An Elite Education

This article by William Deresiewicz is so thorough and consistent with my own experience that to quote a couple of high points does not do it justice. Nevertheless, here are some blurbs:

"Elite schools pride themselves on their diversity, but that diversity is almost entirely a matter of ethnicity and race. With respect to class, these schools are largely—indeed increasingly—homogeneous."

"I learned to give that little nod of understanding, that slightly sympathetic “Oh,” when people told me they went to a less prestigious college. (If I’d gone to Harvard, I would have learned to say “in Boston” when I was asked where I went to school—the Cambridge version of noblesse oblige.) I never learned that there are smart people who don’t go to elite colleges, often precisely for reasons of class. I never learned that there are smart people who don’t go to college at all."

"I began comparing my experience, and even more, my students’ experience, with the experience of a friend of mine who went to Cleveland State. There are due dates and attendance requirements at places like Yale, but no one takes them very seriously."

And now the most perceptive. I've often wondered if I am the only one who noticed this.

"Being an intellectual begins with thinking your way outside of your assumptions and the system that enforces them. But students who get into elite schools are precisely the ones who have best learned to work within the system, so it’s almost impossible for them to see outside it, to see that it’s even there. Long before they got to college, they turned themselves into world-class hoop-jumpers and teacher-pleasers, getting A’s in every class no matter how boring they found the teacher or how pointless the subject, racking up eight or 10 extracurricular activities no matter what else they wanted to do with their time. "

This passage reminds of the opportunistic Tiger Mom (what ever happened to her?), the self-professed non thinker. I also reminds me of not all but so many people I see entering law teaching. Many are poorly educated in any sense that allows them to think or talk about ideas.

Desensitivity Training for Travelers to France

I am a sensitive guy and do my best not to stand out too much in other countries. To this end I am preparing a new training course for all us sensitive people. Like most American men I've been taught that, when it comes to women, "no" means no. In fact even yes can mean no. Never say anything like "Your legs look peachy in that dress." And flirting in the work place is completely off limits. This is a very easy one for me to observe since I am not sure what flirting means exactly.

But for sensitive academics traveling in France this is all wrong and so some desensitivity training is in order. Evidently, in France, it is perfectly acceptable to assume that no means yes. And, if you do not comment on those dreamy, peachy legs, you may be insulting your host and hostess. (I feel certain that in France the use of the ess is acceptable, if not required.) I am not sure I can get all of this down without some lectures by real French people who have lived with the American respect for women. I really need to feel their pain, understand just how they feel and, specifically, I need to know about the every day unconscious things I do that are hurtful to them.

When I am finished with that I will work on advancing the criminal law with the adoption of the affirmative defense to sex crimes -- But I am French.

New Yorker Book Review

A short excerpt from a recent New Yorker book review:

Few people are fully reliable reporters of time use. But if students are studying less it may be because the demands on them are fewer. Half the students in the study said that they had not taken a single course in the previous semester requiring more than twenty pages of writing. A third said that they had not taken a course requiring more than forty pages of reading a week. Arum and Roksa point out that professors have little incentive to make their courses more rigorous. Professors say that the only aspect of their teaching that matters professionally is student course evaluations, since these can figure in tenure and promotion decisions. It’s in professors’ interest, therefore, for their classes to be entertaining and their assignments not too onerous. They are not deluded: a study carried out back in the nineteen-nineties (by Alexander Astin, as it happens) found that faculty commitment to teaching is negatively correlated with compensation.

Still, Arum and Roksa believe that some things do make a difference. First of all, students who are better prepared academically for college not only do better when they get to college; they improve more markedly while they’re there. And students who take courses requiring them to write more than twenty pages a semester and to read more than forty pages a week show greater improvement.

Read more http://www.newyorker.com/arts/critics/atlarge/2011/06/06/110606crat_atlarge_menand#ixzz1OnBeV0tA

The Matrix Revisited

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 faculty member goes all out to be appealing to the students. Assignments are modest, demands in class low and there is plenty of outside of class mingling. The professor's teaching evaluations are very high and he concludes that he is an "effective teacher."

3. A new course is proposed and the faculty considers whether it is a 3 or 4 credit course. One argument in favor of labeling it a 4 credit course is that it could then be regarded as a full assignment for the faculty member teaching it.

4. 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.

5. 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.

6. 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.

7. 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. "

8.In the course of arguing for a candidate a faculty member who knows the candidate expresses pleasant surprise that the candidate has been considered by the appointments committee. "What a wonderful coincidence." 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 efforts to convince the appointments committee to recruit the candidate.

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

Power Breakfast: Rerun

Here you go. To get you started in the morning.
Take one or two slices of bread. I personally like one thick slice.
Toast it or not, it's up to you.

Spread it with butter, margarine or one of the low cholesterol spreads.

Now sprinkle all over it dry roasted sunflower seed kernels. Lots of them! They stick nicely to the spread. I getting hungry just thinking about this.

