A Pervasive Sense of Entitlement: Tom Waits

A sense of entitlement comes up quite often on this blog and, actually, in some of my writings. I think what is at the core of a sense of entitlement is a feeling you are an end and not a means. When that is combined with being successful at getting what you want just by demanding it,  the formula is complete.

It happens in legal scholarship where 8000, $30,000 each articles are written each year  without much thought going to into what difference it makes. In a way you may think this is hypocritical for law profs but it is not. In real life they do not actually care if any of it makes a difference as long as it gets their names out there.

Faculty at law schools have an Everest sized sense of entitlement when it  comes to teaching. They want to teach only certain courses, at certain time, and on certain days. In fact, and I am not making this up, they want to compress courses into the fewest number of days possible. One colleague wanted to teach his 3 hour contracts class and his 3 hours securities class on Monday from 11-2. Yes, concurrent teaching.

Someone else topped that. Next year he will teach a 4 credit contracts class which meets 4 times a week for 50 minutes for 14 weeks and that is a total of 2800 minutes. He has asked to teach those 2800 concurrently from 10:00 to 10:1 on Monday, September 15th.  He either will talk 2800 times faster than he does normally or somehow fiddle with the space/time continuum. I think the big the collider thing over in the Alps is somehow involved.

Ok, some of the details on that are made up a wee bit but  I am not making this one up. Once we approved a 3 credit course and a law prof asked why we did not label it a 4 credit course because that way we could get 4 hours instead of 3 hours of our 9 hours teaching loads taken care of. Yes, no change in the course, just the credit hours.

I love students. I love them HUGELY. And especially I love those that feel entitled to have classes with only 6 total students in them, not have classes on Friday, and are entitled to write way in excess of the word limit on the test. Where does this come from? First, you have come to believe that the world rotates around you and simply complaining without any reasoning -- it's not fair, why are you punishing me, you've declared war on the students-- means you get your way. And, second, you missed the idea of limited resources and not everyone (except you, of course) gets what he or she wants (I'll be so happy when the grammar gods make "they" equal to he or she.)

What does Tom Waits have to do with any of this? In a word, Everything. If you read this rambling ( I am hopeful that you have better things to do than make it this far) please imaging it all being sung by Tom Waits who then follows it up with a lively rendition of Volare.

Scholar or Producer: The Pi spot

Tomorrow I  am scheduled to be on a panel discussing the future of legal scholarship. This led me to think about scholarship. There are two distinction that can be made. One is between scholarship and advocacy. Many law professors write advocacy. The difference is this. You are an advocate if you start out to prove something. In effect, you know the outcome of your research before you start and you gather support and use many "for example," cites.

You are a scholar if you do not know the answer. Your research is designed to learn, discover or test a hypothesis and you report the outcome no matter how disappointing it may be to you personally.

Another division is between scholars and scholarship meaning actual printed pages. (Since so many law profs do mainly advocacy this is not about them.)  Some of the most interesting people I  know are simply scholars. The are  thinking and searching but do not write very much.  In fact, for those people the actual time spent gathering 200 footnotes, ratcheting up the article and going back and forth with law review editors is just too boring and detracts from the process of being a scholar. They live in a world of ideas. And some people are so "productive" that they write plenty but really have few insights that engage others.  The system rewards these pseudo scholars. On the other hand the true scholars who do not communicate their ideas are neglecting what they are paid to do.

I have know a few people who have hit the sweet spot of being a scholar and also writing when they actually had something to say as opposed to keep the dean off his or her back or to be noticed. Those folks are the best. My last count is that there are 56.314 law professors who have found that spot. Let's call it the Pi spot

Law Review Pie: Articles in Real Life

The whole idea of a law review exchange rate which was explored two posts ago got me to thinking about how law review articles might fare in different circumstances. For example:

Tom brings a law review article to the Antiques Road Show. The expert examines it carefully and notes that it was written in 1976 by an assistant professor. It has 230 footnotes and 56 pages. The author went on to write 6 more articles before retiring. Based on comparable sales the expert says the article is work 10 Peeps and in an auction with highly motivated bidders, it could go as high as 11 Peeps.

A law review article is on Survivor. It has a very sexy title which leads to thousands of downloads. It has been cited 12 times by scholars and never by a court. It is voted out at the first tribal council because it insists it is important although it is only good for kindling in a fire.

A law review article is on Better Call Saul. It plays the role of a small time con man -- claiming to be something it isn't. Jimmy befriends it but it is too shallow even for Jimmy so he hands it over to Mike to "take care of."

A law review article is on that show where people try to get successful people to invest in their ideas. Actually, not really, the article never makes it through auditions because the experts, for the life of them, cannot understand why anyone would spend money to make sure the articles exist.

A law review article appears as a new footman in Downton Abby. The cook, Mrs. Patmore, thinks it is a ghost since nothing is there. Nevertheless, she gives in to Daisy and along with some other articles makes it into a law review pie. It is served at the next dinner. The guests all become sick and she is fired.

Every Decision is Made: P.S. on Peeps

My last blog on the costs of legal scholarship caused widespread discomfort if widespread could, in some world, mean two people. Their comments seemed to boil down to two issues. One is the estimate of total cost of $240 million is too high. No one offers an alternative but it's just too high. Why? Well it's just too high. Actually it may be too low since, as I was reminded, some of the 8000 articles are published by non law profs and thus the number divided into the 240 mill is lower and the cost per article goes up. I was also reminded that some of the release time for profs is for committee meetings, etc. That may be true but, at least at my school, you are expected to do all those things no matter how many hours you teach. You get released from courses if you write. [On this I want to offer one caveat. There is a difference between being a scholar and producing scholarship. I know some great scholars who do not actually publish much.]

But aside from quibbling about the numbers and a line of argument I did not follow about how I had not distinguished between difference schools and professors at different points in their career, I would say there is one underlying theme. Law professors are terrified of cost/benefit analysis when it comes to scholarship. I am too unless I am doing it. Actually, they want no part of cost benefit analysis, no matter how broadly defined, whether it comes to scholarship, LLM programs, certificates, or courses.

The problem is that all of these decisions are ultimately made one way or another. Someone decides how many hours faculty teach as opposed to doing research. what course to offer, when a course is too small to offer, etc. There are some alternatives to cost benefit analysis in making these decisions. For example, release time from teaching could be based on seniority or juniority. It could be based on the number of students taught. It could be based on a faculty member's persistence in lobbying the Dean or the strength of a threat to file a grievance. This last one is probably the leading system for allocating law school resources.

I cannot put a dollar value on every article so I can compare it with 30K. That would be silly because not every article costs 30K to produce.  On the other hand, I can hear a topic or read a title and know in many cases that the topic means the article will not be read and will not have a positive impact on anyone.  All Law professors can do this.

Every decision is made. Why not be responsible and accountable and face the fact that some of it cannot satisfy any form of cost benefit analysis. It's what we do when we spend our own money. Seems like a good idea when spending the money of others. Or, we can just continue with a system of making decisions that has no name, cannot be written down, and which has only one advantage -- it is scrutiny proof.

