CLASS BIAS IN HIGHER EDUCATION

So You Wanna Be a Law Prof But Not Really?

2012-01-13T23:16:00.010-05:00

All you really knew is that you did not want to be a lawyer. So you got into teaching and what did you find out? Law teaching meant teaching law or at least how to be a lawyer. That is not so hot either because actually law is not interesting to you. Do not fear, a whole generation of new courses for the law teacher who wants no part of law has evolved. Here is a recent proposal just received:

Dear Curriculum Committee:

I would like to propose a new course, Law and Life, to be taught by me. I have attached the proposed syllabus. The course will work best if capped at zero students. Because I feel it is important enough to make it available to others, I have decided to cap it at six.

Thank you Tristan

Syllabus

Law and Life

Professor Tristan & Professor Gold (Music Therapy Department)

Materials needed: 1)A Prune

2) My law review article in any of the seven forms I have published the same article.

3) Dancing slippers

4) A gender-neutral Teddy Bear

5) (Optional) Pancake syrup.

We meet every Tuesday evening from 6-8 unless there is a full moon.

Your grade will be based on the weekly assignments as described and a machine graded, multiple choice, take home, open book (if there were one) exam.

Week One: Birth

Prepare for presentation to the class a limerick that describes how you felt while being born. How is this like a new law? Or is it? Dr. Madelain. a recent graduate of our law school who also once read a book about birth will first present a lecture on "What it feels like to be Born and the Law." This class will not be graded. Instead, each student will be given a laminated photocopy of my Harvard degree. I have thousands so do not worry. This means if I forget to mention where I went to school (and I rarely do) you can refer to the card. It is wallet sized.

Week Two: Telling is Feeling and Client Confidentiality

In this class you must tell the rest of the students the one thing you would least like them to know about yourself. You also must tell something about your best friend that you believe would make your best friend mortified. The goal of this exercise is to allow you to experience how a client would feel if you violated his or her confidence. Students telling the most embarrassing things about themselves will receive an A. All others will receive another laminated copy of my diploma.

Week Three: You and the Prune

Please visit the restroom before class. In this class you will sit quietly and observe a prune for sixty minutes. The music in the background will be John Cages 4 minutes 33 seconds. While observing the prune you are required to adopt the perspective of a cat. What do you feel? Please purr if you are so inclined.

In the last hour of the class, you will share the feelings you experienced. This must be whispered. The lights will be dimmed to enhance the darkness. The best presenters will receive and A as well others in the class.

Week Four: Sex and Negotiation: First Experiences

Prepare a 30 minute detailed description of your first sexual encounter. You may use power point. Your first sexual experience, whether you realize it or not, was a negotiation. Think of the steps of that negotiation. Since there are six of you and only 120 minutes, two students will be picked at random not to participate. They will receive a grade of A. This class will be videotaped by a very small person.

Week Five: Self Defense and the Law

Steven Thog, a guy a met while walking my collie, Jung, around the park will present some really good moves to use on unruly clients. There will be role-playing with each of you taking the role of an abusive client and Steven will play the role of you or what you would be like if you were Steven. All students who do not tell the dean about this class will receive an A.

Week Six: Client Movement

You are required to wear dancing slippers. Each of you will have 10 minutes to display the feelings of a client through movement. You may not speak. Is she happy or sad, tall or short, skinny or large?

The second hour of class you must critique the interpretations of your classmates also through movement only. Important: no levitation is permitted during this class. Students who are more expressive or wear the most colorful costumes will receive an A. Students who would have their feelings hurt if given less than a A will also receive an A.

Week Seven: Attorney Movement

You are required to wear dancing slippers. Each of you will have 10 minutes to display the feelings of a attorney in a case involving a legal name change. You may not speak. Through movement you must exhibit your feelings about the client's new name without revealing those feelings to the client.

The second hour of class you must critique the interpretations of your classmates also through movement only. Important: no levitation is permitted during this class. Students who are the quietest dancers will receive an A. Students who would have their feelings hurt if given less than a A will also receive an A.

Week Eight: Review

This week will be devoted to a discussion of which of the prior classes you liked best. How did it make you feel.?How do you think I will feel if you did not love them all? Special guest lecturer is Bubba Henson author of the brilliant article, "Law: So What?" an unpublishable manuscript now in his file cabinet.

Week Nine: Waffles

Thema Henson, Bubba's mother and waitress at the 3rd street Waffle House will be our special guest lecturer. Special treat: She will bring strawberry waffles for all. Her lecture will cover the perils of late night attorney-client relationships. She is not a actual attorney but once waited on a table of 4. Two had BLTs and two had grilled cheese with onions. After the lecture we will think really really hard. The hardest thinkers will receive grades of A. Each of them may keep the A or give it to someone else in the class.

Week Ten: Princeton and Dreams

There will be no class this night. I will be attending the Princeton reunion. The class will be made up between 2 and 4 AM when you are required to dream a dream of your law professors dancing. A's will be awarded to all those reporting they had the required dream. A's are also available if you promise not to tell the dean we cancelled class and did not make it up.

Week Eleven: Multiple Choice Exams

I will mime a 30 minute lecture on why I use multiple choice machine graded exams. Over the next 90 minutes you will each write an essay on "Why Machine Graded Multiple Choice Exams are the Best Way to Evaluate Student Performance." You will mail your essays to the dean.

Weeks Twelve -Thirteen: Guest Lecturers

Yes, I am pretty much out of ideas and don't really like preparing for class so I am going to figure out who I can get to come and talk to you about whatever. It'll be great. Really! These classes are optional plus I will not be in attendance.

Week Fourteen: Aren't We Feeling Better

Tonight the entire two hours will be devoted to a class evaluation in which you will describe how you benefited from the class. Please emphasize how the class changed you for the better. Oh, not that it is relevant, but I have decided to give you all As and there is a plate of cookies at the front of class.

Is Diversity Dead?

2012-01-12T14:35:00.003-05:00

Maybe the better title to this should be "Was Diversity Ever Alive." When people think about diversity it is usually racial. To me, that "effort" at diversity was always a curious one. Most faculty I have been around really wanted the least diverse diversity candidates possible. By that I mean African American who went to fancy law schools, had middle class or professional parents. etc. But, I've covered this before and to the extent racial diversity is a goal, I see no changes.

Now, though, I realize I have misusing the term "intellectual diversity." In the past I and others have used the term to mean ideological diversity. It is obvious to most that most law schools are not ideologically diverse. There are few conservatives, perhaps fewer libertarians, and almost no leftists. Instead we have the (not) liberals. Most have an agenda (like I do) that is self-referential. I think of them a psycho-capitalists. Not psycho as in crazy but people who are rational maximizers of whatever makes them feel good. And, what makes them feel good is to be around people like themselves. Call it narcsi-pyscho-captalitism.

There is little hope for ideological diversity.

Intellectual diversity is something different. I could mean different levels of intellectualism -- different levels of pure curiosity and a willingness to go with ideas where ever they may lead -- law schools are not diverse (and not not diverse at a high level)

On the other hand, if intellectual diversity means different interests, it is true that some people really get into antitrust and some love teaching contracts with all of its history and puzzles. The problem is that for most law professors, the breadth of intellectual diversity seems to extend to different facets of law. To put it a bit too bluntly, except for knowing about non law things at a Jeopardy level, they don't seem to know much. Ever heard the subjects of conversation at a law faculty party? I can assure you the range is teensy. Just ask the non lawyer spouses who refuse to go.

I'd add one more element to this. This lack of this version of intellectual diversity seems most evident among younger faculty. It's a given that that vast majority of law professors are graduates of a handful of schools. Yet somewhere along the line it seems like those schools stopped teaching or stopped recruiting people a broad range of interests.

In the olden days of law teaching ,when I began, there were characters and eccentrics and people from fancy schools who could talk knowledgably about all kinds of topics. Now those fancy schools seem to select their students from a very narrow range of intellectual potential and then suck whatever potential might have been there right out of them. Some, thankfully, survive going to those schools but many do not.

Get Those Numbers Out of Here or I will Call the Authorities

2012-01-02T11:14:00.010-05:00

The other day I spoke to a colleague about the fact that my school has two grading curves depending on the size of the class. I wondered allowed if we could study whether the 2 curves influenced course selection, class rank, and GPA. The response was not argumentative at all but more or less "I'm not that interested in numbers."

That is, in fact, a common theme in legal education and represents how far legal educators are from the applying various principles and measures that would follow from good educational policy.

The example I have given is directly related to the issue of student choices. Do we want students to select courses that will best prepare them for the practice of law (or tending bar as the case increasingly seems to be) or do we want them to be tempted to game the system.

The two curve example reminds me of one of the worse testing strategies around: Please select and answer any 3 of the following 5 questions. Yes, it's a policy that says to pick the test you would like to take. The student who would get an B on three quesitons and a C on the other two gets the same grade as the student who would get a B on all 5. Like the different curves, the testing method itself intrudes on the process in a way that is disconnected from the goal. But there too we get into numbers.

Something that also falls in the area where law professors do not venture is the reliability and validity of exams. Reliability is really a question of consistency. For example, you turn the hot water tap on half way for your bath and the water is always 90 degrees. You can count on it. But, you also say 90 degrees is just right for making your aching muscles feel better. That is a question of validity.

Suppose every time you write and give an exam, there is a nice bell shaped curve. You might say your testing is reliable: every time you give an exam X happens. But, do you know anything about the connection between what you hope to be testing for and the outcome? This question of validity is a different matter. I am far from an expert but, let's say you give machine graded multiple choice exams. How do you know the questions are valid measures of what you want to measure. There could, after all, be 5 reasons to miss a question or get it right and only some are related to what you are testing for. I would guess that any multiple choice question that does not require a student to explain his or her answer would have to undergo testing itself and perhaps trial runs and debriefings of the students so see what they understood the question to be asking and how the different choices could be interpreted.

And then there is the matter of student evaluations. What do they tell us? I'd say they are very reliable and valid indicators of what the students wrote down on their forms. Other than that, I do not know. The problem is that no one else does. Wouldn't it be nice to know what the evaluations mean as far as actual student learning? I've seen studies that indicate no correlation between evaluations and learning and even some that indicate a negative correlation.

But then again, to actually attempt to determine what the numbers mean would mean dealing with numbers.

Finally suppose you offer three or four credit course you would like to teach in 2 days. There are all kinds of studies on the impact of different class lengths on concentration and learning. I wonder if any law professors have looked at these "numbers."

Sometimes it seems clear to me that numbers are discounted principally because they may tell us something we do not want to hear. The main thing we do not want to hear is anything that casts a shadow over whether we should get our way.

So What's Up Texas!!?? Ain't It Cool!

2011-12-10T11:54:00.011-05:00

If you have been following the law school news you know about the events at UT Law School leading to the "resignation" of the dean. Seems he was paying some people more than others and then not exactly being direct about what was up. My particular favorite is the forgivable loans. Yes, a loan that you do not have to pay back

But let's just hold up a sec. What is a forgivable loan? It's just pay, right? In law teaching these little side deals come in a variety of forms -- lower teaching loads, more trips to China, higher travel budget, having your own foreign program, capping courses, extra research assistance, a little secret bump on your summer grant, etc. True, I had never heard of the loan that is not a loan but rather than regard that as a new thing, why not call every other side deal a "loan" that is not repaid. Same thing, right. And, if you know of a School not making these loans or side deals, let me know.

What's the fuss? Did they think they were all getting the same salary? As the John Travola character said in Broken Arrow, "Ain't it Cool." You just have to laugh. You know how this works. Mr. Entitlement goes down to the Dean's office and explains how he really has to have more or he might have to leave while giving all his colleagues the "we're in this together" smile. Now the folks who did not cut as good a deal for themselves are all bent out of shape.

I feel sympathy for the ones who were duped into thinking there were rules and standards that were evenly applied. My own cynicism can be traced to having been part of that group.

On the other hand, if they are upset because when they slithered down to the Dean's office the plum they got does match up with Little Mr. Entitlement's, I say tough. They are ultimately the ones who love the system when they can work; they need to suck it up when it does not turn out their way. Sure they can get the dean fired but, ultimately, it is most likely the case they simply want a system that works for them, not one that is predictable, transparent and fair.

More on the Enronification of higher education

2011-12-02T04:08:00.003-05:00

A few days ago on my series of posts on the corruption of largely unaccountable universities, I noted the complicity of University Counsel. This NYTs article gives a look at how it works:

Unpacking Votes

2011-11-30T05:47:00.003-05:00

One theme in this blog is that for people of privileged everything is a means to an end that the end is whatever they want. One of the strategies is to unpack votes. Here is what I mean:

Suppose there are 2 candidates up for a position. The faculty votes and they each get a positive but borderline vote of 30-18. Most deans would not know what to do. Don't misunderstand, it's not about the candidate but an assessment of which group is safest to piss off. Now you may be thinking. "But it's 30-18, Isn't it easy." Wrong because in that 18 maybe the pals of the dean or at least those likely to make him or her most miserable if an offer is made.

So, unpacking starts. If you are in the 30 and are worried about an offer not being made, the argument is to identify the likely no votes and say why they voted no. For example, there were 18 no votes but some of those were based on racism or homophobia or disagreement about the 1st amendment. All of this may be true; then again it may not be. Deans in particular unpack votes to get the outcome to please those most likely to be troublesome if they are not unpacked. They do not unpack them, even of the numbers are the same, unless pushed.

There is another form of unpacking that is post vote knit-picking. For example, a candidate comes in and gets a decent positive vote that ordinarily would lead to an offer. The problem is that those in the minority do not want this candidate. So, the picking begins. Remember this is after the vote and the arguments are made to the dean. "I looked at Mark's footnotes and I can't believe he did not cite Jack Bauer." Deans do not go to the 35 who voted yes and ask if they were concerned about leaving out Bauer. To those 35, after all, the game is over. So the 18 or 10 no votes become heavily weighted because they begin unpack their own votes to suggest they are better informed than the others.

I've seen some unpacking lately and I am not sure what actually should happen. Some people do vote one way or another for irrelevant or even wrong reasons. The problem is that all the votes are tossed out when the unpacking begins, even those of people who had the right reasons.

One solution is for each person to state his or her vote and why. If you think law professors would ever do something so transparent, I've got some Florida swamp land we need to discuss.

More on Fungibility

2011-11-23T14:01:00.002-05:00

Here is an interesting article on the fungibility of not just law profs but everyone else. I am wondering if most of the ills of law schools and universities can be traced to the belief that people are not replaceable.

The Rot and Enronification of Universities: Part 5: Self Dealing

2011-11-21T15:45:00.007-05:00

Self dealing is the last of the characteristics associated with the Eronification of Universities. One has to be careful in using this term. I do not know of any University administrators who have actually fattened up their own bank accounts by stealing directly from their institution. And, I have to be extra careful because many readers assume my complaints are always about Florida, more specifically the Law School. That would be wrong. Sometimes I do not care for my Dean's decisions and decision making approach but he is as hardworking as anyone I have known the the idea of self-dealing just does not fit. What I mean by self-dealing is spending the institution's funds on yourself in the sense of making your life more comfortable regardless of the benefits to stakeholders.

Here is an example of what mean. John Lombardi, the topic of the article, is now President of Louisiana or something like that. His activity at Uf sounds like making people comfortable who made him comfortable. I believe at the time he was in the process of being tossed out, I read that he was making sure the University department to which he was headed was especially well-funded. Ironically, one of last significant acts was to appoint an acting dean at UF Law who, again this is hearsay, while in that post, transferred funding from faculty slots to the unit to which he would return. If true, this is the administrative version of apples not falling far from the tree. The interesting thing to me is that this is all evidently viewed as part of the business. Lombardi, as I noted, ended up being sought after for other administrative posts and his acting Dean pal is revered in some circles.

So the self dealing stops short of writing yourself a check. On the other hand, it is putting your comfort and the security of your post ahead of the overall interests of the institution. Or it might mean, as I think it does a UF, supporting a program in which one has a deep personal interest. It is a form or shirking. That is, unless there is a consistent coincidence that what is good for administrators is good for the institution.

Is it unfair to compare this characteristic of Universities to Enron? Of course it is -- to Enron that is. At least in the case of Enron, there is some chance of discovery, auditing and shareholder action. In a public university these activities, with the help of University counsel, the "not technically a lie" culture, an aversion to transparency and rules that are created on the spot can persist indefinitely.

The Rot and Enronification of Universities: Part 4: The "New" Rule

2011-11-15T22:20:00.004-05:00

In the first of this series of posts I noted 5 characteristics of institutions for higher education and have discussed two of the -- the captive legal staff and the obsession with fighting transparency. I also tossed in an old post I wrote about why faculty are too self interested and cowardly to speak up.

Somewhere in all of this goes the "new rule" strategy. That is, an administrator is caught at best just being incompetent or at worst playing favorites. When asked about it, the administration announces the new rule that applies in that situation that no actually knows about.

The worse instance of this came several years ago and involved the worst dean. After a year or two, people began to notice that without any explanations the teaching loads varied. Repeated requests for information went unanswered until the dean said the leaves were research leaves. We already had a sabbatical program so it was puzzling. When pressed about how one applied. . . well, there was no actual procedure. Asked about how the program had operated, there were no answers. Evidently we had a research leave program known only to the Dean and his buds.

My school has a policy that full teaching load is 12 hours but you can request 9 hours if you more or less promise to do research. Most people ask for and get the 9 hour load. Very recently, though, some even lower loads popped up. So, again, a request goes down to the office for an explanation of how one teaches less that a nine hour load. After an extended delay the answer comes that the 8 hour load is a result of the policy that if you teach a 10 hour load you get a 8 hour load the next semester or will teach 10 hours in the future. The problem is that none of the people with the light loads taught 10 hours and many people who have taught 10 hour loads have never heard of their entitlement to the lower load the next semester.

Here is the part that takes the cake. The administrator who announced the rule could not say whether it had ever been applied in the past. Huh?? I think I know why -- there was no rule until one had to be created to explain what made no sense.

Was Enron any less arrogant?

Knowing What to Do, Not Doing It

2011-11-13T16:31:00.002-05:00

The Penn State cover up and this recent comment on my facebook page:"Coverups abound. Just imagine this. Most of us in a university environment live under rules whereby professors are forbidden to have a romance with students in their units. Still, how many professors or students would tell their dean or another higher up of such an event if they knew of it. This is not to equate sex with minors with such relationships between students and professors. It merely illustrates the reluctance to speak up. The same thing goes on in the business world where sex between supervisors and staff is forbidden. Still few staff who know of it will say a peep. And some of this sex is coercive and where it is not it often results in the promotion of the complicit staff member over a more qualified staffer. Still most remain silent knowing that if they turned in the two love bunnies they would have no future in the firm. The rot surrounds us and sometimes we are part of it." led to the decision to repost this blog which I wrote over on Moneylaw a few years ago:

I appreciate the opportunity to write about capture and the self-dealing in legal education. There is one part of the system that I have not addressed directly. Every law school, or so I believe, has faculty members who know better and who are productive enough to have the legitimacy to influence their colleagues to put self interest aside and behave more ethically. By ethical I mean, as Dale Whitman has defined it, “[doing] the right thing even when it is contrary to our perceived self-interest.”

If there are excellent and potentially influential people at every school who know better, how does capture persist? I have already noted that lack of objective standards, weak deans, and appeals to “civility” play a role. Still, why don’t productive scholars and teachers overcome the inertia at their schools? I think a combination of two factors contribute to what is ultimately an institutional shirking problem.

First, being excellent as a scholar and teacher is not the same as having a backbone or any sense of obligation to anyone other than oneself. I believe this is called the independent contractor mentality. Law schools are full of them. You know them and you may be one of them. They go to a class visitation and privately concede that the person they observed was terrible but when their report appears the candidate was “a terrific teacher.” Or, they privately reveal that they read a tenure piece and it was not very good. Then at the tenure and promotion meeting they are silent. Or, they are appointed to a committee to assess the value of various pet programs. Privately they express concern that a great law school is not built by creating multiple tangential programs that have little value and reduce scholarship. But when it is time to actually have an impact, they are most likely to be found hiding under a desk.The world is full of brilliant and gutless people, but it is just possible that legal education attracts them in disproportionate numbers.

Second, speaking out at a school that has not already internalized a common commitment to excellence is met with sanctions. So even if the productive and potentially influential person has some sense of obligation other than to him or herself, there may be a price to pay. (Of course, isn’t the baseline measure of ethical conduct the willingness to pay that price?) One is the threat that the faculty member will be described as “not a good colleague” when higher-ranked schools express interest. This has always been the black ball for decanal candidates, but it seems to be the black ball for faculty hires as well. The result is very “careful” people. In fact, good advice for an ambitious scholar is to avoid controversy – even if on the side of righting an injustice – at any cost. The second sanction is internal social exclusion.

The productive but weak must respond to these sanctions or forget about moving up or being invited to the latest faculty cocktail party. Many professors I have observed who could have influence just cannot do it when anything is on the line that may get in the way of personal, professional and social ambitions.

There is an ironic twist to this. If a higher-ranked school actually is thinking about hiring a promising scholar or a dean, what are they getting if the candidate has pleased or even attempted to please everyone at his or her captured, mediocre, self-dealing, and underachieving school?

