Is Becoming a Dean a Promotion?

This is not a commentary  on the Florida dean search except to announce my availability as a search firm for the very low price of $20,000 with a money back guarantee.

My comments are, however, inspired by comments of one of my colleagues that increasingly women and minority men are becoming deans and this is seen as a good thing. This made me wonder if becoming a dean, regardless of who you are, is really a sign of success, respect, or progress.

I do not want to paint with too broad a brush but almost every dean I have known has had no management training and little or no aspiration to become an administrator. In fact, the very word "administrator" might be scoffed at. I know of no law teaching applicant who has said he or she was interested getting into law teaching as a stepping stone to law school administration.

A very typical path is that after a few years of teaching the person finds the "life of the mind" is not his or her cup of tea. In fact, in a substantial number of instances the soon to be administrator is under performing or, even if not, has realized they made a career choice mistake. I know I felt that way in about year 15 and wanted out to do virtually anything other than being a law school administrator. No matter how you cut it, a move over to administration for more than a year or so is a career change and it is a step taken as frequently (perhaps more frequently) by those failing in the other job that it is by those succeeding. I stop short of saying it is a place to put them since they are not doing much else but sometimes this is part of the evolution.

Plus, the simple appointment to an administrative post is not  what deserves congratulations. There is no success in that. The test is what happened. Sometimes a failed dean search is  far worse that a successful search followed by a failed deanship. There are successful deanships that last five years and failures that last much longer  (although for the dean who just wants to "last" it is a personal success).

In some cases the change to administration can be a huge success. The person was made for that job. But the actual appointment can mean many things including "We can't find anyone better," or "Don't  know what else do for you." In fact, when people I have known have been asked to be administrators my initial reaction is to offer condolences, not to view it as progress. After all, don't you think most faculty select deans based on their personal self interest.

How Many Fred Fishers Will There Be?

In the academic world being labeled racist or homophobic ends a career. It does not have to be true -- the label is enough. It is ususally expressed like this: "He is insensitive to racial issues." or "He did not reach out to the LGBT community." Most of the time no facts are presented. Correct thinking people do not question these allegation once made. It is an non falsifiable allegation. 

Many years ago at UF, during a dean search, a promising candidate was nailed with the "insensitive to African Americans" label. He was stopped dead in his tracks. Further research revealed that some semester in the past at the school where is was already dean he had denied a summer grant to an unproductive faculty member. It was not an uncommon event but this time the person denied was African American and the rumor started that ended his candidacy and perhaps his administrative career.

In the latest dean search, comparable allegations were made about one of the finalists. The accusers, who police these things with great dedication,  did not have or could not present any facts but evidently they just knew. Often their faith matches  that of the fundamentalists they ridicule. I do not know if the accusations played any role in UFs decision to scuttle the search but I doubt it. Nevertheless, the cruelty of people who accuse but  have nothing else to say always amazes and saddens me. They brand people and the brand, like that on a steer, stays. (A friend likens the law school to the missing airplane and these people are the ones who broke into the cockpit. They set the agenda by virtue of the fear they generate.)

It reminds me of Fred Fisher. Most readers will not know who he is. In the McCarthy era he was a young attorney working for the firm that represented the Army in the McCarthy hearings. It was discovered that he had been a member of the National Lawyers Guild and that was all Joe McCarthy needed to label him a Communist. In response, Fisher's boss, Joe Welch spoke up with this:

"Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me."

 The cruelty I see by those attaching labels to people today is just as reckless and irresponsible. But there are no Joe Welches on law faculties, not a single one.  

UF Pulls Plug on Dean Search

UF paid a search firm 90K to find a new dean. Add to that the cost of flying in and taking care of 8 candidates and then additional flying in and entertaining 4 more and I think you are pushing 150K easy. And, this does not count the time spent by all involved.

After  the 4 candidates candidates visited, the faculty voted that one was unacceptable and 3 candidates were passed on  the Central Administration. Today, three and a half weeks later, according to Florida Central Administration, "we did not find one ideally suited to lead the College through a decade that will be simultaneously challenging for the profession and replete with opportunities for growth and advancement."

In the meeting at which one candidate was eliminated, the committee Chair asked if the committee was willing to risk a failed search by virtue of eliminating that candidate. That should have been a signal. Why ask unless you had a hunch and that candidate was already the favorite of the Central Administration? If he was, does that mean a 150k sham search occurred because there was always only one acceptable candidate?

This is the harshest interpretation and I do not believe it although it is possible. I do not believe it in part because the Law School seems so unimportant to the Central Administration. (Except when it wants to bribe the law school to hire someone the law school would not otherwise hire.) But why wait for 3.5 weeks if the candidates were unacceptable and no offers were made at all. In fact, one candidate in the final three reports never hearing from anyone at UF.  Not a phone call to say "we are at the final stage and will let you know." Not a phone call to say, "you are in the final three, please let us know if anything changes in your situation." Nor even a phone call to say "You are not going to be part of or final considerations." In short,  there was evidently no concern during that time that the candidate could find something else. Arrogance squared. 

At best, a shameful process. At worst a sham. If you think a 49th ranking was unsatisfactory, fasten your seat belt and put on a helmet. 

