Low Income Admissions

The May 27 issue of the New York Times includes an interesting article about the efforts to colleges to recruit students from lower socioeconomic class backgrounds. The factors taken into account are family income, parents' education and occupations level. The article includes some stunning statistics. For example, 75% of the students at what the article calls top colleges are from the top 25% socioeconomic quartile. Only 10% come from the lower 50% socioeconomically. Yes, that is lower half. Yes, that is only 10%.

Perhaps more interesting is the that a study of 28 universities nearly 10 years ago revealed that affirmative action programs mainly attracted middle class or upper middle class. In fact, 86% of those admitted under affirmative action programs were from the middle or upper middle class. One wonders just how interested the schools recruiting black students were in diversity. It their affirmative action efforts were any thing like faculty hiring efforts I have seen, diversity actually means "not all that diverse." God forbid that the elitists who run higher education actually experience real diversity.

I should be happy to see the new lower socioeconomic class recruiting efforts and I am but the there is a lingering concern. Perhaps is the way the article is written and not the reality but the sense is that these lower socioeconomic class students are like curiosities. Will they fall out of fashion in few years?

Mr. Gonzales and The New York Times Rule

I have know about a generic form of the New York Times Rule for years. It came up in a more direct way a few months ago when in the midst of an admission by a faculty member that a faculty candidate had been invited to interview, in part, on a mistaken supposition about his race. In the course of the admission I asked if the faculty member would send an email confirming this. The answer, "I don't write anything down that I would not want to see on the front page of the New York Times."

Adherence to this rule is something the privileged learn at an early age -- from parents, teachers, big law firms?. When you think about it, it is not the New York Times rule that is the problem. It is the complementary rule -- "When you assert something that you may want to deny, speak it only." There is modern version of the NYTs rule that is the result of the proliferation of email. It says to ignore any question that one prefers not to answer. Think of it as taking the email Fifth. These are questions that would be answered if the interaction were in person. Somehow ignoring an email question provides the same kind of cover as the NYTs rule.

Why do the privileged prefer to disown what they say and how far does it go. For example, do observers of the NYT rule regularly lie in depositions or in public hearings as in "I do not recall having said that" ala Mr. Gonzales?

There is an economic explanation. People say and write things in order to get a desired response. It gives them power. If you can get the desired reponse at a low cost so much the better. In day to day communications, the "low cost" is saying things in a form that can be denied. The New York Times rule is yet another form of greed and excessive self-interest.

There is, however, another economic consequence. Wide-spread use of the NYTs rule means that what is uttered, as opposed to what is written, is something that cannot be relied upon. This raises the overall cost of communications.

Greeks 0, Choir 0, Umpire 0, Stakeholders -1

[Classbias Rerun]

It’s not often that you see a score like that but it does happen. I have seen it recently. This all goes back to my view that law schools are especially susceptible to capture by faculties who then operate them without much regard for stakeholders (students, donors, and the community).
Critical to the success of capture on this scale is log-rolling. When you get right down to it log-rolling is just another name for white collar, political barter. It all works fine for those who have captured a law school as long as there are goodies to which the rollers attach different values. For example, one group really wants a new LLM and does not care one way or another about foreign programs. Another really wants that new foreign program in Nice but does not care much about a new LLM. Each needs the other’s vote to get what it wants and, as long as there are sufficient resources, we have a bit of a Coasean happening. Eventually, years of relying on informal procedures that allow groups to get what they want through side deals and barter create expectations and can replace more formal procedures. If this School were a person his or her physician would be saying “I know you feel fine now, but … we need to talk.”

The problem is that log-rolling just does not work when the game is zero sum. This, I think, is the more important point for MoneyLaw and Classbias people. Leadership and formal procedures – determined in advance to be fair -- are needed. If a school that has no leaders and has, for all practical purposes, dispensed with formal procedures runs into a zero sum decision, the illness becomes evident and the harm spreads beyond those battling.

At my school we have experienced such nastiness. The Greeks – so named not for ethnic reasons but for sorority/fraternity close-knitness – wanted something really badly. The Choir – so named for singing together but having a limited repertoire – wanted the opposite. (Now don’t get the impression that someone is always a Greek or always a Choir member. There are floaters and pretenders who move in and out of each group, not unlike mercenaries--only the pay-off is social acceptance. These are the ones about which to worry.) In any case, these parties had made for some mutually beneficial log-rolling.

When the inevitable clash occurs -- as it did-- you get the score with which I started. In this case the Greeks lost. But so did the Choir because, in the absence of open and fair procedures, the losers feel betrayed and may not be as eager to log-roll on the next issue. The Umpire? If the Umpire does not show up what can you give him or her other than a zero? And, finally, when faculties make decisions through winks, nods and nothing in writing that you would not want in the New York Times, Stakeholders are in negativeland.

The Privileged Play with House Money

Some weeks ago I wrote about the market for tenure review letters on scholarship. The demand was composed to tenure committees interested in glowing over-the-top reviews with a legitimizing reservation here or there. The suppliers were the letter writers willing to play the game while complaining they have too many requests to handle. (You really want to cut down on demand? Be candid.)

I am wondering about the other market. This is the market for teaching evaluations. There are two types – some from students and some from class visitations. We all know about the market for high student evaluations. Teachers demand them and students supply them provided the professor plays his or her cards right. As far as I can tell there is no evidence that high evaluations are actually correlated with good teaching so, in this market, “playing them right” probable means something other than being effective and may require not being all that effective.

This leaves the written evaluations provided by class visitors. I am not sure it is fair to call this a market. I mean, is it a market when the suppliers are giving the laudatory letters away? In twenty years law teaching I could count on one hand the number of even remotely negative letters I have seen. It could be that the teaching is excellent on visitation days. (I have heard of an incident in which the faculty visitors discovered that the teacher was teaching the same material whenever they visited. You can bet that he had that day’s material down.) Or maybe it is really easy to be a good teacher – at least three or four days a year when you know someone is coming. If the tenure or promotion candidate is a social or political favorite, you can bet that those written evals are out of sight regardless of what went on in the classroom. What does it matter? Nothing to the Law professors themselves. They always play with house money.

