Sunday, April 29, 2007

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.

Tuesday, April 17, 2007

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.

Sunday, April 15, 2007


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.



Thursday, April 12, 2007

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.

Wednesday, April 11, 2007

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.

Thursday, April 05, 2007

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.

Wednesday, April 04, 2007

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.