Shush, We're Law Professors

Sometimes you do not fully understand how dysfunction a profession can be until you experience it through the eyes of someone else. That's what's happened to me and here is the background.

I have been pretty outspoken about the Dean Search at UF. Not so much about the candidates but about the process and the faculty reaction which is basically to mutter to themselves in the hallways.

 I've brought up the fleecing of the University by a search firm that charged $90,000 for a list of 24 names that could have been thought up by a couple of law professors having lunch. This seems to have been just fine based on the silence of others.

I have raised the issue of one Committee member's assurance that emails about the search had been deleted although all communications are public. Again, this seems to have been fine with everyone else based on their silence.  In fact, in this case, the deleter was subsequently  praised by another faculty member as a great First Amendment scholar. (You can figure that one out.) But actually, and I know this is a bit of a tangent, the source of the praise was a faculty member who appears to have undergone some kind of ethical lobotomy and thought the New York Times rule, a ethical guideline, was actually the opposite and stood for hiding things.

I am also the only person of a tenured faculty of 50 to actually write  down with no expectation of secrecy (YES, the revolutionary act of putting something in a form that means no deniability) the pros and cons of each candidate for dean with a ranking.

Now a few thoughts on this.

 First I rest my case on whether law professors need tenure. Why would they? Even with it, they are for the most part (I have to add that to avoid commentators pointing out very isolated instances in the past in which a law prof actually said something controversial to people other than other law professors) gutless and say nothing. OK, maybe without tenure they would say less than nothing.

Second, does this appear to be bragging? Well, is it bragging to describe what normal, non paranoid, not conspiracy addicted, non quaking in their boots people generally do? I don't  think so.

So back to my opening line. I was describing all the shenanigans to an outsider -- a professional person with no experience with law faculties. You lose perspective with you are in the middle of these things but this normal regular person 's reaction, while not laughing,  was disbelief and befuddlement. And he added, "you guys are supposed to be law professors, right? Speak up and question authority? Do you any of you ever do that and, by they way, do you actually know anything about law?"

Smarmy or Unctuousness

Once  when I was talking to a colleague about a professor at another school the colleague said "he is really unctuous." I had to look it up. I knew smarmy and knew it was not swami but did not realize unctuous was high class smarm or as a Facebook commentator explains -- people who say unctuous scored higher on their SATs.

I guess they both mean oily for the purpose  of endearing yourself to someone else. Man have I seen smarm is my business! For example,  there was a  jerk on the faculty who is pretty darn nasty, monopolizes faculty meetings, etc. Then one day I say him teaching and he was like Dr. Phil (the epidome of smarmy). It's like he has a Smarm switch attached to his side. He was Mr. All Care and Understanding.

There are so many kinds of smarm. One that is quite prevalent is law school name dropping. "Now when I was in Harvard." I much prefer a colleague who says, "While is was doing time in State prison." That is not smarmy. Related is "When I was Editor of the Law Review." Of course there were 37 editors of the law review.

Smarm is pervasive in email but it depends on the email. An email to just one person, it is said, often reveals the worst side of a person. For me it is the opposite. I reveals the best. The problem is that the best is not so good. Mass email is like a Facebook posting. Then you write in the way you want to be perceived (smarm) So, as a friend tells me, neither form of communication is the real you. I'll gladly take a little nastiness over a stomach turning smarmfest.

One of the smarmiest moves goes like this. You see someone in the distance who would like to impress. Your brain goes into high speed smarm gear. You need to say something. So out it comes: "Hey, I was just thinking about you because I was just talking to [name drop] about your wonderful last article."

One version of smarm I call "know one thing." This is a good one  for deans or others who know everyone's name like you just mated the night before. But the key here is to remember one thing. For example, let's suppose Smarmy Phil meets Jane and for 2 minutes they mentioned how much they love La Traviata (expectially the Bob Marley version). Even though they have talked about 37 things since then, the conversation always begins with "Jane, how is your collection of La Traviata coming along." Now the truth is that Phil knows nothing about La Traviata, least of all the Bob Marley version, but he thinks Jane is  stupid enough to think because he remembers that 2 minutes he is her best bud.

I prefer smarm on rye toast with just a little Tabasco.

Ten Reasons UF Paid a Search Firm $90k for Dean Candidates Who Were Just Under Our Noses

10. Tim Tebow asked nicely.
9. It was a great deal. Marked down 10% from 100K
8. The search firm agreed to throw in the Brooklyn Bridge.
7. The search firm agreed to throw in some swamp land in Florida.
6. UF had to get rid of 90K and could not find an understaffed department or underpaid staff person to give it to.
5. UF management thought the contract said $9.00.
4. They Knew William Proxmire could not be watching.
3.  Obama made them do it.
2.  They relied on the genius Rick Scott.
1. Global warming. (I did not understand either.)

