Wednesday, December 29, 2010

Ethical Guidelines for Law Professors

As far as I can tell, this is the most recent iteration of ethical standards for Law Professors. For the most part the standards are fairly general. My cynical side says this is what one expects from a committee and from a elitist-heavy profession. As I have noted before, elitist do not like rules because rules decrease the important of informal influence and institutional authority. Still, some of the standards are pretty interesting. Here are a few:

1. They should recognize their responsibility to serve others and not be limited to pursuit of self interest. (If you have ever observed a faculty deciding whether to start a new program or keep an old one or a faculty member angling for the ideal teaching schedule, you know this one is routinely ignored.)

2.Law professors’ responsibilities extend beyond the classroom to include out of class associations with students and other professional activities. (Is getting smashed with the students included in this?)

3. Classes should be met as scheduled or, when this is impracticable, classes should be rescheduled at a time reasonably convenient for students, or alternative means of instruction should be provided. (Is class impractical when one wants to attend a conference, teach in a foreign program or consult?)

4.Law professors have an obligation to treat students with civility and respect and to foster a stimulating and productive learning environment in which the pros and cons of debatable issues are fairly acknowledged. (Opps, this could rule out indoctrination.)

5.An evaluation made of any colleague for purposes of promotion or tenure should be based exclusively upon appropriate academic and service criteria fairly weighted in accordance with standards understood by the faculty and communicated to the subject of the evaluation. (Elites and administrators who abhor transparency don't like this one. It gets in the way of ranking people based on politics or who you're mad at.)

6.Law professors should comply with institutional rules or policies requiring confidentiality concerning oral or written communications. (I guess this only applies to some.)

7.The scholar’s commitment to truth requires intellectual honesty and open-mindedness. (At most this can only be seen as aspirational.)

Sunday, December 12, 2010


A year or two ago I blogged quite a bit about collegiality and invoking collegiality as a way of silencing others. For example, if you do not like what someone was said and have no reasoned response, you play the collegiality card. I also attempted to draw a parallel between the tragedy of the commons and faculty collegiality and describe why the commons are destroyed by shifting standards and rules as well as gossip exaggeration and lies.

After a recent experience at my School, I am now wondering if law faculties are afflicted by a different problem in that there are so few core values. I am aware that what may be shared is that there are no core values when one wants something enough. In other words the one core value is that the ends justify the means.

The internalization of three core values could help faculties.

1. Tell the truth.
That is pretty easy, you would think but I am not sure. It may be that people are so driven by what they want to be true that the cannot see the difference between what is true and what is false. I've seen appointments meetings in which input given by faculty has been "misstated" -- the collegial way of saying what it actually is. People in meetings say they had no idea of a fact when they had been told. And then there is the usual B.S. -- this program meets many needs, this candidate is famous, etc. Finally, there are the weasels slipping from office to office with innuendo and lies. When zealots are so blinded that the they lose track of what is true, it's pretty much the end for faculty cohesion. A dean can remove people from key committees but he or she cannot bar them from their office to office rounds to serve up their little bit of poison.

2. Cause no welfare loss.
This one draws from economics and requires understanding the difference between a redistribution and a welfare loss. Sometimes decisions are made that mean a person or persons are worse off and someone else on the faculty or the students are better off. This could mean that a redistribution has occurred. On the other hand, some activities have no upside except perhaps the pleasure derive from harming others. For example, at recent tenure and promotion meeting, faculty at my school discussed candidates. Many positive things were said and a few negative ones. The Dean cautioned the faculty not to talk about the substance of the meeting. Within a few minutes of the end of the meeting it appears people had talked and named names. So think about it. The candidates may be tenured and become life time "colleagues" of the people who had reservations. The substance of the negativity could be communicated without revealing names. What was the upside of naming name? If you lack core values there could be two. The enjoyment of seeing people become enemies. The pleasure of chilling future discussion. It's a pure loss unless one views these as legitimate goals.

