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.