The Rot and Enronification of Universities: Part 3

2011-11-12T11:12:00.004-05:00

Part three is about the captive legal staff of Universities. First, though, there was a facebook post by someone that rang true. Maybe I am really describing all organizations. That led to thinking about the inherent arrogance in all of us. People who have no power at all may be made a team captain or a low level administrator and, pow!, they become arrogant. I remember one true asshole dean telling me, while he wore a cowboy hat, "I don't get ulcers, I cause them." That is an extreme example to be sure, but what is it about a little bit of power that fuels the worst in human behavior.

Now to the legal staffs. If you are hired by a corporation the corporation is your client. Ideally, like any client, you advice them about what is legal, illegal, risky, etc. And then if they get in trouble you advocate, within the bounds of ethical standards, the position that benefits the corporation meaning the shareholders. The key is that it is not about the individuals. When someone in the organization is in trouble there should be a decision about how can the staff best serve the client and not the individual. The problem is that it is the individuals who can hire and fire the legal staff. It may be fine for an individual client to shop around for an attorney but a corporation has to depend on others to do that.

Universities have the same untenable arrangement. The client is the institution, not the President, the Provost or the Dean. My sense is that the arrangement holds up pretty well before decisions are made. For example, a President may ask about a proposed program and the legal consequences.

Where is falls apart is when there is trouble. Instinctively the staff decides it must serve those who are in trouble without first asking, "What is best for the client." One of best indications of this, possibly unethical, tendency is how quickly a Dean will call the University's legal staff when he or she has screwed up. The idea that the staff should weight its obligations to its client, the University, when discussing an individuals dean's screw up is out the window. There appears to be no stepping back and saying "if we successfully defend what you have done will the client actually be better off." Again, the university counsel who declines to respond to the individual because it is not in the interest of the institution is also failing to respond to the person who can hire or fire them.

Yes, they are caught between a rock and a hard place and I have yet to know of one who has put the interests of the institution ahead of an individual administrator's cry for help. For the basic practitioner, adhering to ethical standards may mean losing a client. For University counsel it may mean losing a job which is part of a different career path thus also meaning the career path is blocked.

This all portrays University counsel as victim and that would be unfair. They can also aid in the desire to avoid transparency and the "not technically a lie" culture. Two quick examples:

1. A year or so ago at my schools a faculty member assaulted a student by shoving him. The punishment was one week suspension with pay during a holiday. Aside from looking for 14 students I could shove in order to get a semester off with pay, I was curious about University policy on physical altercations involving faculty. Repeated requests to University counsel finally resulted in the "why don't we meet and talk about it." Obviously no policy was to be written down and no one actually claimed to know anything about a policy.

2. Sometime ago the University issued a warning about using one's University affiliation to promote an idea. The idea, as I understood it, is avoid the implication that the University has a position. I wondered, how can this be the rule when law professors write briefs using University funding and identifying themselves as part of the university and invariable those briefs represent their personal views. So, I asked. "Difficult question," was the answer. "We'll look into it."

The point is that the University legal staff is in a tough position but they are part and parcel of the cover ups. Anyone who thinks the ill fated moves or lack of them at Penn State all took place without University Counsels' involvement at some level is more than likely in for a surprise. They are important cogs in the Enronification.

The Rot and Enronification of Universities: Part 2

2011-11-10T16:55:00.010-05:00

In the immediately preceding post, I noted that the events at Penn State inspired me to think and write about the Enronification of Universities. I listed 5 characteristics and discussed one -- the struggle against transparency. It occurs to me that this struggle cannot be separated for the culture of "not technically a lie." It's the strategy of misleading people or knowingly not disclosing a straight answer when you know what is being asking. I don't think this needs an explanation beyond three examples.

1. Statement in Email to faculty: "Professor X will be unable to participate in our foreign program in Spain." Actually story, the person writing the memo (Professor Y) did not want to go to the summer program he was scheduled to participate it. It is more desirable that Professor X's assignment. So, Professor Y asked Professor X not to go to his initial assignment but to take his place.

The straight answer: At my request Professor X is now going to take over the summer teaching I had assigned to myself.

2. As I understand it an email exchange with Kyle Cavanaugh who is at Duke now. Here he was generally explaining how the grievance process works to a potential grievence filer. Just to set this up, one of the procedures we have at UF requires you to grieve to the Provost -- not the real provost but Dr. No. That decision can be appealed to the provost and if you do not like it you can pay for an arbitratio, The President can then decide whether to accept the impartial arbitrator's decision or not. I know what you are thinking but it is true -- after arbitration the President can decide. Kyle explains all this the interaction continues:

Q: After the President decides can you then appeal to the courts?

Kyle: At that point the is process over
Q; Yes I see that there is nothing else to do at the university level but can it be appealed to a court.

Kyle: At that point procedure is over.

Now think about this one. Why do this? The answer is yes or no and if Kyle does not know he can say do. It's just being an ass. In this case the questioner found out in about a minute and quickly emailed Kyle back that "yes," one can then appeal to the District Court. This way Kyle could be sure to "help" others who ask.

I concede I may have some of the exact wording wrong and Kyle did not lie just displayed the arrogance and hunker down mentality of a company man when it did not help the company.

The straight answer. "I do not know." or "I will not tell you."

3. Letter to Law School administrator: I noticed that you dropped course X from the spring schedule. Most of the 50 students who would have signed up for that class will now sign up for my course even though they would prefer the one originally schedule and we have someone who wants to teach it.

Answer: None

Finally an answer: Let's make and appointment and talk about it.

Response of questioner: Would it just be possible to explain in an email the rationale for dropping the course?"

Answer: None

The straight answer: "the truth is I . . . .

So, it may be deliberately misleading as in example one, sleazy as in example two, or just the paranoia of people who are afraid to just write it down.

I am willing to bet that all of this happens at Penn State and Enron. It represents the mentality that helps explain why institutions go off the rails.

The Rot and Enronification of Universities: Part 1

2011-11-09T18:47:00.006-05:00

This is not about class. Instead it is inspired by the events at Penn State. The whole matter has an Enron feel to it. The catch is there there is no reason to believe similar events could not happen at other universities. What has occurred is that universities do not act like they exist at the pleasure of taxpayers and are means to an end. They make rules rather than follow them and when they are caught they hunker down. There are some key elements that allow and encourage this behavior. They are:

1. The struggle against transparency.
2. Self Dealing.
3. A captive legal staff.
4. The "not technically a lie" culture.
5. No real rules.

I will discuss one in each entry. The struggle against transparency is part of the believe that information is power. Universities fight to avoid disclosures. One of my own experiences with this was a request to an administrator at my school, per University instructions, for the documents I wanted. I was told that I had to make the request to a different University official. I did. After weeks of waiting I contacted the official who told me the request was actually forwarded o the administrator I had asked in the first place. Eventually, weeks after asking, I received a partial request. That is minor matter but at the other end of the struggle against transparency is lying to a grand jury. Take a look at the two Penn State officials who are accused of doing that. Are their backgrounds and educations any different than those holding similar posts at your school. Are you sure. But for the randomness of life they could have been Enron officials. You may say they were involved in a cover up while avoiding a documents request is not a cover up. Well, the best cover up is to make sure the information never gets out in the first place. Many university officials just can't stand the fact that what they do is your business, not theirs. When they keep the information to themselves they are stealing what belongs to you.

There are other version of the transparency issue including the refusal to write things down --"come down and we can talk about it"-- and not technically a lie. More on those later.

Cheaters Without Cameras

2011-11-08T21:53:00.002-05:00

The stair machine must be the most boring exercise ever. The TVs installed in them do not help much unless sports is on. Typically I flip through the channels looking for the least inane programming. Today one of those channels that did not exist when I was growing had a show on about how casinos deter and detect cheating among gamblers and casino workers. The security people are up in the ceiling watching monitors. Those security people come and go by separate entrances and do not socialize with the other casino workers. Makes sense. If you do not know the people you are more likely to be objective. Temptation to cut someone some slack when they steal from the casino is greatly reduced. (I must admit the idea of casinos being cheated by others is a little hard to swallow.)

So what about law school cheating. There are many ways it occurs:
1. Favoring or disfavoring students.
2. Not honestly evaluating scholarship for tenure and promotion purposes.
3. Not honestly reviewing the teaching of tenure candidates.
4. Being influenced in hiring because there are friends or spouses involved or the candidates attended a specific set of schools.

My law school has done all that can be done with respect to number 1. Grading is anonymous and professors are not permitted to teach relatives or the equivalent. The last part of this was not always true and for many years the School dealt with the discomfort of parents teaching their children.

My school and I suspect most others have done miserably with respect to cheating in forms 2-4. The problem is that there is no "security staff" that observes without being influenced by personal connections. This is not to say the personality is irrelevant but scholarship, teaching, and hiring should be independent of personal connections. This would be the law school version of the cameras.

Could law schools get a little closer to the ideal. Suppose all articles from a group of schools were submitted to a panel of scholars. Each piece would be anonymous and the evaluators would assess several pieces and each piece would be reviewed by several scholars. A ranking would be provided to the schools involved as well as an absolute score. Teaching is a bit harder partly because the occasional pre-announced class visitation is so full of holes as a valid form of evaluation. It is close to silly because virtually anyone can do a decent job for a few days and faculty visitors would rather do the stair machine than actually put in writing anything that is negative.

One big step in hiring is not to hire into a specific department anyone who is closely related to a current faculty member. That would reduce some of the temptation. When the hiring of the trailing spouse is in a different department, it should occur only after an national search and an audit of the search procedure.

Law schools are not casinos but are affected by cheaters. They are way behind casinos in efforts to curb cheating. Maybe they just do not want to.

More on Fungibility

2011-11-03T15:10:00.003-04:00

It rattled a few readers when I said that most law professors at any law school from the 20th on down are fungible. What I meant that any could leave and their absence would hardly be noted. It is actually pretty extreme. At my school one very productive and self-promoting type left as did another far less productive but equally self- promoting. In the case of one there was hand-wringing including some of my own. In the case of another there was more than a modicum of relief. Years have now passed and I could count on one finger the number of times their absence has been noted by fellow faculty. I could count on no fingers the number of times a student or alum has expressed regret at the loss.

This just raises the question of why deans will sometimes fight so hard to keep people by giving into their demands. For example, "give my spouse a job or I will leave" or "I must teach X or I will leave." Even assuming these are not idle threats I can think of only two reason to cave in -- the person teaches a course for which it is hard to find teachers (this makes them a bit less fungible) or the transaction costs of finding the replacement exceeds the cost of granting whatever is demanded. Let's face it, someone with an actual better offer is going to leave anyway. Those who make demands based on the threat of leaving have, at best, a marginally better offer.

Coming to grips with one's ease of replacement is not easy. On the other hand, it does make you take yourself a little less seriously. For a law prof that is not a small improvement.

The Next Big Law School Scandal

2011-10-21T15:10:00.004-04:00

Just a guess but I think it will be externship programs or at least some of them. These programs vary I am sure, but it appears they all have in common the payment to a school by students for credit. That's fine, but when students pay schools it's not clear what they are getting other than credit. Some may have enriching externships that prepare them for the practice of law and some may be fetching coffee. Part of the problem is that the ABA or AALS version of a site visit to check on what is going on seems to be satisfied by having someone (a pal perhaps) at another school check or (am I getting this right?) just calling the site.

On top of that, what are the standards for what the student does? I've seen some that say "meaningful legal experience." That really does not narrow it down much. I got a speeding ticket once and that was a meaningful legal experience. There is precious little meat on the bones of what is actualy required.

There is another factor that maybe bothers only me. The students pay essentially to work for others. This subsidization is not so worrisome when those others are public entities but when they are private, it is free labor for the purpose of generating a profit for others. This all becomes a bit fishy. Shouldn't the students in these cases be paid?

Now toss in the fact that in some places faculty are paid on the basis of how many externships they generate. Sounds like giving the faculty member a finder's fee or a cut of the school's take for selling credit to students.

I am not informed enough about the politics of the relations between the ABA, the AALS and law schools but, from this informed perspective it appears like a huge case of the AALS looking the other way because no one has the courage to really ask "What is going on." Or, perhaps they know exactly what is going on.

More on the New Cronyism

2011-10-11T01:40:00.002-04:00

I was pretty happy to see that over on PrawfsBlawg, Howard Wasserman wrote a comment on my New Cronyism post (scroll two down) and it was followed by several – too many to read – comments. One thing is certain; there is no class warfare in law teaching. The privileged won long ago and many rushed to defend the stacked deck in the form of a practice that means privileged people help other privileged people cut in line when it comes to jobs. Make no mistake. This is not like a pal letting you cut in line for a theater ticket that will not be sold out anyway. No, these pals let significant others cut in line and there are not enough tickets. Every job claimed under the cronyism system is unavailable to someone else.

Among the comments was a fair amount of defensiveness by those for whom cronyism worked. That is to be expected. Some of the logic of the arguments, thought, left me worried about what goes on in teaching students how to think. And, of course, there is the infinite capacity to rationalize which I suppose we all put to good or ill use from time to time.

For example, the fact that partner hiring does not always work to mean more privilege for the privileged does not mean my general point is wrong. Second, the fact that someone got a job for a partner and it worked out fine or the University is pretty darn happy is silly. Surely every law professor knows and understands the notion of opportunity costs. With this type of thinking if you buy a car without shopping around you would also conclude – for no reason in particular – that you bought the best car.

Some folks seem rattled by my notion that law professors were pretty much fungible and, thus, any school that caves into the leverage of “if you want to hire me you must find a job for my partner” is taking the bait. Perhaps fungible is the wrong word to use here but it never ceases to amaze me at how quickly a school gets over the departure of someone and how little lasting effect there is of not hiring someone in the first place. I know it is hard to come to grips with the fact that you are not as big a shot as you thought but let's be real about the number of people who could do our jobs. I’ll stick to my position on this. Nevertheless, even if profs were not replaceable, fungible, whatever, you would have to balance that against the downside of not even looking at people who may be better than the trailer.

And, then there was something like “We we did not consider these people we would be limiting our choices.” WTF. I am not talking about not hiring married people. No it’s a matter of not hiring based on to whom they are married. If you put a thumb on the scale because a candidate is a partner of someone you want, you are already limiting your choices

Somewhere in all of the comments there was a sense of entitlement -- but we can't both get jobs if a school will not hire a couple. I hardly know what to say. You are both adults with more educations than 90% of the out of work people in the USA. Get a real job.

The most baffling thing is the lack of discussion of what is actually going on. Suppose a candidate comes along whom people thing is hot stuff and she has a spouse that would not have been looked at. Then suppose the “hire my partner” chip is played. If the partner is hired it is simply a higher salary for the wanted spouse. Antitrust experts will recognize this as just a form of tying and really all the benefits in the form of a job for the not-really-wanted partner can be attributed to the wanted spouse.

Is there really any difference between the "hire my partner" demand and a demand for a higher salary? Please don’t say it is because the spouse is doing something. As long as he or she would not have been hired in a completely anonymous process, the subsidy exists. For example, a hot candidate could say “I’ll come for 20K more” or “I'll come at the offered salary but my partner, who does not work, would like 20K for spending money” or "I'll come if my partner gets to cutin line for a job in legal writing or in the Spanish department." In contracts, I think that is consideration, there is nothing illusory about it, and it is a result of what the hot shot offers, not her partner. Next we may have the (single) hot property saying. "I’ll come for the lower salary but your next hire must be a single person about my age of whom I approve for a possible dating relationship." Ultimately, if they both would not have been hired on their individual merits, there is a subsidy. If I were a hot shot I would say I needed both a good salary and a really cool dog.

My point that seemed to be lost on many is that the system is rigged. It’s a cousin of legacy admissions to elite schools. The rigging is pervasive in America and the class version of it has long escaped the attention of law school (and you know why).

I conceded in my original post that I prefer not to have partnership faculty. I’ve seen it work OK and I have seen it be very divisive. If you have a couple and they both bubble up in an anonymous process and you also have 2 candidates who are their equal but not partners, I prefer the latter. If one or both are untenured, I feel even stronger. Why would the greater probability of greater diversity be less favored? This, though, is a different matter than a system of hiring that is rigged in so many ways it could pass for a the Santa Maria (and it is even older.)

The Law Suits Against Law Schools

2011-10-06T14:39:00.003-04:00

I have only skimmed the complaint in the suit against Cooley but I assume the remaining cases must be based on the same theme -- Schools lied, students relied. For many reasons I'd be surprised if a class were certified and, if one is not, many attorneys and plaintiffs will lose interest. Still I applaud the effort and hope what legal education was not willing to clean up somehow becomes cleaner.

The whole matter is an indictment of people in my profession. We have known about this and participated at least by our silence for years. On the other hand, I have yet to hear of a faculty member badgering the dean to hire more of our own grads or admit more transfer students or offer more bar oriented courses. Unless I am missing something, most faculty would like the School to be ranked higher but are not losing sleep about it. After all, a higher ranking does not mean we are doing a better job and a lower one does not mean are students are less prepared.

Yes, most of us have stood by but my impression is that the vocal supporters of doing what ever is necessary are alums. I have heard that at my School, if we drop in the rankings, the alums have fits. I am not sure whether it is because we compete with FSU and they are terrified we could drop behind them in the US News and World Report "rankings" or because they somehow think that the education they had here is of lower quality if we drop. I am also not sure why we don't ignore them. Perhaps because we want their money. On the other hand, if they are serious about action and not whining, they could hire a few more or our graduates at better salaries.

Ultimately, though, when a public school begins hawking its products or programs like pajama jeans (Just saw them in an infomercial last night) an misrepresenting its outcomes, it's not much different than the government paying $16 for a muffin or $200 for a toilet seat. It stinks.

The New Cronyism

2011-09-22T14:54:00.009-04:00

Cronyism is an interesting word. It sounds bad. No one says, "my heart is filled with cronyism" or "that was the cronyiest moment of my life." Yet crony just means friend. Somehow by adding ism it become a serious accusation: The hiring or granting of a right based on something other than merit. Recently I noted two new examples of changes in hiring practices: one is close to cronyism; the other dead center. But in the elite PC world of people who used to rail about ol' boy systems and favoritism, these practices seem to be OK.

1. OK, I am not sure this first one really is cronyism but it is close and I have been meaning to write about it. I was talking to a friend of mine at a different school who is on his hiring committee. I asked him if anything was different in the way it works as compared to, say, ten years ago. Without hesitation and with some level of frustration he said "yes." "I get a constant stream of letters from from well known law profs at highly ranked schools pushing their students. It's almost always the elite schools." My friend observed that ten years ago these efforts were not as aggressive. Of course these letters generally go to graduates of the same elite group of schools who desperately want to please and be remembered by their old profs. After all, a visiting position could be in the works. I understand the letter writers are not necessarily friends but they purport to be close to the candidates they are plugging and they want them to cut in line based on their connection.

2. The dead center one involves couples. Evidently, hiring a spouse or partner these days automatically means taking on the responsibility for finding employment for the other partner either in town, in another part of the university or in your own department. This is discrimination not on the bases of marital status but on the basis of to whom you are married -- cronyism.

As noted there are three forms: A person is hired who has a spouse who wants to be employed in a non academic setting. Deans call in favors to find him or her a job. Or, the person wants a job in a different department. This is actually one of the most undermining. For example, sometime ago my school sought to hire a lateral at a high but not "star attracting" salary. We found our person only to hear that the school had to fund another department to the tune of thousands of dollars to hire the spouse. WTF, I thought. If we knew we had that much to spend we would have been in the "star" market.

The final case involves the couple who teach in the same department. For me that is law. The trailer is usually someone the school would not and did not consider. The desired candidate is hired and the challenge is what to do with the "other." Others can be found stashed all over Universities -- assistant lecturer, research fellow. (Why don't we just call it what it is "Spouse of Tenure Track Professor," "Crony Professor," or "Special Position Filled on the Basis of to Whom you are Married") They go to the head of the line for any position that would fit, they make friends in a context in which social connections are almost everything, and all of sudden the are elevated to "incredibly well qualified" for the same job as the spouse holds. Of course, this is because they have cronies. I see no principled distinction between this cronyism and the 1970's version that usually involved white males and their pals. What I have learned (no surprise here) is that people who criticized cronyism in the past never did so on the basis of principle but simply because the wrong people were being hired. In both cases, though, friendship means thousands of equally or better qualified candidates are ignored.

I will concede to having some biases: First, in my experience, far more often than not, having spouses teaching in the same department has been worse than having two unrelated people holding the same positions. Second, I am so tired of hearing "We need to find a place Angelo. or we might lose Phil." Get real, from about the 20th ranked law school on down we are all basically fungible. No faculty member leaving any of those schools will create a hardship or a change in quality. The next entering class will not know Phil even existed.

I suppose someone disagreeing with me would say they learned so much about the other that he now feels the other is great. Lame, so lame -- you never compared him or her to the others.

Justice O'Connor's Gardener

2011-09-19T14:29:00.005-04:00

I did not attend the period celebration of Sandra that we have here but here is an excerpt from the Gainesville Sun. The reporter usually gets it right.

"About half of U.S. states no longer require civics classes, she said. She contrasted that fact with the requirement that new citizens pass a written exam about government.

"Our high school graduates cannot pass that test," she said. "I mean, it's appalling we make some stranger pass it but we don't require it of our own children.""

So here is the deal. If you are a naturalized citizen, you are a stranger -- not one of "our children." That is, if you were born here and had no choice but to be an American, you are one of us. If you chose to come here, did a crap job for years, learned some English, and passed an exam you are a stranger.

