Greed and Confidence: "Bill Smith, who is at Harvard, . . . "

If there is an actual Bill Smith at Harvard, my apologies because this is not about you. In fact, even if there is a Bill Smith at Harvard, it is not about you. What it is about is the person who says to someone "I was talking to Bill Smith, who is at Harvard, and he says . . . ." Fill in your favorite elitist institution for Harvard. (The extreme version involves using Bill's nickname -- I was talking to Billy at Harvard.") I'm willing to bet that the same person rarely says, "I was talking to Jane Smith, who is at Joe's Law School, and she said . . . ."

I used to ask the speaker, "Why are you telling me Bill Smith is at Harvard?" Typically it was met with the deer in the headlights look. I was way out of bounds. And the question was really not fair. We all know why institutional affiliation is mentioned. It lets you know that the speaker knows someone at Harvard on an informal level. And it is supposed to mean that whatever follows is more likely to be true. What it elicits from me is nausea. And the same goes for name droppers especially those who, within the first 15 minutes, must let you know where he or she went to school. Yes, I am talking about the elite school name dropper. What is actually suggests is a lack of confidence or greediness. The reason why it suggests a lack of confidence is obvious. Why not let your words and thoughts speak for themselves? As for greediness, it means you want more credit than your words and thoughts deserve.

One of my best colleagues has a five star pedigree the existence of which is never revealed. And some of the biggest underachievers have the same pedigree and are quick to mention it. And they are also most likely to mention talking to the aforementioned "Bill Smith." It is amazing how much of their self-esteem turns on something so thin.

Of course it is just good business to promotes oneself by promoting those who have the same brand name pedigree. The place this plays out most is in recruitment. Law School hiring committees are dominated by elite school grads and they hire their clones. Here again we have greed and a lack of self confidence. Greed because it helps those in the club to hire others in the club. Self-confidence issues arise because implicit in hiring decisions is that the decision makers will not hire anyone they had a hand in educating.

Social Mobility and the Washington Monthly

As reported in the New York Times, Washington Monthly has published its rankings of Universities based on their contribution to social good. It is interesting the compare the social good rankings with the U.S. News and World Report rankings. One measure of social good is the contribution to social mobility and that is measured by students with Pell Grants.

One thing that I do not understand is this. Pell grants are essential subsidization for students who otherwise could not go to college. That's fine but isn't that the role of public schools more generally? At my School, undergraduates are heavily subsidized and earn degrees than enable them to achieve careers that would otherwise be impossible. Last time I checked that would be social mobility. Wouldn't the Washington Monthly rankings make a lot more sense if they considered the subsidization of less affluent students as a matter of course at Schools that strive to keep tuition low? As it turns out, many state schools make it to the top of the list. But a few elite schools are up there too, bumping aside schools where subsidization of the less affluent is not an exception but part of the mission.

Machine Graded Exams Again

I've written about multiple choice machine [not multiple choice with explanation] graded exams over on Moneylaw but not here on Classbais because I was not sure there was a class or entitlement factor involved. Now I am not so sure.

First my view is that professors who give 100% or even more the 50% machine graded exams are shirking their teaching obligations. To me there are two huge problems. First, I think every teacher claims to teach analysis which means the recognition of ambiguity and gray areas. Yet they test on something else when the use machine graded exams. The students know this ahead of time and alter their "listening" and note taking. There could be exceptions but the writing skills needed would exceed that of anyone I know. Second, teaching has a diagnostic component. You read answers to spot reasoning and writing problems. For example, if 25 people in a 100 person class have the same misunderstanding of, let's say, proximate cause and that is the reason their answer goes off track, you cannot know this using a machine graded exam. This means you do not know how to improve your teaching the next year in order to help them through analysis. Whatever they say, most users of machine graded exams just do not want to grade. I dislike grading as much as anyone but believe it's part of teaching when done right.

I am not sure this has much to do with class and privilege but this did occur to me. Virtually every teacher hired by a law school graduated from an elite school. One of two things has happened. First, maybe their teachers at those schools used machine graded exams. If so, it explains the decline in intellectualism and the increase in "technicianism" among beginning teachers. Second, maybe their teachers did not use machine graded exams. If that is the case, they must view themselves as slumming it when they give machine graded exams at schools ranked lower than the ones from which they graduated.

I've always wondered why teachers from elite schools typically regard their own students as unworthy candidates for law teaching jobs. It strikes me signifying doubt about their own training and teaching. A version of that would be why their own students to not deserve the quality of teaching and evaluation they got. Of course this assumes the elite schools do not rely on machine graded exams and I do not know that either way. I just know I would not vote to hire a new law teacher with a high GPA if I knew it reflected performance on machine graded exams.

Trailing Spouses

Sometime ago I wrote about the blatant class bias and self-referential aspects of the Sloan Foundation's study of how to increase job flexibility for academics. Yes, it was a little like studying ways to make Yao Ming taller.