Finally, jam, jelly, honey or what ever you like on top. If can skip the underlying spread and the jam and just use Nutella and put the sunflower seed kernels on top. Probably you should work your way up to this.

A wonderful breakfast that will supercharge you for the day.

Nutty and sweet -- just like my favorite people.

Fast Five

Can a film be cause for celebration? Most, including me, would say no. If so, I challenge them to rethink their position after seeing Fast Five. It aims exclusively at the sophisiticated viewer and dares him or her to think about what a medium that has lost its way can be. The film is moving, inspiring, and likely to cause some to drive really fast when leaving the theatre. Directed by Justin Lin of "Fast and Furious: Tokyo Drift" and written by veteran Chris Morgan, their effort is not simply award worthy, it is a life altering experience. Set in the dreary favelas of Rio de Janiero, the pulse of the film is provided by Sir Vin Diesel, fresh off his extened run as Macbeth the Old Vic; Mr. Dwayne Johnson, most recently of Westlemania 27; and Mr. Johnson's spectacularly aggressive biceps. It is good and evil with the prize the unborn niece or nephew of Dom, Sir Vin's character. The homage to Rosemary's Babe is touching and sincere. The chemistry between Sir Vin and Mr. Johnson might best be decribed as a testosterone bath culminating in the film's finest scene when Sir Vin has an opportunity to drive a monkey wrench into the skull of Mr. Johnson. This scene will immediately take viewers back to Citizen Kane or at least their film studies classes in which every instructor taught them if they did not worship Citizen Kane they better fake it or risk getting an F on the final exam.

A superb supporting cast includes Ludacris in the role of Ludacris and Joaquim de Almeida, reprizing the role he so-often played in "Miami Vice" opposite Crockett and Tubs. Sung Kang, however, steals the show with his understated performance as Han. Kang is the newest Belmondo and his performance is Belmondo at his best -- think Breathless, unless you have been under a rock.

Most of the audience will simply laugh, groan, moan, cry, eat milk duds and text message. The film is lost on them. They will not recognize the magic and the celebration of art in Fast Five. For the sophisticated viewer it is cavier and champagne.

Public Documents: What Does it Mean

Some of the characteristics I have identified of elites is a desire to maintain denyability, the tell half truths, and to volunteer but not ask. This is all below in one of my posts. Clearly though, the desire not create a written record is hardly a characteristics of elitists. It is actually a characteristic of most administrators whose positions are political -- whether an actual politician or just someone trying to please as many people as possible.

This article about a Florida official raises an issue. I understand that documents, other than some exceptions, must be public. On the other hand, is it also required that a document be made in the first place. To me purposely not making a document for fear it will become public defeats the purpose of the law. On the other hand, lawyers and administrators seem not really to worry much about the spirit of the law as long as they can find a way around it.

In one recent experience, I was asked to make an evaluation. So I did and submitted a very long written report. The person to whom is was sent apologized for not letting me know that the written document could be a public record. My response, "I hope so, that is why I wrote it." Several others were asked to make a similar evaluation. This was, by the way, an evaluation including several variables. To my knowledge none of them wrote anything down.

I assume they acted within the law as a technical matter but perhaps not in spirit. But, I do not know.

There's something happening here (and there), what it is ain't exactly clear...

Recently I had an interesting trip into the world of anonymous and unrestrained of blogging. I attempted a relatively mild defense of UF after the embarrassing publicity of last week (which, by the way, common sense would lead one to believe is based on a partial story) and got clobbered by a few anonymous commentators. Not all of the personal criticism was unfair.

Some of the more interesting quotes are these.

"It’s ironic how UF Law professors complain about their students being unprofessional, when UF Law professors are violent, rude, unprofessional, not collegial and childish in their daily actions."

"Unfortunately, the Dean and the professors at UF School of Law have created and fostered a very hostile and unpleasant environment. The professors don’t seem to get along with each other and most of the professors seem to dislike the students."

"And, it is known that the faculty isn’t a student-friendly faculty—the students make that clear. Maybe to each other, the faculty pretends they are student friendly and you can feel better about yourselves, but the students and alumni know."

"I have taken many classes where the professors openly talk bad about students during class—either about students in another class they are teaching or a previous year’s class or the student body in general. In offices, the courtyard and in the hallways, I have heard many professors talk negatively about their colleagues and the students in general or talk about how their fellow professors hate teaching or hate the law school students. I’m tired of hearing from UF law professors that we act entitled, are lazy, are worst than previous classes, that we don’t work as hard as you professors did when in law school, that the professors deserve to be teaching at better schools with more intelligent students, that we are racist or homophobic, that we are elitist, that we are conservative bigots, that republicans are evil, that all southerners are bad, that we are rich snobs, that the grading curve is too high, that we are idiots or disrespectful when we may disagree with your jurisprudential views, that we are inappropriate, and that practicing lawyers are bad people."

"My classmates and I have heard professors bitching ad nauseam about students and other professors. It is a ramped problem at the school. Most students don’t even want to hear these things. But, it does create an unhealthy, negative environment. As for the students taking responsibility for being spun--spin or not (we may not believe the spin being shoveled), it nevertheless creates a feeling that the professors are “nasty” and makes the law school’s environment unpleasant--a place where students don’t want to be."