The Cost of Scholarship (and Peeps)

In an article I wrote with Dean Amy Mashburn we estimated that $240 million a year is spent on legal scholarship. I am not sure if advocacy (which many articles are) is scholarship but let's say it is. There are about 8000 law review articles published every year. That means about $30,000 per article on average. Some cost more if the prof is an underachieving senior and some may be less. The assumptions underlying that figure can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2569499 The 30K may be too high since in addition to 8000 articles law professors produce case books, books of readings and so on.  On the other hand, it could be very low since it does not include sabbaticals, summer research grants, secretarial time, costs of law reviews, copying costs, and submission fees. And some of those 8000 are published by people other than law professors and this too raises the average cost.  On balance it is probably a bit low but regardless of your own assumption it's a lot of money per article. Plus, all of this begs the question of whether income producing materials should be supported as scholarship. This is a thorny question since all the efforts are work for hire and if the universities cared to they could claim the royalties.


But let's play with the 240 million and 8000 and 30,000 per article. I read the other day that the  average Habitat for Humanity House costs $85K. So the tab for legal scholarship is equal to 2800 houses per year for the less affluent. Yes, that would be just less that three law review articles. There may be three law review articles out there that are worth a house for a relatively poor person. In fact, I bet there are. None of mine are and I have a hunch that goes for about 80% or more of the articles written.


Or we could put it this way. I read that the average student graduates with $140k in debt. That is about 4.5 articles or, if all scholarship money were devoted to reducing student debt, 1700 students a year could graduate without debt. Personally, I am not that comfortable writing 4.5 articles and making the case that they are worth the same as asking a 24 year old to start his or her life with 140K in debt.

In fact, since we are all bleeding hearts, you could extend this and say starting out with that much debt means a student is less likely to take a public interest job or a job as a public defender in which case, your scholarship may be actually be making some people worse off.

I know if we stopped all scholarship today it would not mean instant houses or debt relief. Moreover, some of it is likely to be worth every penny. The point is that the cost of legal scholarship is massive and law professors often pick topics on the bases of what will appeal to 24 year old law students, or on a whim, or because they want to once again preach to choir.

I don't post many blogs in which I don't try to be funny a little bit so let me close with this. Easter Peeps are much better than  any other Peeps. I am so glad the Easter Peep season is here. Cost of legal scholarship: 750,000,000 Peeps.

The Mayflower and Modern Contract Law

Here is the abstract for my latest yet to  be written article, the title of which is the title of this post.


Clearly all we now know about third party beneficiaries can be directly connected to one particular incident on the Mayflower. The same is true of the Statute of Consequence and the Contractual Contraction. This article explores the concepts and the evolution of events that led to their widespread adoption. This  effort is challenging because not that many people who travel on the Mayflower left a record of exactly what went on aboard. In fact most, if not all, of those aboard have now passed away. One thing that as become clear, though, is how much American contract law owes to the 102 brave souls aboard the Mayflower.

This is a new direction in my legal research and, with all due humility, legal research generally. First, no theory. When you are at a mid level school and went to a School that is rapidly becoming mid level no one will published your article that includes theory. I have heard this directly from editors. This is both good and bad. The good part is review editors are risk averse and have a chance of correctly assuming that people who went to so so state law schools know anything about theory. The bad part is that they assume a professor who attended and teaches at a  top level law school does know anything about theory. They do not understand that name brand schools to do not guarantee that the author is going to say anything anyone will remember even for a day or even  minute or read at all.

OK, so no theory. Just as important, almost no footnotes. Where are you going to find sources that provide information about contract law aboard the Mayflower. Oh, I know there is a fair amount of information in the Kingly piece, Tibor Kingsly, "The Mayflower's Lifeboat," 12 North Suffolk L. Rev. 211 (1875), but beyond that not very much. No footnotes is both good and bad. The good part is that there will be no footnotes that exist just to be footnotes. Also, no "see also," see i.e,", or whatevers that were merely lifted from other articles. The bad part is that most of the article will be made up. But when you think about it, that is actually good or at least no worse than what is published in law reviews already.

Yes, I am talking about the totally made up fantasy article that exists because it just might be true. Maybe Miles Standish and his wife did make a deal with John Alden to benefit John Langmore. And maybe not. The thing is that that is the way all law review articles should be read.  Maybe right and, if so, by coincidence or maybe dead wrong. This is because  most law review articles advocate a position and the sources are carefully selected to appear to  support what is said.  In short, most are just made up with the author blind to opposing views.

In the case of my careful Mayflower work, I am not blind to opposing views. I am open to them and will report them as soon as I make them up.

Dumping, Externalities, and Creeping Around

If you have followed the news you know that southwest Florida's beaches are a mess due to pumping water from the  Lake Okeechobee. It's a pretty good example of an externality. Another one is more personal to me. Several years ago Nautilus  or one of the other fitness machine makers had a weight lifting contraption. I am not sure it was Nautilus since they were responsible for the torturous cross country ski  machine that made water boarding look inviting by comparison.


Ok, back the to machine. I said I would like one to someone and she said I could have hers. She would just give it to me. Of course, knowing that you should always look a gift horse in the mouth but ignoring that, I arrived to pick up the machine and it was obvious that she was referring to something completely different. I took it, not wanting to hurt anyone's feelings, and it sat around my house for several months until my  wife said "it's me or the machine."


But what could I do with the machine? In the middle of the night I hauled it over to the Law School in put it in the middle of a common area. It's was kind of an experiment to see what would happen. It stayed there for months. Sometimes students would use it. No one asked "Did someone lose an outdated weight lifting machine. "No one took it to lost and found. Some thought it was sculpture. And then it disappeared.


[To show that I was also interested in positive externalities, I'd like to mention that I used to take all the foam cups from the lounge and hide them in hopes that coffee and tea drinkers would get discouraged and bring ceramic cups. It did not work. The more I took, the more that appeared -- I mean thousands -- until an new environmentally-minded associate dean starting supplying paper cups.]


In any case, I left my trash (the machine) at the Law School and the externality was that someone else had to figure out what to do. What does this have to do with anything? Did you notice I did it in the middle of the night so no one would know.


That's the best time to handle dumping. On faculties secret dumping takes the form of side deals.  Each person slithers down to the dean's office and explains why he or she is special and should get a special deal -- a very long leave, reduced teaching, more money for teaching a course, extra travel money, etc. And when they get the special deal someone else has to clean it up by teaching more students, teaching courses that the students need but the dumpers have bargained their way out of, or by hiring visitors when the money might have been used for improving the classrooms or library.