Another aspect of academics that reveals a huge class bias is the problem of the trailing spouse. This the case of one department in a University -- say engineering -- interviewing a candidate and deciding to make an offer. (Of course no questions about marital status are permitted, not because it is not relevant but because it could mean a law suit.) Now that candidate says, "Oh my husband, Phil, will have to have a job in the Math department. " Sometimes the Math department is happy. More often, all kinds of squirming goes on to twist the arm of the Math department to hire him. A person gets hired who would not other wise be hired and there are side payments from engineering. The reasoning by the engineering department is "We could not have gotten Carol if we had not done this." Of course for what they are paying Carol (some of which shows up on Phil's check) they could have hired someone much better than Carol. In fact, the people who should be most unhappy are Carol's counterparts who are single or married to non academics. What Carol has managed to do is parlay being married into a higher salary than that received by her equals. Or you could say the counterparts are paid less because they are single.

One reason this persists is the view of the privileged that they are entitled to it all. It does not cross their minds at a critical time that one has to make choices in life. In fact, the vast majority of people make choices. Some are married or have partners and others do not. Some have working spouses and some have stay-at-home spouses. Some have children and others do not. No one except the married professionals seem to expect to be immune from the costs of their choices and it seems likely that we are talking, in those cases, about two people of privilege.

Class Bias Part 3: Replay

Then I got Mary pregnant
and man that was all she wrote
And for my nineteenth birthday I got a union card and a wedding coat
We went down to the courthouse
and the judge put it all to rest
No wedding day smiles no walk down the aisle
No flowers no wedding dress

The River, Springsteen

Parts one and two of my discussion of class bias in law school hiring addressed the different perspective that economically disadvantaged people (e.d.p.'s) bring to the job and the ways more of this perspective would improve the service, teaching and research of the institution. This last installment is about finding those people. In a sense Jim Chen has made all of this easier. I am tempted simply to say: do everything he outlined in his latest piece, but first screen out all candidates who attended private schools or high-tuition state schools.

There is also another short cut way to describe it. Most law professors know how to find good e.d.p.'s – all it takes is acting counter-intuitively. It’s along the lines of "if it tastes good or feels good, it is probably not good for your health." In hiring, if you feel comfortable with and connected to the candidate, it’s probably bad for the School. That is what it is about, right? The School? Or is it about hanging out with similarly privileged buds?

There is some profiling to be done here, but it is okay here since the only groups affected are those who are economically advantaged or disadvantaged. I concede that screening out all private school and high tuition schools can mean losing some good candidates but, if you take a look at the numbers published in the latest issue of the Economist (September 23, 2006, p. 38), you are mainly passing up on beneficiaries of affirmative action for the privileged. Moreover, what we know is that the only things positively correlated with expensive credentials is the probability of landing a law school teaching job and the level at which one’s articles are placed. There appears to be no correlation between expensive credentials and the ability to carry on an interesting conversation about art, music, history or not to be hopelessly boring.

So narrow the universe to candidates who excelled at inexpensive (some State) law schools. Then narrow your scope to the top ten – not top 10% -- in the class. Now it gets tougher because some e.d.p.'s will try pass for privileged (pfp). With hard work you can “out” most of them. You want to eliminate anyone who traveled widely in the summer, spent any semesters abroad, and did not work at some menial job for, at least, some summers. The keepers are ones with crooked teeth and pock marks. For a woman, look for a skirt that is a bit too short, heels too high, or too much make up. (For men the make up is OK only on Elvis impersonators -- in fact, maybe a per se hire.) Gold jewelry on a man or a woman is a good sign. Any inkling of a mullet is a definite yes for a man as is a jacket with a double vented back or a tie that is too wide or too narrow.

You have narrowed the universe to e.d.p.'s. Some of those who have figured out how to pfp will also be eliminated. Not a big loss because they may also pfp in their service, teaching, and research.

Now proceed to the Chen questions and you’ve got it.

Finally, a word on race. Race is not per se indicative of economic disadvantage. That’s not to say there are not arguments for considering race for other reasons but in recent years, at least in my hiring experience, there is a tendency for law faculty to feel most comfortable with minorities from private or high priced schools who have professional level parents. These folks are indistinguishable from whites in terms of their sense of entitlement. Thus, even with minorities it is important to look beyond the surface.

Atticus Say it Ain't So

I thought I was up on law and literature but evidently not. The latest New Yorker includes a bit of a deconstruction of Atticus Finch, the hero of To Kill a Mockingbird. If my memory serves me, at least one law professor, Monroe Freedman, is quoted. It seems that the honorable Atticus was only able to offer his moral lesson by strutting his sexism and class bias. It's an interesting read, especially for any law professors holding Atticus out as a model to their students.

Class Bias Part 2: Replay

Keep you doped with religion and sex and TV.
And you think you're so clever and class less and free.
But you're still fucking peasants as far as I can see.
A working class hero is something to be.
Working Class Hero, John Lennon


In part one of this three part series, I discussed the different perspective of those who were economically disadvantaged people. I also noted that I am not confident that e.d.p.s (OK, no pun intended) share a view of how specific issues should be decided. Instead, I wrote about bringing a needed perspective to teaching and research. I should have included service as well, especially faculty governance. At the outset, however, consider the proposition that is opposite of the one I will discuss: The quality of legal education is increased by systematically excluding e.d.p.s from the profession. I doubt many would say they agree with that view. On the other hand, maybe actions speak louder than words.

