Tuesday, December 26, 2006

The Grading Thing

I often tell my first year students that writing an exam is the hardest thing I do and grading them the most miserable.

Now I have heard of a new way to handle both tasks. Substitute hours of constructing an exam with a few seconds of changing the date on last year’s exam. As for grading, multiply choice, machine graded (mcmg) tests are just the ticket.

Obviously, this saves an enormous amount of time but I am not sure what the grades mean. My premise here is that most first year teachers, in particular, devote a fair – if not most – of their time to critical thinking and analysis. Most issues the students see have a Rashomon like quality. I am far from convinced that a mcmg exam is a useful tool for assessing the development of those skills. Worse, if you are known to be mcmg person I think it is likely that students know not to take much of what goes in class seriously unless you are just downloading information. Mcmg people may say that there is correlation between how students do on complex essay questions and mcmg exams but that may only hold for the first couple of times giving the mcmg exam.After that, the professor is teaching one thing and the students are preparing for a test on something else.

Even if good multiple choice questions can be written for law courses and I believe it is possible beyond the first year, it is very difficult. That difficulty leads to the recycling temptation. If you recycle multiple choice questions and do not think many of the questions are “out,” please get in touch with me because your powers of rationalization are far beyond mine and I would sincerely like to escape my own feelings of regret about some of my own misdeeds.

Ok, so let me predict. Those of you who use mcmg exams are annoyed because I have called into question your work ethic and integrity. Of course not! What I am actually saying is that recycled mcmg testing in law schools "gives me pause," "concerns me," "puzzles me," "makes me wonder," "may require extra care," "needs careful consideration" or "is a good idea for some." And, if you have checked to determine whether your recycled mcmg exam actually tests what you are teaching, I am not even saying anything that harsh.

I think one of the tenets of MoneyLaw is to do all the functions of a teacher – even the grunge of assigning grades – so that stakeholders are not shortchanged. It seems to me that recycled mcmg tests and, for that matter, recycled short answer questions may be like giving $2 back to a customer who has given you a $5 for a $1 item. But then the privileged make the rules -- even when it comes to making change, don’t they?

Of course maybe I am just irritated about grading 180 essay exams.

All kidding aside, this is one thing I really would like to be wrong about. If you give mcmg exams to your first year class, how about sharing one in the comments area along with your explanation of what the question tests. I'd like to be converted to your point of view. But first, I'd appreciate if you would respond to following poll.

Do you use multiple choice questions on your final exam.
None at all
For less than half of final exam grade.
For more than half but not all of the final exam grade.
For the entire final exam grade.
Free polls from Pollhost.com

Friday, December 22, 2006

Law School Risk Factors

(I found this quiz at WebMD-LawSchool.com and am passing it along.)

It's the beginning of the year and time to take an inventory of your law school's health. Give your school a "5" if the description is dead on and a "0" if it is completely inapplicable.

1. There is a critical mass of faculty for whom the ends nearly always justify the means. The “ends” can be anything from personnel to program decisions.

2. The convenience of faculty is always an important consideration in faculty votes and administrative decision making, sometimes to the detriment of stakeholders (students, donors and taxpayers).

3. It is difficult to discontinue or even to objectively evaluate existing programs without it becoming "personal."

4. There is a great deal of gossip. It comes to you even if you are not a “carrier.”

5. There is a solid core of “Making Nice, Knowing Better, Doing Nothing” people. These are the colleagues who express the right ideas – when they express at all – but are AWOL when critical decision points arise that could send the school in a more positive direction.

6. Your administration, when it is internally active at all, is principally concerned with putting out fires but only those that threaten the administration itself.

7. There are few if any norms about making up missed classes, rigor in the classroom, publication goals, testing practices, availability to students, etc.

8. Your dean would rather delay a hard decision or pass it onto the faculty knowing that that the School will suffer as a result. See Chen, Three Deans.

9. Tenured faculty frequently discuss controversial questions with untenured faculty and while doing so make clear their own opinions and what their expectations are.

10. Faculty tend to teach the same courses from the same books for years, maybe careers.

Add up your score and please fill in the poll found below:

40-50 points. Go to the Law School ER immediately. Not for your school. It left the world of the living some time ago. You, however, have a pulse. Save yourself by writing and teaching your very best and finding a hobby.