The externality thing also occurs in a more pernicious way. Suppose the dean tells you that it makes no sense to pay you 40K or more to teach a handful of students in the summer or to pay you 20K in the summer to pimp out some students.  At this point you begin to slink from office to office looking for other people who are as self-interested as you are and you do not have to look very far. In fact, even people who betrayed you or are not speaking to you become potential allies.   You approach others and get them on board by expressing it like this "I am not sure I agree with the Dean deciding to change the law school so YOU are worse off."  Yes, you are only looking out for others or for, "academic freedom." Sorry I just threw up when I imagined something protecting their turf with that appeal.


Perhaps I should mention that we are all people who claim our lives are devoted to high minded things like teaching and research -- you remember that, right? If that is what you want to do then the mob and its impact is a huge externality. It makes the environment unhealthy. It means picking up sides. I means far more effort than usual to filter out the truth from the lies and exaggerations. It can mean more meeting and gossip that is unrelated to teaching and research.


So, what is the message here. I would think it is clear: Faculties, do not become Lake Okeechobee or an outdated 300 pound weight machine.


All my love, Jake

Principles or Principals: Levels of Moral Development

The other day someone complained about something the dean had done that he though was up to the faculty. I said it was the right decision and the response was "but it is the principle of the thing!" The "thing" was faculty governance.

I had two thoughts. I sincerely hoped that that a faculty that had abused faculty governance to enrich itself would have faculty governance removed. For the most part faculty governance is used to fleece people who have no say in the matters that affect them.

The second thought was about how many time people say "principle" when what they are really concerned about are the "principals" involved.

So, suppose the Dean says something like " it would be better for the students is everyone taught 4 courses instead of three each year." "Wait a sec" someone might say, "That is a matter for the faculty to decide. It's the principle of faculty governance." But then when the faculty actually votes it's not about principles but principals.

Sometimes I think it has to do with moral development. Some may recall the stages of moral development from readying the work of Lawrence Kohlberg. If memory serves me there were 6 stages that could be distilled to three. Lowest was a strict cost benefit analysis. Second was a broader sense of caring for the community. Finally were people who acted consistent with principles even though the outcome might be counter to self interest.

An example of level 1 would be like the day my wife told my 4 year old that he could have one cookie while she was away. I say him with 4 cookies and asked him about it. His reply "But mom is not here yet. "

As best I can tell, many or most law profs are stuck, at least when in the context of law school, at level one. This is where the side deals and special treatment come in. It all takes place in a dean's office and has nothing to do with fairness or even what is best for the community. Faculty each want as many cookies as they can get as long as they are not caught.

Do faculties ever make it to the middle stage of caring about the community? For example, does anyone ever say " I should not do this because, if everyone did it, it would create uncertainty and chaos within the faculty?" Or how about, "I am doing this even though it makes me worse off because it will make the community better off."   I am not saying that they do not cooperate from time to time but, when they do, it is consistent with the getting all the cookies they can. No principles, just principals acting like a school yard gang.

The top level of moral development is very rare and frankly scares me a little. I am sure some of the worse villains in history believed they were acting on principle. I now know why this would be the highest level of moral development since the principle may have cruel and awful consequences. Still, I'll take that risk with law faculty and just once like to hear someone invoke "principle" and not mean "principal."

Top Down or Bottom Up

When it comes to management that is the question, right? When should management take over and determine the ends and means for the organization. Conversely, when should those decisions be made by the workers. Under which regime are stakeholders (students, tax payers, alums) better off.  In the world of so-called faculty governance (or, more often, lack of governance) the issue gets very sticky.

When the top does not have courage, ideas, personality or anything else that would make the School better for stakeholders the default position is  bottom up.  If you add to that a lack of shared aspirations something akin to white collar looting occurs. Faculty charge into the School and take what they want. The  School's shareholders? -- screw them!

So Jack wants to teach a 4 credit property course in one four hour block so he can spend  days at the beach. Linus wants a year off with pay with no obligation to account for the time off.  Joe just wants to teach "Law and Gumby." Patty wants only to teach at 1 PM every other Friday. Chris wants to teach everything online and asynchronously and concurrently. Jane wants to teach a seminar with 4 students because her course is so important (to no one but Jane). Ricky likes to travel so he thinks it is OK to miss a few days each week so he can network. Bottom up means everyone who counts is happy as long as everyone who counts is on the faculty.

Why do leaderless schools become bottom up nightmares?  Because no one will say "no" and the majority, to the extent there is voting on policy, need votes. How do you get votes? By having a management policy of "you can have yours if you let me have mine." Yes, bottom up management in an institution dominated by self-interested people means chaos.

They hate top down management because they do not get what they want. It's not on the basis of management philosophy or on the basis of top down results being better or worse outcomes for  shareholders.  That is irrelevant. Ironically the bottom up people may say "it's the principle of the thing" when, in fact, it's hearing the word "no" that sets things off.

 It sets things off even if it is not top down at all. No, "top down" becomes an accusation and it must be bad no matter how good it is or even whether it exists.  It is a form of name calling when the name callers have nothing substantive to say. In fact, like claims of lack of collegiality the accusation of "top down" can be completely false and amounts to an attempt at bottom up bullying. When enough people are involved it is a mob.

Help! My Dean Won't Let Me Blog

The handful of you who come to this blog may wonder why I have not been blogging (although I am sure my anonymous internet stalker is probably relieved).

It's my Dean. I used to have a nice hobby bitching about one thing or another. You know, stuff like getting a big payday for pimping out the students, side deals for everything from teaching a course to taking on the huge responsibility of being a Center Director when there are only about 8 students who care what the Center is doing, foreign programs for the privileged, vanity courses, and the "not technically a lie" culture.

Now I cannot write about those things. Why?? It's my Dean. Yes the old dean who tolerated, supported, and encouraged all that stuff  I complained about is gone. And, now we have what I would call the "opposite dean." She could not be more different than old dean and it appears (actually it is blatantly obvious) that she feels that -- get this -- the Law School does not exist to serve faculty interests, financial and otherwise. Instead  faculty are mere means for providing the best legal education possible, writing the best scholarship, and doing everything possible to find employment for the students. Yikes. We are so not used to this. She is also willing to take risks. Now, I know law professors reading this will not be familiar with the concept of "risk" but I assure it takes confidence and courage.

And where does this leave me? Did she consider my blogging? I was not even consulted about how much the changes would affect me.

I might note that other than the things listed above, I also ranted about the use of claims of incivility, uncollegiality, poor people skills, and "I am offended" as ways of silencing people when, in actuality you just did not like the substance of what was said but had no response other than one that would reveal you were greedy, looking out only for yourself, and had a Everest-sized sense of entitlement.

Unfortunately I may be able to keep blogging on those topics because change worries people and, when it does, the knives, distortions, and group whining appear.

Poor Pitiful Me.

Since it is the Holiday season I tend to think about those less fortunate. Oh, you might think I mean people with these problems:

My boss may lay me off.
I hope I can make this month's car payment.
I hope that check does not clear before payday.
I am not sure what I can put under the tree for the kids.
My tooth aches but the dentist would cost $100.
I have no health insurance and Billy's earache has been going of for two weeks.
If it gets cold this winter, how will I pay for heat?
Judy needs new shoes but that will have to last until after the first of the year.
I wonder if I will have to work the night shift.
Where will I sleep tonight.