Sandra's (people delight in being in the realm of those permitted to say Sandra.) classism and entitlement tendencies are showing. There are those of us born to be on the inside and then there are strangers -- the little people who work in her yard, no doubt

O'Connor Again? UF Grovels

2011-09-11T10:53:00.001-04:00

Sandra Day O'Connor is, again, visiting the UF. I think she must be on the lecture circuit more than any former member of the Supreme Court. Does she wait by the phone for our call?

It's ironic that UF rolls out the red carpet for her. Her shock at the possibility that Gore would win Florida in 2000 election is well documented. Bush v. Gore was easily one of the Modern Court's most unprincipled decision and she telegraphed her vote before she heard the arguments. It was a vote that essentially said we are terrified of knowing how Florida actually voted.

Then we had the the Bush wars, the war on the environment, Supreme Court appointments that turn back the clock, and the economic melt down that seems never to stop. The whole thing illustrates how we grovel around high placed people even when they tell us their ideology trumps our fundamental rights. People always complain that law schools are populated by liberals. They are right but, as the O'Connor visits illustrate, they are elitist liberals without an ounce of conviction.

The 2000 election also makes me think of the Florida Nadar voters whose little snit made it close enough that any of this mattered.

Conferences and Opportunity Costs

2011-09-09T22:05:00.004-04:00

One of my facebook friends, Babara Burke, wrote the following dead solid perfect post:

The NYLJ reports that Suffolk City has depleted its 18-B attorney funds. Adequate representation to the indigent, welfare for lawyers, call it what you will but it provides a needed service in the county. Perhaps, my alma mater the only law school in Suffolk will see this as the impetus to awake from its complacency, and channel its own funds into creating a post-graduate grant program for those wanting to assist the poor. I'm thinking one Prof's trip to Brisbane can pay a year's salary.

This makes me thing of all the upside down priorities in which law schools are involved. Conferences and foreign travel are good examples. I can read much faster than I can listen. And, people can read what I write (if they care to) much faster than I can say it. Mostly at conferences you see people preaching to the choir, showing off, goofing off, or hanging with pals. A huge portion are trolling around looking to relocate. I'd make an exception for the recruiting conference which does seem like a good way to see many candidates. On the other hand, why send more than 3 or 4 people?

I'll pass on some of the ways my own school has chosen to spend money but there are some doozies. So many seem to exist because no one has the balls to actually say "Why are we doing this." They don't ask this because we know the answer: We do it because someone on the faculty wants to and will have a tantrum if anyone questions the program. As far as I know, like most schools, no program has ever been discontinued. Is it really possible that we got it right every time? I am not sure I have met a law professor who fully understands and has the courage to act on the notion of opportunity costs.

We used to have ridiculously expensive retreats. We'd go to the beach at the School's expense, eat, drink and talk about nothing. I once asked to have the cost of my attendance contributed the county we are in because it could not afford school books. I was looked at like I truly had lost my mind. Turning down a free trip to the beach? Thank goodness we now have a dean who has retreats at school with sandwiches for lunch.

To bad every law school can not start over -- add courses when absolutely necessary, reevaluate all tenured faculty, and only add programs when disinterested people say so.

The Prissification of Law Profs: Leiter, the Scam-man, and Commentators

2011-08-22T20:49:00.011-04:00

I am feeling ashamed of being a law professor right now. First you have the author of the law scam blog who was too prissy to identify himself. Go figure, you're a fucking law professor. What is another law professor going to do to you? Snub you at one of those meetings at which everyone one is looking over everyone elses' shoulders in case there is someone else in the room whose ass it would be better to kiss.

And there was the prissiness of the discussion about what should be made of his effort to be anonymous and other matters already discussed a zillion times. Just replay tape 54. Really is this high school? And then it is followed by even more.

But Brian Leiter takes the cake in this prissing contest. Evidently he is deeply offended and, thus, has launched an extended ad hominen attack on poor timid Mr. Scam-man. Oh, my goodness! For example, according to Mr. Leiter, Mr Scam-man is "notorious in the legal academy." Ouch, now that is big. It's about as important in the scheme of things as being notorious in a Denny's kitchen. And he notes of Mr. Scam-man's accusations, which admittedly are exaggerated, " "None of this warrants the absurdly offensive description of American legal education as a "'scam.'" When was Mr. Leiter appointed the protector of the virtue of American Legal Education. Where was he when Hester needed him? And then, we find that Mr. Scam-man is a "failed academic." I have never actually followed the logic that a "failed academic," even if that is true, cannot observe and report on what he sees. But, if Mr. Scam-man is a failed academic and his record is the standard, he joins 95% of the other law professors who few people know and even fewer people give a rat's ass about what they write or say.

And now a personal note. I really want a comment on this post. And this comment must say this: "Jeff, you've been duped. This was all Performance Art." I really want to believe this because if it is not true, Mr. Scam-man has only scratched the surface and everyone in on this kerfuffle, including me, needs to be spanked just enough to get the priss out.

Should Law School Grads Teach Law?

2011-08-15T19:29:00.004-04:00

In theory they should. After all, they studied it for 3 years and hopefully beyond. So, they have the right information but do they deliver it in a way that can be called teaching? This question occurred to me when I heard that someone had told a beginning professor that "law school scholarship including empirical work is the means to the end of advancing your point of view or opinion."

The problem here is pretty obvious. Law students are schooled on the importance of representing a client as completely as ethically possible. In fact, they are professionals at this. It is, after all, an adversarial system. Can they drop the adversarial/representational mindset when they become scholars and teachers? Many cannot.

When one adopts his or her own point of view or opinion as a client, then the idea of being a teacher hits a wall. The same is true when you are inclined only to hire or tenure people who agree with you. You are not teaching; the exception being if you fess up and say, "my personal politics are too far to the left/right/liberal to personally feel comfortable with that argument." I doubt this happens much because many law profs do not want to engage on meaningful issues. True engagement means the other person may have something to say that is relevant and that cannot be true when you know you are right, no matter what.

So, law grads have the information. That is the good news.

Some more good news. They may have practiced law and may know how.

The bad news is that, although they have a boatload of war stories and talk as though it was yesterday, most have either not practiced at all or only so long ago that there was no internet.

The other bad news is the really bad news. They are also taught to not to be open minded, tolerant, or humble when it comes to what they believe and many, not all, cannot stop representing their personal beliefs. This also means they cannot teach.

Law School Scam and Prissiness

2011-08-15T13:39:00.007-04:00

I am sure most readers have seen the law school scam blog or read references to it. I agree with much of Mr. Mystery's observations (yes this is way too hush-hush not to be anonymous) except I don't believe law profs are as work averse as he or she suggests. Don't get me wrong; it is a world of little accountability but some do have a conscience.

One of my friends predicts this will become the new bandwagon for law professors resulting in much hand wringing about "what we have done to the students." Maybe my friend is right but, if so, it goes down as just another well ....bandwagon. By that I mean no one was on board on the basis of principle but only became interested when they were sure the wind was blowing the right way. What can I say? Just another example of individual gutlessness.

There are lots of others. I could count on one hand the number of law professors who have raised the issue of exploitation and its racial bias when it comes to college athletes. I guess that bandwagon is stalled.

Another one is the deep concern about diversity. Yes, faculty will argue and spends gallons of stomach acid on how much diversity counts and who to hire for a full time tenure track position. On the other hand, literally thousands of adjuncts, lecturers, and other teachers are hired without even a nod to publicizing the position in order to attract diverse candidates. That bandwagon is also stuck in a rut. The same goes for the salaries of staff people.

As I have written many times before, the best argument against tenure for law professors is that they waste it. Of all the groups I have observed, law profs, men and women, must have the highest level of average prissiness per person.(APPP).

Priming the Law Review Pump.

2011-08-03T20:50:00.004-04:00

Over on PrawfsBlawg there is an interesting essay by Jeff Lipshaw about law review placement in the summer. I think he has it right. It's risky because you may have a hard time bargaining up. Plus, from my own experience the information on Expresso about which law reviews are open for business is terribly inaccurate. But if you are satisficer, you may get just what you need.

But his story he has this: "Two weeks after the submission, I received a publication offer from a top 60 law review. This was a law review as to which I did not try to prime the pump - meaning that, in a couple cases, when I saw the receipt notice on ExpressO, I dropped a note to a friend on that faculty asking him or her to put in a plug for me."

As you can imagine, a fair amount of discussion follows. Let's face it, there are many things worrisome about priming the pump -- the old boy system, appeals to authority -- all of which come down to whether the review by law review editors is actually based on the merits of the piece. Guess which law professors are most likely to have friends at other law schools who can help them out. It's those who graduated from the handful of schools that supply the vast majority of law professors. It's strikes me as rigging no more or less than law schools and USN&WR. I do not mean to pick on Jeff. In fact, based on his thoughtful writings, I have great respect for him. He just happened to put in black and white what I assume is commonplace.

Jeff's response to some of the criticism along the lines found here is: "Can I defend the practice? No more than I can defend all the other proxies that student editors use to select articles. A professor says to the editor, "I know so and so, and she is well respected and this seems to be a pretty good piece." Is that any worse than looking at the author's CV as a proxy for the quality of the piece?" This is the part that does surprise me. What does it mean? I think what it means is that law profs do this because they assume everyone else is doing it and, to stay competitive they do it as well. Sounds like the same arguments law schools make when the try to rig the ratings game -- we don't want to do this but we have to. It's a version of the prisoner's dilemma. If everyone would stop -- schools and professors -- the system would be better off. But neither the schools or the professors can take the risk of deviating from a narrow self-interest perspective unless, in the case of professors, they must because they are not part of the elite fraternity.

There You Go Again: NYTimes Letter

2011-07-24T10:36:00.004-04:00

What follows in quotations is part of a letter to the NYTimes from Rick Matasar. The bracketed parts are my own comments. You may recall that Rick was more or less the target of an article in the Times last week. I am not picking on Rick because any dean I have known could have written this. And, for the record, after weeks of pounding on law schools it's clear that someone at the Times has a son or daughter who cannot get a job or into law school. Still the inability of Law Schools and their representatives to stop selling their stories continues.

" In my 11 years at New York Law School, which was highlighted in the article, the first-time bar exam passage rate improved to as high as 93 percent." [As high as 93 percent? What does this mean? Most likely that one time it reached 93%. As soon as I see "as high as" I know I am reading something that is biased or intended to make me believe something other than what is most relevant. For example "as high as 30 miles a gallon" or "as high as 50% off"]

"We have built an acclaimed student-centered facility and have instituted a practice-based curriculum, specialized research centers and an intensive first-year skills program." [I am sure that most other deans would claim to be in the process of doing the same. So does that mean the employment rate is higher?]

"Of 10 private metro New York City law schools, our tuition is lower than all but four." We have a flat-rate tuition and guarantee that the price won’t go up while a student is enrolled. [O.K. If my math is right, if there are ten and 4 four are less expensive, this puts you pretty much in the middle. Why say "all but" 4?

"In its rankings of law schools, U.S. News and World Report publishes median salaries for graduates, but those figures are nearly two years old. We give our students current, detailed job and salary information." [This one puzzles me. Students apply in the fall or early spring of the year they are admitted. Are they provided the data from the class that graduated 5 months earlier? Maybe, but why not say that. By the time the applicants begin school, the only statistics the schools themselves could have are a year old. But here he says the USNews numbers are "nearly two years old." What is nearly? I think that means less than 2 years old. How different can that be from the USNews data?

Some weeks ago on this blog, I wrote about the "not technically a lie" culture that exists at law schools. The idea is to tell the truth technically but to lead the reader to believe something that is not quite right. Rick's comments are so mild that I am not sure they fit into the "not technically a lie" examples I discussed in that post but they are representative of a culture and, to some extent, a profession, that has earned the distrust of most people.

Again, as I said before, I think Rick was a pretty good dean. (Since I wrote that some of my colleagues have let me know they disagree.) These comments are, in fact, just standard fare. On the other hand, wouldn't you love to take the deposition of one of these people? Makes me want to shove someone.

Economics negative 101

2011-07-22T12:27:00.002-04:00

Over on facebook, I ran across this comment on a post about the economics of legal education:

"Legal education in the U.S. could be tweaked, sure. But the biggest problems I see are the absurd increases in number of law schools, class size, and tuition."

The writer is not a "friend" and I do not otherwise know him. I am not picking on him but I think his thoughts may be similar to that of others. That worries me because it seems so off course.

As I understand it the current pressing issue is that law school grads cannot find jobs. So, they invest thousands and end up with a great deal of debt and little or no return on that investment.

The question is whether the problem is more law schools, larger classes, and higher tuition. Unless the law schools are actively misleading investors, what is the connection between any of these and really bad decision making? In my town, there must be 50 people who have invested in selling pizza. If one of them folds, will the reason be that pizza making equipment was too expensive, or readily available? Makes no sense.

I cannot help but wonder if the recent "blaming" trend is the result of finally graduating an age group composed in large part of people who were always over affirmed, could never make mistakes and, thus, cannot handle the criticism the market is offering about their decision making.

Not Buying What You are Selling: Law School Economics

2011-07-19T20:24:00.006-04:00

By now anyone reading this has probably read the piece in the Times on law school economics and featuring former UF law dean Rick Matasar. I though Rick was a good dean although deaning does seem to be a process that leads to a redefinition of what it means to be fair, honest, and ethical. I have not walked in those shoes and would like to think, but cannot know, if I too would "adjust." Probably I would as I have yet to discover any convincing evidence that I am sturdier morality-wise than the deans I have seen come and go.

I do not understand the expose-like nature of these articles when it comes to private schools. At this point anyone who does not know that law school does not mean a high paying job must be living in a bubble. And, at the tuition levels private schools often charge, I am sincerely puzzled. The same people would not pay $100,000 for a motor scooter; why do they become unstuck from reality when it comes to buying a legal education.

On the issue of public schools I feel differently. Supposedly public schools exist to provide something that would not be produced at sufficient levels in a market economy. They do this by forcing people other than the students to pay. There are two possibilities here:

1. More lawyers supposedly with the goal of forcing the cost of legal services down. If this is true, then the current rush to teach more skills makes sense. The problem with this goal, however, is that the market seems to be screaming "enough."

2. It could be that the "product" a more educated and analytic population. If this is the case, it seems like the skills courses, except for writing, should be deemphasized and law school should be more like graduate school with the whole operation greatly downsized. The problem here is that not too many people have the luxury of spending three years in school just to be more well rounded.

So, what is the current goal of public law schools? That actually is pretty easy. It is not about students or taxpayers. Right now it appears to be to preserve the institution, the jobs it provides for faculty, and the process of selling lottery tickets to students. If you think about it, many people still rode horses when they became obsolete. Many people refused to get a microwave oven. Unless public law schools figure out something to do, they may too be put out to pasture.

Tenure: The Club

2011-07-17T18:15:00.001-04:00

Recently Stanley Fish had a interesting op ed piece in the NYTimes. It was about tenure because he was commenting on a book that was questioning the need for tenure. His view, as I understood, was that tenure would make more sense if professors actually did what they once did -- open-minded research that may or may not reveal some inconvenient information.

I have a different take on tenure. It's just a club. How so? In law schools faculty have about 5 years to prove they are tenure worthy. A decision is made in the sixth year and if they are told no they have a year to fine another job. Law schools hire people and, I am estimating, grant tenure to about 90% of the people they hire. What that means is that the initial hiring committee turns out to be right about 90% of the time. Evidently, though, they are right 90% of the time only for their own schools.

What do I mean by that? In my 30 plus years of law teaching I have see a small handful of tenure turndowns, early departures, etc. In that same time I have seen a grand total of 5 faculty take jobs at higher ranked schools. One was Liz Warren now at Harvard. One is at Virginia and another at Vanderbilt. I am saying 5 because I probably missed a couple. One way to interpret this is that most law schools hire people who are just good enough for the school hiring them -- no better (otherwise more would leave for better schools) and no worse (otherwise they would not be granted tenure).

Is it really possible that on the bases of a resume and an interview that this near perfect matching occurs? I doubt it and you should too. What happens too often is that the incumbent faculty member makes friends, knows better than to rock the boat, and, if he or she generates a fan club, the rest of the faculty agree on tenure in hopes of reciprocation when one of their favs comes along. It's not hard to get a fan club because in all likelihood the new hire was hired because he or she was already part of the elite school, class, or family connection club that the faculty hiring him or were already in. When you think if it, not getting tenure is only a little more difficult that having it taken away which is actually close to impossible.

So, the debate about whether tenure is necessary strikes me as mostly theoretical. We do not need to worry about that until someone actually begins to grant tenure or not based on what is best for the school as opposed to the faculty. Don't hold your breath.

Who Pays for Nancy Grace

2011-07-14T08:46:00.002-04:00

Went to my gym last night and got on the boring stair machine. It has a TV so I turned it on hoping for a distraction. The person before me was evidently watching Nancy Grace. I did not stay long on that channel but noticed that there is a clock on the screen counting down until the so-called Tot Mom is released. (It seems like that is supposed to be pegorative but I do not get it.)

I had a number of thoughts. Nancy Grace continues to wave a red flag in front of people already upset about the Casey Anthony verdict and she is making a bundle for herself and the network doing it. She may just push it hard enough that she gets someone killed. I am certain that she has already pushed it enough that there will be funds spent to keeping Casey safe. In short, Nancy is exploiting listeners for her own gain and you and I will pay the bill for the consequences. If you think about it, Nancy is asking me and you to subsidize her money-making efforts.

Why isn't Nancy like a polluting factory that is required to clean up or pay for the area it has polluted. I am all for Nancy speaking her mind and as long as she makes money doing it I am sure her shameless sponsors will be for it too. I'd just like Nancy to be around to clean up the mess when the dust settles.

Chancey, Michelle, and Sarah

2011-07-12T14:11:00.003-04:00

Remember Chancey from the movie "Being There." Actually that was not his name. He got it when he introduced himself as Chance, . . . the gardener. He is not very smart and does not read or write. Through a series of mishaps he becomes media celeb and Presidential advisor. Here is the dialogue from a scene with the President:

"Bobby": Mr. Gardner, do you agree with Ben, or do you think that we can stimulate growth through temporary incentives?[Long pause]
the Gardener: As long as the roots are not severed, all is well. And all will be well in the garden.
"Bobby": In the garden.
the Gardener: Yes. In the garden, growth has it seasons. First comes spring and summer, but then we have fall and winter. And then we get spring and summer again.
"Bobby": Spring and summer.
the Gardener: Yes.
"Bobby: Then fall and winter
the Gardener: Yes.
Rand: I think what our insightful young friend is saying is that we welcome the inevitable seasons of nature, but we're upset by the seasons of our economy.
the Gardener: Yes! There will be growth in the spring!
Rand: Hmm!
the Gardener: Hmm!
"Bobby": Hm. Well, Mr. Gardner, I must admit that is one of the most refreshing and optimistic statements I've heard in a very, very long time.
Benjamin Rand applauds.
"Bobby": I admire your good, solid sense. That's precisely what we lack on Capitol Hill.

People assumed he was special. A terrific little book -- The Drunkard's Walk (math talk for randomness) -- discusses the way that through luck people who are no more talented thousands of others become stars. And once they have that luck the assumption of expertise follows.
So, since somehow he has achieved a reputation as a genius, everything he says is interpreted to reinforce those expections.

That was alll supposed to be absurd but now with a few of today's politicians, the absurd has become the new normal.

The Trial

2011-07-08T13:00:00.002-04:00

I did not keep up with the trial like many others. I caught a bit of the closing arguments and about 20 minutes of testimony. Most of my reasons are based on hearsay and news reports.

1.In my short exposure, the lawyer I would most like to fire would be the smirking prosecutor. He was entrusted with millions of taxpayers' dollars and, if it had been close, his wise ass behavior could have lost it.

2. There should have been a directed verdict at the end of the prosecution's case. I say that because when they ended there was reasonable doubt and the fantasy world painted by the defense did not damages the prosecution's case -- it was weak from the outset.

3. I fear that the defense attorney will be viewed now as having done a great job. In fact, I think he gets a C at best. Or, put differently, the defendant won despite the defense her attorney put on.

4. I believe there was reasonable doubt here and the jurors overcame personal feelings to get to the result. In the OJ case there may have been reasonable doubt but I do not think the jurors would have overcome their personal feelings to get a conviction if there had not been.

5. It was painful watch the State's Attorney on TV try to cover his butt after spending so much on so little.

6. Public reaction further convinces me that if it were not for the Bill of Rights we would live in a police state.

An Elite Education

2011-06-26T11:44:00.002-04:00

This article by William Deresiewicz is so thorough and consistent with my own experience that to quote a couple of high points does not do it justice. Nevertheless, here are some blurbs:

"Elite schools pride themselves on their diversity, but that diversity is almost entirely a matter of ethnicity and race. With respect to class, these schools are largely—indeed increasingly—homogeneous."

"I learned to give that little nod of understanding, that slightly sympathetic “Oh,” when people told me they went to a less prestigious college. (If I’d gone to Harvard, I would have learned to say “in Boston” when I was asked where I went to school—the Cambridge version of noblesse oblige.) I never learned that there are smart people who don’t go to elite colleges, often precisely for reasons of class. I never learned that there are smart people who don’t go to college at all."

"I began comparing my experience, and even more, my students’ experience, with the experience of a friend of mine who went to Cleveland State. There are due dates and attendance requirements at places like Yale, but no one takes them very seriously."