The Fleecing of UF:

According to the local paper today, the University of Florida paid $90,000 to a search firm in its effort to replace law school Dean Bob Jerry. What they got for that was a list of 24 names along with CVs and application letters. Some of the names were DOA. In fact, it took the 11 person search committee only 2 hours to go from 24 to 10. Now also consider this. The firm likely did not start from scratch. If it had conducted any searches recently, it's likely UF got a recycled list. It's like paying new car prices for a used car.

Two words come to mind here -- fleeced and incompetent. Fleeced is what happened to UF. It got 24 names that my 22 year old could have found in half the time. This is not a rap on the 4 finalists. I think all of them are up to the job. The problem is that there was utterly no need to spend 90K to find them. One has to wonder what the 11 person search committee was expected to do.  What a display of incompetence at least with respect to the decision to hire the search firm at this price.

But it does not stop with 90K. There are 11 people on the committee. I do not know if the University foots the bill for their visits from out of town but if so add a little. Add a great deal more for 10 campus visits for the ten left after the culling the list. And some of them evidently flunked the interview. Maybe an initial conference call could have weeded them out.  Now there is full bore campus visits (at which, by the way, the law faculty only meets the candidates in faculty meetings) and wining and dining candidates, committee members, alums and all that. My prediction is a total tab pushing 140K.

If academics ever wonder why funding is short and why those of us in the business are viewed with distrust, here is one small example. UF buys a Cadillac search that is unnecessary and, as usual, passed the tab on to others.What the hell, You can always raise tuition.

90K pissed away.

(no) More Dean Talk

I think I have said enough about possible new law deans at UF. The truth is that it will not matter much since UF is huge and inertia is powerful. Plus, the challenges ahead are pretty clear. The curriculum must be designed to be relevant for today's practice. What is a far more interesting subplot is the reaction or lack of reaction by the faculty to the candidates.

I've been here many years and witnessed all manner of liberal (not left, oh my goodness way too squirrelly to do anything but dabble) shenanigans in programs,  hiring, tenure, courses offered,  and so on. Don't get me wrong, if things were controlled by the conservatives I would expect exactly the same thing only going the other way. Plus, some of them were good for students but I cannot say any correlation was intended except in the minds of the proponents.My friend Eric Fink reminds me of Phil Ochs' take on liberals -- ten degrees to the left when things are good and ten percent to the right when it affects them personally.

Still, although reputed to be charming, one of the candidates appears to be a Bushie who tried hard to suppress voting while in public office. I know, the other way to put this is that he  wanted to suppress illegal voting.  Fact is, it would have been mainly African American voters affected if he had been successful.  And, no one seems to argue that contacting a judge directly to plead your case was appropriate. So what would you expect to be the take of  so called liberals on this? Let's just say,  I've seen faculty candidates go down for far far less.

But where is the UF faculty on this? First, a fair number, perhaps most, realize their lives will not change no matter so why bother. But where are those who claim to feel strongly and, in most other instances, are carefully guarding the purity of the institution?  What's wrong? Cat got your tongue? Or is it just one big game?

More on UF Dean

Since I wrote my last post a few minutes ago, the list has gone to 4 -- Acosta, Brennen, Huebner, Donaldson. Interestingly, my first and last choices -- Brennen and Acosta -- remain in the running. Joining them are two tweeners. One pick strikes me as odd. Huebner seems to have no  connection to Florida, UF, or the South. But he does have the most elitist credentials of the pack. Another, Donaldson,  could be the sleeper.  I know of no negatives except possibly on the matter of experience.

The Privileged Piss Money Away And Daddy Pays Hush Money

I've never been a big fan of University Counsel or, more specifically, the office. The folks employed in those offices represent the University but serve at the pleasure of the folks who may screw up from time to time and would prefer to make sure there is no publicity. The conflict of interest is obvious and since the goals of the university are so ill-defined my money is that they protect people.

But that is not my complaint here. This one goes deeper to illustrate how universities protect the privileged from their obvious misdeeds and then stick taxpayers with the bill.

So consider this scenario which is based on fact (not as some movies say "inspired" by actual events whatever that means). Suppose a person is being considered for a faculty position. At my school that means a vote. If it is positive by a substantial margin the dean makes an offer. A little less than substantial and the dean has discretion.

At this point I need to ask you to make two assumptions. They are only necessary to protect those to whom I promised anonymity. First, assume the candidate is black, white, Hispanic, gay, straight, male, female.  Pick your favorite combination. Now assume that not hiring the person or hiring the person because he or she is that combination is illegal.

Now further suppose (not assume) that before or during the votes people say (in code or just bluntly) they will not vote for the person because of those characteristics. This could be in email, or orally in the faculty lounge or, more likely, by people sneaking around door to door.

Ok, I lied, (comes with the training) I need one more assumption. The person gets a negative vote from the faculty or one that is so close that the dean cannot make an offer or will not because it would displease the people he or she is most afraid of.

The candidate gets wind of the fact that the vote may have been tainted by consideration of illegal factors. She makes some noise about consulting an attorney. Next thing you know she is cashing a big fat check and signing a confidentiality agreement which is a fancy term for hush money.