Not "Getting It" and a Sense of Entitlement

A few posts ago, over on Moneylaw and here in different form, I wrote about the externalities produced and, thus, the lack of actual (as opposed to facial) collegiality faculty show to each other. I listed ways actual collegiality could be exhibited. I received a few comments on the Moneylaw post, one of which is below. I have reprinted it here because it so perfectly illustrates what I mean by a sense of entitlement among the privileged.

"I only can think of one professor who voluntarily teaches extra credit hours, although I know plenty who open up their wait lists voluntarily and teach more students.They wouldn't justify it on grounds that they need to make up for their lack of writing, of course, but they get satisfaction about receiving recognition in an area in which they do excel. I also know lots of professors who don't apply for sabbaticals (even though they could probably trump up a scholarly project to meet the requirement) and therefore effectively voluntarily teach more classes than scholars. Moreover, there are dozens of examples of non-scholars voluntarily assuming larger administrative loads, in part because they recognize their lack of recognition for scholarship and get more satisfaction in the administrative side. None of this is rare at all.Of course, this isn't to say there aren't bad citizens. It's just that there are some face-saving ways in which people internalize the cost of their failure to produce elsewhere."

1. So let's take it from the top: "I only can think of one professor who voluntarily teaches extra credit hours, although I know plenty who open up their wait lists voluntarily and teach more students." First, so what? What is an extra credit hour? The concept suggests a "right" not to teach beyond a certain level. A serious conversation starts with questioning how the right was established or earned. Evidently it does not occur to the entitled to question initial allocations that are beneficial to them.

But there is more. Notice the idea that it is a sacrifice to open up a wait list. The implication is that there is a "right" not to open it. Where did that right come from? The fact that the list can be opened suggests it was not for pedagogical purposes. The compentators "good deeds" consistently flow from an assumption that the status quo is just. In fact, the status quo is consistently the product of the entitled being generous to themselves.

2. I also know lots of professors who don't apply for sabbaticals (even though they could probably trump up a scholarly project to meet the requirement) and therefore effectively voluntarily teach more classes than scholars.

Same idea. Teaching becomes an act of charity when compared with not teaching -- an intial allocation of questionable legitimacy. At my school, at least, we have sabbaticals because voted to give them to ourselves. In addition, "trumping up" tells me all I know about the expected level of accountability.

3. There are dozens of examples of non-scholars voluntarily assuming larger administrative loads, in part because they recognize their lack of recognition for scholarship and get more satisfaction in the administrative side.

Really! Yes they may not be scholars so why stay in the job if they have found they cannot do it? Only in higher education is this possible. Oft times the administrative roles are manufactured centers or programs that do little. More importantly, usually the administration role means less teaching. Remember, this is the commentators example of selflessness.

Mainly I wonder where the sense of entitlement not to do all phases the job the faculty member promised to when hired came from. Actually, I am being disingenuous. It is legitimized by the similarly entitled who claim ownership to legal education and make sure to hire the similarly inclined.

Choir Practices and Paralysis

Pedro lives out of the wilshire hotel
He looks out a window without glass
The walls are made of cardboard, newspapers on his feet
His father beats him cause hes too tired to beg

Give me your hungry, your tired your poor
Ill piss on em
Thats what the statue of bigotry says
Your poor huddled masses, lets club em to death
And get it over with and just dump em on the boulevard

Lou Reed, "Dirty Blvd."

Law School choir people do not care for Lou Reed -- too raw and too much of a reminder that privileged people have no taste for dealing with the truly nasty. How can they? They define what they see through a special lens. It blocks some things, cleans them up and, most importantly, simplifies them. Dissonance is not tolerable.

So much for a law school as a truly progressive factor. So maybe they can be bastions of intellectual diversity -- lots of ideas bouncing around. Interesting theories, philosophies, and discussions. No dice there either. Just like getting dirty, the choir people do not allow it.

On these issues -- the lack of intellectual diversity -- I have no reason to think my school is different from many others. In fact, we could be better than others -- we have one admitted Republican and a couple of others who are suspect. This lack diversity is hard on lefties and the smattering of conservatives who are on a faculty. Who are we supposed to argue with and how do we test our ideas? How do you learn anything if everyone says the same thing? Writing for and talking to the choir is as boring as talking to a rabid pro-lifer about what constitutes a person – there is only one acceptable answer.

Why does the choir have so much power? It is hard to say but here are some possibilities:

1. Their first allegiance is to the choir. (Think "NRA" -- that is the appropriate model.) I see many non choir people vote for candidates for jobs who are likely to be choir people. On the other hand, I rarely see a choir person vote for a candidate who obvious is not a choir person. This includes instances in which the non choir candidate may actually mean additional diversity on the faculty. (In fact, choir people strive for the least diverse diversity.)

2. Choir people are found in the AALS sheets in higher numbers than lefties, conservatives and libertarians. Maybe this as always been true.

3. Many areas of specialization in vogue these day seem to attract choir people.For example, is anyone with the view (not one I have) that a few zillion species are extinct and we have not noticed the difference likely to be attracted to environmental law? (On this read Julian Barnes’ The History of the World in Ten and a Half Chapters, where we learn what many of us had expected all along: that there were two Arks and one was lost in the flood and, for the most part, no one has given it a second thought.)

4. The rest of the faculty. I have covered this in other posts -- one was on the knack of potentially influential faculty to hide from controversy, the other related an experience on my faculty that occurred when the usual log rolling did not work.

Will this change? I do not see why it would.

Ungrateful

15 April 2007

Dear Jeff:

I have been following your sniping and would not give you the benefit of a comment but I hold you personally responsible for the possible failure of the Summer Program in Italy.

Hugo Valenica, Supreme Vice President in Charge of Foreign Programs, and I (along with our wives Caroline and Marvelle) worked hard on this program. We traveled to Italy at great personal hardship -- including missing classes -- to find suitable housing, restaurants, and historical sites that the students could learn from and enjoy.