3. Transparency
This has more to do with committees and administrators than it does with individual faculty. Nevertheless, faculty are administrators and committee members and are tempted to keep things secret. Secrecy leads to uncertainty. Uncertainty caused by an information vacuum sucks in substitute information that may or may not be accurate. In effect, those who keep secret what they know that could reassure people -- that rules are accurately stated and consistently enforced, that their concerns have been heard, that there are no favorites, etc,-- are generally 1) not sure they can defend what they are doing or 2) feel they can but do not have the courage to deal with the fallout. In either case, it means a willingness to allow others to suffer. Of course, if it were for an honorable end, they could say that -- "I do not think it is in the best interest of the Law School to comment further."

I have seen these standards observed by different committees and administrators. What strikes me is how quickly they come to be trusted and how the stress level is instantly lowered. It is refreshing.

But the problem is this: it only takes a few who lack core values to screw it up for the community. I cannot help but wonder what their parents taught them.

Tuesday, December 07, 2010


No, I do not mean the faculty I am on which I assume is about like all others. What I mean by my faculty is the faculty I would choose or at least how I would choose it. First, I am starting from the proposition that there are oodles of people who can do the type of research and teaching law professors do. We pretend otherwise but, come on!

So, having satisfied those baseline standards there are two decision points I regard as critical for joining my faculty permanently. The first comes at hiring and would require answering a list of interview questions I have posted over on Moneylaw: Here they are:

1. What was your favorite book at age 15.
2. What were the last 10 books you read that had nothing to do with law.
3. Name your favorite opera, aria, sonata, symphony or any non pop, folk, alt music. (I mean one that gets you in the gut.)
4. What non law book is on the top of the stack on your night stand.
5a. What is your "car book" -- the one you keep in the car for waiting in lines or waiting rooms.
5b. What is your favorite pasta? (Opps, this question slipped in from the Italian cooking blog but it could still be important.)
6. Who was your favorite teacher before law school and why?
7. How would a Rawlsian design the faculty recruitment process?

There are no right or wrong answers to these questions. The only wrong answer would be not being able to answer and have an interesting discussion.

The next critical point comes at tenure time and, assuming there was an actual review process which the candidate passed. That's a big IF -- the part about having a real review process, I mean, as opposed to having enough buds on the faculty to get the candidate through.

I'd like to know the following:

1. How many times have you complained about your teaching assignment?
2. How many times have you insisted to a secretary that your work gets done?
3. Do you tend to go over your travel budget and then tell the Dean how you have to have more because of all your obligations?
4. How many days on average do you cancel class in order to consult?
5. How many nights (after 7) a semester are you out drinking or hanging out with the students?
6. How many times did you visit the dean's office or email the dean to complain about someone else without first talking to that person?
7. How many times per year did you, on your own initiative, visit the dean's office for any reason?

Wrong answers are as follows:
1. More than 0.
2. More than 0.
3. More than 0.
4. More than 0.
5. More than 1.
6. More than 0
7. More than 1.

So, my faculty would be full of interesting people and who require no special handling

Wednesday, December 01, 2010

Last to Know About Class

I am the last to know about last September 24th issue of the Chronicle of Higher Education much of which was devoted to class on campus. There are several interesting tidbits in the lead article by Peter Schmidt. As he notes, unlike other minority groups, low socioeconomic class people tend to try to "fit in." No serious statistics are kept but it is estimated that 36 percent of students in post high school programs are children of parents who did not attend college. They tend to be concentrated in lesser colleges, two year colleges and technical programs.
Schmidt and his sources say that socioeconomic class is no longer dismissed and is now"permissibly" to talk about. The idea that is Ok now to talk about class reminds of a conversation I had with a colleague several years ago. I asked him, "why not have a retreat and talk about class." His response, "Can't do that. It's too important." He captured it all right there. It was more important than all the other diversity concerns because it was the only one that could be accommodated without affecting the the elitist death grip on higher education.

Whatever hopeful signs the Chronicle reports to not appear to be found at law schools. The student body is already someone socioeconomically diverse, at least based on the students I know with crushing debts. Faculties, however, have not even begun to consider socioeconomic class diversity as anything to be taken seriously. Or maybe I have this wrong. Maybe as my friend suggested the reason it is ignored is because hiring committees and faculties do understand it's importance and it frightens them.

Saturday, November 27, 2010

Do the Elites Avoid Numbers?