And now the most perceptive. I've often wondered if I am the only one who noticed this.

"Being an intellectual begins with thinking your way outside of your assumptions and the system that enforces them. But students who get into elite schools are precisely the ones who have best learned to work within the system, so it’s almost impossible for them to see outside it, to see that it’s even there. Long before they got to college, they turned themselves into world-class hoop-jumpers and teacher-pleasers, getting A’s in every class no matter how boring they found the teacher or how pointless the subject, racking up eight or 10 extracurricular activities no matter what else they wanted to do with their time. "

This passage reminds of the opportunistic Tiger Mom (what ever happened to her?), the self-professed non thinker. I also reminds me of not all but so many people I see entering law teaching. Many are poorly educated in any sense that allows them to think or talk about ideas.

Desensitivity Training for Travelers to France

2011-06-19T19:54:00.003-04:00

I am a sensitive guy and do my best not to stand out too much in other countries. To this end I am preparing a new training course for all us sensitive people. Like most American men I've been taught that, when it comes to women, "no" means no. In fact even yes can mean no. Never say anything like "Your legs look peachy in that dress." And flirting in the work place is completely off limits. This is a very easy one for me to observe since I am not sure what flirting means exactly.

But for sensitive academics traveling in France this is all wrong and so some desensitivity training is in order. Evidently, in France, it is perfectly acceptable to assume that no means yes. And, if you do not comment on those dreamy, peachy legs, you may be insulting your host and hostess. (I feel certain that in France the use of the ess is acceptable, if not required.) I am not sure I can get all of this down without some lectures by real French people who have lived with the American respect for women. I really need to feel their pain, understand just how they feel and, specifically, I need to know about the every day unconscious things I do that are hurtful to them.

When I am finished with that I will work on advancing the criminal law with the adoption of the affirmative defense to sex crimes -- But I am French.

New Yorker Book Review

2011-06-09T11:20:00.001-04:00

A short excerpt from a recent New Yorker book review:

Few people are fully reliable reporters of time use. But if students are studying less it may be because the demands on them are fewer. Half the students in the study said that they had not taken a single course in the previous semester requiring more than twenty pages of writing. A third said that they had not taken a course requiring more than forty pages of reading a week. Arum and Roksa point out that professors have little incentive to make their courses more rigorous. Professors say that the only aspect of their teaching that matters professionally is student course evaluations, since these can figure in tenure and promotion decisions. It’s in professors’ interest, therefore, for their classes to be entertaining and their assignments not too onerous. They are not deluded: a study carried out back in the nineteen-nineties (by Alexander Astin, as it happens) found that faculty commitment to teaching is negatively correlated with compensation.

Still, Arum and Roksa believe that some things do make a difference. First of all, students who are better prepared academically for college not only do better when they get to college; they improve more markedly while they’re there. And students who take courses requiring them to write more than twenty pages a semester and to read more than forty pages a week show greater improvement.

The Matrix Revisited

2011-05-25T18:45:00.003-04:00

I think everyone has seen the movie The Matrix.If you have not, it portrays the battle between being "real" and feeling good. In effect, machines have taken over the world and cultivate humans as an energy source. They--the humans--actually grow in really yummy looking little pods. They are content because whatever consciousness they have is simply the result of a computerized reality.

Some bothersome Moneylaw-type humans are actually fighting for real reality even though it means some unhappiness. In the movie, the evil forces are those who want to perpetuate the sense of well-being. Thus, the movie assumes, counter to what the current demand for mood-altering drugs indicates, that we are instinctively on the side of those who fight for the real reality. The movie skips over a question that philosophers have addressed one way or another for centuries. Are we actually on the side of the real? Descartes saw the issue as whether our consciousness is imposed by some outside force or the result of our free will. The idea is reflected in Robert Nozick's Anarchy, State, and Utopia when he asks whether we would willingly enter an experience machine. In the machine everything is dandy, and you do not recall that you opted into the machine. Nozick makes the case that there are reasons for not entering the machine.

Most law professors seem to crave the painlessness of the Matrix. In terms of the experience machine, it amounts to a preference for sensing that one is part of a productive endeavor over actually being part of a productive endeavor.Having gone through the contortions necessary to change perceptions of themselves, their schools and programs, they then begin to take satisfaction from those appearances as though they were real. In terms of the film, it is comparable to constructing the Matrix or Nozick's experience machine and then happily jumping in. The pull is irresistible to many. Indeed, the unhappiest people I have known in the academic world are those who are unable to suspend their disbelief sufficiently to enjoy the illusion.

Some features of the Matrix are:

1. A new professor is asked to write an article for a symposium by a senior colleague. The article is called "peer-reviewed” because no law review students were involved. The article comes out and the senior colleague publicly congratulates the new professor and reviews the article for tenure purposes.

2. A faculty member goes all out to be appealing to the students. Assignments are modest, demands in class low and there is plenty of outside of class mingling. The professor's teaching evaluations are very high and he concludes that he is an "effective teacher."

3. A new course is proposed and the faculty considers whether it is a 3 or 4 credit course. One argument in favor of labeling it a 4 credit course is that it could then be regarded as a full assignment for the faculty member teaching it.

4. A popular faculty member is proposed for tenure. His teaching evaluations are good to average. His volume of scholarship is high. In the file is a negative letter from a national expert asserting, correctly, that 30% of the candidate's work is recycled from earlier work. After twenty minutes of laudatory commentary at the tenure review meeting, nothing is said about the negative letter and its claim.

5. Another popular candidate is proposed for tenure. She, her husband, and their children are regulars at faculty social events. Dinner at her house is always fun. Her teaching evaluations are average and class visits reveal that she is, at best, an average teacher. In addition, even though she has met the numerical requirements for number of articles to be granted tenure, most of her writing came in the last year. Both of her last two articles--one of which was a fifteen-page symposium piece she submitted at the request of a friend--were in manuscript form when evaluated. The tenure vote is positive.

6. A faculty member travels to Italy where he has family members. He proposes starting a summer program in Italy. None of the students at your school speak Italian, your state has little trade with Italy, and United States law would be taught at the summer school. At least two other faculty would travel to Italy, at the school's expense, in order to do the teaching. The program is approved by the faculty.

7. Your faculty teaches twelve credit hours per academic year. This translates into six sixty-minute teaching hours per week. A faculty committee proposes reducing the teaching load to nine credit hours per academic year and reducing the class period to fifty minutes. An acceptable basis for reducing the class period is "We would still comply with accreditation requirements. "

8.In the course of arguing for a candidate a faculty member who knows the candidate expresses pleasant surprise that the candidate has been considered by the appointments committee. "What a wonderful coincidence." In the file that has been distributed there is a long letter from the candidate to that faculty member discussing the faculty member’s extended efforts to convince the appointments committee to recruit the candidate.

8. You have read this list and decide none of this has happened at your school.

Power Breakfast: Rerun

2011-05-20T15:05:00.002-04:00

Here you go. To get you started in the morning.
Take one or two slices of bread. I personally like one thick slice.
Toast it or not, it's up to you.

Spread it with butter, margarine or one of the low cholesterol spreads.

Now sprinkle all over it dry roasted sunflower seed kernels. Lots of them! They stick nicely to the spread. I getting hungry just thinking about this.

Finally, jam, jelly, honey or what ever you like on top. If can skip the underlying spread and the jam and just use Nutella and put the sunflower seed kernels on top. Probably you should work your way up to this.

A wonderful breakfast that will supercharge you for the day.

Nutty and sweet -- just like my favorite people.

Fast Five

2011-05-04T20:58:00.002-04:00

Can a film be cause for celebration? Most, including me, would say no. If so, I challenge them to rethink their position after seeing Fast Five. It aims exclusively at the sophisiticated viewer and dares him or her to think about what a medium that has lost its way can be. The film is moving, inspiring, and likely to cause some to drive really fast when leaving the theatre. Directed by Justin Lin of "Fast and Furious: Tokyo Drift" and written by veteran Chris Morgan, their effort is not simply award worthy, it is a life altering experience. Set in the dreary favelas of Rio de Janiero, the pulse of the film is provided by Sir Vin Diesel, fresh off his extened run as Macbeth the Old Vic; Mr. Dwayne Johnson, most recently of Westlemania 27; and Mr. Johnson's spectacularly aggressive biceps. It is good and evil with the prize the unborn niece or nephew of Dom, Sir Vin's character. The homage to Rosemary's Babe is touching and sincere. The chemistry between Sir Vin and Mr. Johnson might best be decribed as a testosterone bath culminating in the film's finest scene when Sir Vin has an opportunity to drive a monkey wrench into the skull of Mr. Johnson. This scene will immediately take viewers back to Citizen Kane or at least their film studies classes in which every instructor taught them if they did not worship Citizen Kane they better fake it or risk getting an F on the final exam.

A superb supporting cast includes Ludacris in the role of Ludacris and Joaquim de Almeida, reprizing the role he so-often played in "Miami Vice" opposite Crockett and Tubs. Sung Kang, however, steals the show with his understated performance as Han. Kang is the newest Belmondo and his performance is Belmondo at his best -- think Breathless, unless you have been under a rock.

Most of the audience will simply laugh, groan, moan, cry, eat milk duds and text message. The film is lost on them. They will not recognize the magic and the celebration of art in Fast Five. For the sophisticated viewer it is cavier and champagne.

Public Documents: What Does it Mean

2011-04-30T13:36:00.002-04:00

Some of the characteristics I have identified of elites is a desire to maintain denyability, the tell half truths, and to volunteer but not ask. This is all below in one of my posts. Clearly though, the desire not create a written record is hardly a characteristics of elitists. It is actually a characteristic of most administrators whose positions are political -- whether an actual politician or just someone trying to please as many people as possible.

This article about a Florida official raises an issue. I understand that documents, other than some exceptions, must be public. On the other hand, is it also required that a document be made in the first place. To me purposely not making a document for fear it will become public defeats the purpose of the law. On the other hand, lawyers and administrators seem not really to worry much about the spirit of the law as long as they can find a way around it.

In one recent experience, I was asked to make an evaluation. So I did and submitted a very long written report. The person to whom is was sent apologized for not letting me know that the written document could be a public record. My response, "I hope so, that is why I wrote it." Several others were asked to make a similar evaluation. This was, by the way, an evaluation including several variables. To my knowledge none of them wrote anything down.

I assume they acted within the law as a technical matter but perhaps not in spirit. But, I do not know.

There's something happening here (and there), what it is ain't exactly clear...

2011-04-24T11:26:00.006-04:00

Recently I had an interesting trip into the world of anonymous and unrestrained of blogging. I attempted a relatively mild defense of UF after the embarrassing publicity of last week (which, by the way, common sense would lead one to believe is based on a partial story) and got clobbered by a few anonymous commentators. Not all of the personal criticism was unfair.

Some of the more interesting quotes are these.

"It’s ironic how UF Law professors complain about their students being unprofessional, when UF Law professors are violent, rude, unprofessional, not collegial and childish in their daily actions."

"Unfortunately, the Dean and the professors at UF School of Law have created and fostered a very hostile and unpleasant environment. The professors don’t seem to get along with each other and most of the professors seem to dislike the students."

"And, it is known that the faculty isn’t a student-friendly faculty—the students make that clear. Maybe to each other, the faculty pretends they are student friendly and you can feel better about yourselves, but the students and alumni know."

"I have taken many classes where the professors openly talk bad about students during class—either about students in another class they are teaching or a previous year’s class or the student body in general. In offices, the courtyard and in the hallways, I have heard many professors talk negatively about their colleagues and the students in general or talk about how their fellow professors hate teaching or hate the law school students. I’m tired of hearing from UF law professors that we act entitled, are lazy, are worst than previous classes, that we don’t work as hard as you professors did when in law school, that the professors deserve to be teaching at better schools with more intelligent students, that we are racist or homophobic, that we are elitist, that we are conservative bigots, that republicans are evil, that all southerners are bad, that we are rich snobs, that the grading curve is too high, that we are idiots or disrespectful when we may disagree with your jurisprudential views, that we are inappropriate, and that practicing lawyers are bad people."

"My classmates and I have heard professors bitching ad nauseam about students and other professors. It is a ramped problem at the school. Most students don’t even want to hear these things. But, it does create an unhealthy, negative environment. As for the students taking responsibility for being spun--spin or not (we may not believe the spin being shoveled), it nevertheless creates a feeling that the professors are “nasty” and makes the law school’s environment unpleasant--a place where students don’t want to be."

Much of this was delivered an what I would call an angry tone. Of course, I happen to appreciate strong feelings, even anger, when there is an injustice. Moreover, the commentators represented a small but perhaps representative sample and all were anonymous. Nevertheless the themes were consistent: 1) Faculty do not respect students; 2) Faculty do not like each other and 3) Faculty take their gripes about each other to the students. I am sure all of this is true at every law school and have had personal experience. I recall a recent conversation with a new colleague who said had been "briefed" within a day or two of his arrival able how evil I am. The faculty flowing to his office to recruit him one way or another (not with respect to me) has surprised him. He heard so many different versions of UFs history I am sure his head was spinning. The question is whether these thee conditions exist only at the margins of a School or begin to define a School. I do not know.

It is ironic that this exists in an era in which the Socratic method is dead and the average student is guaranteed a B+ average. In fact, at a recent retreat with faculty and alums the alums seemed generally surprised that teaching styles had made a 180 degree turn from what they were used to. My perception was that they felt it was a bad idea.

So, what is going on here in a era in which at least on a formal level things would seem to be the best ever for students but, in fact, they may very well be the worst.

I do not know but I think any explanation that focuses only on UF is too narrow. There is something bigger going on here. My own theory, upon which I hope no one will place any reliance, is that it starts with the late 60s, the generation that came of age then or shortly thereafter, a culture of over-affirmation, the pervasive sense of entitlement, and the lessons many of us influenced by that generation have taught our children. It may be a sign of an experiment that did not work

The NCAA and Law Schools

2011-04-12T10:53:00.007-04:00

One of my students alerted me to this NYTimes article which I had missed. It reminded me of a blog I posted some time ago about the exploitation of college football players and the cross subsidization of other sports played by predominantly white and middle class students. I wondered where all the liberal outrage was. There is none. The NCAA can get away with this in large part due to a Supreme Court opinion which, without needing to in the context of the issue at hand, exempted colleges when it comes to the exploitation of mainly minority and lower income students who happen to be good at football.

I cannot help but see in Law School externship programs some of the same factors. Under these programs, students pay law schools tuition and in turn the Law Schools allow the students to work for no income during the summer in order to earn credit. Or more crassly, schools charge students for the right to work for free. The exploitation issue is not as severe as in the football case. A student with little income or no income cannot be farmed out and must get a paying, no credit, job.

Like football, it's a huge money maker where the institution profits from the labor of others. Some schools, like mine, have even even created incentives by paying faculty on the basis of how many externships they can stack up. These are faculty who evidently were already fully occupied with full time jobs and being paid a salary. So, what are they not doing now that they were doing?

According the the US Labor department, to avoid falling under the Fair Labor Standards Act and, thus being afforded the protections for other workers, "The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship." What I could not find is the part of the process that says to earn credit students must not be paid. Luckily, a colleague helped me out here. It is evidently found in an interpretation of 305-3 of the

ABA Standards for Approval of Law Schools.

Interpretation 305-3

A law school may not grant credit to a student for participation in a field placement program for

which the student receives compensation. This interpretation does not preclude reimbursement

of reasonable out-of-pocket expenses related to the field placement.

So, let's see, attorneys and law schools agree that students cannot be paid if they are to receive credit. As far as the Law Schools are concerned does his amount to a horizontal agreement? Surely one way to compete would be to say to externs that they are permitted to be paid. And, is there a class of past externs who had no choice but to pay for credits and work for nothing because law schools agree to award credits only if the salaries are fixed at zero? This is all fanciful, I suppose, but isn't it interesting how those in charge of the law don't seem to stick to its spirit.

WTF: Welcome to the World of Won't

2011-04-06T20:34:00.008-04:00

Sorry if the letters offend you but it really is the phrase running around in my head when I think of this: One of my first jobs was a laborer. Unionized but still low pay. Florida sun, 8 hours often in the mud and so tired at the end of the day it was a beer and bed. The only disagreements were between the foreman and the union steward over how many cinder blocks I should carry at a time. I kept my mouth shut and needed the job. Just like being a law professor, I knew if the truth were out, a zillion of people could do what I did. I did not say when I would come to work, how long I would stay, what I would do, when I would do it. I just did it every day to get a check.

If anyone has had that type of job -- the type most Americans have had or do have then their only reaction to law professors has to be WFT?

Like the meeting I was in the other day in which the question came up of why someone only taught a handful of students each year. The answer? "I talked to her and she won't teach more than that." WTF?? WON'T?? When did won't become an employee's response. Yes, working Americans, law professors get to say that and no one gives them a spanking or fires them.

"Dude, gotta be out of town for a couple weeks to teach somewhere else. Don't worry, I'll work when I can (or not), a little extra here and there or maybe 5 days straight at end." Law professors reading this know I am not kidding but this is fair game if you have a job in which you "won't" do things and the only response from the person nominally in charge is "oh." WTF

How about this one. Don't want to teach your classes at 9 or 4 or on Friday,Monday or Wednesday (or at all). OK, my dear what would work for you in the world of "won't." WTF?

OK, how about not really teaching in person but taping an entire course and them picking your your check as usual. Tape for two days and semester is done. Is this the same as phoning it in? I wish I could have phoned it in the day my finger was almost taken off while I was hooking a giant bucket of cement to a crane. WFT?

You don't really want to teach what the law is but what you wish it were. No problem, if you are in the world of "won't." No one knows and so what if the students' clients are blindsided by the attorney on the other side who actually does know the law. WTF?

What? me grade exams? Don't worry, just use that recycled machine graded multiple choice one. WFT?

I think one of the qualifications for being a law professor is to do hard labor (not in jail although that is a thought) in order to get just a taste of reality and humility. As best I can tell those who do not make use of the "won't" culture, in John Lennon's words are "still fucking peasents as far as I can see" or they will be treated that way.

Liberals and the Working Class

2011-04-03T13:07:00.006-04:00

One of my Facebook friends linked me this interesting article the gist of which is the poor, working class, poorly educated and religious tend to be conservative. Their actual ideology cuts against their economic self-interest. The data are all presented on a state by state basis which can be terribly misleading. South Dakota counts as much as New York.

The data also tell us what many of us have known. OTHO, the conclusion that working class people vote against their economic self interest may be a bit hasty. Are working class people really voting against their self interest? Think about the liberal ideology of the last 40 years. The primary liberal focus has hardly been on class. It has been on historically disadvantaged groups that are minorities within the poor and working class. The hypocrisy of the liberals is that they are happy to do good for some of the poor and working class if the burden falls predominately on others who are poor and in the working class. If a cause, like those that are class oriented, would actually mean liberals are affected, it somehow loses its attraction.

There are broad strokes but for the most part Left means caring about the poor and working class of all types, Liberal means not caring and Right means using them to advance your own ends. Of course Liberals do this too but it is more like collateral damage.

Who Put the Drive Through Window in Law School?

2011-03-30T13:36:00.010-04:00

Lean times mean that people look for ways to save money. It also means that producers look for ways to cut costs and, accordingly, cut the quality of what they do. That is the good news. The bad news is that whether times are lean or not, a shirking faculty -- the self appointed shareholders of law schools -- promote the same quality reducing measures. Whether driven my lean times or just faculty cost cutting, its impact is to lower nutritional levels thus creating the McLawschool. Several items on the menu reflect the McCulture of today's legal education.

1. Massive reliance on adjunct professors (a good thing if you are in a city where the pool is large, not so good in a college town where the pool is small) with little or no screening. Some are good some are not but they often work for the honor of being able so say they are "professors." No one ever asks if they know what they are doing and as long as they are nice, give good notes, and seems smart the students will not tell. In fact, some students want you to super-size that.

2. Subcontracting by virtue of externships. No teacher necessary except for a weekly phone call. In some cases, the externs work for for profit making entities. Yes, the school subsidizes the private sector by giving students credit for helping generate more dough for others. No money for the students, though. If they need it, they price is the credit they would otherwise get.

3. High margin desserts. These are the extras that are good at the time but are unlikely to make you a better lawyer. Foreign programs go to the head of the class here. It's actually more like a school running a travel agency. The experience is fun, like a nice like a big piece of Goode Company pecan pie, but about 2/3 of it is only that. As one student said," Don't worry about class, it's all graded on the curve."

4. If you can combine a summer program, with a semester abroad with an externship, you can spend half of your three years in law school not in law school. In fact, for people who do this, the a law school is just a drive through window.

When students are done with the three year meal, can they write, research and think critically?Maybe, but that will be determined largely by whether they could do those things before they arrived.

New International Barista Law Program

2011-03-17T14:55:00.009-04:00

[One of the most somber and well thought out processes at any Law School is the development of new International Programs. They can take many forms -- an externship in a foreign land, a summer program in a country that is likely to be important in the future of the students, an exchange with students or faculty, or just a decision to send people to a random country that a tantrum-prone faculty member has an affinity for in order to enlighten students there. Here is a proposal a friend at another school emailed me. I wish someone at my school had thought of it first.]

I will shortly present to my Foreign Programs Committee for their assured approval and eventual faculty affirmation "Comparative International Barista Law." This builds from the solid faculty already in place who are the leading experts on barista law, or at least coffee law, or maybe just drinking coffee -- which happens a whole bunch -- but it's really all the same.