Much of this was delivered an what I would call an angry tone. Of course, I happen to appreciate strong feelings, even anger, when there is an injustice. Moreover, the commentators represented a small but perhaps representative sample and all were anonymous. Nevertheless the themes were consistent: 1) Faculty do not respect students; 2) Faculty do not like each other and 3) Faculty take their gripes about each other to the students. I am sure all of this is true at every law school and have had personal experience. I recall a recent conversation with a new colleague who said had been "briefed" within a day or two of his arrival able how evil I am. The faculty flowing to his office to recruit him one way or another (not with respect to me) has surprised him. He heard so many different versions of UFs history I am sure his head was spinning. The question is whether these thee conditions exist only at the margins of a School or begin to define a School. I do not know.

It is ironic that this exists in an era in which the Socratic method is dead and the average student is guaranteed a B+ average. In fact, at a recent retreat with faculty and alums the alums seemed generally surprised that teaching styles had made a 180 degree turn from what they were used to. My perception was that they felt it was a bad idea.

So, what is going on here in a era in which at least on a formal level things would seem to be the best ever for students but, in fact, they may very well be the worst.

I do not know but I think any explanation that focuses only on UF is too narrow. There is something bigger going on here. My own theory, upon which I hope no one will place any reliance, is that it starts with the late 60s, the generation that came of age then or shortly thereafter, a culture of over-affirmation, the pervasive sense of entitlement, and the lessons many of us influenced by that generation have taught our children. It may be a sign of an experiment that did not work

The NCAA and Law Schools

One of my students alerted me to this NYTimes article which I had missed. It reminded me of a blog I posted some time ago about the exploitation of college football players and the cross subsidization of other sports played by predominantly white and middle class students. I wondered where all the liberal outrage was. There is none. The NCAA can get away with this in large part due to a Supreme Court opinion which, without needing to in the context of the issue at hand, exempted colleges when it comes to the exploitation of mainly minority and lower income students who happen to be good at football.

I cannot help but see in Law School externship programs some of the same factors. Under these programs, students pay law schools tuition and in turn the Law Schools allow the students to work for no income during the summer in order to earn credit. Or more crassly, schools charge students for the right to work for free. The exploitation issue is not as severe as in the football case. A student with little income or no income cannot be farmed out and must get a paying, no credit, job.

Like football, it's a huge money maker where the institution profits from the labor of others. Some schools, like mine, have even even created incentives by paying faculty on the basis of how many externships they can stack up. These are faculty who evidently were already fully occupied with full time jobs and being paid a salary. So, what are they not doing now that they were doing?

According the the US Labor department, to avoid falling under the Fair Labor Standards Act and, thus being afforded the protections for other workers, "The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship." What I could not find is the part of the process that says to earn credit students must not be paid. Luckily, a colleague helped me out here. It is evidently found in an interpretation of 305-3 of the

ABA Standards for Approval of Law Schools.

Interpretation 305-3

A law school may not grant credit to a student for participation in a field placement program for

which the student receives compensation. This interpretation does not preclude reimbursement

of reasonable out-of-pocket expenses related to the field placement.

So, let's see, attorneys and law schools agree that students cannot be paid if they are to receive credit. As far as the Law Schools are concerned does his amount to a horizontal agreement? Surely one way to compete would be to say to externs that they are permitted to be paid. And, is there a class of past externs who had no choice but to pay for credits and work for nothing because law schools agree to award credits only if the salaries are fixed at zero? This is all fanciful, I suppose, but isn't it interesting how those in charge of the law don't seem to stick to its spirit.

WTF: Welcome to the World of Won't

Sorry if the letters offend you but it really is the phrase running around in my head when I think of this: One of my first jobs was a laborer. Unionized but still low pay. Florida sun, 8 hours often in the mud and so tired at the end of the day it was a beer and bed. The only disagreements were between the foreman and the union steward over how many cinder blocks I should carry at a time. I kept my mouth shut and needed the job. Just like being a law professor, I knew if the truth were out, a zillion of people could do what I did. I did not say when I would come to work, how long I would stay, what I would do, when I would do it. I just did it every day to get a check.

If anyone has had that type of job -- the type most Americans have had or do have then their only reaction to law professors has to be WFT?

Like the meeting I was in the other day in which the question came up of why someone only taught a handful of students each year. The answer? "I talked to her and she won't teach more than that." WTF?? WON'T?? When did won't become an employee's response. Yes, working Americans, law professors get to say that and no one gives them a spanking or fires them.

"Dude, gotta be out of town for a couple weeks to teach somewhere else. Don't worry, I'll work when I can (or not), a little extra here and there or maybe 5 days straight at end." Law professors reading this know I am not kidding but this is fair game if you have a job in which you "won't" do things and the only response from the person nominally in charge is "oh." WTF

How about this one. Don't want to teach your classes at 9 or 4 or on Friday,Monday or Wednesday (or at all). OK, my dear what would work for you in the world of "won't." WTF?