The idea, as you know, was that the professors would actually make the program student oriented. Thus, the classes would be done by video feed or (failing that) postcards with the students remaining safe and sound at home and happily eating at U.S. McDonalds and not Italian McDonalds. They would still "experience" the restaurants, sites, and the classes in Italy. This is just the type of program you should like -- we put students first!

Yes, the faculty did seem reluctant to approve the program until I indicated that we would be needing several guest lecturers to travel to Italy as part of the course. Then the vote was unanimous.

Thirty students had agreed to pay the bargain rate of $3000 each. This was just enough to cover airfares for the four of us (our wives had donated their time requiring only that their expenses be covered) and suitable lodging and meals for six weeks.

Now several of the students' parents have complained about the students not actually going to Italy. This is because they do not understand that the word "in" as in "Summer Study in Italy" has a variety of meanings. It is precisely because of type of misunderstanding that most educated people know to avoid by observing the New York Time Rule.

This time you have gone too far. I firmly believe you are the one who has complained about the program in Italy and you are, thus, responsible for the withdrawals, and the FTC investigation. I am offended by your lack of collegiality and your hypocritical disregard for the students.

Chadsworth Osborne Junior III

* * *

15 April 2007

Dear Chad:

Thanks for your note. I understand your concerns. I can assure you that I have not addressed the Summer in Italy Program. In fact, I continue to applaud and value your efforts on behalf of the profession.

Best,

Jeff

The Matrix

[Due to increased readership in the last few days, I am rerunning some earlier posts.]

I think everyone has seen the movie, The Matrix. If you have not, it portrays the battle between being "real" and feeling good. In effect, machines have taken over the world and cultivate humans as an energy source. They--the humans--actually grow in really yummy looking little pods. They are content because whatever consciousness they have is simply the result of a computerized reality.

Some bothersome Moneylaw-type humans are actually fighting for real reality even though it means some unhappiness. In the movie, the evil forces are those who want to perpetuate the sense of well-being. Thus, the movie assumes, counter to what the current demand for mood-altering drugs indicates, that we are instinctively on the side of those who fight for the real reality. The movie skips over a question that philosophers have addressed one way or another for centuries. Are we actually on the side of the real? Descartes saw the issue as whether our consciousness is imposed by some outside force or the result of our free will. The idea is reflected in Robert Nozick's Anarchy, State, and Utopia when he asks whether we would willingly enter an experience machine. In the machine everything is dandy, and you do not recall that you opted into the machine. Nozick makes the case that there are reasons for not entering the machine.

Most law professors seem to crave the painlessness of the Matrix. In terms of the experience machine, it amounts to a preference for sensing that one is part of a productive endeavor over actually being part of a productive endeavor. Having gone through the contortions necessary to change perceptions of themselves, their schools and programs, they then begin to take satisfaction from those appearances as though they were real. In terms of the film, it is comparable to constructing the Matrix or Nozick's experience machine and then happily jumping in. The pull is irresistible to many. Indeed, the unhappiest people I have known in the academic world are those who are unable to suspend their disbelief sufficiently to enjoy the illusion.

Some features of the Matrix are:

1. A new professor is asked to write an article for a symposium by a senior colleague. The article is called "peer-reviewed” because no law review students were involved. The article comes out and the senior colleague publicly congratulates the new professor and reviews the article for tenure purposes.

2. A popular faculty member is proposed for tenure. His teaching evaluations are good to average. His volume of scholarship is high. In the file is a negative letter from a national expert asserting, correctly, that 30% of the candidate's work is recycled from earlier work. After twenty minutes of laudatory commentary at the tenure review meeting, nothing is said about the negative letter and its claim.

3. Another popular candidate is proposed for tenure. She, her husband, and their children are regulars at faculty social events. Dinner at her house is always fun. Her teaching evaluations are average and class visits reveal that she is, at best, an average teacher. In addition, even though she has met the numerical requirements for number of articles to be granted tenure, most of her writing came in the last year. Both of her last two articles--one of which was a fifteen-page symposium piece she submitted at the request of a friend--were in manuscript form when evaluated. The tenure vote is positive.

4. A faculty member travels to Italy where he has family members. He proposes starting a summer program in Italy. None of the students at your school speak Italian, your state has little trade with Italy, and United States law would be taught at the summer school. At least two other faculty would travel to Italy, at the school's expense, in order to do the teaching. The program is approved by the faculty.

5. Your faculty teaches twelve credit hours per academic year. This translates into six sixty-minute teaching hours per week. A faculty committee proposes reducing the teaching load to nine credit hours per academic year and reducing the class period to fifty minutes. An acceptable basis for reducing the class period is "We would still comply with accreditation requirements. "

6.In the course of arguing for a candidate a faculty member who knows the candidate expresses pleasant surprise that the candidate has been considered. In the file that has been distributed there is a long letter from the candidate to that faculty member discussing the faculty member’s extended effort to recruit the candidate.

7. You have read this list and decide none of this has happened at your school.

Not Even Cake for Students

A few weeks ago, during the hiring season a colleage from and elite law school (which is a far cry from saying their graduates are elite) scoffed at another colleague for suggested that we interview some top grads from The University of Minnesota Law School and the University of Texas Law School. The scoffee, who is both brighter and better educated than the scoffer, is a public school grad. The insensitivity of the so-called elites is sometimes amazing. (By the way, when did the so-called elite schools stop providing elite educations? In recent years, I think I have noticed a correlation between privileged credentials and the inability to discuss virtually anything but a narrow area of expertise. Not all, of course, but enough to make me wonder what the hell actually goes on in the classrooms at Princeton, Harvard, Yale and the others. )

That incident made me think of the damage done by the privileged and others with a sense of entitlement. On a day-by-day basis the cruelties that occur are frightening are astounding. Here are some examples:

1. A student from a foreign country for whom English is not even a second or fifth language approaches the teacher for help understanding some complex material. The stress the student is feeling is palpable. His enrollment was not an inexpensive thing -- for him at least. You might ask what he is doing here. Well, a small group of faculty members, sometime ago, decided to start a program for foreign students to come and study American law. A handful apply and only some of those admitted are comfortable with English. What did this mean for the quality of the school or for the fortunes of those enrolling? No one knows and after several years, no is interested in checking because that is not the point. What did it means for those who created it long ago -- almost all of whom have moved on? Travel at the school’s expense spreading the news of the Program, a better office, a secretary, something to list in the decanal glossy. And, with that comes lowered expectations as far as teaching and scholarship -- ironically, what we are paid to do.