I wrote a post over on moneylaw about the way law professors handle empirical work. Basically, if it supports their political instincts, is is acceptable no matter how poorly done and, if it does not, it is poorly done no matter how well done. Especially, it is suggests any form or racism, sexism or homophobia it cannot even be examined closely. But now I am thinking there is a class angle on this. It is linked to my idea a few posts below that elitists do not like procedure. To put that idea in a nutshell, elitists are in a far better position to work the system than non elitists and rules just get in the way.

The same may be true of numbers or the quantification of virtually anything. For example, I feel sure that if I could produce an empirical study showing elitists are no more productive than non elitists as law professors, those in charge of hiring would ignore it. (I once did such a study and it showed no difference but once the school rank was above about 30 I could not find enough non elitist law professors for the study to be valid.) In effect, numbers can play the role of rules -- they make it harder to use connections, appeals to institutional authority and class as a way to prevail. At least they raise the cost of doing since they may need to be explained away.

The problem is that numbers can lie or can be used to support a lie as most of us know. So, they are not like procedural rules that can have a "veil of ignorance" appeal about them. Still, my sense is that, on balance, the elites would prefer not to be bothered with empirical evidence at all because, from time to time, a number may be produced that they cannot fully control.

Sunday, November 21, 2010

Are the Elites Better Cheaters

I had seen this article a few days ago. Its title tells you the topic: The Shadow Scholar: The Man Who Writes Your Students' Papers Tells His Story. I had not read it all the way through and missed this excerpt which was brought to my attention by one of my favorite colleagues.

"From my experience, three demographic groups seek out my services: the
English-as-second-language student; the hopelessly deficient student; and
the lazy rich kid.

"For the last, colleges are a perfect launching ground‹they are built to
reward the rich and to forgive them their laziness. Let's be honest: The
successful among us are not always the best and the brightest, and certainly
not the most ethical. My favorite customers are those with an unlimited
supply of money and no shortage of instructions on how they would like to
see their work executed. While the deficient student will generally not know
how to ask for what he wants until he doesn't get it, the lazy rich student
will know exactly what he wants. He is poised for a life of paying others
and telling them what to do. Indeed, he is acquiring all the skills he needs
to stay on top."

As far as I know, law professors do not hire others to write their articles. But what if you could write a paper and it got a good grade whether it was deserved it or not. It's kind of the same thing. How does that work with law professors? There are four versions. The first three deal with the outside review of articles. In the worse cases, I know about the referee and the candidate work together to craft a good review. Then there are cases in which the subject matter is as much a political movement as it is an area of scholarly research. In these case the experts share the same political inclinations and the possibility of getting an honest review is close to zero. Once in awhile one of these articles will work its way into an honest reviewer and there are some concerns about what is written. If the candidate is liked enough, the negative comments are ignored. Finally, most reviewers do not say negative things. Why? There are may reasons but one is that it is rarely in the self interest of an elite to put anything negative in writing. After all, if the rational self-interest label ever fit anyone it is elite law professors. The last reason is the symposium matter. That is, you are asked -- usually by a buddy -- to write something for a collection. It is accepted without any review at all. (Even the student review process is better than this but not by much.)

The privileged will always find a way to work the system. After all, they created it and they own it!

P.S. After writing this another colleague read it and suggested that law professor do have others write their articles. They lift straight from the work product of their RA's. He also indicated that the bogus review letter problem extends to reviews of teaching.

Saturday, November 13, 2010

Is it Stuck to Your Wall?

Your diploma I mean. Let's think about why someone frames and attaches or her diploma to the wall. Unless you just like to look at it yourself in case you forget you actually graduated, it's a form of advertising. Advertising can be good. It may provide useful information and lower the search costs of people who are buying what you are selling. A yellow page add that says "board certified" or even a framed certificate on an office wall may do that.

On the other hand, if you are a law professor, most people will assume you are qualified to be a law professor or that at least a small group of people in charge of hiring thought so. Your advertising falls into the category of an appeal to institutional authority. That is, if the institution from which you graduated has a good reputation -- an elite ivy league school, for example -- then you must be of similar ilk. The same is true if you feel compelled to name drop the name of your school whenever possible. (I have been told that a survey of Harvard grads in conversation found that on average "Harvard" is mentioned within the first minute.)