With respect to governance, I have noted that when in the company of other professors with working class backgrounds, we seem to have a greater understanding of the fact that we are making decisions about spending the money of others. Colleagues with senses of entitlement, on the other hand, are less likely to have a vision of those who actually pay the bills. (Do they ever think of the convenience store worker or stock person at Wal-Mart when deciding that sending a group of faculty to a conference in Geneva is just the thing?) Recognition of concepts like “can we afford” something or “is this the best use of the money” seems to follow more readily when someone has been forced to deal with those same issues in his or her own life.

This sense of fiduciary obligation affects the way in which e.d.p.s approach teaching as well. A sense of entitlement seems to go hand in hand with canceling classes at the drop of a hat, taking off a couple of weeks in the middle of the semester for a foreign conference, teaching a self-indulgent course with a tiny enrollment, and feeling annoyed if students ask too many questions. It comes down to a view, shared by the children of privilege, that law schools exist for the faculty as opposed to the reality that faculty are but an input. Think how everything changes when faculty realize that they are not there to be served but to serve – and their jobs depend on serving. For those who have had a lifetime of being served, this an alien perspective.

When it comes to the substance of teaching and research, it is not that e.d.p.s are better, only different, and that teaching and scholarship are enriched by different perspectives. For example, a contracts teacher who has experienced being on the losing end of an exploitative contract is better able to understand the illusion of Pareto superiority and discuss, in real terms, the failings of contract law (as it has been shaped to serve those of privileged classes). My hunch is that this same perspective carries over to any course in which there is an interactive element.

Finally, on scholarship. Where do the ideas for articles come from? What fuels the analysis? That spontaneous flash that leads to questions or that leads to analysis and research is akin to “taste” – here a taste for which questions one will devote his or her life to. Taste is hardly the result of eight or more years in college. Different life experiences result in different tastes. Look at most faculties. Which people are writing about race? About woman and families? About environmental questions? There is a self-referential and oft times a self-interested element to how tastes are formed. In each case, there is a story that connects the person’s life with the direction his or her research has taken. Now compare a faculty that has screens out an entire segment of life experiences and compare its diversity and quality with one that purposefully includes all qualified people, whether or not they increase social comfort. My case is simple: when it comes to the analysis of law and the teaching of future attorneys, the second faculty is superior.

Class Bias Part 1: Replay

Give me your hungry, your tired your poor I'll piss on em
Thats what the statue of bigotry says
Your poor huddled masses, lets club em to death
And get it over with and just dump em on the boulevard.
Lou Reed, Dirty Blvd.


I have been asked to clarify my views on class bias in law school hiring. As I see it, there are three questions. What do I mean by economic diversity? Second, what does economic diversity bring to the table? Finally, how would one go about hiring for this type of diversity? (I’d prefer not to use the term “affirmative action” which seems to have different and shifting meanings.) Before addressing these issues – one per week – I want to add a qualification. My focus is purely utilitarian. Will an increase in economic diversity (assuming the premise that it does not currently exist is correct) enhance teaching and research? Although I personally feel that children of poor and working class families have been excluded and there are issues of equity to consider, that is not my concern here. For now at least, I am not willing to ask today’s taxpayers to compensate today’s working class children because of what may or may not have happened to their parents. In the context of public schools, that may be nothing more than an intra-class redistribution.

To me class differences in the classroom and in scholarship are not about likely positions on specific issues. If that is what I were after, I am not sure economic diversity would get me there. (Plus, to be honest I am weary of hiring decisions, particularly at my School, based on how the candidate is likely to vote on specific issues.) I am thinking about a different perspective or sensitivity. I know this gets uncomfortable but a good example of what I mean by sensitivity or awareness involves an experience I had a few years ago when I shared a cab with a very privileged colleague – one I have enormous respect for. It was a battered cab with a driver whose clothes and demeanor said “working class.” She noticed a radar detector on his dash and attempted to engage the driver in a conversation about it. He nodded in response to her attempts. Somewhere along the line she announced with a big grin, “We got our radar detector from the Sharper Image Catalogue!” (This was several years ago when the Sharper Image had just come on the scene and carried with it some status.) She said it as though they had now bonded and would begin sharing Sharper Image stories. He was deer in the headlights. She was clueless that she was from a class of people who were inundated with Shaper Image catalogues and he was from a class that had not heard of the Sharper Image. This is all very dated now. Shaper Image has been exposed is now discounting on Ebay. So, substitute in this story something like the Design Within Reach catalogue. Or, virtually anything from San Francisco, of course.

This is just an example but I see the same disconnect played out repeatedly. I have talked to students who were turned down by my colleagues for research assistant jobs, but I did not tell them that jewelry, wide lapels, crooked teeth, and make-up make law professors nervous. Similarly, I have been in job interviews for teaching positions that were dismal because the candidate could not connect with interviewers by name dropping Guido, Cass, Eric or Ian; discussing biking in Italy or anything in the New Yorker; and let it drop that having a brand new car, as opposed to a fashionably old Volvo or Mercedes, would be cool.

If you agree that there are differences, the next question is whether having people on a faculty with this different sensitivity would make teaching and research richer. I will have a go at that next week.

