be asked again and, remember, being asked is a feather in your cap.

There s a second factor in this letter solicitation process. What happens if someone passes the three part test and a negative letter slips through. The negative letter is either ignored or is subject to scrutiny with the result being that is is rejected. Let’s take the case of a professor who I believe had the most expensive education available in American – Exeter, Princeton, Harvard -- a nice enough guy who fits in the category discussed later of law professors who really do not want to be law professors so they change the job. He passed the three part test. In fact, one colleague noted  how upsetting it would be socially if he were denied tenured. His specialty was writing about meditation.  A negative letter came in observing that one of his articles was in large part the same as an earlier article the reviewer had been asked to review for promotion. In this case, the faculty ignored the letter. The recycling of an idea was not addressed. In some cases, the treachery is especially extreme. We call the collection of review letters a “packet.” I have seen packets that included quite negative reviews and the committee making a recommendation to the faculty has said “all the letters were positive” and no one uttered a word because the three part test was passed with flying colors. 

Remember, these are law professors so they will often game the system. They may tell the committee doing the evaluations who not to ask for a letter and who to ask for a letter. It can get pretty extreme. One well know professor/politician was said to have mailed drafts of an article to possible reviewers before hand to make sure when the reviewer received the manuscript to review they would, in effect, be reviewing themselves.