In the summer program, a small group of highly qualified students (qualifed because they are affluent enough to afford it or willing to incur yet another several thousands of dollars in debt) will visit the coffee shop capitals of the world, INCLUDING, a super special side trip to Amsterdam so the full breath of coffee shop diversity can be fully experienced. For many this will be the high point of the trip and special arrangements will be made for students who wish to remain in Amsterdam to pursue graduate work. The on-site offices for this part of the program are at the Banana Head Coffee Shop.

Vienna, Rome and Rio are on the agenda with several coffee shops visited at each location. Guest speakers at each stop will discuss barista law issues in each country -- unionization, copyright, scalding, decaf v. caf., truth in labeling, over-serving liability, being wired, wire tapping, tap dancing (something done best after a double espresso) and trade usage when instructed to "leave room for milk or cream." The most focused part of the experience will be in depth interviews with baristas from each country in order to understand how they really feel so the can be healed by sensitized American students having a fun time.

The examination part of the course can be satisfied in one of three ways. Students may write a ten page essay on "What I learned this summer." It must be submitted on lined paper and written with a fountain pen.(Please no coffee stains.) Those students opting for a concentration in Amsterdam may, alternatively, submit photos of milk designs made on top of cappuccinos. Finally, students who find evaluation uncomfortable may forgo the examination process altogether.

Up With Barista Law

2011-03-17T14:02:00.006-04:00

A friend of mine, who I would happily credit except for his/her strong objections, suggested recently that, given the odd assortment of courses law schools offer because faculty want to teach them and not because they have much to do with what students will actually do, our law school should offer Barista Law. I put barista law in google and to my surprise there is a growing area of law about baristas. Most of the cases deal with what they can wear. Evidently the big issue is whether wearing a bikini is OK. (Frankly I want no coffee served by someone in a bikini.) I am sure there will be cases about burns, caffeine addiction as an occupation hazard, competition from energy drinks, the rules applied to competitive baristering, copyright on the little designs made with milk in your cappuccino, the accreditation of barista training schools, over-serving liability, etc. There are probably casebooks being developed as I write this.

I laughed when my friend mentioned it but, after my research, I realized that there is more law in barista law than about a third of the courses law schools now offer. It's all part of allowing faculty to determine the curriculum as opposed to people who actually practice law or have practiced in the last ten years. As I have noted before, law school offerings are increasing looking like they are put together by people who thinking:

1. This is what practicing law would be about if it were done in heaven or at least in an ashram.

2. This is what practicing law would be about if it did not include the things that drove me away from the practice of law.

3. This is what a good curriculum would look like if the students did not matter.

So, let's get busy developing the barista law course so the students will actually deal with issues that they may have to confront in their professional lives.

Kenneth Oldfield and Class

2011-03-02T13:45:00.004-05:00

Ken Oldfield, a fellow I have blogged about before, has a new article out "Social Class-Based Affirmative Action in High Places: Democratizing Dean Selection at America's Law Schools," 34 J. Leg. Prof. 307. I do not know if it is accessable yet since he was kind enough send a reprint. As far as I know he is the first to take on the class issue as it applies to high level administrative posts. His presentation is persuasive and thorough but I was struck mainly by a line that he quotes from Peter Sacks, class "is the grand organizing principle of our higher educations system." Of course the problem is that those who organize the system are not about to let go.

Do We Know About Practicing Law

2011-02-24T19:46:00.003-05:00

My school is not alone in hearing that it's students are really not prepared to practice law. The complaints I hear are primarily about writing and research skills. I am happy to say that there seems to be a collective effort to change this.

The problem is: Do we know anything about it? How many law professors actually practiced law? Probably quite a few but how many did in the last 20 years? How many actually came from a clerkship or graduate program to law teaching? Do they really know what a beginning lawyer is expected to do? It's risky to leave the redesigning to people who have not practiced law in the last 20 years if at all.

If people have not experienced practicing law in the last 20 years there may be a tendency to imagine that students need skills they would primarily need if law were practiced the way the professor wishes it were practiced. This would be a world without zero-sum games, win-win outcomes, and high level debate about what Justice this or that meant. In that world, I doubt there are scores of boxes to go through looking for a specific piece of evidence that will assist the client or could be a land mind. I doubt it is a world in which 20 depositions must be taken in a month at places hundreds of miles apart.

I worry that third year student Zack will show up for an interview and announce his specialty is collaborative lawyering or the economic analysis of law and the interviewers will just say "next please."

Also see http://popecenter.org/commentaries/article.html?id=2281

EMail: Yes, No, Depends

2011-02-22T16:32:00.005-05:00

The other day, I wrote to a colleague about two administrative issues. What I got back was an answer that was unresponsive. When I explained this, what came back was a pretty nasty response (ad hominen) and a demand that we speak in person or not at all.

I did not want to talk in person but could not put my finger on why. I realize that every person picks the mode of communication that he feels is likely to achieve his ends. In the past they have enjoyed either successes or failures using one mode or another and this informs future decisions. So, why did I prefer email with this person but not with most others?

Before getting into that, some other emails issues should be put aside. Email is risky and can lead to pretty embarrassing accidents. I am told that one of my colleagues once inadvertently sent a review of a job applicant's scholarship not to the appointments committee but to most of the people teaching in the area throughout the US. And, it probably is true that people are less inhibited in email but about half the time someone accuses someone else of sending a "flaming email" it is really comparable to walking out of the room and slamming the door or a garden variety personal attack. By that I mean the accusation is just as likely to mean "I have no reasoned response so I'll just say you offended me and mischaracterize what transpired." One other thought on this. Do ever wonder what immediately preceded the "flaming email?" Do you really think it was a polite thoughtful communication of some kind?

And, of course, there are the "no email" people who do not put anything in writing for fear of losing deniability. One of my most interesting experiences with this was a few years ago when a faculty committee was asked to evaluate several faculty members and rank them. The standards to be applied were tenure standards. When the process was over, a disappointed applicant asked to see the written record. There was almost none. Yes, 6 people had ranked at least 6 others including a review of scholarship, teaching, and service and had evidently done so with creating anything but the barest paper record. Email, and writing generally, is not for the gutless.

While some of that influences my own email v. in person choice, I also think it is individualized. For example, everyone has colleagues who, as soon as you begin to speak begin a nodded "no." In other words, before you finish and without knowing what you are going to say, they are preparing a negative response. I email these people when I do not avoid them altogether. I also use email when the person is known to interrupt. It's hard to interrupt when reading an email. The recipient is pretty much forced to hear you out. There is also the matter of quickness. The other day I observed someone in a conversation. She said, "If you will give me a chance to think, I believe I can respond." In other words, some people are just quicker and others need time -- the time it takes to compose an email --to respond.

Finally, and this may seem backwards, people who are naturally conciliatory (I mean really conciliatory as opposed using it as a negotiation tool.) should avoid face to face discussions. To the extent you want to be liked and to seem reasonable, you may regret what you end up agreeing to. Those who prefer face to face are often quit good through their body language and facial expressions at indicating that their opinion of you may hinge on just how agreeable you are. In fact, there is an analogy to informal dispute resolution which often disadvantages the person who just wants to "get along." Those people are better off with more formal means of dispute resolution. Email provides the same distance in person communications.

You may notice a theme here. The characteristic of those I prefer to email are those who feel they can control the conversation so it will turn out to their liking. Email means they lose some of that control. Flip it over and the question is whether the person who emails also just wants to use email in order to control the conversation. Maybe. On the other hand, maybe email is the only way to resist the control the face to face person exerts.

When the parties do not agree on the way to communicate, perhaps there is no communication at all. This favors the status quo and means if you really want change to you to acquiesce to the mode chosen by those in power. Thus, those with power get to set the rules of discourse and they set them to favor themselves.

The face to face people have one really annoying trait. Even though they will not agree to email, if they see you in the hall they are desperate to exchange hello's. But this is a show for observers and simply reflects their need to control even appearances.

Law School Intervention

2011-02-17T12:18:00.002-05:00

There is a program on one of the dozens of channels that I do not really know how to identify. Essentially cameras follow an addict around to show what his or her life is like and at the end there is a tearful intervention at which the addict is talking into going to rehab. It is hard to watch and pretty intrusive. I am not sure I have watched an entire episode. Since the intervention comes as a surprise I wonder what the addict thinks when the cameras are following him or her around for days.

Addiction is not a pretty thing and I am not equating law school addictions to the stories on the program but there are addicts on law faculties or maybe it is just people with "challenges."

For example there is "over talking." This is the person who holds forth in faculty meetings on every issue never realizing that he is keeping other from talking nor that everyone knows what he will say before he says it.

And there are the rationality challenged. They will say almost anything to avoid focusing on the actual issue. The move to ad hominen attacks or when cornered say "I am offended." It's a bit like trying to reason with your cat.

Closely related are the pathologically self-interested. By this I mean those who always take the position that advances their own interest and somehow justify it as good for the whole or especially the students. Mostly they view a law school as a means to their ends.

So, here is the idea. Someone documents the history of behavior and then one day "Boom" a bunch of people descend on the person, explain the damage they do and urge them to get treatment -- rehab, if you will.

What a great idea, right? No, wrong. In the real intervention show there are two factors at work that do not work with law faculties. First, there is a norm established and uniformly accepted that shooting up is not a good thing. On law faculties, over talking, reasoning like an cat, and obsessive self interest are accepted behaviors. Second, on the real show the intervenors really care about each other. There are good friends among law faculty but ultimate in the life long negotiation of the elites true friendships do not run nearly as deep.

I Don't Want to be Right . . . Comment

2011-02-16T15:02:00.002-05:00

A reader asked this question and I think it and the answer may be of interested to some:

Q: What do your colleagues say when they see an interaction they had with you show up on your blog? Any embarrassment or self-reflection at all?

Dear Anonymous: First, in many instances they do not see themselves because the anecdote is actually not based on anyone at my school. In fact, some of the most outrageous ones did not happen here and probably 80% of the ones at my school involve the same group of repeat players.

Far more importantly, one of the rules of elites is to never confront a non elite like me. That shows you care and indicates a sign of weakness. Much of what I write is designed to provoke an encounter that would allow the issues to aired. Maybe someone will punch me, file a grievance or just yell at me. I would welcome it. It never happens because of the "show no weakness" rule. To actually want to talk about the issues I raise would mean that just maybe I have a point and that would be a concession they do not make. Remember, it is a life long negotiation.

Finally, do they reflect? It is hard for me to know this but I doubt it. I noted in the last post a recent situation in which I asked something or proposed something and the responder just more or less made up a different question and argued against that one. I attempted to point that out with zero success. In fact, what I was met with was another example. Evidently it is a bubble that you only see if you have been outside the bubble.

I Don't Want to Be Right But . . .

2011-02-15T18:43:00.003-05:00

Two elitist experiences today.

1. A colleague showed up at my office to "share" something with me that would be inappropriate for email. What was it? The mildest possible questioning of a proposal by Dean.

2. In a email I asked a colleague if it would be possible to announce the availability of some fun opportunities so all those interested could apply and the best candidates selected. The answer: What I was proposing would mean picking less qualified candidates.

I covered the do not write it down rule in my last post. I neglected to mention that principles are only applied when they serve your ends and the "if you have no response, make up a different question and answer that." That, of course, was what happened in the second case.

Elites Grading Their Kids

2011-02-10T19:44:00.002-05:00

Years ago at my school there was a bit of a scandal because sons and daughters were registering for their father's classes. This was, to me at least, bad enough but increasingly it appeared these were average students who did much better when dad was the prof. It went on for years with complaints to the dean who used the old "it's a matter for the faculty" wimpy way to avoid the issue.

Finally, through some miracle I do not understand, the issue was put before the faculty and a rule passed that you could not have family members in your class. Of course, at that moment there were several children in the classes of a parent. So what to do? One of the elites argued it was an ex post facto rule and could not be applied to to current students. I imagine this reasoning appealed to many although I thought it was crazy. Sure we had made a new rule but wasn't there always a common sense ethical rule already in place. Didn't the fact the we had voted unanimously in favor of the new rule mean that any reasonable person would realize that having your kid in your class raised issues. Elites are not big on common sense when it does not cut in their favor.

But then the next comment made my jaw drop. A parent with a child currently in his class spoke up. He said that his child registered for the class because he was confident he would get an A from his father. If the rule were to take effect immediately, it would be unfair to his son. Back then we did not have WTF or OMG because there was no texting. But my reaction was definitely WTF or OMG. It made me think. Did slavery only become unacceptable when there was an official rule. Was raping your wife really OK until spousal rape was officially recognized. The elites live in a very special world of entitlements and it had played out as I should have expected. Those caught with their hands in the cookie jar walked.

The Not Technically A Lie Culture

2011-01-29T17:12:00.002-05:00

A few years ago a student wrote an angry letter to me. According to her I had upset a French exchange student so much that she ran to the Assistant Dean in tears asking to drop the course. Not wanting to cause an international incident I searched my roll for a French student and could not find one. So I found the letter writer and asked for details. She informed me that what she had written had not actually happened but "could have." I believe she felt it was not a lie because under the correct circumstances all of that could have happened. In a way it was, technically, not a lie.

Some of the same mentality affects the "not technically a lie" culture of elites and many deans. For example, "I do not remember saying that" means I do not recall using exactly those words. And, "The meeting was not held for that reason" means, "That was not the only thing we discussed at the meeting." The most recent example is the one in the last post just below: "Bill cannot go" which means, "I paid Bill not to go and he isn't going."

I am not sure how elites come to know of the "not technically a lie" norm and why exactly they rise to it so quickly. (I do understand why so many deans rely on the rule.) The rule is a cousin of "Don't write anything down that you would not want in the NYTimes" rule that a colleague once announced, having actually completely turned the actual rule on its head. (The actual rule, as a moneylaw contributor told me when I discussed this over on that site is "Don't DO anything you would not want reported in the NYTimes.)

But here is the catch: Almost all of them know the rule and follow it. This means, for the most part they know not believe anything someone tells them who is also an elite. And, in turn, they know others are unlikely to believe them. In a way, this is not distrust because it is all within the rules. There was no trust in the first place.

If you are not an elite (or a dean), you may not know the rule. It's a bit like playing basketball at a different gym and not knowing that in that neighborhood a hand check is perfectly OK. The difference is that you figure out the hand check rule quickly. The not technically a lie rule takes much longer to figure out and in the process you may take the completely inappropriate step of pointing out that someone has . . . . well, not been forthcoming. Learning the rules of the elites is not for sissies.

Flippers

2011-01-26T23:46:00.003-05:00

[See great comment below]

Some time ago I wrote about elites wanting to appear to volunteer for things because asking was a sign of weakness. So you get things like:

1. I told the dean I would agree to go on the around the world trip to research foreign summer school opportunities.
2. I told the dean that I would volunteer to teach one of the small sections.
3. I told the dean that I thought I could fit in spending an extra $5000 on office furniture.

4. Yes, I did volunteer to take the year off.

5. I volunteered to cap my class at 5 students so I could give the students the best possible instruction.

The volunteer gambit means you never asked for anything but did the other person a favor by doing whatever it was that you wanted. Basically it's a flip those doing it are "flippers." You got what you wanted but try to seem like you did something someone else wanted. I've seen it on law faculties over and over. It's because for so many life is a ongoing negotiation.

Now I have discovered a new version of it. In a different context, it works like this:

You, say the director of a program, appoint someone -- Phil -- to travel to Kansas to search for a school that will have an exchange program with yours. Meanwhile you have appointed yourself to tour Europe on a first class ticket to find ideal locations for multiple summer programs. Later you cannot do your tour so you ask Phil to take over the European tour. Then you write to your faculty:

"Phil can not go to Kansas to search for exchange possibilities. Would someone else like to do it."

You do not write: "I appointed myself to go on a European tour. I cannot make it so I asked Phil if he would like to do it and he jumped at the chance. That means we need someone to go to Kansas. "

Other than the close-to-vest style I have no specific reason to cite for why this one seems dishonest but it grates on me and I think it is related to the volunteer problem. You do not want to say "I appointed myself." My goodness, you could never own that! It sounds self serving. And, if you say "I volunteered," the case is so extreme people would laugh. So you leave out that you rewarded yourself. Remember, never admit you got something you wanted -- it shows weakness.

Then there is the "Phil cannot go" part. I mean, can you really get away with saying "Phil cannot go" when you asked Phil not to go and dangled a big plum in his face? Why try this? Maybe because it makes Phil look a like a victim (sacrificing like a volunteer) . In actuality, Phil himself may not care but elites think it is important to appear not to care (caring is weakness) and they attribute that desire to others.

Maybe all I am looking for here is the word disingenuous but I like the idea of "flippers."

[This comment is so dead on I am bringing it up to the post: "This reminded me of the time an individual on our law review sent an email to the law review listserve informing everyone that donuts were in the office. But the emailer failed to mention that the donuts were placed there by someone else."

To me this is part of a mentality that says "If it is not technically a lie it is OK even if it is misleading." This must be a law thing because, in a way, it is what is taught.]

Elites and Gaming

2011-01-17T12:13:00.003-05:00

I posted a piece over on moneylaw about a shameful law school ranking that is now posted on the internet. It's not shameful because its rankings may or may not be correct but because of the strategic voting revealed. Roughly it was a ranking of 57 law school. A huge number of the respondents ranked the school where they are teaching or the one from which they graduated number 1 and all the others tied for last. In short, they did the maximum possible to have the ranking show what they wanted it to show and not the reality. And, like someone who cheats on an exam and then boasts about it, they no doubt wave the ranking around as though it is gospel.

Should anyone be surprised? Of course not. Elite gaming of any system is the norm. Let's not count all the ways but clearly sending out articles to be reviewed by pals is one way. And, it includes legacy admissions to elite schools. The fact is with elites it's always about show more than go. A talk to the local Women's club becomes a "presentation" to be included on a resume. A two page book review becomes "My piece in Harvard." Not writing things down for fear of losing deniability is one of their favorites. And if you are a parent be sure to feed your kid a performance enhancing drug when they take the SAT.

Do non elites game the system? I suppose so but I honestly believe they do not display the same level of obsession.

Response to NYT article on Law School Employment

2011-01-09T13:38:00.001-05:00

Thanks Bob. [my dean circulated the article.] I think many of us and our students have seen this. While it lays bare law school complicity in something akin to the mortgage lending crisis, some parts of the article, or those quoted by it, are hard understand.

First, one suggestion near the end is that lower tier law schools should (but won’t) close. I take it by tiers the reference is the to USN&WR rankings. Seems to me that both criticizing the ranking system and then using it as a measure of which schools should close is illogical. Much of what goes into a lower ranking is subjective and has little to do with the quality students. The idea that limits would be put on law schools based on their tier as published by USN&WR and manipulated by schools and their graduates seems like more of a concession to the rankings than an effort to address the problem. Of course, if bottom tier schools are mainly 100% private, I do not understand why the market does not take care of the “problem.”

Second, what is the problem? Investors, like those investing in human capital, make bad decisions all the time. Why should we be more concerned about a law student losing his or her shirt than a franchisee who buys into a burger chain but cannot make a go of it? My answer to this is that it is a problem to the extent the sellers of the “product” know it will not work. In other words they are engaged in a misrepresentation. The issue is what does it mean to “work?” If by “work” if we mean earning enough to live comfortably and earn a fair return on the investment then clearly we should say nothing to encourage this impression. In fact, given that we are aware of a misimpression, I think we need to provide accurate information to our applicants about employment percentages and starting salaries. As far as competition in the State with respect to these figures, I doubt anyone would not think our numbers were not the most favorable.

Third, I am discouraged by the hypocrisy of our own alums. If my facts are correct, they explode if we fall in the rankings. I suppose because this affects their status or income. On the other hand, I wonder how many of them, after enjoying their heavily subsidized education are willing to dip into their own pocketbooks to hire a grad which would then help us with the ranking they put more stock in than we do. What about an example of wanting it all!

Finally and more broadly, we are not sure how to determine how much legal service is required. It is determined by market demand or need. If it is by need, then the quid pro quo for receiving a state subsidized education would seem to be a commitment to public service. None is required. I suppose the actual theory is that if we assist in increasing the supply or lawyers, their fees will fall and services will be available to a greater number of people. (By the way this has never been my theory for why public law schools were created. Instead I think it was a way for those with property and, therefore in need of legal services, to have the cost of the services they need spread across all taxpayers.) The employment numbers suggest this is not working. There are many reasons why it does not work but one is that the state investment in providing legal services is actually not sufficient. In any case, like health care, we seem to be caught between viewing legal services as a privilege or a right. If it is a right then there may not be a glut of lawyers at all, just an unwillingness of government to provide what is needed. Of course, we know where that funding would come from given current tax structures.

Can Law Professors Change the Past?

2011-01-05T10:35:00.002-05:00

A few days ago I posted on facebook what I thought was a clever idea, "Things in the future are closer than they appear." I was thinking of all the obligations I make thinking they are far in the future and then they are upon me. The string of comments after the facebook post included one by a another law prof who jokingly said that he liked the certainty of the past. I agree about that. I doubt many of us feel stress about what might happen a month ago as opposed to what might happen in two weeks.