Or, then there are the truly needy whose unfortunate lives have lead to an obsession that is close to physical pain. Their problems go like this: (you will get more of if this if you also listen to this

1. I may have to teach my class on Friday.
2. What if not enough students do not sign up for my course, "All about Law and Me."
3. Was Jim disrespectful to me in the faculty meeting?
4. How can I get by without my own personal really fast printer next to my desk?
5. What if I have to be on campus more than two days a week?
6. How can I convince the Dean to get the school to pay for my trip to Honolulu.
7. As I walked by Jack's office did I see he now has a triple monitor set up?
8. If  have to teach 50 students it will interfere with my very very important "work."

For the first group there is never enough under the tree, For the second group there is too much and they want more, more, more. (you are supposed to click on that underlined part)

The Best v. the Most Useful Scholarship

I've had my say on the huge wasted investment in fancy scholarship. On the other hand, if  I had to rank scholarship in the basis of difficulty it would go something like this. There are caveats and another bigger problem.

1. Single authored full length books that are not primarily descriptive. (This assumes carefully done research, not advocacy dressed up as scholarship, and certainly not a compilation of previously published articles.

2.  Single authored full length articles that are not primarily descriptive. (This assumes carefully done research, not advocacy dressed up as scholarship, and certainly not a compilation of previously published articles.)

3. Treatises. Purely descriptive I know but there is something to be said for the ability to fit it together in a meaningful way. (I do not mean yearly updates, supplements, and the like)

4. Single authored casebooks that are widely accepted. Actually, I've only seen two casebooks I would regard as scholarship at all -- the old Kessler and Gilmore Contracts book and the Areeda and Turner Antitrust book.  On this, though, I have  seen only a few casebooks and certainly there may be more that can be regarded as scholarship.  I  rule out casebooks that have multiple authors since this is mainly a marketing tool. It guarantees multiple adoptions and the casebook publishers will publish (and have published) even the worse casebooks if the adoptions are guaranteed. Also ruled out are editions beyond the first.

5. Articles that are advocacy. The equivalent of briefs only with far more irrelevant material.

6. Nutshells and all the new versions of Nutshells. I have to admit, though, that some are quite good at doing what they are intended to do.

7. Edited books of readings. I do not mean any essays by the editors but otherwise it is an administrative task.

This is pretty simplistic because within each category there will be variations in quality and low quality may mean a work in a higher category is no better than works in a lower category.

I do not know if anyone agrees with this list. Nevertheless,  now I will list the same works in terms of the actual impact or influence they have on others.

1. Treatises

2. Casebooks

3. Nutshells and all the new versions of Nutshells

4. Articles that are advocacy.

5. Single authored books.

6. Single authored articles.

7. Edited books of reading.

So here is the problem. First, focus on a law school The first ranking is probably the ranking one would go by if the goal were the enhance the reputation of a law school. The second ranking is the one to go by if the goal were to increase the actual impact of a law school.

Now focus on faculty rankings within a law school.  If you go by the first list, you will rank highest the most difficult and the most useless work.  If you go by the second list, virtually everyone in the law school is the same -- none of the top impact types of "scholarship" are difficult.

It's  a problem. What does a law school want to be? How do you rate faculty?

Letter From Home

Dear Jack:

I just thought I would write and let you know what is going on in my life. I am still teaching law and living in a small Southern town. We have Fresh Market but not Whole Foods. We make up for that by having more Walmarts per capita than any other city in the world.

Things used to be fine at the law school but now we have fallen under the rule of a new dean who makes ridiculous demands. Just listen to this. He expects us to do research when we have research grants and actually have something to show for our efforts.  Well, so much for academic freedom! I really may file a grievance because our old dean never really asked for anything. I guess his view was that part of our job might entail doing nothing because, evidently, that was his job definition.

And then there are the forms we have to fill out. Oh my God. Some take as long as ten minutes to fill out which means that is time I could be devoted to my very, very important research. In fact, this semester alone I had to fill out a form to explain what I do for the money the school pays me and to indicate what classes I will teach. OK, I know it is probably OK to ask what I want to teach but, GET THIS -- I am asked to only list courses that students sign up for. Really, that is so over the top. People like me who teach in highly specialized courses may only have 5 or 6 students. I fear for what will become of those students who will now be deprived of my expertise.

Some of our best work comes out of various centers, foreign programs, and advanced degree programs. We have had all of these for years. Eleven years ago they were all studied very closely and it was determined that they were all first rate. That was good enough for me. Yes,  in some cases we have several faculty devoting all their time to a hand full of students while the remaining faculty teach several hundred students in massive impersonal sections,  that is just they way to goes when you want to have quality.

The changes are really upsetting. Teaching more students and writing. When exactly did that become part of our jobs. It is so discouraging and I am feeling so very sad that we cannot go back to the day of being true intellectuals.

Thadeus.

Brad Paisley: Social Scientist

I like Brad Paisley and the song Online: You probably never heard of him. Some of  lyrics to "online" are as follows:

I work down at the pizza pit

And I drive an old Hyundai

I still live with my mom and dad

I'm 5'3 and overweight

I'm a Sci-Fi fanatic

Mild asthmatic

Never been to 2nd base

But there's a whole nother me

That you need to see

Go check out MySpace

'cause online I'm out in Hollywood

I'm 6'5 and I look damn good

I drive a Maserati

I'm a black belt in Karate

And I love a good glass of wine

It turns girls on that I'm mysterious

I tell 'em I don't want nothing serious

'cause even on a slow day I can have a three way

Chat with two women at one time

I'm so much cooler online

So much cooler online

I get home, I kiss my mom

And she fixes me a snack

I head down to my basement bedroom

And fire up my Mac

You get the drift. This guy lives in a fantasy world in which he is a star. Sound familiar? Well let's change a few words and see how law professors have built a similar fantasy world. Just sing it to the tune of "Online."

I work at the law school.

I drive a sensible car

I'm a big deal in the sec pool

I scoff at being member of the Bar.

I am a Harvard fanantic

A little out of shape

Often feel I am taken for granted

But there's a whole nother me

Check my law School bio

And you will agree

cause in my head I am so intellectual

I'm well known and influential

People consult me at the highest levels

My work is so important

Excuse me I'm off the to airport. 

My articles are read by everyone 

Especially students when I test on them

I know others read it too

Or at least I claim they do.

I am so much more important in my head

Partly because I am so well bred.

I have no sense of humor.

My irreverence  is nil.

I love a juicy rumor.

No courts ever cite me

But  I am important still.

In the real song,  opposed to this admittedly pathetic attempt at satire (not parody, a different thing), it goes on and on to explain with great insight how people lose sight of where they are in the scheme of things and take the "self justification" remedy. 