Madder Than Gates

Professor Gates got pretty mad about his run in the the police last week. I doubt he got as mad as I did. After a break in in my middle class neighborhood the police decided to question the usual suspects -- teen age boys (beer was taken). So with no adults at home my 17 year old was awakened by three police detectives standing in his bedroom.

Their reason for entering the house without permission: Although the screened door was closed they could see that the back door inside the screen door was ajar (We do this so the cats can go out.) and who knows what awful things may be going on inside. The fact that they were wandering around in the back yard of the home of a person they only considered a suspect because of profiling was just a coincidence I guess. Yes we are talking about pretense.

They told my son that if he would just confess the would go easier on him. I am not kidding. I have no doubt he wanted to confess but they were being cagey about the exact crime and he could not think of any he had committed. So he was stumped. They finally left with the parting shot that he was not telling all he knew.

I do not know what Gates said exactly but I'll bet it was tamer than my reaction would have been had I not had time to cool down after hearing the story of teen age male profiling. I also know that not being a Harvard professor and a friend of the President would have meant the consequences for my tirade would have been harsher and if I were African American might still be in jail.

I do not doubt for a minute that African Americans deal with profiling more than any other group in American. My hunch is that teenage males are in the top ten and the lower the socioeconomic class the worse it is for both groups. And the Gates episode also shows what we know exists for all groups: people of privilege and with connections are almost always going to have their way.

Trout, Liposuction, and Foreign Programs

I am eating words right not because I am teaching in UF's summer program in Montpellier, France. Some readers my recall my criticism of these types of programs. In my defense my primary argument was that no new ones are needed especially in western Europe -- adult Disney World -- because there are more than enough to supply every student.

But participation has changed my tune a bit (not about the new ones) about these programs. In fact, this one seems to have three characteristics that make is work well. First, Florida requires its programs to break even -- no taxpayer subsidization. Second, you need a director who does not allow a program like this to turn into a vacation. In our case, the course load is tough and the director constantly finds ways to integrate the local culture into the program. Finally, and this is something I did not think of but should have, the students are self-selecting. They are looking for something other than a vacation. I've been happy with their level of engagement.

I ate all those words because I really wanted to talk about trout and liposuction. Montpellier has a market one place or another everyday. Markets with fruits, veggies, cheese, etc. are not that different from each other. Except for the one I saw today, at least for me. One vendor had a pickup truck with a pond in the back for trout who were swimming around. I've seen this. No big deal. When a customer wanted a trout, the vendor would catch one in a net and whack it on the head with a stick. Sounds tough, I know, but these were dead fish swimming as soon as they got in the truck. The most interesting part was he then gutted them and used what I assumed was a hi tech Wet-Vac to suck the guts out. Yes, the principles of liposuction were applied preparing fish to eat.

On the eve of the anniversary of the first moon walk, its good to think about the good things the space program has brought to all of us. Actually, I cannot think of any. BUT, depending on which came first you can thank medical science for a new way to clean a trout or trout seller for a way to suck out those unsightly fat cells from thighs, tummies and butts. Let's just hope those fat suckers do not slip.

It Takes a Worried Man

Most law professors are worried people and worried people are not much in the sense of humor department. Crack a joke and the first reaction is "is this a joke? what does this really mean? is it OK to laugh? what are the political and social implications of laughing? If the humor is on the irreverent side you are better off saving your breath.

That all makes them pretty easy targets. Easy targets or not, a recent article by Ezra Rosser, On Becoming 'Professor': A Semi-Serious Look in the Mirror" 36 Florida State Law Review 215, is a wonderful, dead on, and hilarious take down of professordom. There are too many zingers here for me to summarize only a few so just read and enjoy. If you are worried, because it is funny, do it secretly. Close your door and look in the mirror. And one more thing. Thank goodness for the group of editors at the FSU law review who elected to published it.

I do not know if any reviews rejected it but if it had been rejected by all it could have been submitted to the new review just starting up, The Review of Unpublished Law Review Articles. This is a very slim new journal because with over 7200 articles published, there are precious few left for the R.Unp.L.R.A. This is not to be confused with its sister (or is it brother) review, The Review of Unpublishable Law Review Articles which is, obviously, peer reviewed.

Velvet Hazing

This is not a “walked 5 miles through the driving snow” story although it may seem that it is.

At the mid level schools at which I have taught, life for untenured faculty has changed. At my first teaching job, I taught the summer before my first fall -- a first preparation crammed into a 7 week course. Like others, the course load thereafter was the same as that for my senior colleagues. At tenure time, we had no input into who the referees were for our scholarship. They were all national figures and I was surprised they would take the time. When the class visitation issue came up, the visits were announced the same day or not announced at all. Why would they be?

These days at my school and others, I assume, it is quite different. Untenureds receive summer research grants starting with the summer before beginning teaching and extending through the tenure decision. Reduced teaching loads in the first year are the norm. The candidates are involved in selecting referees for their scholarship. The scheduling of class visits is done to make sure the candidates can be at their best. (Not that anyone actually writes a negative class visit letter even though their private comments may suggest there are problems.) Faculty, many of whom are not successful writers, are constantly providing advice, often conflicting, about whom to try to please, how to get a good placement, topics, etc. Or, they babble on about their own work, name drop or otherwise try to impress. There are scholarship mentors and “friend” mentors. Next there will be mentors for the mentors and an Associate Dean for Mentoring.