The past does not cause stress but who really knows what happened in the past. If you have ever read a newspaper article about something about which you had first hand knowledge, you know that is it rarely accurate or at least how you remembered it. And that is something that just happened. Things that happened 50 or 200 years ago are in the past, of course, but the truth is we have very little to go on with respect to what did happen.

A good demonstration of now "flexible" the past is law faculties. In twenty five years of being on the same faculty, I have seen one past come and replace another only to be reinterpreted to become a third past. People who fought tooth and nail to avoid hiring someone now take credit for the hire. People who favor a procedure because it gets them what they want claim it is "the procedure" when, in fact, there was no procedure. Over and over there is a new past so that it appears to support current largely self-interested goals.

Ethical Guidelines for Law Professors

2010-12-29T11:39:00.002-05:00

As far as I can tell, this is the most recent iteration of ethical standards for Law Professors. For the most part the standards are fairly general. My cynical side says this is what one expects from a committee and from a elitist-heavy profession. As I have noted before, elitist do not like rules because rules decrease the important of informal influence and institutional authority. Still, some of the standards are pretty interesting. Here are a few:

1. They should recognize their responsibility to serve others and not be limited to pursuit of self interest. (If you have ever observed a faculty deciding whether to start a new program or keep an old one or a faculty member angling for the ideal teaching schedule, you know this one is routinely ignored.)

2.Law professors’ responsibilities extend beyond the classroom to include out of class associations with students and other professional activities. (Is getting smashed with the students included in this?)

3. Classes should be met as scheduled or, when this is impracticable, classes should be rescheduled at a time reasonably convenient for students, or alternative means of instruction should be provided. (Is class impractical when one wants to attend a conference, teach in a foreign program or consult?)

4.Law professors have an obligation to treat students with civility and respect and to foster a stimulating and productive learning environment in which the pros and cons of debatable issues are fairly acknowledged. (Opps, this could rule out indoctrination.)

5.An evaluation made of any colleague for purposes of promotion or tenure should be based exclusively upon appropriate academic and service criteria fairly weighted in accordance with standards understood by the faculty and communicated to the subject of the evaluation. (Elites and administrators who abhor transparency don't like this one. It gets in the way of ranking people based on politics or who you're mad at.)

6.Law professors should comply with institutional rules or policies requiring confidentiality concerning oral or written communications. (I guess this only applies to some.)

7.The scholar’s commitment to truth requires intellectual honesty and open-mindedness. (At most this can only be seen as aspirational.)

CORE VALUES

2010-12-12T14:41:00.003-05:00

A year or two ago I blogged quite a bit about collegiality and invoking collegiality as a way of silencing others. For example, if you do not like what someone was said and have no reasoned response, you play the collegiality card. I also attempted to draw a parallel between the tragedy of the commons and faculty collegiality and describe why the commons are destroyed by shifting standards and rules as well as gossip exaggeration and lies.

After a recent experience at my School, I am now wondering if law faculties are afflicted by a different problem in that there are so few core values. I am aware that what may be shared is that there are no core values when one wants something enough. In other words the one core value is that the ends justify the means.

The internalization of three core values could help faculties.

1. Tell the truth.

That is pretty easy, you would think but I am not sure. It may be that people are so driven by what they want to be true that the cannot see the difference between what is true and what is false. I've seen appointments meetings in which input given by faculty has been "misstated" -- the collegial way of saying what it actually is. People in meetings say they had no idea of a fact when they had been told. And then there is the usual B.S. -- this program meets many needs, this candidate is famous, etc. Finally, there are the weasels slipping from office to office with innuendo and lies. When zealots are so blinded that the they lose track of what is true, it's pretty much the end for faculty cohesion. A dean can remove people from key committees but he or she cannot bar them from their office to office rounds to serve up their little bit of poison.

2. Cause no welfare loss.

This one draws from economics and requires understanding the difference between a redistribution and a welfare loss. Sometimes decisions are made that mean a person or persons are worse off and someone else on the faculty or the students are better off. This could mean that a redistribution has occurred. On the other hand, some activities have no upside except perhaps the pleasure derive from harming others. For example, at recent tenure and promotion meeting, faculty at my school discussed candidates. Many positive things were said and a few negative ones. The Dean cautioned the faculty not to talk about the substance of the meeting. Within a few minutes of the end of the meeting it appears people had talked and named names. So think about it. The candidates may be tenured and become life time "colleagues" of the people who had reservations. The substance of the negativity could be communicated without revealing names. What was the upside of naming name? If you lack core values there could be two. The enjoyment of seeing people become enemies. The pleasure of chilling future discussion. It's a pure loss unless one views these as legitimate goals.

3. Transparency

This has more to do with committees and administrators than it does with individual faculty. Nevertheless, faculty are administrators and committee members and are tempted to keep things secret. Secrecy leads to uncertainty. Uncertainty caused by an information vacuum sucks in substitute information that may or may not be accurate. In effect, those who keep secret what they know that could reassure people -- that rules are accurately stated and consistently enforced, that their concerns have been heard, that there are no favorites, etc,-- are generally 1) not sure they can defend what they are doing or 2) feel they can but do not have the courage to deal with the fallout. In either case, it means a willingness to allow others to suffer. Of course, if it were for an honorable end, they could say that -- "I do not think it is in the best interest of the Law School to comment further."

I have seen these standards observed by different committees and administrators. What strikes me is how quickly they come to be trusted and how the stress level is instantly lowered. It is refreshing.

But the problem is this: it only takes a few who lack core values to screw it up for the community. I cannot help but wonder what their parents taught them.

MY FACULTY

2010-12-07T14:37:00.002-05:00

No, I do not mean the faculty I am on which I assume is about like all others. What I mean by my faculty is the faculty I would choose or at least how I would choose it. First, I am starting from the proposition that there are oodles of people who can do the type of research and teaching law professors do. We pretend otherwise but, come on!

So, having satisfied those baseline standards there are two decision points I regard as critical for joining my faculty permanently. The first comes at hiring and would require answering a list of interview questions I have posted over on Moneylaw: Here they are:

1. What was your favorite book at age 15.
2. What were the last 10 books you read that had nothing to do with law.
3. Name your favorite opera, aria, sonata, symphony or any non pop, folk, alt music. (I mean one that gets you in the gut.)
4. What non law book is on the top of the stack on your night stand.
5a. What is your "car book" -- the one you keep in the car for waiting in lines or waiting rooms.
5b. What is your favorite pasta? (Opps, this question slipped in from the Italian cooking blog but it could still be important.)
6. Who was your favorite teacher before law school and why?
7. How would a Rawlsian design the faculty recruitment process?

There are no right or wrong answers to these questions. The only wrong answer would be not being able to answer and have an interesting discussion.

The next critical point comes at tenure time and, assuming there was an actual review process which the candidate passed. That's a big IF -- the part about having a real review process, I mean, as opposed to having enough buds on the faculty to get the candidate through.

I'd like to know the following:

1. How many times have you complained about your teaching assignment?

2. How many times have you insisted to a secretary that your work gets done?

3. Do you tend to go over your travel budget and then tell the Dean how you have to have more because of all your obligations?

4. How many days on average do you cancel class in order to consult?

5. How many nights (after 7) a semester are you out drinking or hanging out with the students?

6. How many times did you visit the dean's office or email the dean to complain about someone else without first talking to that person?

7. How many times per year did you, on your own initiative, visit the dean's office for any reason?

Wrong answers are as follows:

1. More than 0.

2. More than 0.

3. More than 0.

4. More than 0.

5. More than 1.

6. More than 0

7. More than 1.

So, my faculty would be full of interesting people and who require no special handling

Last to Know About Class

2010-12-01T10:15:00.002-05:00

I am the last to know about last September 24th issue of the Chronicle of Higher Education much of which was devoted to class on campus. There are several interesting tidbits in the lead article by Peter Schmidt. As he notes, unlike other minority groups, low socioeconomic class people tend to try to "fit in." No serious statistics are kept but it is estimated that 36 percent of students in post high school programs are children of parents who did not attend college. They tend to be concentrated in lesser colleges, two year colleges and technical programs.

Schmidt and his sources say that socioeconomic class is no longer dismissed and is now"permissibly" to talk about. The idea that is Ok now to talk about class reminds of a conversation I had with a colleague several years ago. I asked him, "why not have a retreat and talk about class." His response, "Can't do that. It's too important." He captured it all right there. It was more important than all the other diversity concerns because it was the only one that could be accommodated without affecting the the elitist death grip on higher education.

Whatever hopeful signs the Chronicle reports to not appear to be found at law schools. The student body is already someone socioeconomically diverse, at least based on the students I know with crushing debts. Faculties, however, have not even begun to consider socioeconomic class diversity as anything to be taken seriously. Or maybe I have this wrong. Maybe as my friend suggested the reason it is ignored is because hiring committees and faculties do understand it's importance and it frightens them.

Do the Elites Avoid Numbers?

2010-11-27T13:14:00.003-05:00

I wrote a post over on moneylaw about the way law professors handle empirical work. Basically, if it supports their political instincts, is is acceptable no matter how poorly done and, if it does not, it is poorly done no matter how well done. Especially, it is suggests any form or racism, sexism or homophobia it cannot even be examined closely. But now I am thinking there is a class angle on this. It is linked to my idea a few posts below that elitists do not like procedure. To put that idea in a nutshell, elitists are in a far better position to work the system than non elitists and rules just get in the way.

The same may be true of numbers or the quantification of virtually anything. For example, I feel sure that if I could produce an empirical study showing elitists are no more productive than non elitists as law professors, those in charge of hiring would ignore it. (I once did such a study and it showed no difference but once the school rank was above about 30 I could not find enough non elitist law professors for the study to be valid.) In effect, numbers can play the role of rules -- they make it harder to use connections, appeals to institutional authority and class as a way to prevail. At least they raise the cost of doing since they may need to be explained away.

The problem is that numbers can lie or can be used to support a lie as most of us know. So, they are not like procedural rules that can have a "veil of ignorance" appeal about them. Still, my sense is that, on balance, the elites would prefer not to be bothered with empirical evidence at all because, from time to time, a number may be produced that they cannot fully control.

Are the Elites Better Cheaters

2010-11-21T13:06:00.006-05:00

I had seen this article a few days ago. Its title tells you the topic: The Shadow Scholar: The Man Who Writes Your Students' Papers Tells His Story. I had not read it all the way through and missed this excerpt which was brought to my attention by one of my favorite colleagues.

"From my experience, three demographic groups seek out my services: the
English-as-second-language student; the hopelessly deficient student; and
the lazy rich kid.

"For the last, colleges are a perfect launching ground‹they are built to
reward the rich and to forgive them their laziness. Let's be honest: The
successful among us are not always the best and the brightest, and certainly
not the most ethical. My favorite customers are those with an unlimited
supply of money and no shortage of instructions on how they would like to
see their work executed. While the deficient student will generally not know
how to ask for what he wants until he doesn't get it, the lazy rich student
will know exactly what he wants. He is poised for a life of paying others
and telling them what to do. Indeed, he is acquiring all the skills he needs
to stay on top."

As far as I know, law professors do not hire others to write their articles. But what if you could write a paper and it got a good grade whether it was deserved it or not. It's kind of the same thing. How does that work with law professors? There are four versions. The first three deal with the outside review of articles. In the worse cases, I know about the referee and the candidate work together to craft a good review. Then there are cases in which the subject matter is as much a political movement as it is an area of scholarly research. In these case the experts share the same political inclinations and the possibility of getting an honest review is close to zero. Once in awhile one of these articles will work its way into an honest reviewer and there are some concerns about what is written. If the candidate is liked enough, the negative comments are ignored. Finally, most reviewers do not say negative things. Why? There are may reasons but one is that it is rarely in the self interest of an elite to put anything negative in writing. After all, if the rational self-interest label ever fit anyone it is elite law professors. The last reason is the symposium matter. That is, you are asked -- usually by a buddy -- to write something for a collection. It is accepted without any review at all. (Even the student review process is better than this but not by much.)

The privileged will always find a way to work the system. After all, they created it and they own it!

P.S. After writing this another colleague read it and suggested that law professor do have others write their articles. They lift straight from the work product of their RA's. He also indicated that the bogus review letter problem extends to reviews of teaching.

Is it Stuck to Your Wall?

2010-11-13T12:21:00.003-05:00

Your diploma I mean. Let's think about why someone frames and attaches or her diploma to the wall. Unless you just like to look at it yourself in case you forget you actually graduated, it's a form of advertising. Advertising can be good. It may provide useful information and lower the search costs of people who are buying what you are selling. A yellow page add that says "board certified" or even a framed certificate on an office wall may do that.

On the other hand, if you are a law professor, most people will assume you are qualified to be a law professor or that at least a small group of people in charge of hiring thought so. Your advertising falls into the category of an appeal to institutional authority. That is, if the institution from which you graduated has a good reputation -- an elite ivy league school, for example -- then you must be of similar ilk. The same is true if you feel compelled to name drop the name of your school whenever possible. (I have been told that a survey of Harvard grads in conversation found that on average "Harvard" is mentioned within the first minute.)

The problem is that this does not lower search costs but actually raises them. What we know is that some elite school grads are terrific law professors and some are awful. The same is true for non elite grads. Hanging the diploma on the wall can and often is misleading. It's a practice for those who are afraid to be identified by what they actually do.

Paying the Bill for Obama's Elitism

2010-11-04T20:51:00.003-04:00

I do not know if it would have made a different in the elections. I doubt it but at the margin there is no doubt that Obama's elitism hurts. It was displayed most prominently during the BP disaster. For me, though, the biggest missed opportunity was the Kagan appointment. Just think what a difference it would have made if he appointed an equally qualified southerner mid-westerner or rust belter . Maybe someone with an actual drawl! Just the photo ops would have been worth votes at least in the appointee's home state. Instead we get a privileged ex-Harvard dean. This Times article covers some of the problem. As it notes, Obama was not raised to be an elitist. Instead it was an acquired characteristic.

In some ways, everything works against him. I've know some pretty unpleasant people who get away with it because of a perpetual smile, an aw shucks manner or a boyish or girlish facial structure. And then there are people like Obama who seem stuck with a stern look, seem always stiff, and are so careful in their wording that it becomes excruciating to listen to. It's so bad that even the imagery of just having a beer does not work. These things he cannot control and it is ashamed. Somewhere in there there may be a non elitist who is afraid to show it because he has invested so much in getting the role right.

Unfortunately, now others pay the price.

Where are you Daniel?

2010-10-27T23:09:00.003-04:00

One thing that is interesting about the law school ranking B.S. published by USNews&WR is the absense of anyone to really blow the whistle that could put an end to the elitist-biased and deceptive process. I mean someone like Chesterfield Smith in the Nixon era or Daniel Elsberg and the Pentagon Papers. Actually, I am trying to think of an incident of political courage when the actor was bound to take heat but was willing to. I sure there may have been one (or several) in the last 40 years but it is hard to think of someone and in this case the stakes are so much smaller.

I'd like to see about 10 university presidents from highly ranked schools say they will not particpate. But I will not hold my breath because almost every academic I know treats life like a negotiation. You don't give unless you get.

Outsourcing Law School

2010-10-26T18:42:00.004-04:00

The other day a pile of new course proposals by adjunct and non tenure track employees was delivered to the members of the curriculum committee. It made me wonder: How much of our curriculum is taught by people who did not go through a search process, have no role in faculty governance, or were not hired to be teachers. The number was high and growing.

The One thing that all of these teachers have in common is that they are less expensive to use than tenure track professors.Also, I think it is generally true that they regard being able to say they are "professors" is a big deal to them.

I am not saying this is exploitation since these folks have choices but there a few things that seem amiss.

First what kind of rational hiring process spends tens of thousands of dollars in search expenses for professors on the one hand and conducts no search for those who will teach even more. I am not saying one is better but it's not a case in which the mix makes everything better.

Second, if the idea of a search is to ensure diversity and fair opportunities, why, if you take one position that involves teaching 3 courses and divide it in thirds, does the need for or desirability for a search disappear?

Third, part time teachers are cheap and seem desperate for the opportunity. Many have no say in governance and little contact with the school other than fitting in after work. Does this mean that power gravitates to the administration. More importantly, is that really a bad thing.

Distance learning, on line courses and degrees, externships, and part time teachers all involve outsourcing of a sort. The problem is that it is not driven by money grubbing management that hopes to make shareholders happy by cost cutting. In this case of outsourcing, no one gets richer.

I am not sure where this goes or even if I think it is wrong. I know I do not like it but that is a different matter.

Late Blooming Radicals and Other Privileged Oddities

2010-10-20T10:53:00.002-04:00

The other day a colleague explained his actions but saying it's because he is a liberal. I thought, how can a political philosophy compel anything? You do what you want to or what you feel is right and then you find your views are consistent with one ideology or another. But please, hopefully, there is not an owner's manual you consult and then say "I did this because it is want to do what liberals (or libertarians or Marxists) do."

Unfortunately, that does go one -- checking to see how you should behave before just behaving in the way that moves you. It is especially interesting to observe students who sometimes, when confronted with a novel question, stop to think how they "should" feel given their desire to stick with one philosophy or another.

But none of that is what I really mean by Late Blooming Radicals. What I mean is this: Law professors can be divided into two groups: Those were total conformists as students and those who were not but had rich mommies and daddies to bail them out. Then, when they become law professors, many bloom politically as in announcing they are liberal or libertarians or have strong political feelings about one thing or another. The new courage only comes, though, only when they are in risk free positions of authority. That is when it is costless.

Basically, as students and attorneys most were suck ups, don't rock the boat, types. No visible evidence of conviction other than pleasing those who could get them in the fraternity. Most just stay that way and I am fine with that.

It's the late bloomers I find irritating. Their courage now that they have become the establishment is not convincing to me. They still quake in their boots before stating a controversial position out loud. But they love to pretend. Maybe grow a beard, wear a funny hat, etc. They are so disappointing.

Grooming or Substance

2010-10-08T17:35:00.002-04:00

One of the things that turn the heads of law school hiring committees is good grooming. I do not mean brushing your teeth or wearing clean clothes. I mean the grooming that takes place at elite schools. These finishing schools equip people with correct mannerisms, socially strategic instincts, the right references, a close to the vest style and the ability to talk about various theories that only some people know about. In many ways I increasing think this described Obama. I voted for him but so far all I can see is someone who did well in the grooming system.

The same is true for some law faculty. They can be charming and seem to have a great depth of knowledge until you scratch the surface. It a bit like someone impressing you by being fluent in a foreign language. Then when you get to know the language yourself you find out that they are actually reciting a menu.

Questions and And Answers on Law Prof Advocacy

2010-10-03T20:09:00.003-04:00

[Al Brophy commented on a previous post of mine, "Follow up On Rent Boys and Adoption." With his permission I have reprinted the comments here.]
Alfred Brophy said...
You say "The UF policy of finacial support for a cause based on faculty prerogative strikes me as a policy that one would never adopt under a Rawlsian veil of ignorance. It is one that says whoever controls the school get to use its resources to promote his or her idea." First, I think you mean whoever's employed by the school, not who controls the school. Second, it seems as though you are saying that UF faculty should not be permitted to argue against a state statute. So aren't you saying that people who "control" the school -- the state legislature -- can stop people from arguing against them?Are you drawing any distinction here between scholarship that criticizes legislation and advocacy against that legislation? Is there any distinction between advocacy that takes place on a faculty member's own time and that done on "company time"?
3:23 PM

Thanks for writing Al. I will try to answer what I think are four questions or at least address them although I cannot say I have this all figured out.
1. I view law schools as being controlled by the faculty. They decide who to hire, who to tenure, what scholarship is valued, what courses are in the curriculum, what programs are offered and whether a dean stays or goes. We probably disagree on this. My position is consistent with my arguments that law schools are, in effect, captured by faculty. I wrote about this several years ago.Sure, I guess a legislature could vote to close a law school (I doubt it could ban the expression of a particular person) but I do not think that is realistic.
2. On whether the legislature "can" stop someone from arguing against them I am not sure I follow. It seems like a legislature cannot stop anyone -- faculty or not -- from arguing against them.
3. I view scholarship and advocacy as quite different. To me scholarship occurs when an open minded person who is not out to prove a point, tests an idea by doing research. The product is a report that presents both sides of the issue and carefully explains the scholar's conclusion, if one. Advocacy is an effort to represent one side of an issue or a client. It means putting forth only the information that supports one's side and distinguishing adverse evidence. Advocacy and scholarship both appear in law reviews.
4. The last question is hard because you have framed it in terms of time. I don't think many of us make a sharp distinction. I do think a more useful distinction can be made between company resources and personal resources and the use of the company's institutional authority and an indication that the institution is unrelated to the view expressed.

Two final points that may not be responsive but may be useful as background. I personally would prefer more scholarship but I know there will be advocacy and it's fine. I would not stop it. I just cannot make the connection between being a law professor and, consequently, having a right to have his or her expression of political views subsidized unless others are offered a similar opportunity. This is especially true since I believe, as reflected in my last post, that the selection of the these speakers is basically a function of class and status.Finally, I am told that at my school some outside political efforts have been discouraged. Don't know if it's true but if it is I do not think we have a procedure for deciding what is in or out of bounds.

Class-Based Preference for Procedure and Transparency: Ratcheting Up Privilege

2010-10-02T10:43:00.009-04:00

I week or so ago I took the position that public law schools should operate under a fairness doctrine. (I'd like to say there was a controversy but, since only one person agreed, that would be incorrect.) The idea is that professors have subsidized soap boxes -- privileged positions so to speak. It's actually a double privilege. Since many, if not most, arrive in at their law prof jobs because they are children of privilege, the privilege is racheted up by their use of state money to voice their views. Because of who your parents are there is a special trust fund for you.

