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

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

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

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

[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

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

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?

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

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

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

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

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?

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

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?

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

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?

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

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

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

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

[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

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

In the NYT. here is the link.

Do All Taxpayers Agree?

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

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

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.