30-39 points. Your School is in critical condition but there is a chance of survival. It will be very tricky. Retirements, hiring stealth candidates, and a courageous dean are needed. Guerilla action maybe in order.

20-29 points. You have an elevated risk of law school death but it can be controlled by diet and exercise. Do not let the opportunity slip away.

10-19 points. Enjoy your law school’s good health.

0-9 points. See a physician immediately. You are delusional.

What is your school's score?
Free polls from Pollhost.com

Saturday, December 16, 2006

The Letter, the Market,and "Easy Writers"

At times like these I sincerely wish I knew how to take a poll of MoneyLaw readers and law professors generally to see if they agree with what follows. I do not claim to know whether it is accurate or not.

Recently a friend at another school and I discussed how his faculty would react to a less-than-glowing tenure review letter. In the course of the conversation, he made two observations. The first was that Tenure and Promotion Committees and outside reviewers generally understand that outside reviewers are supposed to help the committee “get the candidate through.” Then he went on to name some well-known scholars who were not asked for review letters because, as he put it, “they will actually say what they really think.” This was not the first time I had heard that the job of Tenure and Promotion Committees is to “get the candidate through.” It seemed to be the case at my school until relatively recently. (I assume this is primarily a middle or lower ranked school phenomenon.)

If my friend is right, there is in legal education a "market" for letters. The demand side is composed of Committees that are candidate advocates and steer clear of reviewers who “say what they really think." Suppliers are reviewers who, although moaning and groaning about the work involved, give the committees what they are asking for – all in coded terms, of course. Those frequently asked to provide reviews, under this theory, need to ask why they their services are in high demand. Would they be just as popular and their opinions so valued if they were a tad more candid?

If the theory holds and everything else is equal, the number of letters requested and written could be inversely related to a reviewer’s candor and integrity. Perhaps salary increases should be granted in inverse relation to the number of review letters written. This would not work, I know, because money is hardly the motivating factor. More importantly, I have seen many letters in which reviewers do say what they think. In fact there may be two markets: one for the easy letter and the other for the "what you really think" letter. Only the reviewers themselves know which market they are supplying. The problem is that the "easy writers" surely have erected an elaborate matrix of rationalizing mechanisms that protect them from self awareness.

We have all seen a version of the "easy writer" when students stampede to fill the sections of courses taught by teachers who require little and give high grades. I feel certain that even "easy writers" frown on student shopping. My school and others have imposed grading curves to respond to the high grade suppliers. If the "easy writer" theory holds, it's unfortunate that a comparable control cannot be applied to review suppliers.

In a way, the "market for letters" theory is, at least intuitively, my friend's. So, here is the question: Is there a demad for "easy writers?" Your replies are anonymous and a simple yes or no will suffice.

Friday, December 15, 2006

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

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.

Thursday, December 14, 2006

Chutzpah, Stupidity, or Privilege

I freely admit to being a conspirarcy theorist and the principal outcome is to attribute most bizarre happenings in legal education to the indifference of the privileged toward any rule – formal or informal, reasoning, or fact that might separate them from what they want and “deserve.” I also know that there are other explanations One is just stupidity (Opps, I mean ill-advised behavior.) Another is non class related brazenness. And finally what I regard as bizarre may just be good judgment that I do not fully appreciate.

So here are seven events from recent hiring discussions. Pick how you would classify them:

1. 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 along letter from the candidate to that faculty member discussing the faculty member’s extended effort to recruit the candidate.

2. In supporting a lateral candidate, a faculty member says that if an offer is not made the candidate’s career will be ruined.

3. In defense of a lateral “instant tenure” candidate who has given a very thin job talk the argument is made that, as a candidate who already has tenure elsewhere, it was understandably that the he/she would believe a subpar talk would be acceptable.

4. In defense of a candidate who graduated in the bottom 15% of his Harvard class the argument is made that for all we know he or she would have graduated near the top of the class at another school.

5. A faculty member opposes a candidate because he (the faculty member) feels “uneasy” about the candidate but cannot say why. He just did. (I do not know if this is relevant but that faculty member and another expressing the same “uneasiness” are Harvard grads and the candidate is from a mid level law school and does not have a polished demeanor.)