Brad Paisley -- keen observer of the fantasy life. 

Psst, Hey, Over here.

I need to tell you some things I found out today.

1. A certain first year dean at a large mid ranked law school is already interviewing to leave the school.
2. Jackson, that guy we just hired, is interviewing at Tennessee for a chaired position.
3. Janet said she smelled liquor on Jim's breath this morning.
4. Linda's students have been complaining about starting class 15 minutes late every day.
5. Did you hear the new dean is going to discontinue, dissemble, and destroy, the LLM in Law Finance. There is even some talk that he may torture the faculty.

Actually I made that all up. Or maybe I just changed the names. Whatever the case, one thing I have observed is that people love to have information. Actually, that is not quite right. More accurately, people love for others to think they have information, especially information that is not widely known.  This is probably true of all groups but, in the world of academics, seeming to know things others don't  raises status and, to some extent power.

But there are other interesting aspects of information status. First, as already noted you may know nothing but be good at appearing to know something. Second,  suppose you do know something and it's sort of interesting but not likely surprise anyone. A common practice is to ratchet the information up a notch. It goes like this: You overhear two students talking about how hard Professor Jones is. Ratcheted up it becomes, "I heard a bunch of students complaining that Jones is their worst professor and they are going to the Dean."

Or this: You are in the faculty lounge and Tom and Buck are discussion whether restitution can remotely be called a form of damages. Racheted up: "My God, I thought Tom and Buck were going to get into a fight. They were screaming at each other about teaching assignments."

Steve comes to school on a non teaching day wearing dirty clothes. Ratchet version: "Have you seen Steve lately? I've heard there are mental problems."

Sadly, although these are made up, I have seen  worse. Too many people thrive on drama and the appearance of being in the know. The ratcheting can be up or down like when the effort of one faculty member to push the hand of another away became the "slap" heard round the world and then was widely investigated as though the administration as nothing productive to do.  Ratcheting down means something like this, "oh but she/he is a really nice person". This comes right after finding  out that the person assaulted a student. I should mention that some information comes  from actual research into, let's say, the salaries of everyone who ever taught law or what someone far away said about someone's latest article. Don't trust these people either. They almost always present only part of the research.

So now you know how to (shall we say) "gather information." What do you do with it? Three possibilities. 1. Just impress others that you are so in touch with what is really going on in the faculty. This works mainly on the insecure untenureds who are just getting used to how unstructured things are. But that's Ok, the information peddler is usually also insecure. 2. Take it to the Administration because after all you are trusted, in the know, would never ever ratchet and, oh, by the way, maybe the Administration will look favorable on you. After all, you are not just any faculty member.  (Any administrator who encourages this at all or  without triple checking the informants information will be the death of your law school unless chased off.) 3. If it is really important and could actually have an impact on a person, go to him or her and discuss it. (Only a fool does this because it means no status and sense of importance for you.)

I really wanted to call this post "Information Whores" but I am not sure that term has evolved to be gender neutral which is the way I would have meant it.

Law and Economics People:Don't They Suck?

Of course they do. They are the worst, aren't they. Always talking about efficiency, consumer surplus and the like. Heartless people who are not in touch with real values. "Bean counters."


I think I would be regarded as a law and economics person by anyone who has not read anything I have written and that's fine. With respect to most of the people who have rolled their eyes, accused me of have a law and economic agenda or whatever I stand with Rod Stewart. I would not let them tie my shoe.


There a couple odd things about being or not being a law and economics person. First, in actual real life it seems like the non law and economic types are far more likely to act like self-interested rational economic people. My observations are they are more inclined (or at least no less inclined) to worry about getting the best teaching load, the right number of students, enough money to travel the world, the highest salary, the best deal on a car, etc. And if you think for a second this is in service to the institution, forget about it. It is over-the-top self interest regardless of the impact on the community. In the words of Toby Keith, it is about "my, me, my." OMG, the stories I could tell of programs, certificates, LLMs programs that all reflect personal as opposed to institutional and student welfare. This is demonstrated most when they have outlived their usefulness, if there was a use in  the first place, and yet individuals cling to them.


So when it comes to individual self interest it's all about "law and economics." They should be teaching a course because they live in the shoes -- whether tied or not -- of the economic man. Interestingly this applies regardless of whose money is spent but the difference is this:


1. If the decision affects the individual, the hard nosed economic man comes out.
2. If the decision is spending the money of others the "it's not about the money, there are other values" comes out.


Well here is a little news: IT IS ALWAYS ABOUT THE MONEY!!! (Unless, that is, there is an unlimited amount of it.)


The only way to believe it is not always about the money is to be born without a part of the brain that understands opportunity costs. And since everyone I know understands opportunity costs when it comes to personal decision making, that part of the brain is in good shape. So what explains ignoring then in all kinds of other contexts? For example:


1. You want to run a summer foreign program in Poland, France, or Santa Barbara. You say it is  enriching for the (mostly already well-to-do) students. You send faculty there and say it does not cost anything because they would have been paid anyway. Yes, but the cost is in terms of what they would otherwise be doing. And if you say,  "They otherwise would be doing nothing" then the opportunity you missed was not paying them at all in the summer or paying the same money to some who actually does do something.


2. You want to have a Program in Intermediate Snooker Law because someone deeply interested in snooker wanted to teach it and then add advanced courses (total enrollment 30). You cannot have a program without a director and a director cannot possibly teach a full load what with all that directing that goes on. He or she is taken off the schedule for one course. The loss of that course is the opportunity cost.


3. You have an LLM program that wants teach its courses over a 60 minute class period even though the 95 per cent of the school teaches 50 minutes classes. The teachers really, really want it. It means dedicating a classroom to their use even though the room is rarely full and, in fact empty several hours a week. The opportunity costs? Classes that students want cannot be put in that room even when there is no other room for them.


Am I saying summer programs, snooker law certificates, and LLMs taught in 60 minute class periods are bad. Nope, not at all. I am saying the reasoning, or lack thereof, that results in those decisions conveniently  does not reflect the same law and economics analysis that the same people apply to themselves when trying to maximize their own well-being.


Yes, those law and econ people do suck but they may not be the ones most people think of.

The Programs/Ranking Scam, Self Esteem, and Helping Your School

Did you ever wonder how important those rankings of specialty programs in law are. You know what I mean -- tax, IP, environmental law, international law, and on and on. This occurred to me, and I am sure others, some time ago. Let's say you've got 4 people on your faculty who teach Immigration Law. They actually are not very distinguished but then they create and LLM in Immigration Law. I am not sure how many of these programs exist but let's say 5, so now they are 6th. BOOM, U.S. News and World Reports announces that the program is the 6th best Immigration Law program in the US.  You know what comes next -- It is plastered all over the Law School web site, brochures are printed, and massive quantities of law porn hit faculty mail boxes across the country.