Salary Laundering and Tying Arrangements

I will return to the sociology of the interesting subculture I have been examining next time but, a few blogs ago, I mentioned UF had dropped 90K on a search firm for a law dean which is a bit like hiring a search firm to find yourself. Evidently there is no end to the money pot.

The Law School determined its hiring priorities several months ago. It interviewed and hired some terrific people. But then comes the provocative and vague email:

"The Appointments Committee is pleased to announce the call-back visit of a junior lateral candidate, * * * , on Thursday, March 20^th.  This position will be made  available from joint funding from the Provost and the College of Medicine.  Bob will provide additional details about how we acquired the position during his tea-time meeting in the faculty lounge at 3:00 p.m. tomorrow.  If you’re unable to attend tomorrow’s session, please feel free to  speak with * * *  or me to learn more. "In the meantime, please mark your calendars and plan to attend the office interviews and job talk on the 20^th.  As always, thank you very much for your participation in our appointments efforts."

I made an email inquiry to the author of the email and asked two questions:

1. Are we looking for someone in the areas in which the candidate teaches.

2. Is this hiring based in some way on to whom the candidate is married.

The author did not respond but the dean did indicating it would all be explained at the Tea Time meeting. 

So it seems,  out of  the blue,  we are going to have another interview. And, it's not a field we were interested in but the person will be here anyway. Plus, its a "freebie" in that the University and the Med School are picking up the tab.  Let's say the tab is 100K a year and assume it really does not evolve to come out of the law school's pocket as these things often do.

Why would the University -- supposedly strapped for funds -- decide essentially on its own to hire someone for a area in which there is no need for teachers. In fact, in this area, law school enrollment is already so low that the School may have over committed to hiring in that area.  This kind of like saying to the Law School "we are buying a new super duper movie Robotics machine for you even though you do not need one." Naturally, you understand this is all hypothetical.

It's either an example of having more money than you know what to do with or, YES-SIREE-BOB, the trailing spouse issue and yet another instance of salary laundering.  Let's say the lead spouse is Phil and the trailer is Angie. So where is the equal opportunity here? Is it that everyone had an equal opportunity to hitch their wagon to Phil? Of course not. I guess Phil just gets to designate as part of his deal who else will be hired.

There are two things I do not understand about these things. First, why not give the 100K to Phil.  If he would not come here without it, then it is part of his salary. (Antitrust experts who know about the single monopoly profit response tying arrangement will understand this.)  In fact, from this angle it is  really Phil hiring Angie since it is part of his compensation that will have her name written on the check. Phil and the University have agreed to launder some of his salary through Angie. The second question is where is Angie on this? Does Angie like being a conduit for some of Phil's salary? Or if she does not see it that way, how about just getting to cut in line to get something that others who did not marry Phil will never have the opportunity to get. Doe she cut off other drivers, cut in the movie line? What's the difference? It's all a version of feeling entitled.

Now it could be that a school is out there who is really looking for someone in both fields and both are highly qualified. I've seen those cases and it can be fine. In fact, being a large school means being able to make offers to people who otherwise might not find jobs  in the same area.  But suppose the school had completely different hiring needs.

But remember this is all 100% hypothetical.

Mole or Beauty Mark? Sociology of Law Professors: Part 3

Law professors have a odd relationship with the law. For them it does not just exist but it is something to be reckoned with. Sometimes it's something to work around and sometimes it is an ally.  Take the recent dean search at my school. The search was subject to  all kinds of openness requirements -- meetings, documents, notice and so on.

When the faculty first met with the Chair of the search committee, who indicated that the initial part of the search would be conducted by an outside search firm, there were all kinds of serious and important comments about whether the law with respect to openness was being observed.

Later, though, when the candidates were revealed, virtually all faculty discussion took place privately with one member of the committee actually reassuring the faculty that their emails about the search were being deleted.  So, the law was initially a way for faculty to get their way and then something to carefully work around also the get their way.

This tendency to use the law when it helps and skirt it when it does not extends to virtually every rule. When the law school has an open position, sometimes there is a full and open search with all the required bells and whistles and sometimes someone's spouse is hired without much of anything happening.

In my state, for better or worse, we have something called "One Florida" which eliminates racial and gender preferences. For faculty, though, it's just a pesky thing --something to be worked around in order to  implement whatever preferences they have regardless of the law. If it were a matter of civil disobedience it would be one thing but it is very far from that.

I am tempted to say law professors have a love/hate relationship with the law but it is not that. With apologies to the blog of this name, it is as though the are above the law. They will decide when to adhere to it or not adhere to it and this depends on whether it is consistent with a personal agenda. In the title to this post I suggest the law to a law professor may be a mole or a beauty mark but maybe it is closer to having a big wad of gum on your shoe.  Most of the time it is a nuisance and once in awhile the extra traction helps.

The Sociology of Law Professors 2: Mobbing

You may remember old movies, primarily westerns, in which the outlaw is held in a jail and the townspeople want to "string him up."  They just want to get at that sucker and hang him from the nearest knotty pine. And, in those movies, very often the outlaw innocent.