6. A faculty member announces in reference to a candidate: If Professor X, was willing to work him, that's all I need to know.”

7. The faculty is asked to vote yes or no on a group of candidates but instructed not to rank them because that would invite “strategic voting.” (I know this is true but who gets to decide that the strategic behavior that is continuous stops at a particular point?)

Tuesday, December 12, 2006

All About (the) Money

Two articles, in the December 12th NYT, when viewed together, describe what those concerned with class bias are up against.

The first, on the front page, notes that colleges have found that raising tuition can and has led to increases in applications and admissions. In what amounts to retilting the conventional demand curve, the explanation is the price is used as a signifier of quality.

Well, maybe, maybe not. Two other possibilites, more in keeping with MoneyLaw and Classbias discussions, are possible. The "Veblen effect" or conspicuous consumption occurs when people pay for a high price. Yes, the price itself becomes a desired characteristic of the product. The higher the price, the more you are willing to pay. "Snob effects" are a little different. Here we are talking about a desire to create the impression that one is different and, usually, superior to others. "Veblen effects" are more about demonstrations of wealth while "snob effects" are more closely connected to "better" taste. Both involve communicating to others. The point is that the "high price equals higher quality" rationale initially offered by the Times may miss what is really going on. What the article may tell us is something known by advertising people: There is a huge market for interpersonal signaling devices.

But hold that thought for a minute.

Article two describe a marketing/psychology experiment that has been performed repeatedly although maybe not with beer. In any case (pun intended), the experiment consisted of tasting two beers, identical except that one contained a few drops of vinegar. People who tasted the beer before being told that one contained the vinegar preferred, on balance the invinegarated beer. People who were told ahead of time what the difference was found the invinegarared beer clearly inferior. This article tells us about the importance of preconceptions in forming opinions.

Together the articles tell us a complete story. The message is that that signals -- elite school credentials -- have a value to buyers that is independent of the substance of the product underlying the signal and that that those who recieve those signals are highly vulnerable to their preconceptions.

The Rites of Privilege

Privileged people do not like failure. Afterall, they have always been told they are the best. I have already discussed how this means stakeholders in a law school take second place to the needs of faculty.

One place this plays out is in hiring decisions. Failure is defined as setting out to hire new faculty and coming up empty.

For example, if your Appointments Committee is like mine, it has invested countless hours and tens of thousands of dollars searching for new faculty. The appointments process is like a train and the destination is to making an offer that is accepted. The problem is that sometimes there is better destination -- one more in keeping with stakeholder interests: Do not make and offer.

There are three factors at work here. First, let’s face it, an offer, even to an entry level candidate, is an offer of life time employment. I do not know the numbers but, at my school, tenure denials are very, very rare. Yes, some people move on for one reason or another but, for the most part, the decision to make an offer is more like a marriage proposal than like . . . well, actually, most actual marriage proposals.

The second factor is the sunk cost problem. What’s done is done and making a decision on what has past makes little sense. Yet, as we know from our own lives and experimental economics, people continue to make decisions based on past expenditures. You know how it works: “I don’t want to go to the game but I already paid for tickets.” There are also tragic outcomes like those related to foreign policy decisions in Viet Nam and Iraq.

Third, privileged people and their "making nice" allies get what they want. When they are on appointments committees, they appoint. Why? Well, because they are entitled to do what they want.

Bring these factors together and you have the makings for disaster. Having made the investment, leaving the market without a hire is viewed as a failure. No one wants to “fail” and powerful rationalizing processes kick in. Unless a campus visit is a disaster, the Committee becomes vested. Marginal job talks are downplayed. Candidates who do not quite fit in terms of curricular needs are recast as potential teachers in areas where there are needs. Only one destination is acceptable and that is the one that allows Committee members to point to the people hired. Little credit is given for mistakes avoided. Committees become agents for the candidates and not for stakeholders.

It is hard to walk away from the table having invested so much but often the best decision is to do nothing. Those with a sense of entitlement and their "making nice" friends do not think in these terms. Afterall, they are only spending the money of others.