The problem is that this does not lower search costs but actually raises them. What we know is that some elite school grads are terrific law professors and some are awful. The same is true for non elite grads. Hanging the diploma on the wall can and often is misleading. It's a practice for those who are afraid to be identified by what they actually do.

Thursday, November 04, 2010

Paying the Bill for Obama's Elitism

I do not know if it would have made a different in the elections. I doubt it but at the margin there is no doubt that Obama's elitism hurts. It was displayed most prominently during the BP disaster. For me, though, the biggest missed opportunity was the Kagan appointment. Just think what a difference it would have made if he appointed an equally qualified southerner mid-westerner or rust belter . Maybe someone with an actual drawl! Just the photo ops would have been worth votes at least in the appointee's home state. Instead we get a privileged ex-Harvard dean. This Times article covers some of the problem. As it notes, Obama was not raised to be an elitist. Instead it was an acquired characteristic.

In some ways, everything works against him. I've know some pretty unpleasant people who get away with it because of a perpetual smile, an aw shucks manner or a boyish or girlish facial structure. And then there are people like Obama who seem stuck with a stern look, seem always stiff, and are so careful in their wording that it becomes excruciating to listen to. It's so bad that even the imagery of just having a beer does not work. These things he cannot control and it is ashamed. Somewhere in there there may be a non elitist who is afraid to show it because he has invested so much in getting the role right.

Unfortunately, now others pay the price.

Wednesday, October 27, 2010

Where are you Daniel?

One thing that is interesting about the law school ranking B.S. published by USNews&WR is the absense of anyone to really blow the whistle that could put an end to the elitist-biased and deceptive process. I mean someone like Chesterfield Smith in the Nixon era or Daniel Elsberg and the Pentagon Papers. Actually, I am trying to think of an incident of political courage when the actor was bound to take heat but was willing to. I sure there may have been one (or several) in the last 40 years but it is hard to think of someone and in this case the stakes are so much smaller.

I'd like to see about 10 university presidents from highly ranked schools say they will not particpate. But I will not hold my breath because almost every academic I know treats life like a negotiation. You don't give unless you get.

Tuesday, October 26, 2010

Outsourcing Law School

The other day a pile of new course proposals by adjunct and non tenure track employees was delivered to the members of the curriculum committee. It made me wonder: How much of our curriculum is taught by people who did not go through a search process, have no role in faculty governance, or were not hired to be teachers. The number was high and growing.

The One thing that all of these teachers have in common is that they are less expensive to use than tenure track professors.Also, I think it is generally true that they regard being able to say they are "professors" is a big deal to them.

I am not saying this is exploitation since these folks have choices but there a few things that seem amiss.

First what kind of rational hiring process spends tens of thousands of dollars in search expenses for professors on the one hand and conducts no search for those who will teach even more. I am not saying one is better but it's not a case in which the mix makes everything better.

Second, if the idea of a search is to ensure diversity and fair opportunities, why, if you take one position that involves teaching 3 courses and divide it in thirds, does the need for or desirability for a search disappear?

Third, part time teachers are cheap and seem desperate for the opportunity. Many have no say in governance and little contact with the school other than fitting in after work. Does this mean that power gravitates to the administration. More importantly, is that really a bad thing.

Distance learning, on line courses and degrees, externships, and part time teachers all involve outsourcing of a sort. The problem is that it is not driven by money grubbing management that hopes to make shareholders happy by cost cutting. In this case of outsourcing, no one gets richer.

I am not sure where this goes or even if I think it is wrong. I know I do not like it but that is a different matter.

Wednesday, October 20, 2010

Late Blooming Radicals and Other Privileged Oddities

The other day a colleague explained his actions but saying it's because he is a liberal. I thought, how can a political philosophy compel anything? You do what you want to or what you feel is right and then you find your views are consistent with one ideology or another. But please, hopefully, there is not an owner's manual you consult and then say "I did this because it is want to do what liberals (or libertarians or Marxists) do."