2. A number of students get to the middle of their third year with average grades (B+ or so) and they have no job offers. The School starts a new program – a specialization that takes an extra semester. Students sign up thinking this will mean a better chance of finding jobs. They are wrong and the School knows it and makes little effort to determine the benefits of the program. The cost to students is high. What is in it for the capturers? An office, the title of “Director,” lowered expectations as far as teaching and research, a chance to promote a speicalized political agenda, travel opportunities to conferences devoted to the specialization, and perhaps most importantly, something to list on the decanal glossy.

3. Every professor reading this has experienced this one. A student comes up after class – probably near the end of the term – and asks THE question. Sadly, the question is the one that communicates to you that the student has no clue and that he or she is not going to get one between now and the exam, if ever. Further conversation reveals that the student had a pretty good job before law school. Then loans were taken out, his or her spouse is working, and the kids are in daycare, all in order to realize the law school dream. You wonder, first: is there anything I can do soften the crash? Then you wonder why the student was admitted. Was it because you admit 400 students every year no matter what? Or, was this particular student important – even if only as a token – to the law school? Sadly, admissions numbers are based on the number of seats in the room and not on the basis of the likely success of those admitted.

For many privileged law professors, students are a means to an end.

Facial or Substantive Collegiality

I have written about collegiality before from a different slant. My point was that when a law professor complains about the collegiality of someone else, at least half the time it is about the substance of what has happened and not the manner of handling it. And, if appeals to collegiality are bogus 50% of the time, it's hard to take any of them seriously.

But there is another way to look at collegiality. It is like this: A lack of collegiality is present when one member of the community causes an externality (imposes costs on others) with impunity. By "with impunity" I mean without regard for those affected. This gets to the point of distinguishing facial collegiality – hey, let’s have lunch, etc. – from substantive collegiality. By substantive collegiality I mean not heaping the externalities of self-interested decisions and demands on other professors and staff.

For example, take the summer teaching issue at my law school. The appeal by the administration is something along the lines of (I am paraphrasing) “We have very generous summer research grants and we also try to operate a robust summer program. If you have not taught on campus in the summer recently, please consider teaching this summer." The number of takers of 60? When you subtract people on retirement plans that calculate payments based on most recent years’ income, the number of takers is 5. In effect, those choosing not to teach leave it to others to maintain the program.

Or how about the constant push to teach as few hours as possible and to cap class size. (Interesting, isn't it, everyone of these people professed to love teaching when interviewing.) At Florida, for example, we’ve got 1100 student who need 88 credit hours to graduate. If you happened to get your own teaching load down to nearly nothing and then cap your classes at 20 or 25, who do you suppose is doing the teaching? This is another externality. Yet I know of no professor who has said. “I see Phil is teaching first year contracts and Evidence and a total of 200 students. Why not divide up that contracts sections and I will teach half of it?” Or when is the last time you have heard a dean say, "Joan, I just do not feel allowing you to teach 40 students a year is fair to your colleagues." Smile and it’s facial collegiality. Dig in and do something and it is substantive collegiality.

Some other routine practices are cancelling class one or two days before holidays. You feel great! What a good guy you are! So understanding! Who feels the pressure from the students when that happens – your so-called “colleagues.” Externality.

Can’t be on campus more that day or two a week? Guess who has to teach the other days to accommodate your schedule? Or who has to arrange his or her schedule to have committee meetings on your days? Your colleagues! Externality.

Can't possibly teach other than from 10-2 Mon. - Wed or Mon. - Thurs. Fine, It's yours if you whine enough, but someone will have another and less desirable time. Externality.

Giving a 3.5 GPA to students who are no better than those taught by your colleagues? Guess who the students are saying the poor teachers are? Externality.

Are you an administrator who prefers to close your eyes to this? Pleeeeze! Don't be surprised if the collegiality level is low on your faculty. You are an externality facilitator!

I'll take appeals to collegiality seriously when they focus not on the delicate people who are offended when they hear anything less than fully affirming and more on the indifference colleagues have toward their coworkers. Facial collegiality is easy. Substantive collegiality requires effort.

The connection between a lack of collegiality and externalities leads to a series of addtion thoughts:

1. How can people who teach so much about property rights, and identifying and reacting to externalities not understand the implications of those teachings in the context of the day to day life of a law school.? Is it another case of avoiding any analysis that creates dissonance? I see this all the time in scholarship so it makes sense that it is at work when assessing one's own behavior.

2. How far does the failure to internalize have to go before a law school begins to experience something like the “tragedy of the commons?” Here it is a bit tricky. It may not be that the “sheep” go out and find there is little to graze on. Instead the output is a bit different – students who are not as prepared for the bar exam or for practicing law as they should be and the amount and quality of scholarship declines. Plus, real as opposed to nominal collegiality falls.

3. To an economist, any cost imposed on another is an externality. On the other hand, it is only when law comes into the picture and defines rights that it has a practical meaning. This is because, in the absence of private contracts (hard to do with 30-60 people), or a solution to the prisoner’s dilemma (not solved on my faculty at least), clearly defined rights and enforcement are essential.

This is, of course, where deans come into the picture. Without clearly defined – not made up on an ad hoc basis – rules that everyone understands and which are backed by sanctions, the feeding frenzy is on and the commons is doomed.