Sounds pretty good right?

I am not sure. I preferred the old way. The new “supportive,” “sensitive,” “caring” approach seems nerve racking. There is so much attention focused on the untenureds, I do not see how they survive without mega doses of Valium. The assistance has an unsettling ritualistic quality about it. It seems so much more intense than when I went through the “less sensitive” process (where I was told to work hard and everything would be fine) although the standards are exactly the same. Everything written will be published and favorable reviews are readily supplied. The production about class visitation suggests that somehow it is not just another day in front of the class.

The new “sensitive” process also strikes me as undermining. We, and every other law school, hire relatively confident and competent fully developed adults. Often they are married with children or have other support systems and come from successful careers. Immediately, like overly protective parents, we “tell” them that they are dependent, need our help, and face a huge challenge. By making life “easier” we communicate that the job is overwhelming when it is not and that we have little confidence in them. What the pretenure period reminds me of is a kind of velvet glove hazing like that which first year students seem to want to experience even though those days are long gone.

Finally, there is another dangerous lesson this may teach. It is only human for untenureds to develop expectations. If their every need(or non need) is anticipated and satisfied, what kind of faculty do they become? Will they accept it if a dean asks them to teach in an area where the School is short on coverage that year? Will they be willing to meet with students even when it is not convenient? Will they simply become part of the Matrix in which they deserve all they get and more regardless of what they do? Most have a sense of entitlement when they arrive and the new sensitively reinforces it.

I honestly feel sorry for today’s untenureds and would not trade places. My hope is that they can ignore the messages and laugh, forgive, and become productive (no matter how much we tell them it is unlikely).

Casebook Scam

I serve on two on two University committees, one of which deals with grievances and professional ethics. Surprising as it may seem, what I have learned makes me feel better about what goes on at the Law School. Here is one example of a scam that seems over the line.

A Professor teaching hundreds of students requires them to hand in homework on workbook pages custom made for his course. The books are available at the local Kinkos and sold at a profit. Students may not hand anything but the actual purchased pages. Evidently, handing in the correct workbook pages has an impact on the final grade. The professor takes a cut of the sales. The Dean of the College where he works is evidently unconcerned. (This newest practice is evidently a replacement for one that required buying CDs with codes in them so that actual purchase could be verified.)

Outrageous! . . . In the words of Lee Corso, “Not so fast my friend.”

Hasn’t the professor simply perfected the casebook editor/casebook publisher scam. Think about it. Is there a principled distinction between that professor and authors (clearly not just in law) who happily issue a new edition whether a new one is warranted. In fact, I recently received the new edition of a casebook I have used for years. It took an extensive search to find what was different. In addition, since the demand side of the market is, for all practical purposes, composed of professors who dictate which books will be bought, how are those professors different from a stock broker who mishandles a client’s portfolio?

I'd like to pin this indifference on class bias but I am not not sure I can. My own behavior is similar to that of the privileged. When the memo comes out each semester asking what the assigned materials are for the following semester, I typically name the book and add “latest edition.” In reality, when teaching contracts, I think I could almost get by with the classic Kessler and Gilmore (now that was casebook scholarship!) I had as a student many years ago. If so, that means I have cost 20 years of contracts students many thousands of dollars that went to publishers and editors without any substantial change what goes on in the classroom.

I admire the very small handful of my colleagues who keep using an older edition of a book even when newer editions are created in reaction to the used market. I have done it myself but it means complications. I admire even more the casebook editor who, when Thomson or Aspen comes calling about a new edition, says “there is no need for one.” Isn’t legal eduction, where the choir claims to be so concerned about the welfare of others, the best place to begin drawing the line when to comes to exploiting students via the casebook scam? Or, do you need the eggs?

Summer Rerun: The Matrix

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 “referreed” 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 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.

3. 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.

4. 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.

5. Your faculty teaches nine 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. The reasoning is that you would still comply with accreditation requirements.

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

Summer Rerun: Captive Newspapers

If you live in a college town you are likely to find your local newspaper complicit in the preservation of control of the University by the elites. The Gainesville Sun seems to be a good example. The Sun, despite open meetings and open records law appears to have little interest in examing the University of Florida and seems wary of any op-eders who challenge them to do so. In fact, all indications are that the preferred action is to look the other way. Recently the University constructed a $20 million Law School building that is vastly under utilized. This is because those with a sense of entitlement -- the faculty- resist efforts to spread classes over the full week or to offer summer school classes, unless taught overseas. The prime teaching times are 10-3 on Monday through Wed and that is when most of the classes are offered. Of course, the students are left out of the equation because classes are jammed into a short period of time creating many conflicts.

Our local paper evidently sees nothing wrong with this or with faculty junkets to far away places to meet with other faculty at conferences that were created so there could be faculty junkets to far away places. Foreign programs, centers, institutes and programs are evidently immune from scrutiny. (This was not aways the case. In the past, one President was discovered making huge increases to the budget of an institute he was destined to land in once he left the presidency and rewarding his closest staff with shockingly high raises. These revelation by the newspaper were instrumental in helping move us to a more responsible Presidency.)