OK, how about not really teaching in person but taping an entire course and them picking your your check as usual. Tape for two days and semester is done. Is this the same as phoning it in? I wish I could have phoned it in the day my finger was almost taken off while I was hooking a giant bucket of cement to a crane. WFT?

You don't really want to teach what the law is but what you wish it were. No problem, if you are in the world of "won't." No one knows and so what if the students' clients are blindsided by the attorney on the other side who actually does know the law. WTF?

What? me grade exams? Don't worry, just use that recycled machine graded multiple choice one. WFT?

I think one of the qualifications for being a law professor is to do hard labor (not in jail although that is a thought) in order to get just a taste of reality and humility. As best I can tell those who do not make use of the "won't" culture, in John Lennon's words are "still fucking peasents as far as I can see" or they will be treated that way.

Liberals and the Working Class

One of my Facebook friends linked me this interesting article the gist of which is the poor, working class, poorly educated and religious tend to be conservative. Their actual ideology cuts against their economic self-interest. The data are all presented on a state by state basis which can be terribly misleading. South Dakota counts as much as New York.

The data also tell us what many of us have known. OTHO, the conclusion that working class people vote against their economic self interest may be a bit hasty. Are working class people really voting against their self interest? Think about the liberal ideology of the last 40 years. The primary liberal focus has hardly been on class. It has been on historically disadvantaged groups that are minorities within the poor and working class. The hypocrisy of the liberals is that they are happy to do good for some of the poor and working class if the burden falls predominately on others who are poor and in the working class. If a cause, like those that are class oriented, would actually mean liberals are affected, it somehow loses its attraction.

There are broad strokes but for the most part Left means caring about the poor and working class of all types, Liberal means not caring and Right means using them to advance your own ends. Of course Liberals do this too but it is more like collateral damage.

Who Put the Drive Through Window in Law School?

Lean times mean that people look for ways to save money. It also means that producers look for ways to cut costs and, accordingly, cut the quality of what they do. That is the good news. The bad news is that whether times are lean or not, a shirking faculty -- the self appointed shareholders of law schools -- promote the same quality reducing measures. Whether driven my lean times or just faculty cost cutting, its impact is to lower nutritional levels thus creating the McLawschool. Several items on the menu reflect the McCulture of today's legal education.

1. Massive reliance on adjunct professors (a good thing if you are in a city where the pool is large, not so good in a college town where the pool is small) with little or no screening. Some are good some are not but they often work for the honor of being able so say they are "professors." No one ever asks if they know what they are doing and as long as they are nice, give good notes, and seems smart the students will not tell. In fact, some students want you to super-size that.

2. Subcontracting by virtue of externships. No teacher necessary except for a weekly phone call. In some cases, the externs work for for profit making entities. Yes, the school subsidizes the private sector by giving students credit for helping generate more dough for others. No money for the students, though. If they need it, they price is the credit they would otherwise get.

3. High margin desserts. These are the extras that are good at the time but are unlikely to make you a better lawyer. Foreign programs go to the head of the class here. It's actually more like a school running a travel agency. The experience is fun, like a nice like a big piece of Goode Company pecan pie, but about 2/3 of it is only that. As one student said," Don't worry about class, it's all graded on the curve."

4. If you can combine a summer program, with a semester abroad with an externship, you can spend half of your three years in law school not in law school. In fact, for people who do this, the a law school is just a drive through window.

When students are done with the three year meal, can they write, research and think critically?Maybe, but that will be determined largely by whether they could do those things before they arrived.

New International Barista Law Program

[One of the most somber and well thought out processes at any Law School is the development of new International Programs. They can take many forms -- an externship in a foreign land, a summer program in a country that is likely to be important in the future of the students, an exchange with students or faculty, or just a decision to send people to a random country that a tantrum-prone faculty member has an affinity for in order to enlighten students there. Here is a proposal a friend at another school emailed me. I wish someone at my school had thought of it first.]

I will shortly present to my Foreign Programs Committee for their assured approval and eventual faculty affirmation "Comparative International Barista Law." This builds from the solid faculty already in place who are the leading experts on barista law, or at least coffee law, or maybe just drinking coffee -- which happens a whole bunch -- but it's really all the same.

In the summer program, a small group of highly qualified students (qualifed because they are affluent enough to afford it or willing to incur yet another several thousands of dollars in debt) will visit the coffee shop capitals of the world, INCLUDING, a super special side trip to Amsterdam so the full breath of coffee shop diversity can be fully experienced. For many this will be the high point of the trip and special arrangements will be made for students who wish to remain in Amsterdam to pursue graduate work. The on-site offices for this part of the program are at the Banana Head Coffee Shop.