This may sound like a tall order for administrators. Maybe, but shouldn’t the overall health of the law school be their highest priority? Ironically, consistent with my usual tendency, I have painted a relative positive a picture here. Rather than “rationalizers” of the commons by which I mean bringing order to the commons, many deans facilitate its destruction by avoiding controversy, rarely saying no to an externality producer, having no predictable standards, refusing to take responsibility for what happens under their watch, and taking actions that will pit one faculty member against another.

Interesting that the "nicest" administrators and faculty members may actually be the most destructive to the commons.

Institutional or Self Promotion?

If you are in law teaching you know the biggest job of many deans and the decanal team is to raise money. One of the tools is the “decanal glossy” – the flashy magazine that has no purpose other than to make alums feel happy to be part of the team and to open their wallets. It’s not a bad thing and hardly deceptive. Everyone knows the story. Most law schools have other publications – weekly newsletters, announcements of new hires and visitors, dedication notices. Entire forests die and go to the recycling bin in the interest of this process. Let’s call it what it is – marketing.

The hitch in the process is that there is always a faculty section in which current activities – mostly self-reported – are included. If you are really interested in good marketing, is there a line to be drawn? For example, what if a faculty member is simple quoted in a newspaper. Is that likely to impress anyone? Or suppose someone has said something so silly that potential donors are offended? Does that go in? How about publications in journals that would not impress a single person in the law teaching profession?

It is in the faculty activities section that self-promotion and institutional promotion clash. Is there a danger that a School that treats every possible faculty activities as noteworthy actually begins to look unimpressive to potential donors and law faculty at other schools? I think so. In fact, some of the entries in my School’s multiple publications and that of some other schools carry an underlying message which is: Reader, we assume you are stupid enough or unworldly enough to actually believe this is a mark of achievement.

Many faculty have an unlimited need to self-promote even when there is no “promotion” there. Deans have to decide: Do they want to do impress alums with real achievements or do they dilute the image of their law schools by never saying no to faculty self-promotion.

Over Affirmed

Some of you may remember the child rearing fad of a few years ago. In involved reinforcing feelings. So, little Tommy could pull the wings off a butterfly and the proper parental response was "Oh, Tommy, you pulled the wings off a butterfly. I bet that butterfly made you really angry. Now you feel better don't you?" Or little Tommy brought a home a math test - simple addition -- and got 2 of 20 right. The teacher's comment: "Tommy is a very imaginative mathematician. I predict he will be a physicist."

Now we have it going on with Law School faculty. Everything is great. Everyone is congratulated no matter how lousy the job done. Just like little Tommy who is a terror in day care -- where he is deposited daily -- faculty begin to think they can do no wrong.

Had a lousy class? Not your fault, they were not prepared.
Writer's block? Not your fault, it's the undue pressure you must deal with.
Not making up missed classes? What can they expect? You are only human.
Hogging a book that the library recalled three months ago? Hey, you may need that book some day.
Need a reduced teaching load? Of course you do!! You have not found any butterflies to torture lately.

Too Smart

Over on Moneylaw and elsewhere a discussion has started about the relevance of legal scholarship. Maybe there is a bigger issue. Other than teaching, how much of what law professors do is only relevant only for each other? Sadly, I woul say about 57%.

Here is the catch. Being a law professor is only in part about teaching, research, and service in the interest of making others better off. Instead it is an exercise in self justifcation and one-ups-man-ship. Something along the line of "I must be important because Professor Jones at Elite Law School spoke to me at the annual meeting on Post-Natal law." Ego, that is.

The fact is that you de not have to be very smart to be a good law professor. Just being a little smart and preparing for class will be fine for the teaching part. Most students will be far behind. Not all mind you, but most. On the scholarship side . . . Can we talk?? There are no concepts in law that tax the brain like those found in economics, math, physics, engineering. Zero. Any halfway decent law teacher can teach any law course given enough time to prepare. There are very smart people in law but what does that mean? It means they need to write really smart articles in order to impress other people who are also smart -- way smarter than necessary to do everything a law teacher needs to do. And so there is a awful lot of self-indulgent ultimately irrelevant writing.

Needy Deans

Over on MoneyLaw the role deans play in the allowing faculty to fleece law school stakeholders -- students, taxpayers, contributors has been covered although in more gentle terms. I think it is fair to say that the the oft stated idea of "dean as an agent of the faculty" or "to serve the faculty" is the type of thinking that means disaster unless the faculty happens to have internalized the goal of giving stakeholders a fair shake.

The problem is that deans choose to act as though their faculties fit that description when they do not. And they know that about their faculty but do not want to deal with the reality. What goes into the thinking of people who choose to be deans and then adopt the head in the sand approach to deaning. Please note that not all take approach. For example, sometimes a faculty that is underproducing would like do to better and is looking for a leader. Other deans may not take that approach and be looking for a job in 2-3 years.

Still why does someone ask to be a dean knowing -- at least at some level -- that their job will be do accommodate an underachieving faculty. In fact it is worse, the job is do deflect scrutiny of the faculty. My hunch is that three ingredients are necessary to make for the "needy dean."

1. A lackluster career as a scholar. This means little job satisfaction as a regular faculty member and a mid life crisis type reaction. This person should not have opted for an academic job in the first place.

2. Money. I do not know what Law School deans make but there are few instances in which it is not significantly above what they could earn as faculty. In there academic careers they are going no where (at least in their own terms) and accepting a deanship means an instance substantial life-style affecting salary increase.

3. A infinite capacity to rationalize. I do not think most failing deans are dishonest. What they do have in common is an ability to see virtually everything a faculty does as a good idea. Of course, it is only a good idea because this approach reduces decanal dissonance.

Obviously if the stakeholders had a say "needy deans" would not be hired. The frightening thing is that a complacent underachieving faculty is looking for exactly this type of person.

Let's compare it to a corporation. The faculty are like the sales staff padding their expense accounts only the form it takes is minimal teaching loads, low enrollments, condition-free summer grants, low scholarship levels. The needy dean is like a CEO who knows the story but is frozen because he or she is, well, needy.