What accounts for the failure of these monopolies to serve the public welfare. Frankly, I cannot say. It is possible that the need to have full access to sports news which then sells papers is at the root of it but this is not a theory I would bet on. Another possibility is the small social environment that exists in a college town. Publishers may be pals with local politicos or high ranking University officials and close scrutiny may damage these valued relationship. It is, in fact, a type of log rolling where those involved get what the want and the public is treated as though it is irrelevant.

Ironically, "my" local paper, The Gainesville Sun, ran a long editorial praising Judith Miller the NYT reporter who went to jail for journalistic independence. Yet, no one at the Sun seems to have similar backbone when it comes to scrutinizing University expenditures.

Hypocrisy Studies

Ken Oldfield, referred to below in connection with his book, Resilience, Queer Professors From the Working Class, is engaged in a long term project, "Hypocrisy Studies." An excerpt from his entry on Scalia, the man who equates silk purses with admission to elite schools, follows:

"Antonin Scalia, the U.S. Supreme Court Justice. Another of Reagan's contributions to "Trickle Down" economics. According to one source, "Scalia's ascent to the pinnacle of his profession was proclaimed by many as an example of the American dream" ("Antonin," 1999) coming true.

Hardly! Scalia is of very comfortable origins. Antonin's dad received his Ph.D. from Columbia University and was a professor of Romance languages at Brooklyn College. Justice Scalia's mother was an elementary school teacher. His parents sent Antonin to The Right Schools, including Xavier High School ($34,800), a tony Jesuit military academy in Manhattan. He received his undergraduate degree from Georgetown University ($171,752). While there, and as a Sheldon Fellow of Harvard, he studied at the University of Fribourg (Switzerland). Presumably, he went to Switzerland to learn more about poor people, the primary beneficiaries of trickle down economics.

After learning to appreciate how the bottom half lives, Antonin returned to the States. He received a law degree from Harvard ($146,544) in 1960 and that same year married an English major from Radcliffe College, Maureen McCarthy. Her father was a physician, which might help explain the Radcliffe connection.

In 1977, Scalia's deep and abiding commitment to fighting socialism carried Antonin to Washington, D.C., where he became a Resident Scholar with the American Enterprise Institute. From 1967-71, Scalia fell off the free market bandwagon and into the grips of socialism when he became a law professor at the publicly owned University of Virginia in Charlottesville. Over the years, he has also taught at several other law schools, institutions that were, probably just like the University of Virginia, brimming with students of poverty and working class origins, including Georgetown University, the University of Chicago and Stanford University."

Thanks Ken for allowing me to reprint this. But back on Scalia and and the silk purse quote (immediately below). First, there is something nice about Scalia slamming the elite schools. Second, just to keep the barnyard idea going. Relying on elite credentials is like buying a pig in a poke. In my time in teaching, I have seen way too many silk purses that were empty.

And This Little Piggy Went to the Supreme Court

By now most people in legal education or practicing law have seen the article in the ABA Journal about Justice Scalia explaining the facts of Supreme Court and academic life to an American University student.

"“By and large,” Scalia said during the April 24 law school appearance, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”"

Assuming the Judge reversed the sow's ear and the silk purse, I think he just labeled everyone who did not attend at an elite law school a pig or at least an appendage of a pig. On the other hand, I think he meant what he said. That interpretation would be that no matter how bad the education is at the elite schools they cannot ruin excellent students. I certainly agree with the premise but but either they are ruining many of the best and brightest or they are not getting the best and brightest in the first place.

I'd like the Justice to visit a few law school barn yards for a closer look. The halls are lined with the "best and brightest" who are often sow's ears -- narrowly educated, anti intellectual and with an overpowering sense of entitlement. Many cannot think their way of a paper sty. I often wonder what would be the most elitist and expensive education possible in the United States starting from primary school. I think I have found it and all the sows' ears Justice Scalia could eat at the same time.

Gay and Working Class

There is an intriguing new book on the market. The title is Resilience: Queer Professors from the Working Class and as its title suggests it is devoted to the stories of gay and working class people who have made into the exclusive world of academia. The editors and contributors are are Kenneth Oldfield and Richard Johnson.

It is an interesting combination and, as Ken Oldfield says, while the academic community is far more welcoming for gays than it once was, there is little indication that the same can be said for working class academics.

One of the themes of this blog has always been that class trumps all other factors. This is most obvious in the case of white professors but, as I have written before, it seems clear that African-Americans are in the same position. Academic positions appear to be open to African-Americans as long as they come from the "right" background or have been appropriately groomed. On the other hand, any obvious link to the actual real world life of African-Americans in the United States makes the elitists who control hiring nervous.

Almost certainly the same is true for gays. Law Schools clamor to hire gay professors in order to display their "liberal" leanings (even if the gay professors are conservative). My hunch is that they would draw the line at a gay applicant with even a whiff of a working class background or one who would actual admit to such a background. But, for me at least, this is uncharted territory. I have seen working class whites and African-Americans get snubbed but I am not sure I have even seen a gay applicant who had working class characteristics. Consequently, I cannot tell if the same discrimination occurs but my hunch is that it does. In fact, the fact that working class gay applicants to not emerge may itself be a sign of how severe the discrimination is.