What is wrong  here? The people who actually broke the law or were reckless enough that University Officials preferred to write a check and keep it quiet walk away completely sheltered by the University. In most cases they do not even know that daddy took care of them because they have been unaccountable all their lives. They think it is great sport for the clerk at the convenience store -- you know the single mom, with 3 kids who needs dental care and a car that needs a battery -- to pay for their gossip, fun, lack of concern, and lack of courage.

BTW, please spare me any argument about the courage of these people. If they stood up and opposed the law -- as in civil disobedience -- that is a different matter. I have yet to see a law professor show any courage that meant actually taking a risk.

I CAN"T HEAR YOU: Tone Deaf Administrators

Can a new law school dean save the UF administration from itself? UF seems to be involved in an experiment to find out. Deans do report to the Central Administration but they live with faculty and typically succeed or fail based on faculty reaction. The key factor is "buying  in." When faculty are part of the process, they "buy in" and missteps by a new dean are forgiven. If the dean is selected without much faculty involvement, "buy in" may be low.  

On this simply point UF administrators seem to have developed instant onset tone deafness. This is unfortunately because no one in the central administration has significant exposure to legal education or appears to be interested in A.B.A accreditation guidelines. Plus, it governs a University that is ranked slightly lower than the Law School it has the hubris to tell how it can be great. Here are the symptoms of instant onset tone deafness.

1. The Search Committee. The Law Dean Search Committee is composed of 11 people - five from the law school. The law school faculty voted to select a pool of faculty members from which the Provost picked. The Provost did not select those receiving the highest votes, skipping over some of the more assertive people. Of the five, three have tenure and are generally familiar with legal education at a national level. This makes them the most likely to speak out. On the other hand, if the Provost selected people whose careers have generally been advanced by playing ball with administrators, the effective number is less than 3 of 11.

2. A search firm was employed to locate candidates. The cost remains a mystery.  Search firms are terrific if they have some expertise that would lead to uncovering otherwise unknown prospects. The law teaching world, though, is a small one and hiring a search firm to find a law dean candidate is like hiring one to find a football stadium in Gainesville. This means for what was likely tens of thousands of dollars the search firm appears to have made phone calls and forwarded CVs. At most it did what a firm year professor could have done. Or perhaps the idea was to keep the process under wraps.  A search firm windfall financed by taxpayers with UF writing the check.

3. The search firm bungled even this task. It is increasingly clear that the firm did not fully advise the candidates about Florida's openness policy: All materials and names associated with the search are public.  Exacerbating this was the firm's decision to announce all 24 candidates at once. This lead to a massive data dump that treated each candidate like a potato at a produce stand.  In the past, although public as the law requires, the process allowed publicity shy dean candidates to have their names trickled out over several months and allowed them ample time to drop out if the competition looked stiff.

4. Three days after the data dump of 24 candidates the list was trimmed to 10. No faculty representatives on the committee called for a discussion or solicited the views of the faculty. Thus, the major paring down of the list was based on CV's and the hunches of three members of the committee with some knowledge of the law school world. Yes, thousands of dollars worth of names were either DOA or deep-sixed on slightly  more than a whim.

5. The committee (not the faculty) will interview the candidates for 75 minutes each and, on the basis of that interview (and one hopes extensive research), narrow the list to the people who will visit the law school for what may loosely be called interviews. At this stage, whether the faculty will be consulted is unclear but it is a bit like having the waiter hand you a menu with the message "you may only select items I like."

6. From this point, who knows what will happen. No one seems to know how many of the 10 will be invited to meet the faculty in interviews or what the outcome of those interviews will be. The consistent message is that the input of the faculty will be considered. 

Fortunately the next dean can save the administration from itself.  Any candidate determined to be successful will surely only accept the position if there is a strong positive vote from the faculty.   Unfortunately, making that demand may also mean the candidate is viewed as unsuitable by the Administration.

Clarifying the Record: A Rat's Ass and the List of Dean Candidates

Since my little dust up with officials at the University of Florida I have heard and read things that indicate the list of dean candidates became public because of me. Some folks feel I did a bad thing and others a good thing. The bad thing people believe I exposed the candidates to possible embarrassment.  The faculty lounge commentators are big on this complaint. Many of their comments are like the exam answers I get when students make up a new set of facts and then write an answer. Even the writer of the initial post goes off course by writing: ""Unfortunately for those candidates, and the committee, Florida has an open meeting law."  Every single candidate knew he or she would be on a list that would become public. And, to their credit, they applied anyway. The least we can say about the people on the list is they are not worried about publicly exposing a desire for something they may not get. In the law school world this is no small thing. How is that unfortunate? In fact, if it did scare some wussier candidates away they are delighted.

But to those who think I did a good thing, I cannot accept the credit as least as far as the list becoming public. The list would have become public anyway in a few days at most. And, in the words of diplomat and future Nobel Prize Winner, Dennis Rodman, I did not give a rats ass about who was on the list. I had the list within about 10 seconds of one of the more fretful members of the committee learning that I would complain to the newspaper if I did not get it.