Vienna, Rome and Rio are on the agenda with several coffee shops visited at each location. Guest speakers at each stop will discuss barista law issues in each country -- unionization, copyright, scalding, decaf v. caf., truth in labeling, over-serving liability, being wired, wire tapping, tap dancing (something done best after a double espresso) and trade usage when instructed to "leave room for milk or cream." The most focused part of the experience will be in depth interviews with baristas from each country in order to understand how they really feel so the can be healed by sensitized American students having a fun time.

The examination part of the course can be satisfied in one of three ways. Students may write a ten page essay on "What I learned this summer." It must be submitted on lined paper and written with a fountain pen.(Please no coffee stains.) Those students opting for a concentration in Amsterdam may, alternatively, submit photos of milk designs made on top of cappuccinos. Finally, students who find evaluation uncomfortable may forgo the examination process altogether.

Up With Barista Law

A friend of mine, who I would happily credit except for his/her strong objections, suggested recently that, given the odd assortment of courses law schools offer because faculty want to teach them and not because they have much to do with what students will actually do, our law school should offer Barista Law. I put barista law in google and to my surprise there is a growing area of law about baristas. Most of the cases deal with what they can wear. Evidently the big issue is whether wearing a bikini is OK. (Frankly I want no coffee served by someone in a bikini.) I am sure there will be cases about burns, caffeine addiction as an occupation hazard, competition from energy drinks, the rules applied to competitive baristering, copyright on the little designs made with milk in your cappuccino, the accreditation of barista training schools, over-serving liability, etc. There are probably casebooks being developed as I write this.

I laughed when my friend mentioned it but, after my research, I realized that there is more law in barista law than about a third of the courses law schools now offer. It's all part of allowing faculty to determine the curriculum as opposed to people who actually practice law or have practiced in the last ten years. As I have noted before, law school offerings are increasing looking like they are put together by people who thinking:

1. This is what practicing law would be about if it were done in heaven or at least in an ashram.

2. This is what practicing law would be about if it did not include the things that drove me away from the practice of law.

3. This is what a good curriculum would look like if the students did not matter.

So, let's get busy developing the barista law course so the students will actually deal with issues that they may have to confront in their professional lives.

Kenneth Oldfield and Class

Ken Oldfield, a fellow I have blogged about before, has a new article out "Social Class-Based Affirmative Action in High Places: Democratizing Dean Selection at America's Law Schools," 34 J. Leg. Prof. 307. I do not know if it is accessable yet since he was kind enough send a reprint. As far as I know he is the first to take on the class issue as it applies to high level administrative posts. His presentation is persuasive and thorough but I was struck mainly by a line that he quotes from Peter Sacks, class "is the grand organizing principle of our higher educations system." Of course the problem is that those who organize the system are not about to let go.

Do We Know About Practicing Law

My school is not alone in hearing that it's students are really not prepared to practice law. The complaints I hear are primarily about writing and research skills. I am happy to say that there seems to be a collective effort to change this.

The problem is: Do we know anything about it? How many law professors actually practiced law? Probably quite a few but how many did in the last 20 years? How many actually came from a clerkship or graduate program to law teaching? Do they really know what a beginning lawyer is expected to do? It's risky to leave the redesigning to people who have not practiced law in the last 20 years if at all.

If people have not experienced practicing law in the last 20 years there may be a tendency to imagine that students need skills they would primarily need if law were practiced the way the professor wishes it were practiced. This would be a world without zero-sum games, win-win outcomes, and high level debate about what Justice this or that meant. In that world, I doubt there are scores of boxes to go through looking for a specific piece of evidence that will assist the client or could be a land mind. I doubt it is a world in which 20 depositions must be taken in a month at places hundreds of miles apart.

I worry that third year student Zack will show up for an interview and announce his specialty is collaborative lawyering or the economic analysis of law and the interviewers will just say "next please."

Also see http://popecenter.org/commentaries/article.html?id=2281

EMail: Yes, No, Depends

The other day, I wrote to a colleague about two administrative issues. What I got back was an answer that was unresponsive. When I explained this, what came back was a pretty nasty response (ad hominen) and a demand that we speak in person or not at all.

I did not want to talk in person but could not put my finger on why. I realize that every person picks the mode of communication that he feels is likely to achieve his ends. In the past they have enjoyed either successes or failures using one mode or another and this informs future decisions. So, why did I prefer email with this person but not with most others?

Before getting into that, some other emails issues should be put aside. Email is risky and can lead to pretty embarrassing accidents. I am told that one of my colleagues once inadvertently sent a review of a job applicant's scholarship not to the appointments committee but to most of the people teaching in the area throughout the US. And, it probably is true that people are less inhibited in email but about half the time someone accuses someone else of sending a "flaming email" it is really comparable to walking out of the room and slamming the door or a garden variety personal attack. By that I mean the accusation is just as likely to mean "I have no reasoned response so I'll just say you offended me and mischaracterize what transpired." One other thought on this. Do ever wonder what immediately preceded the "flaming email?" Do you really think it was a polite thoughtful communication of some kind?