Unfortunately, that does go one -- checking to see how you should behave before just behaving in the way that moves you. It is especially interesting to observe students who sometimes, when confronted with a novel question, stop to think how they "should" feel given their desire to stick with one philosophy or another.

But none of that is what I really mean by Late Blooming Radicals. What I mean is this: Law professors can be divided into two groups: Those were total conformists as students and those who were not but had rich mommies and daddies to bail them out. Then, when they become law professors, many bloom politically as in announcing they are liberal or libertarians or have strong political feelings about one thing or another. The new courage only comes, though, only when they are in risk free positions of authority. That is when it is costless.

Basically, as students and attorneys most were suck ups, don't rock the boat, types. No visible evidence of conviction other than pleasing those who could get them in the fraternity. Most just stay that way and I am fine with that.

It's the late bloomers I find irritating. Their courage now that they have become the establishment is not convincing to me. They still quake in their boots before stating a controversial position out loud. But they love to pretend. Maybe grow a beard, wear a funny hat, etc. They are so disappointing.

Friday, October 08, 2010

Grooming or Substance

One of the things that turn the heads of law school hiring committees is good grooming. I do not mean brushing your teeth or wearing clean clothes. I mean the grooming that takes place at elite schools. These finishing schools equip people with correct mannerisms, socially strategic instincts, the right references, a close to the vest style and the ability to talk about various theories that only some people know about. In many ways I increasing think this described Obama. I voted for him but so far all I can see is someone who did well in the grooming system.

The same is true for some law faculty. They can be charming and seem to have a great depth of knowledge until you scratch the surface. It a bit like someone impressing you by being fluent in a foreign language. Then when you get to know the language yourself you find out that they are actually reciting a menu.

Sunday, October 03, 2010

Questions and And Answers on Law Prof Advocacy

[Al Brophy commented on a previous post of mine, "Follow up On Rent Boys and Adoption." With his permission I have reprinted the comments here.]
Alfred Brophy said...
You say "The UF policy of finacial support for a cause based on faculty prerogative strikes me as a policy that one would never adopt under a Rawlsian veil of ignorance. It is one that says whoever controls the school get to use its resources to promote his or her idea." First, I think you mean whoever's employed by the school, not who controls the school. Second, it seems as though you are saying that UF faculty should not be permitted to argue against a state statute. So aren't you saying that people who "control" the school -- the state legislature -- can stop people from arguing against them?Are you drawing any distinction here between scholarship that criticizes legislation and advocacy against that legislation? Is there any distinction between advocacy that takes place on a faculty member's own time and that done on "company time"?
3:23 PM

Thanks for writing Al. I will try to answer what I think are four questions or at least address them although I cannot say I have this all figured out.
1. I view law schools as being controlled by the faculty. They decide who to hire, who to tenure, what scholarship is valued, what courses are in the curriculum, what programs are offered and whether a dean stays or goes. We probably disagree on this. My position is consistent with my arguments that law schools are, in effect, captured by faculty. I wrote about this several years ago.Sure, I guess a legislature could vote to close a law school (I doubt it could ban the expression of a particular person) but I do not think that is realistic.
2. On whether the legislature "can" stop someone from arguing against them I am not sure I follow. It seems like a legislature cannot stop anyone -- faculty or not -- from arguing against them.
3. I view scholarship and advocacy as quite different. To me scholarship occurs when an open minded person who is not out to prove a point, tests an idea by doing research. The product is a report that presents both sides of the issue and carefully explains the scholar's conclusion, if one. Advocacy is an effort to represent one side of an issue or a client. It means putting forth only the information that supports one's side and distinguishing adverse evidence. Advocacy and scholarship both appear in law reviews.
4. The last question is hard because you have framed it in terms of time. I don't think many of us make a sharp distinction. I do think a more useful distinction can be made between company resources and personal resources and the use of the company's institutional authority and an indication that the institution is unrelated to the view expressed.