Nope, the real trouble was not about the list; it was about the crazy, out-of-fashion especially at law schools and Universities, notion that people should tell the truth.  So, my digging (as it has be put on at least one blog) was not investigative. Instead it was about having a really bad anti authority streak and the perhaps irrational need to switch to bulldog mode when someone in the administration tells me something I know is not true. The Codes of law school conduct instruct us never to embarrasses anyone by noting they have not told the truth. Not telling the truth is evidently collegial but calling someone out on it is not. It appears all members of the search team, including law school members, live by this rule. It's to be expected, as I noted in the post two posts ago, they are all squad leaders now.

The Decanal Search Firm Rip Off?

Many universities are now hiring expensive search firms to find candidates for deanships including those for law schools. I have to admit, I do not get it. Sure there are probably some economies of scales in that 20 law schools looking for a dean do not make calls to the same 100 or so possible candidates.  So, it appears that the search is like handing the job over to a secretary who makes the calls for the Universities.

Eventually the search firm comes up with a list of people willing to be considering. Seems like this is the same list anyone at a law school could create. Half the list will be perennial dean wannabes who are also on the list supplied to other schools possibly for years on end. The other half of the list is what? Promising people that only the search firm could  find. I doubt it.

My sense is that a couple of under employed law profs armed with a phone and maybe a couple of beers could create any list a search firm would develop.

The search firm option only makes sense if he really does mean lower transaction costs and getting a better dean than would be the case if two or three law professors did the same thing. Now we know if two or three law professors took time away from their scholarship to handle this, the cost would be zero. It would be hard for a search firm to charge less. So, does the firm find a dean who is so much better that it is worth whatever it costs. I cannot say either way but I lean toward no.

Blind Grading? How About Blind Hiring?

From the Caron Tax Blog

Petty Status, Power, and Law Profs

A really long time ago - in fact, the last century-- students were required in some schools to take ROTC. Mainly this meant putting on a uniform for an hour and marching around. Your uniform had to be spiffy. Mine was usually picked up off the floor of my dorm room after having been walked on for a week. This always led to many demerits.  But I actually got a good grade in ROTC -- a D -- when some of my other grades were lower.

The oddest thing would happen in ROTC. You could be with a group of eight kids marching around and the boss -- squad leader? -- would tell one of them to be the new boss and tell us what to do -- hut, one, two, about face, etc. With that tiny bit of power they became tyrants. They would completely change character from being regular people to shouting orders, berating you, and crazy stuff like that.

I guess things do not change. Now the version of being are regular person who is asked to do something else is  to be appointed to a search committee at a university. Simply by that,  the people, who may or may not be good teachers, good writers or anything else are, in their minds elevated. Somehow they  become more privileged to information,  more withholding, more official, and even Yoda like -- knowledgeable, wise. In effect, they view it as a promotion that means they are better in some way. Sometimes they only have the position because no one anyone actually respects appoints them.  Still is it a very big deal to them. They are now taking orders from others and a member of the inside crowd. They do not understand that they have not been promoted. Instead they have been demoted.

Where does this faux notion of status and entitlement come from? Is it because they have been powerless sycophants ever since their grade grubbing and butt kissing days in law school and they long to have power. Is it because they actually think what they are doing is important in any realistic sense.

It is not every one and not as dramatic as the 19 year olds in ROTC but it is the same illusion of importance.

The Privileged Need Tenure to Speak? Geez! Do I Hear Whining?

Oh my goodness. According to one report law professors are worried about the demise of tenure because of the impact it will have on their academic freedom. Now let's put this in perspective. We are not talking about someone in a factory who wants to support forming a union. No, we are talking about privileged people with professional degrees. Frankly, I am not too keen on people who claim to have important things to say but can only say them if they are sheltered from the consequences. Plus, I am not sure I can think of many instances in which a law professor has actually uttered something controversial much less had his or her job threatened because of it. The fact is almost no one is listening and even fewer care. Many law professors have a powerful need to seem unconventional. In many cases this is to make up for a life of exactly the opposite. Claiming to need tenure in order to be controversial is part of this illusion.

The entire matter, though, still seems overblown and a wee bit hypocritical. First, tenure is in a sense under inclusive. It only protects incumbents. Those incumbents are often the first to vote against a faculty candidate with a different point of view and to vote for those with whom they are politically comfortable.  Law teaching is, thus,  a world of academic freedom for the elites who then deny it to others.  Indeed the term  "academic freedom" would be more transparent if it were routinely followed by "for me and for you if you agree with me." I have witnessed this on several occasions at my law school.   Perhaps it is not the same elsewhere but I doubt it. 

Second,  for every person (if there are any) who says something truly important only because of tenure, my hunch is that we could also identify hundreds for whom tenure became shelter for less productivity post tenure and who have nothing at all to say that will annoy anyone ever. (A reference to the wonderful line in "Lucky Jim:" "it's not worth writing if it does not annoy someone.")  I am just not sure it is worth it especially in a discipline that ultimately owes its existence to the goal of protecting the status quo. 

