Is Diversity Dead?

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

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

There is little hope for ideological diversity.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More on the Enronification of higher education

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

Unpacking Votes

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

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

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

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

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

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

More on Fungibility

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

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

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

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

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

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

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

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

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

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

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

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

Was Enron any less arrogant?

Knowing What to Do, Not Doing It

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




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

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

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

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

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

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

The Rot and Enronification of Universities: Part 3

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

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

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

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

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

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

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

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

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

The Rot and Enronification of Universities: Part 2

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

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

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

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


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

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

Kyle: At that point procedure is over.

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

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

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

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

Answer: None

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

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

Answer: None

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

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

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

The Rot and Enronification of Universities: Part 1

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

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

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

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

Cheaters Without Cameras

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

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

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

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

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

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

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

More on Fungibility

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

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

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

The Next Big Law School Scandal

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

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

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

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

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

More on the New Cronyism

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

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

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

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

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

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

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

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

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

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

The Law Suits Against Law Schools

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

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

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

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

The New Cronyism

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

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

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

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

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

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

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

Justice O'Connor's Gardener

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

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

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

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

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

O'Connor Again? UF Grovels

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

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

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

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

Conferences and Opportunity Costs

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

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

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

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

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

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

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

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

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

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

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

Should Law School Grads Teach Law?

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

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

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

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

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

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

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

Law School Scam and Prissiness

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

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

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

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

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

Priming the Law Review Pump.

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

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

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

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