Randomly Distributing Babies

When babies are born hospitals take great pains to make sure they are identified so when the are taken to the nursery they are not mixed up and given to the wrong parents. I have often suggested that a better process is not to worry about the mix up. In fact, why not just randomly distribute them to the parents? What this means is that each newborn has an equal probability of being teamed up with affluent and intelligent parents. In effect, each child has a chance to win the life lottery. That seems so much fairer than being doomed at birth to have a stressful, deprived life depending on the identity of two people who decided to have sex.

After reading a recent article in the April 4th issue of the Economist I realize that perhaps the idea is not as facetious as I intend it to be. As it turns out, recent research shows that poor kids, as the Economist puts it, are "stupider" than other kids for a reason -- stress. More technically, theses kids have lower capacity "working memories" -- the ability to hold bits of information in the brain for current use. Researchers have measured what is called the "allostatic load" which measures stress. You can figure out the correlations. Kids born to poverty are more likely to have higher allostatic loads and more likely to have lower working memories. Of course the cycle goes on and on -- poor kids to poor adults to the birth of children also likely to live in poverty and the stress it creates.

In many respects this tells us how thin having a sense of entitlement is. When you get down to it, many of those smart kids who become law professors and think they are entitled to virtually everything from having the right color on the office walls to sitting around and with impunity labeling students stupid or crazy are there because the hospital did not randomly distribute them as babies.

"Pimp'n Out" the Students, Helping, or Both?

Many law schools have externship programs -- students work elsewhere in a law related jobs and receive credit. Schools divide on whether the externship must be in a non profit context. This question is, perhaps, more pressing, when the issue arises in the context of public schools.

If public law schools are based on a "public good" rationale and are not simply a means of redistributing income from taxpayers to people who do well on the LSAT, it is not easy to see the rationale for saying, for example, to Exxon, please let our students work for you for nothing and we will give them credit toward graduation. Does this mean we are paying students to work for for-profit entities and subsidizing those firms at the same time? After all, if the students do something, anything, that has market value, how can this not be viewed as a form of subsidization? "Pimp'n out" the students, as one friend describes it, is hard justify.

This seemed pretty simple to me. Why would a state school pay students to work for firms whose interests might be opposed to those of the State paying for the education of the students? And, having subsidized one for-profit firm, is the School obligated to subsidize others, particularly their opponents, equally. I mentioned this to another friend who told me, correctly, I was way behind on the issue. Most of the students are in law school in order to do exactly what the for-profit externship permits -- working for firms that may or may not have any connection to the public interest. In effect, the for-profit externship is just a continuation of what law schools, including public law schools, do anyway -- subsidize the private sector. (You never hear much about this but shouldn't it be a concern to both "liberals" and conservatives?)

I was way behind in another way. Relatively affluent students have always been able to work for for-profit firms in the summer. Getting paid was not that important. The students who could not participate were those who needed money even if it meant delivering pizza. By giving credit to these students, they are also able to participate in an activity that actually may help them hone their legal skills. I note this because no one is claiming that the for-profit experience is not a valuable one for students. Unfortunately, without a public service requirement, the skills acquired are not likely to be used to pay back the taxpayers who paid for the legal education.

It's not a simple matter.

Elitist Voting

Actually to be fair, maybe it is not just elitist but it is interesting nonetheless. I just return from a faculty meeting in which every proposal except one passed unanimously. The problem was that around where I was sitting, many people seemed to be opposed. So how can this be?

The best interpretation I have is this: When a matter is close, the yes votes go first and are a bit emphatic. This puts the no voters in something like a prisoner's dilemma. They may be able to defeat the motion but only if they all vote no. At least they can force a count.

If one or two vote no, however, theirs could be the only no votes and they have "outed" themselves. This is embarrassing and may have social implications. The risks for yes voters are not the same. First they cannot be accused as going against the grain and their vote is one that agrees at least with as many people constituting the committee making the proposal.

So the question is how many things pass when actually a majority of people oppose it. Perhaps one way to find out is to take the no vote first. But this may just reverse the problem.

What does this have to do with the elites? As I said, I am not sure but it has a great deal to do with gutlessness and thinking about one's place rather than what is best for the institution and that is clearly an elite trait. Just another example of shirking.

Upside Down World and Jeremy Bentham

Three things hit me the other day when I drove to Home Depot on a too hot for March afternoon. First there was the 35-40ish looking woman coming out of Domino's pizza with a stack of pizzas and getting into a rusted heap of a car. It was a delivery car and she was at least 8 months pregnant.

Across the street from the Home Depot a middle aged guy was sitting in the front of a dirty pick up truck. He was on the passenger side with the door open and his feet dangling out. His tool belt was hanging on the door and on the windshield was a hand-written sign "Will do electrical work $35."

Inside Home Depot was a man trying to sell A/C inspections in hopes that, if you got one and found out how much energy you were wasting you would buy a new unit. He looked like a moonlighting high school teacher. He also looked tired. No one paid any attention to him. In fact, there was hardly anyone in the store.