One of the wackiest defenses of tenure I have heard is that it must be working to protect the expressions of law professors because we rarely  hear of an instance in which law professors come under scrutiny. Aside from the fact that very few care what they say, the logic of this is like "we know the moon is protecting us from comets because so few have crashed to earth."

Having said all that I strong support tenure but not for the hollow academic freedom rationale. A world without tenure would mean self promotion would run wild. The battle to add meaningless lines to resumes would escalate and law professors would write even more unread articles. We  are in the midst of that now and it would only get worse. 

COPYRIGHT HUBRIS

Judging by what is on the internet and things with which I am personally familiar, the issue of what professors may copy from the works of others is a controversial issue.  The past insensitivity to the copyrights of others seems to be gradually waning  as schools and organizations struggle with guidelines when the Copyright Act itself in not that much help.

While faculty have generally been careless about using the protected works of others, the story changes when it is their own work. Consistent with  typical law professor hubris, copyright notices abound on everything including a vast array or works that are not copyrightable at all.  Evidently, if you write it down and you are a law professor you can claim copyright. But, if someone else writes it down,  it's yours to use as you please.

One basic thing should be understood. Putting a copyright notice on something does not mean it is protected by copyright.  Obvious lists, facts, dates, and many other things just are not copyrightable. The 5 points to remember about promissory estoppel. No chance. But what is the harm? Just go ahead and slap a copyright notice on it and if you are wrong, who cares?

Think of it this way. You drive out to a public park and put up a  big no trespassing sign to keep people off property that is not yours. Probably should not do that, right? The same is true with copyright. Claiming copyright when you have none can result in trouble. Jason Mazzone is the leading expert on the notion of Copyfraud and, although liability is rare right now it promises to grow. And, as law professors, don't we all want to act in a manner that is consistent with the law?  Ok, sorry for the note of optimism.

GETTING HIGH ON GRADES

Every law school has undergone grade inflation.  At my school, like almost all others, an average exam gets a B+.  Also, like my school, virtually every school I have examined has more than one tier of grades. Large sections are subject to a lower curve and small sections, seminars, or other courses qualify for a higher curve.

Law schools have, in effect, created a shopping opportunity.  Students must make the not so hard decision -- do I take a course with a B+ average grade or one that has an (almost) A- grade. I think most would agree that choosing a course based on the curve is not consistent with taking courses that are the most helpful in terms of preparing for 40 or so years of practicing law. 

To overcome shopping you need to have one curve for all courses (or perhaps a limit on the number of high curve courses taken). At my school where the "low" curve is 3.2 and the high one 3.6 this would seem to mean meeting somewhere between the two. But here is where honest differences in opinion combine with self interest and a form of free-riding to make things difficult. While nearly everyone agrees there is a problem and understands the solution, many people do not want to give lower grades. In a sense they do not want to make a contribution to the cause. 

Sometimes the reasons are well intended and stated. Others are not stated.  For example, suppose you teach a vanity course (a  course that disappears if you do). And suppose you are able to get a small group to register. Further suppose that the reason they register at all is because the class is small and subject to the higher curve. I think you catch my drift here -- lower grades may mean the vanity course is not offered at all. Say you teach "Law and Really, Really  Deep (So Deep it is Hard to Think about Them) Feelings." It might occur to you that unless you can give an almost A- average you might find yourself teaching Civil Procedure instead.

Maybe people think giving an almost A- means better teaching evaluations. I have no idea if this is true but my hunch is that the high curve means a less competitive experience and that students are likely to enjoy that atmosphere. 

And then there is the most discouraging rationale of all:  "Some" students may not have done well in large courses and they need the smaller ones with higher curves to address GPA issues. Recently the word around the halls is that "some" refers to minority students. I cannot verify that this is the unstated rationale because this is always said privately.   Is it really OK to assume minority students will not do well? As an informal  empirical matter, in the classes I have taught that would be the wrong assumption. There is no difference in performance that I have noticed or been told about. 

This leads to a more interesting question. What do people who make this assumption and then act on it get out of it?  It has to be something they get because the notion that they are "helping" someone else, if ever true, is woefully outdated. 

Predatory Grading

At my school, there is a 3.6 curve for seminars. And, surprise, surprise, the average grade in seminars is close to a 3.6. Yes, according to those teaching seminars the average student writes an A- paper.

But that is not the real surprise. What was recently revealed is that some seminar graders were giving much higher grades than the curve allows. Like a 3.7 - 3.8  How can this happen was the question asked by one young faculty member. It's easy, just change grades after grades are submitted. But this hardly explains why it happens. Here was the answer he got to that question.