There is a slightly different way to think about it. Suppose your school has a program in Immigration Law that is ranked second in the nation. (Just in case, it is important to know that I have no knowledge about immigration law programs.) You look around at the actual professors in the program and maybe they are not so hot. In fact, it dawns on you that 50 other schools could take their existing immigration law faculty and form a program and yours would instantly drop to 52nd. What should you do. OK, I am going to get a little fancy here and bring in the Coase Theorem. You pay them not to start a program!


That is disappointing and costly but there is good news here too. Everyone actually should not get stoned but should start a specialty program instead. In fact, I think I may hang a sign outside my door that says: "Institute for Study of Law School Craziness." I am the director so I get time off and I will enlist 12 people as Associate Directors so they can put that after their signatures on all their correspondence. I'll also probably move to the mountains near a nice trout stream and "work at home" because as director I actually do not have to do much teaching.


You can do this too. Help the ranking of you school by forming up a program. It's good for your school and for self esteem. It does not matter if the actual people teaching are 20th best in the country. The program will be in the top 5 and then the teachers will likely believe they too are in the top 5. After all they are sooooo special. Or at least they are now.


So, how important are those rankings? If you think they tell you much of anything about the actual instruction that goes on I need to talk to you about some precious metals I would like to sell.

Double Pranking the Law Faculty: Am Empirical Work

Years ago I heard and believe it to be true that super lawyer Steve Susman pranked a law firm by  bringing in a bartender as a interviewee for a position with the firm. The bogus candidate was supplied with a resume  that was just right and coached enough to know what to say and not to say. In the version of the story I heard, an offer was made.

This led me to wonder if you could prank a law faculty. The best version of this would be a faculty hiring experiment. An articulate bartender would be supplied with the perfect resume, the right names to drop, and all the other dressing.  He or she would be coached on what to say and not to say. Frankly, I do not think it would work. Somewhere along the line a question would be asked that exposed the prank or, at the very least, a reference would be called. The job talk would likely be a disaster. Of course, if the success of the prank hinged on the job talk and references being called, I guess you could conclude that it did work in some measure by surviving the office interviews.

There could be another type of prank. This one would be conducted by a law professor looking to write a paper on the prankability of law professors. Here is how it works. The professor who is the pranker/researcher is invited to a workshop at a much lower ranked law school. This is important because law profs are very impressed by credentials. If you do not believe me, listen to the way they introduce each other.

The speaker/experimenter presents an empirical paper. This is also important since empirical would is both threatening and impressive to law profs. And, although  the questions they can ask based on intuition and logic can potentially expose the prank, for the most part a decent empiricist can fake it be saying, we used the "Himstead r-test to make sure that bias was not present" or "Hmm, that might be worth looking into."

The paper must be complete B.S. -- something like "Do Americans Like their Flag: Implications for Nationalism, International Relations, and Community." The actual empirical work could be fabricated or actual done. If actually done, people from all states could be asked:

1. Do You Like the U.S. Flag? (scale of 1-10)
2. Do you like your state's flag? (scale of 1-10)
3. Do you really, really like your flag? (scale of 1-10)
3.  What symbols do you want on your state's flag? [This is follow by a list of things ranging from eagles to Ronald McDonald.]

This would all be done by questionnaire. The data would them be compiled and correlations found based on race, gender, income level, average state temperature, party affiliation, etc. The results would be presented in graphical form with different colors for states where the flag was very popular and places where people did not care much for their flag. A very long table with all kinds of correlation coefficients, SSEs,  t-values, and R squares would be available.

The research questionnaire does not ask if the subject has any knowledge of what the state flag looks like. Why? Actually I do not know why but that is part of the prank. The researcher actually does not know if the people who have opinions about the flag have any knowledge of the flag. So among those liking or disliking the flag are completely different groups -- some are just making it up and some may have studied their flag closely.

When asked what this is all about the speaker says it has important implications for patriotism. No one asks, "Could you have just asked the subjects how patriotic they believe they are."

The  test in terms of the prankability of different faculties would be how long it would take for someone to say, "You are kidding, right?" or "Is this a prank" or "Is this being filmed for TV show." Perhaps everyone would just sit there, ask polite questions, and nod knowingly because, after all this is a faculty member from a highly ranked school delivering an empirical paper. 

Schools could then be ranking on the prankability scale -- how long it takes to detect the prank.  That ranking would them be correlated with the race, gender, socioeconomic class of the faculty, time of day, size of law school, density of population, per capita income of surrounding area, number of Walmarts in town per capita, height of the highest flagpole, etc.

I could then write up that paper and go on the workshop tour with an all new paper: "The Prankability of Law Faculties: A Comparative Study of Manners and Deference to Authority"  which itself could be a prank especially if I made it all up. 

VAPorized: The Demise of Individuality

For several years now, one way to a permanent law teaching job is to be a visiting assistant professor (VAP) at a law school. It's a temporary position that allows those who aspire to be law professors to write and teach while they are prepped, groomed,  advised, shaped, molded, etc. by people who are already law professors. A good idea, right? 

I'm  not so sure. In fact, what I see is a process close to mass production in which individuality is hammered out of otherwise interesting people. VAPorized candidates are very polished, well groomed, friendly, accomplished, (all in the same way)  and can thank everyone from Woody Allen to Jeff Lebowski in their invariably very long acknowledgement footnotes. Their job talks are impressive both in substance in style -- well rehearsed I would say. And their schools -- both the elite schools from which they graduated and their VAP homes -- cannot say enough good things about them. What I want to know is what is inside that dressing, that is, if there is anything left after they are told by law professors how to be law professors. If they were rooms, I would try to find the doors. But what they are taught while being VAPorized is not to show themselves.

Let's face it, the cloning effect in legal education was severe even before Vaps. So what do they bring to legal education?  I don't want to paint with too broad a brush here but in some sense "nothing new." (Is there something less than nothing new?)For the most part they have locked  into a specialty or sub specialty. They take on the characteristics of a mid career person. They do not seem that interesting because they have already arrived at one-dimensionality and lost interest themselves in anything other than a narrow field.  I preferred the old days when new hires were a couple of years out of law school and still, in a sense, learning.

Let's face it, the worse thing about law professors is a cultural sameness -- dress, vocabulary, mannerisms, appeals to authority, appearance of reflectiveness, law schools from which they graduated, socioeconomic class, passive aggression, close to the vest, never admitting mistakes or regrets, life is a life time negotiation, excessive self interest, blah, blah -- I know I am a broken record.

Before a candidate is VAPorized. there is a chance. Slim, I know, but there is a chance to see the real thing and a chance they will bring some element of diversity to a faculty. I would like someone to start a program for Vaps that deVAPorizes them.

Dean is Rile Killer

Yep, I've got to face it. I have not much more to say about class bias in the legal academy In fact, I am drinking the Kool-Aid. It's a good thing to have class bias  in the legal education since it  keeps a certain number of people with a massive sense of entitlement spending their time having no impact on any thing that matters.