Two final points that may not be responsive but may be useful as background. I personally would prefer more scholarship but I know there will be advocacy and it's fine. I would not stop it. I just cannot make the connection between being a law professor and, consequently, having a right to have his or her expression of political views subsidized unless others are offered a similar opportunity. This is especially true since I believe, as reflected in my last post, that the selection of the these speakers is basically a function of class and status.Finally, I am told that at my school some outside political efforts have been discouraged. Don't know if it's true but if it is I do not think we have a procedure for deciding what is in or out of bounds.

Saturday, October 02, 2010

Class-Based Preference for Procedure and Transparency: Ratcheting Up Privilege

I week or so ago I took the position that public law schools should operate under a fairness doctrine. (I'd like to say there was a controversy but, since only one person agreed, that would be incorrect.) The idea is that professors have subsidized soap boxes -- privileged positions so to speak. It's actually a double privilege. Since many, if not most, arrive in at their law prof jobs because they are children of privilege, the privilege is racheted up by their use of state money to voice their views. Because of who your parents are there is a special trust fund for you.

I'll stick to my rule even though, in that case, I supported the side that was being promoted and the people from my faculty who were promoting it were, in my eyes, good people.

But that is the way it is with procedure. You either buy in or you do not. If you buy in, you follow the rules regardless of who is affected at that moment. The option, if you do not, is majority rule. Sometime this is more like mob rule only quite civil.

I think the substantive rule that should guide all procedure -- including a procedure for determining the use of state funding -- is that people are treated equally unless there is a good reason not to. I realize this probably has some Kantian/Rawlsian tie in.

My experience is that law profs (some, most, who knows?) go by three rules when it comes to procedure:
1. Procedure is obstacle to be worked around. Avoid it! (I witness this repeatedly.)
2. If you are forced to create procedure, make sure you know in advance who the winners and losers will be. (I can't think of a worse approach.)
3. Make the procedure as vague as possible. (They would say "flexible.") This means it can be effectively ignored.

Why do law profs dislike procedure and regard those who support it as a threat ? Think about it. If you have an elite background or are trying to pretend, that means you know people who are similar or are trying to curry their favor. They can be law professors at a fancy school, a politicians, your dad's pals, etc. Those people grease the wheels for you and not for others. And, if you are in the majority, why have a procedure that might stand in the way of your goals? In the eyes of the privileged, procedure just gums up the works.

Working class people typically do not know anyone of influence or have the money with which to influence decision-makers. Thus, they are more likely to prefer rules that equalize opportunities. (In fact, some have written that they are better of in a court room than using one version or another of ADR.) In fact, it was not that long ago that the lack of procedure was a critical part of the exclusion of minorities from the profession. People could be eliminated from consideration for unarticulated reasons and a different majority ruled. In fact, the next best thing to having a procedure that expressly discriminated against the less privileged was to have no procedure at all or a very vague one.

As with most things there is a tiny silver lining. Since there is little or no procedure, when decisions are made and challenged, the makers are left to constuct one. They rack their brains inventing the procedure they followed. Watching that can be fun.

So it goes, I think, at law schools.

One more thing. Ironically, the part of my Law School that seems to embrace a fairness doctrine approach is the Federalist Society which routinely asks for faculty comments on the views of their mostly right-leaning speakers. Of course, I assume if they were in the majority, fairness would be less important.

Thursday, September 30, 2010

160 SAT Points: The pay off for privilege

In the NYT. here is the link.

Do All Taxpayers Agree?

This was the questioned asked to me by a reader. The implication I think is that single-view subsidized law professor political speach has to be Ok because taxpayers do not agree on many if any things. That sounds a little odd but it is the only interpretation I could come up with.

I think I have not made my point clearly or it has been misunderstood. It is not that law professors must hush up because taxpayers do not agree. Instead it is that other voices should similarly be subsidized. (Or hiring committees could make an ideological balance a goal.)

I would contrast an institution that encourages the expression of different views with. say, a government that only assists one particular point of view. I can think of a few.

Basically, though, it just gets down to how boring, unimaginative and anti intellectual it is to hear the choir of law professors sing the same tune.

Wednesday, September 29, 2010

Follow up On Rent Boys and Adoption

What follows is a good report by the Gainesville Sun's on the kerfluffle at the Law School. I have a couple of comments to begin with that may make more sense after the article is read.