While I suspect your question is rhetorical, there is an economic explanation. There is an market for grades. On the demand side  are students. What these data tell us is far more about the supply side than we knew before. It is so robust that some suppliers of grades (meaning suppliers of supracompetitive grades) are actually selling grades (in excess of 3.6) that they technically do not have in inventory. So, where do these high grades come from? One point of view is that they are stolen from students not in those classes and the poor dopes who actually expect that there are rules and the rules will be enforced. We are all poorer for it. In language a few can understand, you might view them as predatory grades.

In most markets people do what is profitable. How can giving high grades be profitable. I am not sure. Clearly they mean fewer students complaining about grades. They could also help in the course evaluation area and in the enrollment area. You might even recruit some students to your political philosophy or convince them that you are deserving of their adoration. Put it this way. If the there is a profit in grading, would you want to be a high grader or a low one?
 

Cheer up. There is good news. Two types of good news, in fact. First, it could get worse so we are actually in a better place than we may be going.  Soon we will compete for students on the basis if the grades we give. Second, in the last year there were only two violators of the 3.6 limit. There is also bad news. One of the habitual offenders knows no limit to what he or she deserves and there is little sign that this or any other administration has uttered the word "no" to him or her.
I can use graphs or equations to explain this if you need it.

Your friend, Bruce

The Dentist or a Faculty Meeting

Upon coming out of today's faculty meeting, a colleague said in passing that she would rather have been in the dentist's chair than in the meeting.

I was surprised. I do not know what it is like at other schools but at my school we have norms that people observe in order to move business along in a collegial fashion.  What could be better than working with a group of selfless and wonderful bright yet humble people in order to solve problems. When we are go into decision making mode nothing can stop us. For example,

1. There are no hidden motives. People say why they are asking a question and its relevance.
2. Once a faculty vote is taken no one puts his or had up to again voice opposition to the outcomes as in "even though you just voted 50-3 against me, I still think you are wrong." No that does not happen.
3. No one views him or herself as someone around whom the law school rotates. For example, if we are thinking about raising the grading curve no one says, "I oppose this because I need to give low grades." Instead they think of the overall impact on the students.
4. No one says, let's give higher grades whether deserved or not because of the "market."
5. No one raises his or her hand to speak unless he or she is sure she is talking about the issue before the faculty.
6. If the discussion is about a motion to amend no one puts up his or her hand to talk about a unrelated part the proposal.
7. No one asks for more data that are unrelated to the decision.
8. No one ever just raises his or her hand to say things like, "I just don't know what to think."
9. No one thinks that when you are grading on a curve the grades are still based on absolute as opposed to relative performance.
10. When an issue is carried over from one meeting to another, people who were not at the first meeting do not jump in assuming their points have not already been made or that they have something novel to say.

These rules clearly make faculty meetings preferable to the dentist chair. J

The Actors, the Audience, and the Adversarial System : Are All Law Professors Anti Intellectual?

The recent New York Times article on the valulessness of law reviews set off a bit of discussion on my faculty and others.  The article is accurate. There are 6000-8000 articles published a year and, let's face it, may 10-12 new ideas a year. Nevertheless, many law professors, like trained seals, jumped to defend the status quo.  What is interesting about the defenses is how much they reflect problems in legal scholarship generally. They also reflect the tendency of law professors to suspend their disbelieve like an audience watching a play. Only in this case they are also the actors. Consequently the whole enterprise is like appauding oneself but never asking if anyone else wants to see the play.

This pretending is all part of the fundamentally anti intellectual nature of legal scholarship. Does this mean all law professors are anti intellectual? Actually no. Some are and some are not and some are some of the time depending on the topic. What do I mean by anti intellectual? Here are some characteristics of anti intellectualism all of which were revealed in one way or another in great law review debate:


1. Taking a position instinctively or for self interested reasons or because it is politically comfortable and then searching for support.
2. Citing something for a proposition that a careful read will show is not supported by that cite.
3. Believing that something is true simply because you think it is true.
4. Ad hominem arguments.
5. Relying on anecdotal evidence. This inclides making a statementsof fact and overusing the ever present  "see for example."
6. Not researching a topic because you might discover something that would be unacceptable to report and still be viewed by others as the right kind of person.
7. Writing about the same thing over and over.
8. Defending a defective system by reference to others that are arguably also defective.
9. Refuting an argument like that in the Times article by noting  exceptions. This one was a favorite of the legal scholarship defenders and is actually pretty embarrassing.

So what is up with this?  Part of it is that law professors as law professors do what they did when they practiced law. All of the things listed above can be found in many legal briefs or in oral arguments. They may be acceptable there  because it is supposedly an adversarial system. I do not want to call it all dishonest but some of it is but some is just aggressive representation. The notion of aggressive representation does not work so well in the context of scholarship. Somehow law professors are unable to or too lazy to recalibrat and understand that scholars do not treat legal topics like they are clients. (Of course sometime the professor is the implicit topic and then the possiblity of actual scholarship occurring is close to zero.) Nor do they seem to understand that conclusions follow from research not the other way around.

So, the actors act like they are doing scholarship and the audience applauds. The fact that virtually no one outside the realm of law professors cares to see the play is lost on them. And please, if someone comments on this do something other than cite an exception.