And, of course, there are the "no email" people who do not put anything in writing for fear of losing deniability. One of my most interesting experiences with this was a few years ago when a faculty committee was asked to evaluate several faculty members and rank them. The standards to be applied were tenure standards. When the process was over, a disappointed applicant asked to see the written record. There was almost none. Yes, 6 people had ranked at least 6 others including a review of scholarship, teaching, and service and had evidently done so with creating anything but the barest paper record. Email, and writing generally, is not for the gutless.

While some of that influences my own email v. in person choice, I also think it is individualized. For example, everyone has colleagues who, as soon as you begin to speak begin a nodded "no." In other words, before you finish and without knowing what you are going to say, they are preparing a negative response. I email these people when I do not avoid them altogether. I also use email when the person is known to interrupt. It's hard to interrupt when reading an email. The recipient is pretty much forced to hear you out. There is also the matter of quickness. The other day I observed someone in a conversation. She said, "If you will give me a chance to think, I believe I can respond." In other words, some people are just quicker and others need time -- the time it takes to compose an email --to respond.

Finally, and this may seem backwards, people who are naturally conciliatory (I mean really conciliatory as opposed using it as a negotiation tool.) should avoid face to face discussions. To the extent you want to be liked and to seem reasonable, you may regret what you end up agreeing to. Those who prefer face to face are often quit good through their body language and facial expressions at indicating that their opinion of you may hinge on just how agreeable you are. In fact, there is an analogy to informal dispute resolution which often disadvantages the person who just wants to "get along." Those people are better off with more formal means of dispute resolution. Email provides the same distance in person communications.

You may notice a theme here. The characteristic of those I prefer to email are those who feel they can control the conversation so it will turn out to their liking. Email means they lose some of that control. Flip it over and the question is whether the person who emails also just wants to use email in order to control the conversation. Maybe. On the other hand, maybe email is the only way to resist the control the face to face person exerts.

When the parties do not agree on the way to communicate, perhaps there is no communication at all. This favors the status quo and means if you really want change to you to acquiesce to the mode chosen by those in power. Thus, those with power get to set the rules of discourse and they set them to favor themselves.

The face to face people have one really annoying trait. Even though they will not agree to email, if they see you in the hall they are desperate to exchange hello's. But this is a show for observers and simply reflects their need to control even appearances.

Law School Intervention

There is a program on one of the dozens of channels that I do not really know how to identify. Essentially cameras follow an addict around to show what his or her life is like and at the end there is a tearful intervention at which the addict is talking into going to rehab. It is hard to watch and pretty intrusive. I am not sure I have watched an entire episode. Since the intervention comes as a surprise I wonder what the addict thinks when the cameras are following him or her around for days.

Addiction is not a pretty thing and I am not equating law school addictions to the stories on the program but there are addicts on law faculties or maybe it is just people with "challenges."

For example there is "over talking." This is the person who holds forth in faculty meetings on every issue never realizing that he is keeping other from talking nor that everyone knows what he will say before he says it.

And there are the rationality challenged. They will say almost anything to avoid focusing on the actual issue. The move to ad hominen attacks or when cornered say "I am offended." It's a bit like trying to reason with your cat.

Closely related are the pathologically self-interested. By this I mean those who always take the position that advances their own interest and somehow justify it as good for the whole or especially the students. Mostly they view a law school as a means to their ends.

So, here is the idea. Someone documents the history of behavior and then one day "Boom" a bunch of people descend on the person, explain the damage they do and urge them to get treatment -- rehab, if you will.

What a great idea, right? No, wrong. In the real intervention show there are two factors at work that do not work with law faculties. First, there is a norm established and uniformly accepted that shooting up is not a good thing. On law faculties, over talking, reasoning like an cat, and obsessive self interest are accepted behaviors. Second, on the real show the intervenors really care about each other. There are good friends among law faculty but ultimate in the life long negotiation of the elites true friendships do not run nearly as deep.

I Don't Want to be Right . . . Comment

A reader asked this question and I think it and the answer may be of interested to some:



Q: What do your colleagues say when they see an interaction they had with you show up on your blog? Any embarrassment or self-reflection at all?

Dear Anonymous: First, in many instances they do not see themselves because the anecdote is actually not based on anyone at my school. In fact, some of the most outrageous ones did not happen here and probably 80% of the ones at my school involve the same group of repeat players.

Far more importantly, one of the rules of elites is to never confront a non elite like me. That shows you care and indicates a sign of weakness. Much of what I write is designed to provoke an encounter that would allow the issues to aired. Maybe someone will punch me, file a grievance or just yell at me. I would welcome it. It never happens because of the "show no weakness" rule. To actually want to talk about the issues I raise would mean that just maybe I have a point and that would be a concession they do not make. Remember, it is a life long negotiation.

Finally, do they reflect? It is hard for me to know this but I doubt it. I noted in the last post a recent situation in which I asked something or proposed something and the responder just more or less made up a different question and argued against that one. I attempted to point that out with zero success. In fact, what I was met with was another example. Evidently it is a bubble that you only see if you have been outside the bubble.

I Don't Want to Be Right But . . .

Two elitist experiences today.