I think there probably were mobs like that back then and in more recent times clearly actions by gangs of people in the South mobbed together for "low tech" lynchings.

Law professors are way too sophisticated (at least I hope) to string anyone up and if they do I am sure the victim is strung up by his khakis from the nearest latte machine. Nevertheless, according to Ken Westhues,   academic mobbing does take place. The noose in this case, takes the form of shunning, gossip, ridicule, and bureaucratic hassles. Among the  factors likely to lead to being mobbed are: whistle blowing, not adhering to politically correct positions,  belonging to a discipline in which standards are imprecise and subjective, opposing a candidate who ends up being chair of the department [I would add to this opposing anyone for tenure who then does get tenure.] Being different in terms of  class also makes one more vulnerable according to Westhues. He also includes being different in terms of race, gender, sexual preferences but I think he veers way off course on these factors. No doubt those factors have played a role in the past and may still in a variety of ways, but in the law school context they are more likely to make you mob-proof because of the fear of being labeled racist, sexist or homophobic. In fact, those labels are often used by the mobbers.  On the other hand, being a classist is actually a very popular.

I am pretty sure I have seen mobbing efforts although not any that made much of a difference. When I have seen it, it's like a bandwagon effect. A critical mass of people begin to act like a mob but they do not constitute a mob until they are joined by follower-types who would never lead anything but are always looking for a group that will include them. After all, if you do not join the mob, you set yourself up to be mobbed. 

The one problem with the mobbing theory is that the subject of the mobbing has to care. If not, unless the mob can convince someone in authority that steps must be taken and they are taken, it is not of consequence. Of course, the failure of the mobbee to respond just riles mobbers even more. 

I think, rather than have all this stress, Law School faculty should up the level of  sophistication and engage in more dueling. 

Herding to Deniability: Part 1 of a Sociology of Law Profs

In yesterday's episode I wrote about the loyalty oath being passed around at the law school that is a bit like a Soviet-era high school textbook in terms of its effort to rewrite history. This is in the form of a letter that essentially says, the search was fair and open and newspaper reports by the local paper which carefully documented the closedness of the search and faculty unhappiness were inaccurate.

I thought about what this all means from a more detached sociological perspective. The same people urging others to sign were often the ones who were very  concerned about the search. When one of those people asks someone to  sign who was also upset, it signals a norm of hypocrisy. That is, there is no shame in saying the opposite of what one said 3 weeks ago.

This mass movement to reclaim deniability or CYA has a peculiar aspect. Typically law professors and others from privileged classes achieve deniability by the way they state things in the present. I've labeled this "not really a lie." I will not go into all the details of this but it's like saying "Joe plays an important role on the faculty" and then then  hammering Joe the next day. After all, hammering Joe is not inconsistent with playing an important role. The point is CYA is a constant process but it rarely involves, as it does in this case, a effort to retroactively CYA.  A norm seems to have  evolved which legitimizes the retroactive CYA.

I recall seeing films of chimps sitting around in a circle kind of grooming each other and picking off lice or whatever chimps pick off one another. And sometimes one gets out of line and is smacked or bitten. Sociologists have great fun discussing what is actually going on. It is a bonding, mating, altruism, establishing a pecking order?

This the same with faculties. What is actually going on? What are these weird rituals and norms that evolve without accountability -- nervous laughter, not technically a lie, pretending to like people, the importance of facial civility over actual civility, looking the other way when people protect turf that benefits no one but themselves, pretending to be interesting is student welfare and acting in a opposite fashion, etc.

In the next episodes I attempt to examine some of these rituals from the perspective of an outsider with just enough knowledge of sociology to be dangerous. In the meantime, this is ground I have covered to some extent before: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931632

The Law School Loyalty Oath

The UF dean search is winding down with three good candidates still in the mix. Let's hope an offer is made to one of them who says yes.

Now, however, in one of the most ironic twists ever and a herd-like effort to claim deniability, a loyalty oath type letter is being circulated through the halls and even sponsored in a sense by the administration. It's one of those "are you for us or against us?" letters. People are even being called at home to sign.

The letter thanks the committee for its work. Fair enough. Then it goes on to praise the openness of the search and to claim that newspaper reports about the search were inaccurate.

Now lets think about this. In the fall, the Chair of the Committee met with faculty but could have phoned it in. There was no information about the level of faculty participation. No mention of how, when, or where the faculty would be consulted. No mention of how, when, and where faculty would express their preferences. Just silence. And through the weeks no committee member reported anything about the search.

In the weeks that followed, newspaper articles appeared about the search, noting the lack of information, the effort to delete information, and the lack of information about faculty participation.

All of a sudden, faculty were informed repeatedly about meetings, asked to fill out a questionnaires about the candidates, and invited to two one hour meetings to discuss the candidates. They were not permitted to rank candidates but at least could say yes or no on them individually.

I know that correlation does not equal causation but there is no doubt that when the press began to focus on the search the information began to flow and participation increased.

If anything, the letter, rather than condemning the press, should be praising it. Oh, but so many of these folks fancy themselves First Amendment scholars. I must be wrong. Or maybe this is just mass groveling.

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