The Humility and Integrity Shortage: Statistical Certainties

There are two things one can depend on in faculty meetings:

1. People with the least useful information to impart will hold the floor the longest.

2. One or more people will disregard the truth in order to advance their positions.

I am not sure which is worse.

The first one means 20 to 50 (depending on the faculty) are held hostage. You cannot shut the person up. (That would be oh so inappropriate.) and, for the most part, you know what he will say before he says it.  Worse yet, he may be utterly unprepared to speak about the issue at hand. Does that stop him? Not on your life.  More likely than not these droners have not  paid attention to whatever is being discussed and then "opps" they realize either 1) this could affect me or 2) I need to make my presence felt. What is the arrogance that drives these folks to think they have something anyone in the room or the world, for that matter, care about. Was it the As their sorry ass professors at their elite schools gave them? Was it their parents who completely missed the unit on teaching your children even a modicum of humility.

The second eliminates the small possibility that rational discussion can take place. The need to make things up comes from wanting to be viewed as an authority.  Interestingly the same things that are a big deal in class (Mr. Jones is that really what the facts are?) is not valued at all in faculty governance.  I have been in appointments meetings in which the chair announces a candidate got only positive responses when it is demonstrable false. I have heard people tell of a policy designed to address someone's misbehavior when the misbehaving person retired way before the policy and was not mention in the discussion.  Funny, it's a bit like getting change back in Italy -- the mistakes always cut one way. When things are made up those new facts always favor the speaker's position.

And then there is the not technically a lie problem.

The Economics of "Put Me In Coach" and Other Transaction Costs

Any one who played sports as a kid knows that along the sidelines there is all kinds of lobbying. Some kids stand here hoping the coach will see how hard they tried and performed in practice and then let them play in the game. Others are constantly in the coach's face saying "put me in coach."  There is a good economic explanation for this. The self-promotional ones create a little disutility for the coach and he or she can escape it by just putting the kid in. At the margin this makes all the difference. In turn, the shouters raise the transaction costs of the quiet kids. If they too want to play they have get in the coach's face. These are transaction costs because they do nothing that is productive.

Law professors do the same thing. As I noted over on Moneylaw the "put me in coach" phenomenon has extended even to signatures. It's all about "look at me." This means those who sat quietly on the side lines hoping that their good play would be recognized either have to join the game or accept sitting on the bench. And, nothing productive happens.  Of course, the signature is only the latest form of "put me in coach." It goes way way back to the first instance of resume padding and extends through constant reminders of what you have done lately, kissing the dean's butt, and doing things that look like they are actual things but really aren't much. It all works just like gaming the Law School ratings until everyone does it.

Of course, none of this works unless there is a pay off. The coach who says," get your ass back on the bench" can stop this waste and reduce transaction costs. The coach, dean, search committee, or faculty member who responds to this just encourages it making it hard on those who are productive in practice but hope the coach cares enough assign playing time on the bases of merit.

Perhaps one measure of a good  law school is how much of this goes on and how much the administrators feel obligated to look at substance and ignore "put me in coach"  in its many forms. An administrator who is too busy or too worried about his or her own disutility only gives rise to additional waste.

I Am So Polite About Money

One of the things upper class people do not talk about is money. Most have never worked two jobs, struggled to pay a morgage, or had to send money to a relative to get out of jail. Money is beneath them! It's just downright tacky to show concern about money! (It makes we queasy just thinking abouty it.)

Not exactly! Part of the life long negotiation that governs their lives is not to show vulnerability including with respect to how much they are paid. In fact they do care. This is not to say that the money per se is the issue. Instead the money symbolizes whether they are valued by someone else as much as they value their selves.  And since everyone is above average (apparently this is a universal thing) each person deserves more than the average. (I am pretty sure this is numerically impossible which means one of a  law dean's most closely guarded secrets is what the average actually is.)

So, here is how it works. Let's say for the first time your law school has money to give raises. No one talks about it except maybe to their closest friends or in code by mentioning the type of work that is "valued."

And then, they individually directly or indirectly make their cases where no one can see. I do not know what percentage find their way down to the dean to talk about the importance of their work, how many students they teach, why they should be making more than Sue,  how the new salaries to new people mean they are not making a "fair" salary, why they were so busy with important matters that there was no time to write, or  the jobs they could get if their salary is not high enough.  Each one probably imagines he or she is different from the person who just left the office. Each story is imagined to be unique.

I probably agree with many of the cases they make. It's the pretense that puzzles me. Do they actually not know the dean has heard it 1000 times? One thing that is worse than the pretense is the, I hope, remote possibility that anyone listens.

Externships for Students or Employment for Graduates?