And, I have to face something else. When our last full time dean departed, a breath of fresh air blew through the law school -- first in the form of a first rate acting dean and then in hiring a permanent dean who is smart, a quick study, and, as best I can tell, confident enough to at least try to do the right things even if it ruffles some feathers. I am sure she will irritate me at times but I am willing to bet the number of side deals and scams will dwindle and that when she is done, UF will stand taller.


So where does that leave me? I got so much out of bitching and being rile free has taken it away. My friend Eric Fink says it's not worth writing something if it does not piss off someone. So here I am writing. Let me take a stab at some mini bitching in hopes that someone will be a least a little annoyed.


1. You probably know that most law professor are "liberals." Liberals mind you, not left. There is a ocean of difference. You know what they like to do with money for scholarships. Go out and compete for students with the highest LSAT scores. Rich or poor, we don't care as long as that number is helps the rank of the school. Have a good number that does nothing for our ranking and you are too poor to afford law school. Tough. If you don't make us liberals look good when rankings season is bloom, take a hike. (I really appreciate those Deans and University Presidents who have created funds strictly for people who would not be in school without help.)


2.  A couple of weeks ago an article I wrote with Amy Mashburn came out. It was the one showing that citations of law review articles were correlated with the rank of the publication, the rank of the school of the author, and the rank of the school from which the author received a JD degree. We also discovered a shocking lack of reliance by courts and other scholars.  That's all old news. We were very polite when people were negative (actually most were positive)  but some comments just seemed stupid. How about the one that said our conclusions should not be trusted because we did not use a random sample of law reviews. Yes, no random sample. No instead we selected a sample of articles that was most likely to disprove the hypothesis that legal scholarship was not reaching people. But thanks for your thoughtful comment.

3. The rules in my fantasy league. How screwed up is this. Say you've got at QB Cam Newton. He goes 20 for 40 and 350 yards and 2 TDs but throws 2 picks, one a pick six. The picks do not count against you. So the QBs performance is distorted. In fact, he could throw 10 picks and you get the same credit as someone with a QB who threw no picks. Crazy.

Theory of Second Best in Law Schools: Maybe

The theory of second best may be the most overlooked concept in economics and in life. That's a good thing because it can make things very complicated. As far as I know, it originated in economics but as a general matter it stresses the interdependence of things. In economics it might work like this. There is a legal monopolist raising prices and restricting sales to a group of scattered buyers. The buyers then decide to band together and say they will buy nothing at all unless prices are lower (as in closer to competitive levels). Now a do-gooder antitrust enforcer come along and thinks, not out loud I hope, "I can't do anything thing about that monopoly but at least I can put a stop to that price fixing." Or, "I cannot do anything about that monopoly but the second best thing I can do is stop that price fixing." He or she does and things are worse than if there were price fixing. In reality the actual  best solution is to  turn a blind eye to the price fixing by buyers.

Or how about his one. You gather all the ingredients together to make cup cakes. You realize you are missing an ingredient and you think "So they won't be perfect but I have almost everything. I won't have perfect cup cakes but these will be almost as good."  Your cup cakes are a disaster but you could have made some damn fine cookies. Making cookies might have seemed like second best to you but they were actually first best.  You neglected the fact that that missing ingredient pulled everything together like the Dude's rug.


So, does any of this apply to law schools? I am not sure but consider this. You want to have a externship program. You say it is so students will be more employable and will get "real world experience." (Actually come to think of it, it is a real world experience -- they are not paid.) In fact, not only are they not paid but they must pay the law school for the right to receive credit for working for nothing. (No, I am not making this up.) To get your hypothetically-working-full-time-but-otherwise-not-that-interested faculty to arrange externships you pay them based on the number of externs they can line up. Where do they find the time? ( Remember law faculty often fall in the category of working full capacity while having excess capacity.)


Call it faculty welfare -- students (the ones working) are taxed and the money is transferred to faculty (the ones kinda working)   Pretty soon you are paying hundreds of thousands of dollars to support the students-work-free-and-keep-others-from- being-paid-but-professors-rake-in-the-dough-while-not-writing-or-teaching Program.


Not every catastrophe is the result of making a decision without considering all the variables that must be in sync to assure a good outcome.  In this case, starting an externship program might have made sense if all your assumptions about faculty willingness to participate held. Once that was not true, your second best solutions was to pay them. But, given all that, paying may not  have been the best solution. In fact, the funds might have been used for a completely different endeavor that would have benefitted students even more. (deb, we need to stop meeting like this.)

Oldsters, Charity, and Innovation

Two things I have seen on blogs lately seem to me to be related. One is this great post in the tax prof blog  about the inverse relationship between innovation and the pressure to publish. It is about scientists and how the pressure to get something into print discourages risky and innovative work because it may not produce anything publishable. I have to think this goes triple for law professors who have the same pressure and have to write on topics and on a level that second and third year students do not think is too risky (especially if you teach at a mid ranked or lower law school). It helps explain why the vast majority of law review articles are irrelevant.


The other thing that pops up from time to time is the call for older law professors to step aside and give the younger folks a chance. I guess this is based on some notion of charity or the "right thing"  to do.  Actually, many law profs would not know the right thing to do if it bit them in the ass. Yes, the same folks asking the old folks to do the right thing are likely teaching two days a week, minimizing their course loads, confercating ten times a year,  running scams on foreign programs, and bragging about their influential articles that no one reads. "Do what is best for the community is a great idea when someone else is doing it"  is the rule they live by. Of course, I do not mean you personally.


But back to the connection. I really do think the pressure to churn out yet another article does cut down on risk-taking and innovation. So who are the folks who are most inclined to co author yet another 20 page article in order to put another notch on the old resume -- those at the beginning or at mid career. And who are the ones who can take risks and actually attempt to do something meaningful -- the oldsters who are not worried about career building and getting tenure. That's not to say there are not loafers at every level but the clutter now found in law reviews can largely be attributed to those who are on the make and just want to get something placed somewhere.


My solution to the law review clutter problem. Each law school will only consider one article a year per professor for the purposes of any merit decision. And my solution to the no innovation problem. Fire everyone under 50. Thank you very much. And, I too have tired of hearing about your damn emails.

Message or Messenger: The Rise of Professor Porn and the Death of Ideas

Gone are the days in which law professors could be viewed as people who lived a "life of the mind."[Not being quite old enough, I am not sure they ever lived a life of the mind as much as other academicians and I suspect not.] In those days, teaching, thinking, and writing were the principal activities. Professors put their work out there and it spoke for itself. They might attend a conference or two each year and mail out a few reprints. It seems old fashion now but the process of thinking was in itself a reward. Personal recognition was a side effect.