1. A colleague showed up at my office to "share" something with me that would be inappropriate for email. What was it? The mildest possible questioning of a proposal by Dean.

2. In a email I asked a colleague if it would be possible to announce the availability of some fun opportunities so all those interested could apply and the best candidates selected. The answer: What I was proposing would mean picking less qualified candidates.

I covered the do not write it down rule in my last post. I neglected to mention that principles are only applied when they serve your ends and the "if you have no response, make up a different question and answer that." That, of course, was what happened in the second case.

Elites Grading Their Kids

Years ago at my school there was a bit of a scandal because sons and daughters were registering for their father's classes. This was, to me at least, bad enough but increasingly it appeared these were average students who did much better when dad was the prof. It went on for years with complaints to the dean who used the old "it's a matter for the faculty" wimpy way to avoid the issue.

Finally, through some miracle I do not understand, the issue was put before the faculty and a rule passed that you could not have family members in your class. Of course, at that moment there were several children in the classes of a parent. So what to do? One of the elites argued it was an ex post facto rule and could not be applied to to current students. I imagine this reasoning appealed to many although I thought it was crazy. Sure we had made a new rule but wasn't there always a common sense ethical rule already in place. Didn't the fact the we had voted unanimously in favor of the new rule mean that any reasonable person would realize that having your kid in your class raised issues. Elites are not big on common sense when it does not cut in their favor.

But then the next comment made my jaw drop. A parent with a child currently in his class spoke up. He said that his child registered for the class because he was confident he would get an A from his father. If the rule were to take effect immediately, it would be unfair to his son. Back then we did not have WTF or OMG because there was no texting. But my reaction was definitely WTF or OMG. It made me think. Did slavery only become unacceptable when there was an official rule. Was raping your wife really OK until spousal rape was officially recognized. The elites live in a very special world of entitlements and it had played out as I should have expected. Those caught with their hands in the cookie jar walked.

The Not Technically A Lie Culture

A few years ago a student wrote an angry letter to me. According to her I had upset a French exchange student so much that she ran to the Assistant Dean in tears asking to drop the course. Not wanting to cause an international incident I searched my roll for a French student and could not find one. So I found the letter writer and asked for details. She informed me that what she had written had not actually happened but "could have." I believe she felt it was not a lie because under the correct circumstances all of that could have happened. In a way it was, technically, not a lie.

Some of the same mentality affects the "not technically a lie" culture of elites and many deans. For example, "I do not remember saying that" means I do not recall using exactly those words. And, "The meeting was not held for that reason" means, "That was not the only thing we discussed at the meeting." The most recent example is the one in the last post just below: "Bill cannot go" which means, "I paid Bill not to go and he isn't going."

I am not sure how elites come to know of the "not technically a lie" norm and why exactly they rise to it so quickly. (I do understand why so many deans rely on the rule.) The rule is a cousin of "Don't write anything down that you would not want in the NYTimes" rule that a colleague once announced, having actually completely turned the actual rule on its head. (The actual rule, as a moneylaw contributor told me when I discussed this over on that site is "Don't DO anything you would not want reported in the NYTimes.)

But here is the catch: Almost all of them know the rule and follow it. This means, for the most part they know not believe anything someone tells them who is also an elite. And, in turn, they know others are unlikely to believe them. In a way, this is not distrust because it is all within the rules. There was no trust in the first place.

If you are not an elite (or a dean), you may not know the rule. It's a bit like playing basketball at a different gym and not knowing that in that neighborhood a hand check is perfectly OK. The difference is that you figure out the hand check rule quickly. The not technically a lie rule takes much longer to figure out and in the process you may take the completely inappropriate step of pointing out that someone has . . . . well, not been forthcoming. Learning the rules of the elites is not for sissies.

Flippers

[See great comment below]

Some time ago I wrote about elites wanting to appear to volunteer for things because asking was a sign of weakness. So you get things like:

1. I told the dean I would agree to go on the around the world trip to research foreign summer school opportunities.
2. I told the dean that I would volunteer to teach one of the small sections.
3. I told the dean that I thought I could fit in spending an extra $5000 on office furniture.

4. Yes, I did volunteer to take the year off.

5. I volunteered to cap my class at 5 students so I could give the students the best possible instruction.

The volunteer gambit means you never asked for anything but did the other person a favor by doing whatever it was that you wanted. Basically it's a flip those doing it are "flippers." You got what you wanted but try to seem like you did something someone else wanted. I've seen it on law faculties over and over. It's because for so many life is a ongoing negotiation.

Now I have discovered a new version of it. In a different context, it works like this:

You, say the director of a program, appoint someone -- Phil -- to travel to Kansas to search for a school that will have an exchange program with yours. Meanwhile you have appointed yourself to tour Europe on a first class ticket to find ideal locations for multiple summer programs. Later you cannot do your tour so you ask Phil to take over the European tour. Then you write to your faculty:

"Phil can not go to Kansas to search for exchange possibilities. Would someone else like to do it."