If you are a Law Professor, like I am, after seeing these things you may go to work and find:
1. Elitist A is all up set because another law professor wrote an email he did not like.
2. Privileged person B (employed for life, like A) is all torn up because her favorite faculty (also privileged) candidate did not get a positive vote for what in all likelihood would become a forever job.
2. And then there is over-affirmed C going office to office to gossip about a student who was not properly submissive in class because C is always looking for something to stress about.

These are all examples of the upside down world of the privileged. The pregnant pizza delivery person, the out of work electrician, and the moonlight school teacher probably sensed less than a tenth of the misery and injustice as privileged professors who have everything they do not -- a steady and relative easy job, a good salary, infinite flexibility, etc. The have-nots seem also to be the want nots. The haves seem distressed over things that would not even register with the have nots. If anyone thinks the theory of relative deprivation does not explain elitist angst, think again. And if there are any utilitarians still out there, think again about whether the disutility some people feel has any moral importance. What the have nots do not feel seems infinitely more important.

Class Priming

Priming is an interesting, mysterious process. For example, in one experiment subjects were asked to write a description of either soccer hooligans or professors. Afterward they played a game of trivial pursuit. Those asked to describe professors out performed those asked to describe hooligans. In another people were asked to unscramble letters. Afterward they reported the result to those conducting the experiment who (as prearranged) were then talking to someone else. Those who had unscrambled words that concerned aggression or rudeness tended to interrupt the conversation while those whose words were more passive were less likely to.

I think it is likely that priming has a class component. In other words, in real life, subconscious influences probably differ by class. Where this goes, however, I am not sure. The impact of being over affirmed, as so many children of the elite are, works at a more obvious level and leads to a sense of entitlement. Priming, on the other hand seems more subtle and affects not just attitudes but actual performance. As the two examples here suggest, it is not clear that the resulting behavior is admirable or beneficial.

Here is a little experiment. You may have noticed the photo of an elderly person above. Since seeing it, have you been moving slower. Do your aches and pains seem a little more severe?

The Thin Ivy Line

When I wrote about faculty gangs last week, I did not fully comprehend the sociology of faculties until talking to a friend's 10 year old. She told me of cliques, cruelty, gossip, and the type of piling on that I described last week in the context of faculties. Then I understood. Many faculty behaviors are slightly cleaned up versions of the typical interpersonal cruelties that start with 3 year olds. I wonder if today's cowards were cowards then. Are the gossips and bullies the same too? (I also wonder if today's people who object, refuse to take part, just do their jobs and are empathetic are also just continuing their own childhood behavior.)

The most frightening aspect of it to me is the pack mentality. Last week's example was based on an actual incident of open disparagement. The same target I now learn frequently has things ripped from the bulletin board by the same crew of cowards who are part of the schoolyard gang. This is only a little short of lying in wait after school to administer the type of beatings that ten year olds (hopefully) used to do. Yet, other faculty with more acceptable political messages have doors and bulletin boards that remain untouched and, by the way, are sufficiently trite to be better suited for a teenager's dorm room.

The pack mentality is not frightening because someone reads another person's email to the faculty with a disparaging tone or that someone else makes a nasty remark or another writes a public email bullying the person. The frightening part of it is that every one of those cowards correctly assumes there is a receptive audience. After all, it would not be a pack without the implicit permission of those who snicker or look the other way. Going against the grain by questioning authority is just not in the cards for these folks.

The pack does not stop with faculty. A student may be viewed as overly aggressive in class. One professor talks to another and that one agrees his or her behavior is odd. Another is drawn into the mix and with each added person the story grows from an impolite student to a psychopath. Just as the rumors about a fifteen year old girl might grow from "seen kissing Tommy" to being pregnant.

There is some good new here. I was discussing this all with a couple of understanding colleagues. They assured me that it is much worse in other departments.

Faculty Gangs

I never read much about the sociology of gangs but I did attend the types of school where people were picked on, outed and beaten up. Once the tide turned on these people I saw the worse instincts of others appear. Otherwise gutless people all of a sudden got the courage to belittle others.

It can happen on a law school faculty. For example, suppose someone on the faculty has beliefs that are not consistent with prevailing views of a faculty and that the person is a little different in other ways. At some point it evidently becomes permissible to ridicule the person. I've seen in manifested in a couple of ways. For example, at a faculty meeting which the "target" is unable to attend, he or she asks that his or her views be read to the group. One of the gutless ones in the meeting makes a snide, sarcastic remark and number of others snicker.

Or, the same target sends an email taking a position the majority does not like. For example it could be political but no less political than the vast majority of hiring and tenure decisions faculties make. One of "tough guys," not privately, but publicly, sends and email telling the "target" to shut up and stop interrupting his work (yes, the email interruption that is so dreaded). I have to concede I have never been interrupted by an email. I mean could someone tell me how that happens?)

In neither case does anyone say a word about basic respect or decency because they might be eliminated from the gang.

When the bullies actually say something out loud or in public email that takes on the administration or a member of the faculty ruling class, it may makes sense to listen but it is so sad to see adults engage in playground antics. And, more often that not the cowardly behavior comes from the children of privilege.