I'll stick to my rule even though, in that case, I supported the side that was being promoted and the people from my faculty who were promoting it were, in my eyes, good people.

But that is the way it is with procedure. You either buy in or you do not. If you buy in, you follow the rules regardless of who is affected at that moment. The option, if you do not, is majority rule. Sometime this is more like mob rule only quite civil.

I think the substantive rule that should guide all procedure -- including a procedure for determining the use of state funding -- is that people are treated equally unless there is a good reason not to. I realize this probably has some Kantian/Rawlsian tie in.

My experience is that law profs (some, most, who knows?) go by three rules when it comes to procedure:
1. Procedure is obstacle to be worked around. Avoid it! (I witness this repeatedly.)
2. If you are forced to create procedure, make sure you know in advance who the winners and losers will be. (I can't think of a worse approach.)
3. Make the procedure as vague as possible. (They would say "flexible.") This means it can be effectively ignored.

Why do law profs dislike procedure and regard those who support it as a threat ? Think about it. If you have an elite background or are trying to pretend, that means you know people who are similar or are trying to curry their favor. They can be law professors at a fancy school, a politicians, your dad's pals, etc. Those people grease the wheels for you and not for others. And, if you are in the majority, why have a procedure that might stand in the way of your goals? In the eyes of the privileged, procedure just gums up the works.

Working class people typically do not know anyone of influence or have the money with which to influence decision-makers. Thus, they are more likely to prefer rules that equalize opportunities. (In fact, some have written that they are better of in a court room than using one version or another of ADR.) In fact, it was not that long ago that the lack of procedure was a critical part of the exclusion of minorities from the profession. People could be eliminated from consideration for unarticulated reasons and a different majority ruled. In fact, the next best thing to having a procedure that expressly discriminated against the less privileged was to have no procedure at all or a very vague one.

As with most things there is a tiny silver lining. Since there is little or no procedure, when decisions are made and challenged, the makers are left to constuct one. They rack their brains inventing the procedure they followed. Watching that can be fun.

So it goes, I think, at law schools.

One more thing. Ironically, the part of my Law School that seems to embrace a fairness doctrine approach is the Federalist Society which routinely asks for faculty comments on the views of their mostly right-leaning speakers. Of course, I assume if they were in the majority, fairness would be less important.

160 SAT Points: The pay off for privilege

2010-09-30T15:26:00.008-04:00

In the NYT. here is the link.

Do All Taxpayers Agree?

2010-09-30T00:15:00.002-04:00

This was the questioned asked to me by a reader. The implication I think is that single-view subsidized law professor political speach has to be Ok because taxpayers do not agree on many if any things. That sounds a little odd but it is the only interpretation I could come up with.

I think I have not made my point clearly or it has been misunderstood. It is not that law professors must hush up because taxpayers do not agree. Instead it is that other voices should similarly be subsidized. (Or hiring committees could make an ideological balance a goal.)

I would contrast an institution that encourages the expression of different views with. say, a government that only assists one particular point of view. I can think of a few.

Basically, though, it just gets down to how boring, unimaginative and anti intellectual it is to hear the choir of law professors sing the same tune.

Follow up On Rent Boys and Adoption

2010-09-29T11:53:00.004-04:00

What follows is a good report by the Gainesville Sun's on the kerfluffle at the Law School. I have a couple of comments to begin with that may make more sense after the article is read.

MY THOUGHTS

1. Any suggestion that since there is state money on one side it is OK for the Law School to weigh in makes no sense as a logical matter. What is the connection? In any case, the States' lawyers do what they are told -- they fight the battle even when they personally disagree. Law professors only weigh in when they agree. In short it's not based on righting wrongs (although it had that effect here) it's based on personal preference.

2. The UF policy of finacial support for a cause based on faculty prerogative strikes me as a policy that one would never adopt under a Rawlsian veil of ignorance. It is one that says whoever controls the school get to use its resources to promote his or her idea. I am confident that throughtout history the same policy has be used to oppress people. Why follow a policy that has that potential?

Gay adoption case sparks debate over UF's involvement
A UF law professor filed a brief in support of overturning the ban.
By Nathan Crabbe
Staff writer

Published: Tuesday, September 28, 2010 at 7:48 p.m.
Last Modified: Tuesday, September 28, 2010 at 7:48 p.m.
It all started innocently enough: An e-mail congratulating a University of Florida law professor for a brief in support of overturning the state's gay adoption ban.

But a systems administrator's criticism has spurred a heated debate among UF faculty on the role of law professors, how the college decides to lend its name to legal briefs and whether taxpayer money should be used to help overturn laws passed by elected officials.

Last week, the 3rd District Court of Appeal overturned Florida's ban on adoptions by gay people. The UF Levin College of Law's Center on Children and Families joined similar centers at other law schools in the state in filing a friend of the court brief, which are filed by entities not directly involved in the case.

The brief cited legal decisions that showed the ban violates a child's right to a secure and stable family relationship. Law professor Nancy Dowd, director of the UF center, said the brief fit within its mission to promote quality research on issues important to children and their families.

"One of the things that people at the university do is share their expertise," she said.

Dowd sent a message to several law school e-mail lists congratulating legal skills professor Joe Jackson, the main author of the brief, and others with the center for their involvement.

Micah Johnson, a systems administrator with the college, responded with a short e-mail saying the decision was at odds with his beliefs.

"Your elation stands in stark contrast to my disappointment on this decision," he wrote.

Law professor Steve Willis then sent an e-mail in support of Johnson, who is on vacation and couldn't be reached for comment. Willis said this week that he's one of the only registered Republicans on the law school faculty and believes the college only allows involvement in liberal causes.

"It's all political and unfair," he said. "I'll probably regret saying that, but that's what I believe."

College Dean Robert Jerry said academic freedom allows all faculty members to take positions or file briefs in a case in their personal capacity. For a UF center to be officially involved or university resources used, he said, the brief has to not just be a personal opinion but based on scholarly research.

He compared the situation to suggesting that a faculty member's opinion that global warming is not real should get the same support as research showing it is.

"If we buy into that, God save us," he said.

But law professor Jeffrey Harrison questioned whether a public university should be taking a position that might be at odds with public opinion in a court case. While he said he was happy with the decision, he said he was unhappy with the use of public money to promote positions that some taxpayers oppose.

"Our speech is essentially subsidized by the state, and other people don't have that privilege," he said.

But law professor Danaya Wright said that taxpayer money is also being used to support a law that violates the rights of gay citizens. It's the role of law professors to be as neutral as possible in researching such issues, she said, and then providing that information to judges who make the ultimate decisions.

"If we didn't weigh in, I would say we're shirking our duty," she said.

Contact Nathan Crabbe at 338-3176 or nathan.crabbe@gvillesun.com.

Rent Boy

2010-09-25T09:46:00.003-04:00

In the letter posted two posts down, the colleague who wrote to lecture the faculty and myself on Constitutional issues and then engaged in some old fashion intorance via name calling made reference to a "rent boy."

A "rent boy" is, of course, a male prostitute. My favorite reference to a "rent boy" is actually not in the colleague's email even thought it is a close call, but in the John Wesley Harding song, "Get Back Down." Here is a verse:

You know if jesus was a rent boy
Then God was his pimp
The people in power they squeezed him
Until he went limp
If the new messiah called here
First, we'd put him on hold,
Get him a deal and a good-looking haircut
We'd make him look less old
Less good and less old
Tell him to get back down

It's a terrific song. John Wesley Harding is actually Wesley Stace, also a novelist.

What an Entitled Faculty Wants to Know

2010-09-25T09:09:00.003-04:00

It is the time of year when invitations to interview in Washington are extended and for some, invitations to campus visits. The first stage is pretty much a beauty contest. Have the right credentials, dress conservatively and with good taste and sound eager and alert and you take a step forward toward your life-time sometimes- achievement-sometimes-no-so-much-achievement award of tenure. I've discussed the dos and don'ts before and, for many candidates, it's too late to do some of the critical dos -- go to a fancy school, get on a first name basis with some over hyped professor there etc.

You also have to be what today passes as liberal but is actually conservative and intolerant. That brings me to the most critical test. Tolerance. A deal killer is any signal, so matter how subtle or slight that you might not be totally tolerant of your potential colleagues' pervasive intolerance.

More on University Resources and Elitist Assumptions

2010-09-24T14:18:00.005-04:00

What follows are two emails. The first is a generalized statement by a UF faculty member about the subject matter of my post from two days ago about the use of University resources. It also includes some good insights about the actual decision Florida was making. The second is my response. For people interested in class bias the first one, through its tone and content, may reveal some of the power the elites unequivocally claim for themselves.

First email:

Let me begin by apologizing for filling up a lot of mailboxes with more about
this issue for those who don't care about it. But I feel I cannot let the issue
drop with only silence from those who support this decision. So I reluctantly
will share some thoughts. First, for those who have personal opinions for or
against the adoption ban (whether based on religion, philosophy, or some other
grounds), I believe those personal beliefs are not, and should not be, the
foundation for legislation. If the legislature passes a law that targets a
particular group or treats an historically marginalized group in a
disadvantageous manner, especially in regard to a very important personal and
fundamental right, that law is properly scrutinized pursuant to appropriate
constitutional standards. And in this instance, there is simply no rational
basis for saying that every single adult in the State of Florida is entitled to
an individual judicial determination of fitness to adopt a child, except the gay
person for whom the courthouse door is barred and locked. This is especially
true when there are thousands of children out there waiting to be adopted.

Second, and flowing from the notion of legislative review by the courts, it is
precisely the role of the courts to protect the minority's individual rights
from the tyranny of the majority. Legislators, acting on personal beliefs or
political impulse, are generally prone to minimize, if not completely ignore,
the harmful impact their decisions have on the lives of others (especially if
they can get votes that way). I, for one, am glad that we have a tri-partite
system of government in which someone is watching out, albeit belatedly, for the
legal rights of the minority. Given the incredibly deferential standard of
rational basis review, this case is not an example of an activist judiciary
trampling the sound views of the majority - rather, it is the state unable to
make a defense for a law when the bar is so low that you can’t see light under
it.

Third, the funding issue is a different concern, especially vis a vis the role
of public higher education. I should note that in this case the state used
taxpayer funds to defend this lawsuit. It used the state’s coffers to hire
"experts" who used religious and disproved junk “data” and tried to pass it off
as science to support what has now been held to be an irrational law, a law that
was passed in the aftermath of the Johns Committee’s witch hunts and the
shocking audacity of the Miami-Dade County Commission to pass a
non-discrimination policy to prohibit discrimination on the basis of sexual
orientation. These so-called experts (and there were only two despite a much
broader search) were not neutral analysts. Rather they were preachers of hate
and bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that
he hired a “rent boy” for his trips overseas, and when it was revealed he
claimed the “rent boy” was to carry his luggage. The specific facts of this
situation aside, it seems to me that the role of the University is to create
good scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency.

My response:

As I noted yesterday, I too favor the recent opinion. OR, in the alternative I
guess it would be OK to say that heterosexual men cannot be around daughters and
heterosexual women around sons. I mean, when you dig through all the crap, was't
the ban based at a gut level on the notion that homosexuals are of low
character and are potential child abusers. It made me ashamed of Florida.

In any case, Professor ------ has written such a wonderful paragraph I have
repeated it immediately below because it so richly illustrates the concerns I
voiced yesterday. The fourth sentence is what we give lip service to. The first
first three are how we often operate (and I do not exclude myself.) -- subtle
and not so subtle attacks, name calling, attribution of bad motives to those who
disagree. And the last sentence suggests we know the different between "justice
and truth" and whim. Justice and truth was once slavery and no voting by women.
It is anti semitism and female circumcision in other places. I get worried
about anyone who thinks he or she has a handle on truth and justice.

"These so-called experts (and there were only two despite a much broader
search) were not neutral analysts. Rather they were preachers of hate and
bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that he
hired a “rent boy” for his trips overseas, and when it was revealed he claimed
the “rent boy” was to carry his luggage. The specific facts of this situation
aside, it seems to me that the role of the University is to create good
scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency."

This search for truth reminds me of my first article as a law professor. I
wanted to say something like "the courts generally. . . ." But I knew I did not
KNOW that. I asked a more senior person and he said, "Don't you know about the
"See for example" cite." And then I realized that most of legal scholarship is
"see for example."

A few more points. I think it is irrelevant that the legislature used state
money to fund defense of the legislation. I guess the implication is that we
have been hired to act as counsel on the opposite side -- of everything or
just the things we disagree about? I have a feeling the state attorneys defend
the legislation regardless of their personal views and therein lies the difference
between them and us. We cherry pick the ones that affect us, often by a
self-referential standard.

The irony of some law professors bringing up intolerance floors me. I would say
when to comes to political views we are as intolerant as you can get. As far as
I know we have one "out" Republican and no libertarians. Why? Because very
rarely does any one who does not toe the line politically and culturally make it
to campus or to an interview. And when they do there are hallway rumblings about
the quality of their scholarship.

Finally, I thought someone would raise academic freedom in response to my email
yesterday. I am glad it was not raised for two reasons. First, the biggest
opponents of academic freedom are law professors in their hiring and tenure
decisions. Second, my note was not about academic freedom. Academic freedom is
what economists would call a "free good." Everyone can exercise it and it does
not interfere with the exercise of others. University resources are a different
matter. They are limited and if someone is using them to promote one thing, by
definition, something else is not getting done. As I said yesterday, I am not
sure who makes that resource allocation decision but at least one faculty member
has told me that the Administration has the discretion to fund or not fund (not
necessary prohibit) specific endeavours and has exercised that discretion.

It would nice to talk about all these issues but that would require a level of
intellectual fervor that we lack for good reason. In all our discussions --
courses, programs, hiring policies -- when one side feels it is losing, it
gets personal, if not inside the meeting then in the halls immediately after.

Poster Professor for Sense of Entitlement

2010-09-24T08:52:00.001-04:00

My goodness, you poor baby:

Letter to UF Law Faculty

2010-09-23T13:27:00.004-04:00

When University funds are used to support a political position, who gets to decide which position the funds should be used to support? Would the Dean or someone step in if the family law department had decided to oppose gay adoption or CGR decided that development of the Everglades by condo builders was a great idea? (After writing this a colleague informed me that when he was asked to write in support of a position he was told he needed permission and he would have to pay the costs.)

While I am very happy with this decision since the connection between sexual preference and adoption is completely lost on me, I am less happy that we use taxpayer money to promote positions that may be disagreeable to many taxpayers. (Of course, in the spirit of how our decisions are usually made, I fully support a system that allows me to decide how the money should be spent.) Back when I knew something about the First Amendment implications of involuntary speech I would have said this is analogous to that. I'd probably be wrong but, as I said, I am not sure I understand the logic by which one side is supported as opposed to another. (And, Pleeeze don't say this is not a political issue but a case of finding the truth because that is non falsifiable.)

The problem with addressing that issue is that it does not stop with things like this. Much of what we do is use University funds to advocate one position or another in our writing and in the class room. And, not coincidentally these are uniformly positions we personally hold whether based on faith, political inklings (very very small inks), having had a particular life experience from which we generalize or possibly because we did actual research on the issue. That may be fine for a private school but I am not as sure about a public schools. Not many law review articles are written by authors who start out with a clean intellectual slate and set out to find the answer to a question by use of the scientific method or any other version of intellectual neutrality. In other words, we seem to work in an environment in which anti intellectualism is accepted and possibly the norm. This is why the term "legal scholarship" has always struck me as odd. I think what we write should probably not be called scholarship but service because we are, in effect, often writing papers that advocate one side of an issue or another. In doing this service it may be important to note that the author is not expressing the views of the University or of those who pay the bills.

Kozinski On Elitism

2010-09-14T17:15:00.004-04:00

Thanks to the keen eye of a former student, I have the pleasure of posting this recent excerpt fom a dissenting opinion by Judge Kozinski. I confess this is not something I thought I would do. In the quote, the Judge refers to the "unconsious cultural elitism" of member of the judiciary. In many respects his views are similar to those of William J. Stuntz in "The
Distribution of Fourth Amendment Privacy," 67 G. W. L. Rev. 1264.

I think I would modify that for most law professors to read "conscious cultural elitism." Ironically, for the most part, we are not actually culturally elite.

"The panel authorizes police to do not only what invited
strangers could, but also uninvited children—in this case
crawl under the car to retrieve a ball and tinker with the
undercarriage. But there’s no limit to what neighborhood kids
will do, given half a chance: They’ll jump the fence, crawl
under the porch, pick fruit from the trees, set fire to the cat
and micturate on the azaleas. To say that the police may do
on your property what urchins might do spells the end of
Fourth Amendment protections for most people’s curtilage.
The very rich will still be able to protect their privacy with
the aid of electric gates, tall fences, security booths, remote
cameras, motion sensors and roving patrols, but the vast
majority of the 60 million people living in the Ninth Circuit
will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”
Id.

There’s been much talk about diversity on the bench, but
there’s one kind of diversity that doesn’t exist: No truly poor
people are appointed as federal judges, or as state judges for
that matter. Judges, regardless of race, ethnicity or sex, are
selected from the class of people who don’t live in trailers or
urban ghettos. The everyday problems of people who live in
poverty are not close to our hearts and minds because that’s
not how we and our friends live. Yet poor people are entitled
to privacy, even if they can’t afford all the gadgets of the
wealthy for ensuring it. Whatever else one may say about
Pineda-Moreno, it’s perfectly clear that he did not expect—
and certainly did not consent—to have strangers prowl his
property in the middle of the night and attach electronic tracking
devices to the underside of his car. No one does.

When you glide your BMW into your underground garage
or behind an electric gate, you don’t need to worry that somebody
might attach a tracking device to it while you sleep. But
the Constitution doesn’t prefer the rich over the poor; the man
who parks his car next to his trailer is entitled to the same privacy
and peace of mind as the man whose urban fortress is
guarded by the Bel Air Patrol. The panel’s breezy opinion is
troubling on a number of grounds, not least among them its
unselfconscious cultural elitism.

Elite Relief

2010-09-09T23:29:00.008-04:00

If there is way to open doors for elites while closing them to others, law schools will find a way. And in the process they make some really questionable decisions from a economic perspective.

Take a recent policy adopted by UF. We now have a program of hiring people with "outstanding academic credentials" and with little or no scholarly record or teaching experience." (Yes it sounds like every other entry level hire.) They then work here with a reduced teaching load and summer grants for 1-4 semesters and, after our careful mentoring, go out to be recruited by other schools.

I'll give you one guess as to what outstanding academic credentials means to people who do law school hiring. It means people who have records like their own -- expensive and elite schools. (We stick closely to the Justice Scalia rule that silk purses are more readily made from elite grads than from your crummy old top of the class at say Wisconsin or Florida.) In this case, the candidates for relief are ones who had every conceivable advantage already and did not get a tenure track position by going through the meat market process. So what this appears to be is a relief program for elites who otherwise could not find a job.

I cannot comment on the relative productivity of our most recent hires who came from elite schools and seem to be doing well because we have no one here hired in the last six years, at least as I recall, who did not go the elite route and fit the profile even if it meant dipping pretty low in the class. As a general matter, however, at least, there is no correlation between elite credentials of any kind and productivity. In fact, it the may be inversely related.

So now we are taking it on ourselves to train elites who did not quite make the grade in the meat market. And then, after the investment is made and they are "all prettied up" out they out for someone else to hire. In other words we recoup none of the investment.

Wouldn't it make more sense to see if we can prepare potential law professors who did not have every opportunity to make the grade and fell short. Say someone ranked high from a decent state law school. Our "good deeds," as usual, extend only to those who look and think like us, no matter how conventional that may be.

I've been told we are doing this as part of a moral obligation to avoid free riding on other law schools. In the scheme of moral obligations that is an odd one. We are a State institution and have a duty to our stakeholders. Subsidizing the already privileged would not be ranked high, if ranked at all, among our moral obligations. Perhaps if we hired our own graduates it would make more sense but, although we pay others to hire them, we are apparently above that.

Maybe we plan to pay the relief candidates a significantly lower wage and this is a move to lower our teaching costs. In this way they "repay" us for our investment. This would not change any of the above but it would shift the silliness balance a bit to the other side. This, however was not part of the pitch.

Luck and Class

2010-09-09T12:38:00.002-04:00

I've had some thoughtful responses to my last post about Nancy and the blight of children of working class families. It would be interesting to know the difference between working class kids who make it and those who don't -- other than working hard. Making it means having aspirations and aspirations mean have some examples or experiences that tell you what is possible and then having the self esteem to believe you can do it. If the working class family does not read, does not go to museums, and does not stress achievement then it comes down, I think, to teachers who inspire. Yes, the terribly underpaid elementary or middle school teachers may be key in determining what happens to working class kids. They can help the kids develop a "taste" for learning that they may not develop just from their parents.

This all gets to the point that I know of no working class person who status jumped (moved more than one rung up the socioeconomic ladder from his or her parents) without some luck. By the luck of the draw there is a inspirational teacher or second aunt -- someone who alerts the person to the possibilities. It could be a school counselor (as it was in my case) or just a school friend.