Law and Economics True Believers

In my experience there is a correlation between those who scoff at law and economics and having a privileged background. Yet, ironically, these folks turn out to be the true practitioners of the teachings of law and economics. Or, more accurately, these are the people who best fit the economist's assumption of narrow self-interest.

I have already discussed the guilt free, free-riding tendencies of the privileged. The key is to never ever risk anything in the interest of the community. (And it is hardly a risk to grandstand about an issue close to the hearts of the choir.) In addition, they take no risks even in their own interest if there is a chance someone else will.

The other characteristic of the practitioners is that they are massive externality producers. They are always angling for the law teacher's ideal -- the 0 credit teaching load. If not that, then classes capped at low numbers, few preparations, classes on one or two days a week, etc. They never leave a penny on the table. All of these demands (opps, excuse me, the privileged do not "demand," they "require") mean more work for others. Or, they mean hiring more faculty. Either way, their pursuit of a life of leisure or of doing what they decided they want to do, whether or not it serves the interests of law school stakeholders, is costly to others.

One of the way these requirements manifest themselves is the treatment of those who are lower on the law school pecking order. At my school, when a staff person is mistreated there is a 90% change the faculty person involved is one of the privileged ones.

It appears the privileged and especially privileged members of the choir behave like the economist's economic man far more than any actual law and economics true believers do.

Privileged Insanity

Law professors are well aware of the idea of "not guilty by reason of insanity." The idea is the person who is accused of a crime is not guilty for purposes of criminal law if, due to some psychological impairment, he or she can not appreciate the different between right and wrong.

It seems possible that the same analysis could be applied to the privileged. In particular, is a sense of entitlement analogous to a sickness that removes from privileged people a sense of guilt that, if present, would mean their behavior might change? We claim to treat those whose insanity results in violating criminal laws. No such treatment seems to be available for those with "privileged insanity."

Here are three examples from legal education but can there be any doubt that the best example from outside legal education is George Bush and his insane war.

For a while at my school professors taught and graded members of their families. When finally challenged they were offended. Believing that it is "right" to have family members in one's class is, well, crazy. If the display of being offended by the objections was sincere, one can only surmise that they could not understand the difference between right and wrong. This insanity is explained not by deprivation but by excessive affirmation.

A student and graduate of an elite school gets an A on an exam with a 2200 word limit for answers. He writes 2900 words instead and his grade is lowered to a B+ . The student is incensed that he did not get the grade he earned. Parents call the school, emails are written, complaints are lodged. The insanity of being shocked not to be held to the rules that apply to others can only be explained by the conviction that one is special. The sense of entitlement again can only come from years of excessive privilege.

A law professor proposes a special program but, in doing so, does not disclose his own personal and financial ties to the overseas site of the program. It may not occur to him to do so, although on a daily basis we read about conflicts of interest. If it actually does not occur to him he obviously lacks the ability to tell right from wrong. This again suggest a history of being taught he is different with respect to observing everyday standards of honesty.

Again, the inability to distinguish right from wrong is hardly an affliction only of those on the wrong side of criminal law. It is regularly found among the privileged. Maybe a year or two of treatment is just what they need.

Privileged Behaviors

At a faculty meeting the other day, a professor got up and reported that one professor had slapped another one. It was a way of criticizing the Dean for not punishing the alleged aggressor. The actual event had occurred several weeks ago, the Dean knew about it, undertook an investigation, and evidently decided the “slap” was something far less serious and that at some level both parties had left much to be desired with respect to their behavior.

But “the slap” is not the point of this post. Instead is that when the faculty member arose to repeat his version of the event there were people in the meeting who knew all that I have written here and remained utterly silent. That is, they permitted a person to state facts that they knew were inaccurate and harmful to others but there they sat. Not a word.

Increasingly, I think this is yet another characteristic of the privileged. Far more than those less privileged they are likely to remain silent, allow others to suffer, and avoid controversy.

If you believe in cost benefit analysis, what is the cost to the privileged of sticking their necks out from time to time? First, they never miss a free riding opportunity. The wise course of action for these folks is to wait and see if someone else will take the plunge. Second, for the privileged, controversy itself is a cost. It does not matter what the cause is. If there is any chance of a “fight” they disappear.

When you think about it, this is the essence of being privileged. Being privileged means having a sense of entitlement. If you are entitled it is unseemly to try too hard, stick your neck out, or appear to want something too much. The status quo is that you deserve what ever you want. If they ever slip up it is to complain that you have encroached on their scope of entitlement. Thus, their response to confrontation is that you have insulted them or distrusted them or behaved inappropriately. In other words the issue is your treatment of them – not the real issue.

Equations: Tops in Shame

Ever wonder what accounts for the inability of privileged people to see what the opportunity costs are of spending (usually someone else's) money on things they find convenient? Or is it that they feel entitled to these things? Here are some examples that make my jaw drop, and I am sure I am only scraping the surface.

1. UF's new $20 million Law building. In a perverse application of a peak load planning strategy the building is only used to capacity from about 10 AM to 2 PM, Monday through Wednesday. Nights, weekends, evenings, Thursday, Friday, summer, late afternoon? Pretty empty. So why is this? 30 or so professors like to teach not too early, not too late, and they like to get an early start on the weekend. No one has the you know whats to tell them no. By saying "no" a few times and moving around a few classes, a $10 million upgrade would have done the job for years to come.

Is there any way $10 million could have been used to increase the welfare of Floridians more than an empty building? I am tempted to say virtually any way would have been better but, in fact, in Alachua county, the home of UF, 23% of the population lives below the poverty line. Let's see . . . a $20 million Law building built to accommodate a handful with money that could have provided housing for 200 families? That can only makes sense to those with a sense of entitlement.

2. The most egregious if not for the fact that it is relatively small: $30,000 - $40,000 a year for a program that involves flying UF law professors to Poland to lecture Polish students about American law. The aspirations of those those students -- to get jobs with big law firms. Thus, in a bizarre system of redistribution, funds flow through the Law School to multinational law firms who are evidently too cheap (or too wise) to invest in Polish students themselves. I guess UF could just write a check to those law firms with the understanding that they would train Polish students. That would be great news for the 23% in Alachua county who are without adequate medical care. Not!