Friday, December 08, 2006

Give Me That Cake

This year, for the first time in a number of years, I am serving on two University committees, one of which deals with grievances and professional ethics. Surprising as it may seem, what I have learned makes me feel better about what goes on at the Law School. Here is one example of a scam that seems over the line.

A Professor teaching hundreds of students requires them to hand in homework on workbook pages custom made for his course. The books are available at the local Kinkos and sold at a profit. Students may not hand anything but the actual purchased pages. Evidently, handing in the correct workbook pages has an impact on the final grade. The professor takes a cut of the sales. The Dean of the College where he works is evidently unconcerned. (This newest practice is evidently a replacement for one that required buying CDs with codes in them so that actual purchase could be verified.)

Outrageous! . . . In the words of Lee Corso, “Not so fast my friend.”

Hasn’t the professor simply perfected the casebook editor/casebook publisher scam. (Sorry, Jim, I know how you feel about casebooks but I just cannot use the term “casebook author.”) Think about it. Is there a principled distinction between that professor and thousands of authors (clearly not just in law) who happily issue a new edition every third year whether or not there is enough of a change in their field to warrant it? (Oh, I know Mr. Casebook editor reading this, you would never do it.) In addition, since the demand side of the market is, for all practical purposes, composed of professors who dictate which books will be bought, how are those professors different from a stock broker who mishandles a client’s portfolio?

I'd like to pin this indifference on class bias but I am not not sure I can. My own behavior is similar to that of the privileged. When the memo comes out each semester asking what the assigned materials are for the following semester is to name the book and say “latest edition.” At the same time, I teach contracts and change books every two years because the change forces me to be a bit more on my toes when preparing, but I can honestly say that changing books or upgrading to a new edition has rarely if ever made any difference. I think I could almost get by with the classic Kessler and Gilmore (now that was casebook scholarship!) I had as a student many years ago. If so, that means I have cost 20 years of contracts students many thousands of dollars that went to publishers and editors without any substantial change what goes on in the classroom.

I admire the very small handful of my colleagues who keep using an older edition of a book even when newer editions are created in reaction to the used market. I wish I had followed their example. I admire even more the casebook editor who, when Thomson or Aspen comes calling about a new edition, says “there is no need for one.” At least in one area I teach – contracts -- I think all the editors of these books could say that for at least 5 years, probably 10. (And, no, you do not need to have a new edition to include the 15 pages on the CISG you want to add to your book. Just put it online.) Isn’t legal eduction, where the choir claims to be so concerned about the welfare of others, the best place to begin drawing the line when to comes to exploiting students via the casebook scam?

Please express no outrage about Mr.Workbook until you do.

Tuesday, December 05, 2006

Using Resumes as a Guide

Most of the resumes law school hiring committees allow the rest of a faculty to see are those indicating that the candidate has elite creditials. Given that, is there any real way for the class bias conscious law professor to make a distinction. I think so. First, of course, the most important information on a resume is about scholarship and teaching effectiveness, although I have yet to determine a way to evaluate the latter. In fact, I think it is pretty well settled that student evaluations are not dependable indicators of effectiveness.

Beyond the “hard” information, can a resume tell you something about what kind of colleague the person will be and how important it will be for that person to perpetuate the myth that credentials make the man (or woman) ? I think so. I really liked what the form told me about a recent candidate. First, although the candidate had “pure elite” credentials, they were found near the end of the resume. In the publication section, the symposia pieces were listed in a separate category apart from books and articles. To me this signaled modesty and honesty because, all things being equal, I do not value symposium pieces as much as standard articles. It can vary, of course, but generally the symposium article is accepted before it is written and it would be hard for the sponsor to refuse to publish it. And so many symposia are choir practice. The resume was relatively short, meaning it did not include an entry for every Rotary Club speech. The image I formed was of a low maintenance, confident colleague who was likely to be a good listener and unlikely to spend hours in the dean’s office demanding extra travel money and special teaching loads. More importantly, here was a candidate who put productivity over credentials when it came to what would be impressive.