You do not write: "I appointed myself to go on a European tour. I cannot make it so I asked Phil if he would like to do it and he jumped at the chance. That means we need someone to go to Kansas. "

Other than the close-to-vest style I have no specific reason to cite for why this one seems dishonest but it grates on me and I think it is related to the volunteer problem. You do not want to say "I appointed myself." My goodness, you could never own that! It sounds self serving. And, if you say "I volunteered," the case is so extreme people would laugh. So you leave out that you rewarded yourself. Remember, never admit you got something you wanted -- it shows weakness.

Then there is the "Phil cannot go" part. I mean, can you really get away with saying "Phil cannot go" when you asked Phil not to go and dangled a big plum in his face? Why try this? Maybe because it makes Phil look a like a victim (sacrificing like a volunteer) . In actuality, Phil himself may not care but elites think it is important to appear not to care (caring is weakness) and they attribute that desire to others.

Maybe all I am looking for here is the word disingenuous but I like the idea of "flippers."

[This comment is so dead on I am bringing it up to the post: "This reminded me of the time an individual on our law review sent an email to the law review listserve informing everyone that donuts were in the office. But the emailer failed to mention that the donuts were placed there by someone else."

To me this is part of a mentality that says "If it is not technically a lie it is OK even if it is misleading." This must be a law thing because, in a way, it is what is taught.]

Elites and Gaming

I posted a piece over on moneylaw about a shameful law school ranking that is now posted on the internet. It's not shameful because its rankings may or may not be correct but because of the strategic voting revealed. Roughly it was a ranking of 57 law school. A huge number of the respondents ranked the school where they are teaching or the one from which they graduated number 1 and all the others tied for last. In short, they did the maximum possible to have the ranking show what they wanted it to show and not the reality. And, like someone who cheats on an exam and then boasts about it, they no doubt wave the ranking around as though it is gospel.

Should anyone be surprised? Of course not. Elite gaming of any system is the norm. Let's not count all the ways but clearly sending out articles to be reviewed by pals is one way. And, it includes legacy admissions to elite schools. The fact is with elites it's always about show more than go. A talk to the local Women's club becomes a "presentation" to be included on a resume. A two page book review becomes "My piece in Harvard." Not writing things down for fear of losing deniability is one of their favorites. And if you are a parent be sure to feed your kid a performance enhancing drug when they take the SAT.

Do non elites game the system? I suppose so but I honestly believe they do not display the same level of obsession.

Response to NYT article on Law School Employment

Thanks Bob. [my dean circulated the article.] I think many of us and our students have seen this. While it lays bare law school complicity in something akin to the mortgage lending crisis, some parts of the article, or those quoted by it, are hard understand.

First, one suggestion near the end is that lower tier law schools should (but won’t) close. I take it by tiers the reference is the to USN&WR rankings. Seems to me that both criticizing the ranking system and then using it as a measure of which schools should close is illogical. Much of what goes into a lower ranking is subjective and has little to do with the quality students. The idea that limits would be put on law schools based on their tier as published by USN&WR and manipulated by schools and their graduates seems like more of a concession to the rankings than an effort to address the problem. Of course, if bottom tier schools are mainly 100% private, I do not understand why the market does not take care of the “problem.”

Second, what is the problem? Investors, like those investing in human capital, make bad decisions all the time. Why should we be more concerned about a law student losing his or her shirt than a franchisee who buys into a burger chain but cannot make a go of it? My answer to this is that it is a problem to the extent the sellers of the “product” know it will not work. In other words they are engaged in a misrepresentation. The issue is what does it mean to “work?” If by “work” if we mean earning enough to live comfortably and earn a fair return on the investment then clearly we should say nothing to encourage this impression. In fact, given that we are aware of a misimpression, I think we need to provide accurate information to our applicants about employment percentages and starting salaries. As far as competition in the State with respect to these figures, I doubt anyone would not think our numbers were not the most favorable.

Third, I am discouraged by the hypocrisy of our own alums. If my facts are correct, they explode if we fall in the rankings. I suppose because this affects their status or income. On the other hand, I wonder how many of them, after enjoying their heavily subsidized education are willing to dip into their own pocketbooks to hire a grad which would then help us with the ranking they put more stock in than we do. What about an example of wanting it all!

Finally and more broadly, we are not sure how to determine how much legal service is required. It is determined by market demand or need. If it is by need, then the quid pro quo for receiving a state subsidized education would seem to be a commitment to public service. None is required. I suppose the actual theory is that if we assist in increasing the supply or lawyers, their fees will fall and services will be available to a greater number of people. (By the way this has never been my theory for why public law schools were created. Instead I think it was a way for those with property and, therefore in need of legal services, to have the cost of the services they need spread across all taxpayers.) The employment numbers suggest this is not working. There are many reasons why it does not work but one is that the state investment in providing legal services is actually not sufficient. In any case, like health care, we seem to be caught between viewing legal services as a privilege or a right. If it is a right then there may not be a glut of lawyers at all, just an unwillingness of government to provide what is needed. Of course, we know where that funding would come from given current tax structures.