3. This is an estimate but, having been part of the process, I would say that the effort to recruit new faculty at UF Law this year cost in excess of $100,000. There are trips for committees, lodging, meals, candidate visits, catered meals, etc. The net result is one hire of one beginning professor who will not teach a full load and will receive summer grants for six years. And, it is not clear that the professor had offers from a single other school. He may be great and I think he will be, but did it take $100,000 plus to land him?

So what could done with $100,000 other than flying faculty to and from recruiting conferences, feeding them at the most expensive restaurants in town, and paying the highest airfares?

I have a hunch that the 23% living a few miles away could answer this. Of course, no one asks them nor do they ask themselves: Is this the best use of other people's money?

Follow the Money

Does the idea of following the money have any application to legal education? Not directly but the theme can be applied.

In its conventional form the question means who benefits from a misdeed. In the law school context the question is “who loses the money if misdeeds are corrected.”

The misdeeds I am referring to are (for some but not all schools) a lack of interest in seriously evaluating teaching effectiveness and deliberately sloppy scholarship reviews at tenure time. You know what I mean, internal reviews written by log rolling buds and shopping in the easy letter market for outside reviews.

Who gets the money? That’s easy, legal education is controlled by the graduates of a handful of elite law schools and law professors are disproportionately from the privileged classes.

My hunch is that if Moneylaw principles were adopted – which I take to mean hiring, promotion, tenure, and raises based on rigorous and objective evaluation -- there would be a shift of the “money” from the elites to the non elites.

Could I be wrong? Of course I could be but the elites generally seem to agree. When is the last time one of them aggressively advanced an agenda of honest teaching and scholarship review? Why take the chance when the system is rigged in your favor?

Chicken Fingers

I saw a bumper sticker yesterday that read:

“A working man who votes Republican is like a chicken who likes Colonel Sanders.”

I personally think this is true but, if you live in the South and many other places as well, you know it is not a slogan that most people pay attention to.

What makes working class people vote so often for politicians who promote the interests of their bosses? So-called liberals chalk it up to racism because this helps justify their lack of interest in class issues.

I think there is a different, more subtle, explanation. For whatever reason, the “face” of the Democratic Party is one of elitists. After all, Bill Clinton tried to appoint to his cabinet Zoe Baird, half of a $600,000 a year couple who were willing to pay only $24,000 to the caretaker of her only daughter. Rock stars, movie stars, glamorous authors tend to be Democrats and behave in a way working class people regard as immoral.

The Democratic image problem seems unfair because there must be as many elitists and rule-benders among Republicans. But Republicans are perceived to be less likely to use bad language, more likely to go to church, and to listen to country music, and more likely to fly an American flag with pride: cultural mores that working class people tend to share.

But the problem is not which party has more elitists. The actual problem is two-fold. First, Democrats have become progessively less interested in class in the last 50 years. Second, even if they claim to be advocates for the "working man," they are woefully ignorant of the what it means to be a working class person in America. A law professor would have no idea, for example, what it would be like to get up at 7:00 and return home at 6:00 after a day of physical work - no leisurely visits to the faculty lounge, no extended gossip sessions, no time to go to the dentist, etc. A law professor could not conceive of living on $15.00 an hour or his/her spouse bartending nights to make ends meet or worry about the price of ground beef or deciding to eat hot dogs once a week in order to make ends meet. They tend to shudder at things blue collar.


I watch this process play out at my job. I think I am pretty good at spotting the very few working class students who filter into even a state law school. It is profiling to be sure, but they are more likely to have acne scars, poor dental work, out of date hair styles (no mullets thank God) and to be overweight. When the first “dress up” occasion is held, the men and women are more likely to look like they read “court attire” to mean “Scarface attire.”

As these people move through law school, they get a belly-full of “liberal” indoctrination that is at best class-neutral and probably anti blue collar. When it comes to research assistant positions they are befuddled by why they were not chosen and Ms. Perfect Smile is. And when profs chum it up with students, you can bet it is not with the students who have even a smidgen of working classness about them. Perhaps this is understandable: people are more comfortable around those who are like them. So much for "embracing diversity."

Who would get your vote. Someone who does not care about you but is honest about it. Or someone who claims to care but actually finds you an inconvenient reminder of his own hypocrisy?

Entitled to be Sure

When you live in the land of the entitled there are little signs here and there of priviledged lives. One of the obvious ones is the faculty lounge. If your school is fortunate enough to have the funding, you probably find coffee, fruit, and a vaiety of pastries and breads in the lounge each morning. By afternoon is is gone replaced by banana peels, apple cores, muffin wrappers, spilled coffee, dirty cups, and the like. The trash can is 10 feet away but the assumption, I suppose. is that someone else deals with the trash.

Is leaving your trash around the worst of academic sins? Hardly. There are many more that actually make shareholders (students, taxpayers and donors) worse off than necessary. On the other hand, is there any better indication of a sense of entitlement and the likely consequences of that sense in other areas of one's life than leaving trash for a secretary or someone else to clean up?

Opps, You did it Again!

Dear Jeff:

I see you have posted another of my letters in strict violation of the New York Times Rule. If you had read my blog, you would understand the need for the rule especially among those of us who value our personal integrity – obviously something of little importance to you. But I challenge you. Who do you find more trustworthy: Someone who does not write anything down in order to maintain his or her flexibility or someone who does write it down because the truth is the same no matter who the listener is? I rest my case!!

Since you have violated the rule and posted my letters – something I trust you will not repeat – I must clarify something for your paltry band of readers and others who mistakenly find their way to your blog.

I mention this because I promised Hugo to clarify. In my letter I indicated that Hugo is “vice president in charge of international programs. He is, in truth, “senior vice president of in charge of international programs.” He was terribly hurt by your omission and I promised to publicly apologize.