And then there is the resume that, fairly or not, creates a negative image. “Pure elite” credentials are listed near the top. “This is who I am,” the resume seems to say. The list of publications is long and stuffed with everything that could remotely be called a publication – a panel discussion that was taped and then transcribed, an op-ed piece in a local newspaper, a three-page descriptive book review, a two- page introduction to a symposium. The resume is long because there is an entry for every law-related event ever attended whether a presentation was made or not. And don't forget every law school and university committee. I see this candidate as self-absorbed and constantly on the look-out to promote himself whether or not it is of benefit to the school. You know the type: constant demands for extra travel money, all kinds of special needs, etc. This candidate is in a defensive stance and not likely to be friendly toward lower- credentialed applicants.

If the relevant information is the same, I will pick the first candidate every time. It is not just a matter of what type of colleague I prefer. If I must hire someone with elitist credentials, I want the person who does not puff and does recognize that productivity trumps all. I think that choice is also consistent with MoneyLaw rules. If there is a tie with respect to productive potential, the lower-cost candidate gets the nod.

Saturday, December 02, 2006

I’m Mad as Hell: PrivilegeLaw Users’ Manual

First, thanks to Jeff Harrison for allowing me to post this on Classbias. Entering the debate is sometimes the first sign one is losing the argument but, really, this has gone too far. Is it possible that MoneyLaw/Classbias may some impact? I don’t think so, but it's never too early to restore the balance.

PrivilegeLaw players: Are you using all of your richly deserved advantages to choke off the threat? If not, here is your check list:

1. The AALS is your friend. Make full use of all the boxes on the meat market form that stress credentials over substance. Remember, the shorter the form, the better off you are. You actually prefer the one line form that asks one question: School granting J.D. degree.

2. If you have a high class rank, say so. If not, say “not available.” Don’t worry. You went to a top ten school, right? Don’t undercut yourself by revealing something that is only relevant if you are actually in the top ten percent. You are helping recruiters by not confusing them.

3. For references, list people who are most likely to impress even if they do not know you that well. Remember, you are paying in part for a chance at a law teaching job. Those big names will write great letters even if they barely recall you. They owe this to you because this is part of what they are selling.

4. Before you send that first article out, be sure to touch base with anyone who would impress a law review editor when included in your acknowledgements. (Yes, that long exercise in name dropping at the bottom of the first page.) Thank them even if the only contact you had was a return phone message of encouragement. (“I am deeply grateful to Professor __________ for his continuing support.”). This is your birthright.

5. Your cover letter must drive home your credentials and the names of those important professors who “commented” on your work. Also, mention your last “piece” in any prestigious law review even if it is a five-page co-authored book review.

6. Remember, other members of the Club are on the faculties of highly-ranked schools. Call them. Ask to speak to the editor of the review about how important it is to put your submission at the top of the queue.

7. If the person you call actually did read an earlier draft, be sure he/she tells the editor just how much they liked the article. Otherwise they can just say, "The competition for this article is sure to be fierce."

8. Are you on the appointments committee? Remember this rule: Grads from top ten schools are always better than grads from lower-ranked schools. Sometimes a sigh or a raised eyebrow is enough to stop any silly effort by a colleague to be a bit more open-minded. And, no matter what, remember the PrivilegeLaw credo: Never write down anything you would not want to see on the front page of the New York Times.

9. Has your law school made the mistake of hiring a MoneyLaw person? Make sure the person knows right away who you are and how lucky they are to have a job that rightfully belongs to someone who was more properly prepared for the job. How many ways can you work Harvard, Yale, Stanford, etc., into the conversation? The current record, by the way, is eight per minute and that was wind assisted. (Actually, I am surprised it is that low.)

10. Express your sincere regrets when the MoneyLaw colleague proudly announces that his/her first article was accepted by a law review below the top ten. Something like “Oh, I see,” or “Next time, try to leverage it up” will work.

11. If the MoneyLaw candidate actually survives six years of being dismissed as the runt of his or her law teaching class and makes it to a tenure decision, express concerns about whether the candidate really has “the horse power.” Forget about that pesky study suggesting the only clear determinant of post-tenure productivity is pre-tenure productivity. Quickly add how much you personally like the candidate.

12. Now this is really important. Right now, and I mean this. No delays. If the students in your class do not know you went to Harvard, Yale, Stanford, etc., do not leave another class without them knowing. In comparison to your MoneyLaw colleagues you will automatically become a better teacher.

Best of Luck

Chadsworth (Do not call me Chad)