Over the last 30 years, probably to coincide with the rankings race, this changed. Law schools and law professors began to sell themselves like soap powder, beer, and used cars.   The louder the "commercial" or  the noise, the more likely that a school or a person will be "heard" regardless of what he or she has to offer. In fact, sales tactics by professors have become so intense it appears that sales are made simply by being persistent to the point of pestering.  Recognition  may come just to make the pestering stop and the professor quickly reports it to the Dean and the world as an accomplishment. These profs are constantly on the road, no conference is too far away. They blog and write several articles a year which typically reveal little deep thought. Every thing they do is reported as important. At the extreme it is almost a frenetic effort to make one more sale. Promoting oneself is far far more important than any idea. Ideas,  in fact, are passe.

These are the two ends of the law professor continuum -- the "life of the mind" and the "soap." I am not sure anyone fits at either end of the continuum although I think I have known  and know people close to the "life of the mind" including some on my own faculty.  Increasingly I know people crowding the soap seller model.

I have a bias against the soap sellers and I think this is not only because I am lousy at selling. To me they are like the kids in little league who hung around the coach saying "put me in, put me in, please coach" while others just worked their asses off in practice and quietly  hoped their work would be noticed. They made so much noise they practically drowned out anyone else.  On the other hand, the idea of the life of the mind in which little effort is made to connect with others seems wasteful especially in a discipline that is supposed to address real world events and problems.

I do not claim to know the right balance but fear the future means more soap. As long as the soap sellers are reinforced others will feel they must follow. Those who follow might be talented writers and researchers but will have little choice but to raise the noise level and this means less effort devoted to actually solving problems.

Mainly I see a parallel between the law school rankings race and the law professor "recognition race."
Think about it. Among law schools the tail began to wag the dog as they adopted policies to increase rankings without making sure it mean better teaching and research. With professors it's more articles, more presentations, more everything to advertise one's name regardless of whether there is underlying value. With law schools it meant fudging the numbers. Law professors pad their resumes and claim everything they do is evidence of recognition and influence. In articles they include meaningless footnotes or ones who do not relate to what they claim the cite supports. Law schools disseminate gobs of law porn. Professors look for every chance to have their photo in law porn and many many articles exist simply to exist and not because there is conviction and hard work behind them They are professor porn.

In the process  the underlying raison d'etre is lost unless there is value in simple being someone other have heard  of or being able to drop the names of those you claim to know you.

Antitrust Assassins

Antitrust law has increasingly become anti-antitrust law. This is generally the influence of those who claimed to be well-versed in economics but who apply basic principles inconsistently to favor big business.

For the most part we want businesses to compete by offering the best they can to consumers at the lowest price. Sometimes being competitive means also being anti-competitive or so the theory goes. In fact, most of the examples of this are duds but let's take the example of college football. The theory is the college football is a product and the market for sports entertainment is better for it. If colleges competed for football players by paying them, so the theory goes again, the rich schools would get the best players, beat all the less rich school and college football would not be a very interesting sport. So the schools can agree not to pay the players at all. That is their logic, not mine.  (There are other justification but they are even sillier than this one.)

The cost of having college football is largely put on the back of laborers who are not paid.  This cost is like the cost of uniforms, balls, and coaches except that those costs are absorbed in some measure by those who profit from college football. The cost of labor, though, is paid by the players, not by those who profit from their labor.  It is exactly like a producer of cars that pollutes, factories that put toxic substances in rivers or employers whose employees are injured because of unsafe work conditions. In economics the costs imposed on others are called externalities. The fact is that we have a massive network of environment regulations, tort law, and the like that force those who give rise to externalities to absorb them.

In every area but antitrust,  businesses are given the choice -- reduce the externalities or pay for them even if they make you more competitive.  In short, produce what you want but pay all the costs of production. Now a contingent of law professors and judges have decided that rule does not apply when it comes to the costs of anti-competitive activity.  It's fine for business to force everyone from football players to consumers to absorb the externalities. They do this my refusing to ask businesses to reduce the costs of their antitrust externalities  as much as possible. In fact, they argue against the position they generally support for other costs.

The message from these folks is to "trust business."  Yes, you know, like we trusted BP, Volkswagon, Enron, Exxon, and all the others who, in an effort to maximize profits, shifted costs to others. It is the nature of business to try to cut costs they have to absorb  to make a profit. On the other hand, why cut costs you impose on others, like the costs of  being anti-competitive.

Inconsistent is probably too nice a way to put it when thinking about why the anti-anti-trusters  say business should internalize all costs, even in the interests of producing better products, except when it comes to the costs imposed on the public by anticompetitive acts.

Make no mistake. These folks want to kill antitrust and their economic principles go by the boards when it comes to anticompetitive activity. Yet, don't you just know when looking for a car, house, or shirt, they want the best deal possible for themselves.

Class Bias In Sport: Academia and the NCAA

If there is better example of class bias in academia than support of any kind for the NCAAs exploitation of mainly African-American and relative poor 18-21 year olds I do not know what it is. And since most academics identify as liberals there is more than a smidgeon of hypocrisy. In fact it is the ultimate in unliberalness found on College campuses. Let's count the ways.


1. First is the wacky anti-trust matter. Although there are major cracks in the NCAAs wall of exploitation, it continues to insist that it is seller a different product (amateur sports) and increases competition. I guess if you were in the South in the 1850s and you found buyers who wanted slave-picked cotton and you joined other slave owners and agreed not to pay slaves anything you would be fine under the antitrust laws because slave-picked cotton competed with cotton picked by non slaves.  In effect, if there is a market for anything, even if it only exists through exploitation, capitalism gives it the stamp of approval. Of course, there is no real proof that there was a slave-picked cotton preference any more than there is a preference for football games played only by the exploited players, ( I am not using the knee jerk notion of exploitation but the actual official definition of exploitation -- look it up if you do not believe me). Nevertheless, at the top of the season ticket holders list you find college presidents and professors. And, many of them will even support the NCAAs right to keep on exploiting and desperately seek credit for it.


2. There is also the twisted logic. Why are football players amateurs? Because the people who hire them refuse to pay them.  Somehow it seems like being a amateur should be a choice. If you are forced to be an amateur are you still rightfully viewed as a amateur?  To me, amateur means you do not ACCEPT money. Being willing to accept money but having a club of fat cats refusing to pay hardly makes you an amateur in any meaningful sense.


3. I love this one.(not really). You have probably heard it: "They are paid. They get scholarships." Now if you really believe they are paid you are conceding that they are not amateurs. That's fine    but to be consistent you must actually mean "They are not amateurs but I oppose giving them any more money." Somehow those who make this argument run out of gas at this point. They have no argument for why the amount currently paid is enough or should not be determined by the market as it is in the case of their  own wages.


4. Frankly I am not sure where millions of dollars go from college football and basketball but I do know many college sports to not generate the revenue it takes to run them. So they are subsidized. Maybe the money does not go directly from football to the golf team but let's face it, the football money makes it easier for those sports to exist. Now let's think of some of these sports -- swimming, golf, tennis, lacrosse, etc. I am willing to bet that the kids getting those scholarships on average come from a much different socioeconomic class that the football and basketball players. Do academics have any objection to the redistribution from those less well off to those better off. If so, I have not heard a peep.