Nancy Died Yesterday

2010-09-08T14:20:00.007-04:00

Not a Nancy that anyone reading this, except a few colleagues at UF, is likely to know. Nancy was in charge of the copy center hear at UF -- more specifically she was "the" copy center.

She was the one who had to deal with every irresponsible faculty member wanting 75 copies of a 5 page exam a hour before the exam was to be given. Or, everyone who could not understand why it might not be legal to photocopy a book or most of one.

The main thing about Nancy, though, is that she was reminder of the privileged status of others. I did not know her well, although we intereacted almost daily. You knew she was a person with no safety net, no middle class or rich mom or dad to help her out when her husband was out of work which was not uncommon. Her teeth were a mess owing to years of neglect resulting from being on the edge economically. So many other signs that she struggled physically and financially.

When I saw her I saw what could have been my mother had life's randomness not intervened. Working all day for not very much and seeing the rest of us all comfy in our nice houses and cars and working far less hard. She reminds me of every working class person from the State and their sons and daughters who will have very difficult time achieving what others achieve with far less effort.

When a working class person dies who seemed to always stuggle and had no real security and an inadequate amount of what law professors take for granted, I think of my favorite poem, The Village Blacksmith.

An Outside Look at the Inside

2010-09-01T18:47:00.003-04:00

Today was one of those days in which you get to see your profession from the outside. I am on a committee that approves courses and the committee had to make a decision on one today. The proponent of the course, not active on the full faculty, was there. The course proposal came with a proposed cap of 24 students. When asked about the cap the first reason offered was it mean being exempt from the curve so the proponent would not be confronted by angry students. When that became awkward, the second reason was too many papers to grade. That did not carry much weight so the third rationale was that it was better for the students. Interesting that the course was on ethics.

But I have no reason to question the ethics of the proponent. In fact, quite the opposite. The insight relates to the proponent's perception of the faculty. The view evidently was that we thought not contending with "angry students" was a good solid reason to cap the course. And, if that failed, then surely too many papers to grade would appeal to the ethics of the faculty. In short, this relative outsider had the courage to tell us who he thought we were -- decisions were made for our convenience.

I found it uncomfortable. Maybe others did.

Response to Question on Experience

2010-08-25T17:32:00.002-04:00

This was a good question posted as a comment to my last posting:

"I have posed this question to various friends and colleagues of mine who are in academia: At what point does the machine become so dysfunctional that the experience machine no longer operates? Is there a breaking po tint, or canhere be perpetual mediocrity?"

For what it's worth, I think the experience machine for students will eventually hit the wall. The student demand for high curves is a function of risk aversion. Even the best students want the curve to make sure there is a safety net in case they fall short. Eventually I think the market will force them to distinguish themselves. They will understand that part of the reason they cannot find jobs is that they refuse to take the risk of a grading system that will allow them to shine. For example, when I give a B, it really means anything from a to a B+. I think they may come to realize that the "nurturing," lecturing, multiple choice testing teacher may not be preparing them for life after law school.

For faculty, I think the machine will never break. As standards slip there will be new rationalizations. If all else fails one can stay in the experience machine by reciprocal citations, self promotion and creating yet a another top 10 list. The point is that any threat to the experience machine is dealt with by modifying it and unlike the students there is no outside mechanism to force reevaluation. It is stunning to me how malleable the machine is. The other day I happened upon a popular teacher's power point. The entire power point had to have been prepared for form not substance. I cannot go into here but it was comparable to a slogan. No doubt students love it and the administration loves it when the students love it almost without regard for whatever the "it" is. The "it will move as necessary.

The Experience Machine for Students and Professors

2010-08-21T11:15:00.002-04:00

Robert Nozick is often credited with the the idea of the experience machine. The question he posed was would you enter a machine in which you were always happy. Your subjective reality would be wonderful and you would not know it is all induced by something other than your actual existence. I think Decarte thought of this earlier and, if course, The Matrix made it into an entire movie.

The question can be applied to law schools and students. For the students it comes in the form of the curve. As one of mine put it recently "Don't worry about class, there is always the curve." In short, the curve will make you feel subjectively better off but you may be doing miserably. For students it is hard because they cannot stay in the experience machine forever. They take the Bar Exam and some who were happy find they were in the experience machine of the curve. Law students demand the machine and faculty are happy to oblige but it is not their "real" reality.

Law faculty are far better off. They can enter the experience machine and never emerge. Most enter it at birth when born into privilege. And then comes the elite line up of Schools that are popular in large part because they make students feel better simply be being there. Clearly, these days there is no evidence that the students actually emerge with a better education than those who attended non experience machine schools. Then there is law professordom and a life time in the experience machine. Tenure assures a steady income for life and once hired not getting tenure is an uphill battle, especially if you are sociable and sing with the choir with respect to what today's "liberal" issues even though one must be very conservative to do so. By conservative I mean close-minded and intolerant. The main requirement of staying in the professorial experience machine is not to interrupt anyone else's blissful experience machine existence. Do not evaluate, do not suggest improvement, do not question.

Law School Risk Factor Redux

2010-08-21T11:05:00.002-04:00

(I found this quiz at WebMD-LawSchool.com and am passing it along for a second time. I'd like to report that my law school's risk factors have improved significantly!)

It's the beginning of the year and time to take an inventory of your law school's health. Give your school a "5" if the description is dead on and a "0" if it is completely inapplicable.

1. There is a critical mass of faculty for whom the ends nearly always justify the means. The “ends” can be anything from personnel to program decisions.

2. The convenience of faculty is always an important consideration in faculty votes and administrative decision making, sometimes to the detriment of stakeholders (students, donors and taxpayers).

3. It is difficult to discontinue or even to objectively evaluate existing programs without it becoming "personal."

4. There is a great deal of gossip. It comes to you even if you are not a “carrier.”

5. There is a solid core of “Making Nice, Knowing Better, Doing Nothing” people. These are the colleagues who express the right ideas – when they express at all – but are AWOL when critical decision points arise that could send the school in a more positive direction.

6. Your administration, when it is internally active at all, is principally concerned with putting out fires but only those that threaten the administration itself.

7. There are few if any norms about making up missed classes, rigor in the classroom, publication goals, testing practices, availability to students, etc.

8. Your dean would rather delay a hard decision or pass it onto the faculty knowing that that the School will suffer as a result. See Chen, Three Deans.

9. Tenured faculty frequently discuss controversial questions with untenured faculty and while doing so make clear their own opinions and what their expectations are.

10. Faculty tend to teach the same courses from the same books for years, maybe careers.

Add up your score.

40-50 points. Go to the Law School ER immediately. Not for your school. It left the world of the living some time ago. You, however, have a pulse. Save yourself by writing and teaching your very best and finding a hobby.

30-39 points. Your School is in critical condition but there is a chance of survival. It will be very tricky. Retirements, hiring stealth candidates, and a courageous dean are needed. Guerilla action maybe in order.

20-29 points. You have an elevated risk of law school death but it can be controlled by diet and exercise. Do not let the opportunity slip away.

10-19 points. Enjoy your law school’s good health.

0-9 points. See a physician immediately. You are delusional.

The Blindness of Law School Hiring Committees

2010-08-06T11:51:00.004-04:00

Although the details are not evident from this short article, the idea seems to be that the grades a law student makes in school are more important than the school attended in determining career success. I mention this because I have seen first hand hiring committee's turn their noses up at a top ten grad from, say, Minnesota, in favor of a bottom of the top third or even lower -- much lower- Harvard grad. There is no way to put it other than it is an empirically unsound way to make the hiring decision. Why do they do that. Not to bore you for the 10th time, but for the most part the committees are composed of elitists and the hiring is self-referential -- they are hiring themselves or what they wannabe. So each year another batch of elite grads roles into a profession that has grown terribly stale and humorless. Plus, they are not that well educated. In fact, when I consider the interests of, let's say, an Exeter, Princeton, Harvard grad (the most elitist combo I can think of right now) I wonder what is going in in the classroom.

Could we test this. Not really. A few years ago I compared publications by elitist school grads with those of non elite schools. The problem was that once you get out of the second tier of Law Schools you are hard pressed to find any non elite grads to make the study meaningful.

Really, I think Harvard and Yale could start producing the Yugo car and half the law professors in the US would salivate to have one (especially if it came with a Harvard vanity plate). Why do I believe that? Because they already produce Yugo grads and the profs salivate.

Revisiting Caterina

2010-08-02T12:27:00.001-04:00

This Italian movie has a wonderful and dead center take on class that repeatedly plays out in law schools. As the title suggests, it is about a young girl's problems when moving to the city. She is torn between the lefties and the righties at school. (This all takes place in Rome.) Two characters are parents of two of her school chums -- one left one right. One parent is a lefty intellectual and the other a right wing politician. At one point there is a conflict at the school and the parents are gathered together. Caterina's father, a pathetic lower middle class character who craves being recognized by the privileged, is there too. He best scene of the movie shows his awakening when he sees how close the two other parents are even though publicly they are arch enemies. What he realizes that that they are united by privilege and privilege is stronger than any professed convictions.

It is good to remember this in higher education and legal education in particular. The self anointed liberals (there are no lefties) may from time to time find conservatives to argue with. But where they are rock solid united is in their rejection of non elitists. Do not let their battles fool you. When faced with non elitists they will close ranks faster than you can say hypocrite.

White v. Black

2010-07-19T13:40:00.002-04:00

Thanks to one of my facebook friends, I came across this dead on NYT op-ed piece today. The theme is familiar -- whites and minorities pitted against each other for the benefit of the privileged.

Democrats and the Working Class

2010-07-18T20:16:00.001-04:00

I saw a bumper sticker yesterday that read:

“A working man who votes Republican is like a chicken who likes Colonel Sanders.”

I personally think this is true but, if you live in the South and many other places as well, you know it is not a slogan that most people pay attention to.

What makes working class people vote so often for politicians who promote the interests of their bosses? So-called liberals chalk it up to racism because this helps justify their lack of interest in class issues.

I think there is a different, more subtle, explanation. For whatever reason, the “face” of the Democratic Party is one of elitists. After all, Bill Clinton tried to appoint to his cabinet Zoe Baird, half of a $600,000 a year couple who were willing to pay only $24,000 to the caretaker of her only daughter. Rock stars, movie stars, glamorous authors tend to be Democrats and behave in a way working class people regard as immoral.

The Democratic image problem seems unfair because there must be as many elitists and rule-benders among Republicans. But Republicans are perceived to be less likely to use bad language, more likely to go to church, and to listen to country music, and more likely to fly an American flag with pride: cultural mores that working class people tend to share.

But the problem is not which party has more elitists. The actual problem is two-fold. First, Democrats have become progessively less interested in class in the last 50 years. Second, even if they claim to be advocates for the "working man," they are woefully ignorant of the what it means to be a working class person in America. A law professor would have no idea, for example, what it would be like to get up at 7:00 and return home at 6:00 after a day of physical work - no leisurely visits to the faculty lounge, no extended gossip sessions, no time to go to the dentist, etc. A law professor could not conceive of living on $15.00 an hour or his/her spouse bartending nights to make ends meet or worry about the price of ground beef or deciding to eat hot dogs once a week in order to make ends meet. They tend to shudder at things blue collar.

I watch this process play out at my job. I think I am pretty good at spotting the very few working class students who filter into even a state law school. It is profiling to be sure, but they are more likely to have acne scars, poor dental work, out of date hair styles (no mullets thank God) and to be overweight. When the first “dress up” occasion is held, the men and women are more likely to look like they read “court attire” to mean “Scarface attire.”

As these people move through law school, they get a belly-full of “liberal” indoctrination that is at best class-neutral and probably anti blue collar. When it comes to research assistant positions they are befuddled by why they were not chosen and Ms. Perfect Smile is. And when profs chum it up with students, you can bet it is not with the students who have even a smidgen of working classness about them. Perhaps this is understandable: people are more comfortable around those who are like them. So much for "embracing diversity."

Who would get your vote. Someone who does not care about you but is honest about it. Or someone who claims to care but actually finds you an inconvenient reminder of his own hypocrisy?

Strategy and Volunteers: Summer Rerun

2010-07-12T18:15:00.001-04:00

A few days ago, I wrote a blog about volunteers. It was inspired by an incident at my school that involved a person in charge of a cushy assignment “volunteering” to do the assignment himself. Here are some other examples. At my school, because we do not hire people to teach what the students need, 5 people are now teaching two large first year sections. I think when we all agreed to do it, it could be legitimately be regarded as volunteering because it looked like it would be difficult. Now a few of us have decided it is a breeze. One prep and 6 or 8 hours of your teaching obligation is done for the year – hardly anything that should create in the School a need to “compensate” us in one way or another. But a person employing the volunteer strategy will continue "I am doing you a favor" charade. I do not know if anyone is in this case.

Here is another one. In my second year of law teaching I was on an 8 person appointments committee. At our weekly meeting it was announced that the budget allowed for 6 people to go to D.C. Now we all know that profs moan and groan about going to the meat market but they really love it – be a big shot for a few days, drink, clown around. So, at the meeting the Chair asked, “Who wants to go.” Not a single hand went up. At the next meeting the Chair announced that every person on the committee had contacted him privately to “volunteer” to go. Wanting to go created no implicit debt but a “volunteer” deserves something in return.

Where is this going? Actually I know I may be manufacturing something here that does not exist at all. But, can the volunteer schitk be part of an overall pattern of professional strategic behavior? If it is, is it a law professor thing, an upper class thing or just something everyone does.

The overall strategy has three components. First is the voluteer. Second, you are always working hard and overburdened. Even if you just finished an hour of spider solitaire, webboggle, or surfing the net, when you come of your office you are in the midst of something pressing. So many things to do! Third, there is the “show no passion” strategy. Best to appear indifferent. Basic bargaining -- no one has any leverage with you when you do not care. Be sure to use words like “Aren’t you concerned about X” as opposed to “I really do not like X.”

Am I describing my school? Actually, I can only think of a few people that consistently fit the model and you would be hard pressed to convince me that my School is different from any other. Have I used these strategies? I am sure I have from time to time.

But think about the hell of keeping all of these going all the time. Such is the strategic life and my hunch is that it is a behavior found mainly among the privileged.

Bait and Switch?

2010-07-07T13:17:00.002-04:00

If there is a theme among the many student and professor posts about law schools it is that they are involved in a bait and switch. Students are attracted by the promise of employment in high paying and exciting jobs. They then discover there are not that many jobs, they do not all pay well and they can be boring. The problem here is that law schools involved in the USN&WR game want to and do inflate their employment figures. Ironically, these misleading figure may benefit students by making their degrees seem more valuable.Just think how the students would feel if, after enrolling, a school's decided to play it straight and its ranking dropped from 30th to 50th.

Playing it straight means not hiring one's own graduates, not paying firms to hire them and not giving grants to students while working. The employment figures would drop and the School's ranking would suffer. Students would have a better idea of exactly what to expect upon graduation.

What students seem to want may be hard to achieve. I think most want the world to believe that their schools' degrees are highly valued. On the other hand, they also want to know the truth. But if the truth gets out, it undermines the first objective.

I do not know what will happen. When the market for Ph.D.s dropped several years ago, applications fell and departments got smaller. The market worked. I do not know if that was because departments did not make false claims about placements or would be applicants realized that having a Ph.D. most likely qualified you to drive a taxi.

And lurking in the background is that the students are in many respects means to the ends of law professors. Without applicants and high enrollments, teaching jobs for graduates of elite law schools would dwindle.

Finally, there is a point of view perhaps held only by me. I don't thing not finding a job means legal education is a waste. Instead I think a legal education is part of becoming a well educated person. In fact, I wish Law School administrations would stress this in their sales pitches.

The Game

2010-06-25T15:14:00.002-04:00

In response to my blog on networking, anonymous comments as follows:

"Little and big cliques arise that tend to retard rather than advance the scholarship in that area."

One of the oddest pieces of advice I received from a law professor on trying to break into the academy was to approvingly cite influential scholars and follow up with them to create a "citation ion orgy."

As usual this "A" hits the nail on the head. It also sback a memory of riding in a car several years ago with a more senior law professor. In fact, it was one of my former professors who has done extremely well. WA bit of a mentor. We were chatting about a law professor who had been in the business about as long as I had and he observed "He really knows how to play the game." He said this with complete admiration. Playing the game meant that day's version of self promotion. For example, he might refer to a relatively modest book review in the Harvard Law Review as "my piece in Harvard." Actually today since Harvard has many law reviews this is an even more common ploy. No matter if you are in the 10th ranking specialty review you call it "my piece in Harvard."

But playing the game was so much more than just that. Today's technology means one can be a full time game player.

It reminds of a story told about Harrison Ford trying to get a job in Hollywood. Evidently he was being told why he could not succeed and the person showing him a clip of Tony Curtis playing a delivery boy. The director or agent said about Curtis, "You can just tell he is a star." Ford's reply was "I thought he was supposed to be a delivery boy."

And I thought law professors taught and wrote and did not worry about "the game." What I do not understand is why they did not go into another line of work -- business, sales, administration, politics, etc. Actually both the former professor and the young professor he admired so much did exactly that.

Summer Rerun in Honor of Futbol: Juice

2010-06-22T11:56:00.001-04:00

One of my favorite things in Rio is the juice bars. This photo is of my personal favorite. They are on virtually every corner. Most have not just juice but what I would call diner food. Actually, I am not sure I ever ate in a diner but it is what I imagine diner food to be. Some you stand at and some have seats with tables and then some have additional tables that you can pull up to park benches on the side walk.

I never heard anyone cop an attitude at a juice bar. I never saw anyone whine at a juice bar. No one care about status. No matter who you are you get the same juice and the same seat and the same service as anyone else and no one expects special treatment.

You do not pick a juice bar on the basis of its name or the training of the cooks and juicers who work there. Performance is the only thing that counts; the better the juice, food and service, the more customers it has. As a customer, if you do not produce you get no juice, or anything else.

Law schools should operate more like juice bars.

Marti Gras in Your Mouth

2010-06-09T12:20:00.003-04:00

Here is a dessert treat I think I invented. You'll need some angel food cake, that really good greek stype yoghurt, and sugar. Maybe some colored sprinkles.

Put a slice of angel food cake in a bowl and chop it up. Add the yogurt and mix thoroughly untill there are only chucks of the cake. Now take a bunch of turbanado or "sugar in the raw" and mix it all in. Also add a dash of colored sprinkles -- mainly for presentation purposes.

Chill and eat. Wonderful sometimes crunchy, sometimes cakey and sometimes a little tart flavours all follow one after the other. You will be smiling and reaching to make more. Eat with your eyes closed and it is even better.

Behave for success: Part 2

2010-06-08T13:44:00.003-04:00

[A recent commentator responded to the post below with the question of whether I do any of these things. I am pretty sure that I do not. I am not as outspoken as I once was but it has nothing to do with strategic behavior designed to advance my own interests. Instead, as a friend advised me, I was just spitting into the wind.]

It's not an official term but what I use to describe those with working class backgrounds who end up in the world of academics is "socioeconomic displacement." In other words, your parents did not go to college, you are the first in the family to do so and your natural career path might be middle management somewhere. Instead you end up is a strange world. The big advantage of the displacement is to observe the behavioral traits of those born to privilege and choose whether to imitate them. If you are willing to imitate, here are some sure fire tips some of which have appeared before in this blog.

1. Be careful not to overuse "please" and "thank you." These are words of weakness. They suggest you are asking for something to which you are not entitled or have received something that was not rightfully yours all along. So you write to a college and ask, "Could you explain the difference between Marx and Ted Koppel." When the careful answer comes back do not instantly write. "Thanks. That really helps!" No, say nothing or if you feel really pinned down when you see the person say "Thanks for your response." This does n0t mean that the response helped -- that would be too much to concede -- but gets you off the hook from expressing any sense of obligation.

2. If you do anything ever, no matter how greedy you were about it, remember to express it as "volunteering." You know. "I am volunteering to let you pick you the tab for lunch." Or, "I volunteered to fly to Paris for the law and fashion conference." Volunteering means someone owes you, not the other way around.

3. Never oppose the administration on behalf of someone other than yourself. A faithful employee gets fired, not your problem. The dean says he is giving his buddies a raise and asks you what you think. It looks good to you as long as you were not eligible for the same raise.

4. Take no position unless you have a great deal of company. This is important. There is no right, wrong, good or evil. It is all about protecting your options. Even if you teach professional responsibility, talk about ethics or attend church or temple. Lying, half-truths, nondisclosure are all permitting in service to yourself no matter how low the benefit to you or high the cost to someone else.

5. If you take a position, show that it does not matter that much. If you show passion or caring you show weakness.

6. Use information strategically. If you have information that someone else wants it is of value to you if only because someone else wants it. Even if it seems worthless to you, hang in there. Some one may ask you and instantly your importance increases.

7. If you are in a discussion and feel you are not convincing the other person, quickly pull out one of the old favorites -- incivility, bullying, offensive behavior. Forget the fact that overuse of these words minimizes real instances of cruelty and inequity.

You are on your way to being a true "professional."

Obama, Look behind you!

2010-06-07T22:17:00.003-04:00

Yes, Obama has now announced he is trying to figure whose "ass to kick." Duh, welcome to the party dude but you are about 6 weeks too late. Doesn't the USA have a few thousand boats at least some of which could be used in the clean up. Or a few thousand national guards people who can use a shovel.

Obama, want an ass to kick? Other than BP, I suggest looking behind you.