An empirical questions keeps occurring to me and it deals with the relationship between externships and employment. By externships, I mean the practice of law schools to grant credit to students who work for government agencies and various corporations without compensation. If schools offering these opportunities are true to their promises, these students are are not just fetching coffee and typing. Instead, they are often doing what a law school graduate might be doing if someone were not already doing it for nothing. Of course, externs take the jobs of others even  if they are only typing and fetching coffee but law schools aren't inclined to worry the "little" people. While encouraging externs, law schools wring their hands about the employment opportunities of graduates.  Part of the wringing can be traced to the negative impact that low employment rates  have on national rankings but there is also generalized worry about the future of the institutions, positions, and income.

Of course correlation does not mean causation. There is clearly a correlation between externships (free labor) and the unwillingness of employers to hire graduates (paid labor). It would be silly, though, to think more externships have caused the current conditions in the market for graduates.

But wait.  Is there really no impact at all? Is it really possible that hundreds of students willing to work for nothing actually have no impact on those who would like to be paid? I doubt that. That leads to question about just how much of an impact there is. For example, do 20 externs lead to one less full time paying job?  Externs and graduates are in many respects perfect substitutes, One is priced at zero. The other is not. If you were a profit maximizer, which would you choose?

So, are law schools offering an opportunity to current students that is paid, in part, by recent graduates. I think so but I cannot say  how much.

Law Professors and Veblen Salaries; Irrational?

At my school all salaries are a matter of public record. If you want to know who makes what, you can look it up. I did a few years ago and then I realized how little I knew. For example, all but a few get paid all year but for most only a 9 month salary is reported. In addition, there is an unreported bump associated with various chairs and professorships. The public record actually tells you very little about actual salary. (Why those actual salaries are not reported and how they are determined is too complicated to be explained, or so I have been told.)

All of this leads to a behavioral economics type of phenomenon. Recently I discussed the reported v. unreported salary matter with a couple of colleagues.  Both expressed concern that their public salaries were lower than their actual salaries. More importantly, they might be earning more than a colleague but it would not appear that way to the public.

In both cases the reasoning was that students and others might make inferences about their competence and relative competence based on salary. Moreover this halo effect could carry over to evaluations. Something like this: "Gee,  don't have any idea what professor Jones is talking about but he must be great because she makes $30,000 more than Professor Smith." When you think about it, it is no different from the institutional authority law professors and law review editors worship. You know, "OMG, she must be good, she went to Yale" or "The article must be great because the author went to Yale and thanks Professor Big Cheese for his comments on an earlier draft." Of course, we all know the Professor Big Cheese just shared a cab with the professor and said "Good luck in your job." So, the validity of institution authority must vary on whether it cuts for you against you

But the most interesting thing is this. Clearly some professors would accept less  in order to have their salaries reported as more. Presumably in a negotiation with the Dean, he or she  could say: "Bill your salary next year will be $100k but if you will take $98K I will report it as $150K. In fact, a shrewd Dean could auction off higher reported salaries. The bids would in the the form of a reduced actual salary. This is a great cost saving strategy for the Dean with budget problems.

Is this irrational? I am not sure. If a higher reported salary leads to better evaluations and a better reputation across the profession, maybe in the long run  high reported salaries have the same impact as high prices on Veblen goods -- it makes the product even more attractive.

Lawspeak

Wonderful article. Just substitute law professor for Brits. It's all about never showing feelings because if you do, others will know how you actually feel and anything but the most general and misleading statement is uncollegial: . http://www.telegraph.co.uk/news/newstopics/howaboutthat/10280244/Translation-table-explaining-the-truth-behind-British-politeness-becomes-internet-hit.html

Vanity, Law School Hiring and Subsidizing Ourselves

If markets works, a lower demand for what is being produced means decreased need for labor which means either lay offs or attrition.

But when they do not work, decreased demand may be unrelated to the purchase of inputs and, in fact, inertia may mean keeping capacity at the same level. One of the best instances of institutions not responding to markets is legal education.

I have written before about the capture of law schools by faculty who then determine based on self interest what will be taught, when it will be taught, how many will be taught, and virtually every other aspect of the business. Think of it as something like General Motors with the workers making the decisions and those deciding are all based on what feels good to them regardless of how many cars are produced or their quality. The difference is the GM workers would not do that because GM would fold. Law schools don't fold.

One thing that law professors like to produce is cute little compact cars (courses) for which there is little demand but which they really like working on. These are the so called vanity courses or courses that would not be offered but for the presence of a particular professor on a faculty. Otherwise the course would be on the shelf indefinitely or not even in the catalogue.

What appears to increasingly fuel hiring needs is the unwillingness of faculty to be less vain in what they teach and their insensitive to costs. For example, suppose you are on a faculty of 60 and teaching "International Poverty Law for Accounting Majors" to 15 students a year. The school has a desperate need for someone to teach evidence and virtually any law professor could do that. But, it might mean giving up your beloved International Poverty Law Course. (Actually it would not but that would mean teaching more than the minimum possible number of hours and you know that ain't going to happen).

So, in a declining market, law schools continue to hire and increasingly the costs are passed onto students and the end result is to ask them to subsidize the teaching of a course that only exists to please a faculty member.

When push comes to shove we know that faculty always vote to subsidize themselves and their follies.