I am happy to apologize in light of the exciting summer program he is setting up in Rome. It is beyond splendid and something that would appeal to moneylaw types.

The program is open to as many students who choose to sign up and tuition is quite low – it just covers the cost of the program (important to you, I know). Hugo and I (Caroline and Marvelle will accompany us) will offer the course in Rome. That is, the four of us will go to Rome. The students will actually stay in the United States. What could be more student sensitive? We will lecture from Rome -- twice a week each -- using a video feed. In addition, will "take" them on several guided tours and even invite them to our meals. They will have intimate contact with Rome, Romans, and Italian law without all the messiness of actually going to Rome. Instead, Hugo and I will do the heavy lifting.

Ciao!

Chadsworth

Ghost Article

Dear Jeff:

I noticed that you have posted my letter to you on your pathetic blog and I fear your misguided effort is designed to ridicule me and my colleagues. I am sincerely amazed and fear for your well-being.

You seem to have the impression that the worth of a law professor is determined by what he or she does. In fact, the true worth of a law professor is determined by what he or she is. Law school hiring committees know this. Take for instance your own which, with minor exception, interviewed only candidates from elite schools.

Nevertheless, even if I accepted your view that doing is more important than being, we (my similarly credentialed colleagues and I ) do so much more. Just this morning in the faculty lounge I was able to set my colleagues straight about the quality of one of the candidates the faculty had mistakenly given a very positive vote. Luckily my dean seems to understand that is best to listen to those of us who are connected and not to the vast majority of the faculty.

And then this afternoon I did some important consulting with Hugo Valencia, vice president in charge of intenational programs. Yes, it was over tennis and drinks and, yes, Caroline and Marvelle, our wives, joined us, but many important and productive things were said. I should have invited one of the assistant professors to transcript our discussion. No doubt it was worthy of publication thus I will list it as a “ghost publication” on my resume.

Time to rest. Don’t you agree.

Chadsworth

Letters: Tough Day

I got this letter from a privileged law prof friend:

Dear Jeff:

Another crazy day. It was nearly 10:30 before I finished the Times and my latte. Class was at 11 and there was no way I could make it, what with the headache I may get later, so I call in and told my secretary to read my notes to the group.

By the time I got done with all of that it was time for my massage. Then lunch. In this job it's one thing after another but I did have time to drop by School to get my mail and visit with some colleagues. We got caught up in a discussion about the best hotel to stay in during International Law Conference in Paris this spring.

I finally left school at 3. Whew, what a day! I barely made it to the gym for my racketball game with Phil.

Next thing I know it's 5 and time to unwind with a glass of wine.

I tried to take some "personal time" later but Caroline wanted to see a movie so off we went.

Maybe tomorrow I can kick back a bit.

By the way, you can check out my new blog PrivilegeLaw.

Best, Chadsworth

Privilege and Product Development

One of the advantages of being privileged is rarely being wrong. This plays out in law schools with respect to the “products” law professors offer or sell to students and others. The “products” are actually “programs” including student run publications, LLMs, certificate programs, centers, institutes, foreign programs, and probably some things I do know exist.

Car makers with massive market studies make mistakes with respect to their product lines. So do clothes designers, pharmaceutical manufactures and restaurants. I guess they should hire law professors who, with practically no market analysis, get it right every time. Of course there is another interpretation. In conventional markets, demanders and suppliers occupy different sides of the market. Law faculties tend to occupy both sides of the market – they supply the programs that they demand and are lucky enough to pay for what they demand with the money of others.

Consequently, my objections are not to the products per se but to the lack of care taken in establishing them and, far, far more importantly, the virtually impossibility of discontinuing them.

Let me give an example or two of how this plays out. One is about the life of a program. The other is about the difficulty of reexamination. At Florida we have a summer teaching program in France. It is also far from our worst (or best) program and I use it here as an example. The director (who goes every year) takes another professor and 20 or so students who respond to what seems to me to be a massive advertising campaign. The program was approved at a summer faculty meeting over ten years ago with 17 people in attendance. (Our faculty numbered over 50 at the time.)When a lack of a quorum was mentioned, the dean replied that everyone knew about the meeting and could have come if they cared. The meeting likely had been selected so supporters would outnumber detractors. They did, but barely. Years later the program still exists and, ironically, the current director was one of the principal detractors. The costs and benefits of the program and the quality of the program have never been seriously examined. The enrollment remains low and there are many other similar programs offered by other schools that our students could attend. In effect, it was established and continues to exist on a whim and it can hardly be something that elevates the School in any ranking or offers an opportunity to students that they could not get elsewhere.

On the inertia problem. A few years ago a former dean appointed a committee to review all of our programs and to make recommendations on whether any should be discontinued. Among those appointed to the program were some faculty with the most to lose if any serious changes were make and some faculty of the Making Nice, Knowing Better, Doing Nothing ilk. (I should add that instances in which others might think in terms of recusal are looked upon as opportunities on my faculty and I would guess many others as well.) The committee worked and argued and worked and argued some more. That dean moved on and was replaced. The new dean wanted no part the controversy that is invariably necessary to bring about change. He distanced himself from “program review” and turned a deaf ear to complaints that the directors – within in his administration -- of the programs under scrutiny had not reported their costs. (A charge he later conceded was true but the administrators remained.)

After two years, a report was written. The faculty voted not to consider it but to allow it to serve as something for the Dean to keep in mind. To say that the report was tame is an understatement. No programs were to be discontinued. There was a mild suggestion that one program should be increasing transferred over private funding. Years have passed and nothing became of it. In fact, in 25 years, as far as I know not one program of any kind had been eliminated or, for that matter, come close to it with the possibly exception of a “Summer School in Poland Program.” Again, I doubt we are different form other schools.

Once a program is established, people become attached it and are deeply vested. Efforts to examine a program are taken personally. Any attempt to overcome the resistance to examination is met with the charges of “uncollegiality.” “Owners” avoid evaluation of others for fear their will be the next to come under scrutiny.

This is what happens when the merits of what the privileged do are assessed by the similarly privileged.