1. Any suggestion that since there is state money on one side it is OK for the Law School to weigh in makes no sense as a logical matter. What is the connection? In any case, the States' lawyers do what they are told -- they fight the battle even when they personally disagree. Law professors only weigh in when they agree. In short it's not based on righting wrongs (although it had that effect here) it's based on personal preference.

2. The UF policy of finacial support for a cause based on faculty prerogative strikes me as a policy that one would never adopt under a Rawlsian veil of ignorance. It is one that says whoever controls the school get to use its resources to promote his or her idea. I am confident that throughtout history the same policy has be used to oppress people. Why follow a policy that has that potential?

Gay adoption case sparks debate over UF's involvement
A UF law professor filed a brief in support of overturning the ban.
By Nathan Crabbe

Staff writer

Published: Tuesday, September 28, 2010 at 7:48 p.m.
Last Modified: Tuesday, September 28, 2010 at 7:48 p.m.
It all started innocently enough: An e-mail congratulating a University of Florida law professor for a brief in support of overturning the state's gay adoption ban.

But a systems administrator's criticism has spurred a heated debate among UF faculty on the role of law professors, how the college decides to lend its name to legal briefs and whether taxpayer money should be used to help overturn laws passed by elected officials.

Last week, the 3rd District Court of Appeal overturned Florida's ban on adoptions by gay people. The UF Levin College of Law's Center on Children and Families joined similar centers at other law schools in the state in filing a friend of the court brief, which are filed by entities not directly involved in the case.

The brief cited legal decisions that showed the ban violates a child's right to a secure and stable family relationship. Law professor Nancy Dowd, director of the UF center, said the brief fit within its mission to promote quality research on issues important to children and their families.

"One of the things that people at the university do is share their expertise," she said.

Dowd sent a message to several law school e-mail lists congratulating legal skills professor Joe Jackson, the main author of the brief, and others with the center for their involvement.

Micah Johnson, a systems administrator with the college, responded with a short e-mail saying the decision was at odds with his beliefs.

"Your elation stands in stark contrast to my disappointment on this decision," he wrote.

Law professor Steve Willis then sent an e-mail in support of Johnson, who is on vacation and couldn't be reached for comment. Willis said this week that he's one of the only registered Republicans on the law school faculty and believes the college only allows involvement in liberal causes.

"It's all political and unfair," he said. "I'll probably regret saying that, but that's what I believe."

College Dean Robert Jerry said academic freedom allows all faculty members to take positions or file briefs in a case in their personal capacity. For a UF center to be officially involved or university resources used, he said, the brief has to not just be a personal opinion but based on scholarly research.

He compared the situation to suggesting that a faculty member's opinion that global warming is not real should get the same support as research showing it is.

"If we buy into that, God save us," he said.

But law professor Jeffrey Harrison questioned whether a public university should be taking a position that might be at odds with public opinion in a court case. While he said he was happy with the decision, he said he was unhappy with the use of public money to promote positions that some taxpayers oppose.

"Our speech is essentially subsidized by the state, and other people don't have that privilege," he said.

But law professor Danaya Wright said that taxpayer money is also being used to support a law that violates the rights of gay citizens. It's the role of law professors to be as neutral as possible in researching such issues, she said, and then providing that information to judges who make the ultimate decisions.

"If we didn't weigh in, I would say we're shirking our duty," she said.

Contact Nathan Crabbe at 338-3176 or

Saturday, September 25, 2010

Rent Boy

In the letter posted two posts down, the colleague who wrote to lecture the faculty and myself on Constitutional issues and then engaged in some old fashion intorance via name calling made reference to a "rent boy."

A "rent boy" is, of course, a male prostitute. My favorite reference to a "rent boy" is actually not in the colleague's email even thought it is a close call, but in the John Wesley Harding song, "Get Back Down." Here is a verse:

You know if jesus was a rent boy
Then God was his pimp
The people in power they squeezed him
Until he went limp
If the new messiah called here
First, we'd put him on hold,
Get him a deal and a good-looking haircut
We'd make him look less old
Less good and less old
Tell him to get back down

It's a terrific song. John Wesley Harding is actually Wesley Stace, also a novelist.

What an Entitled Faculty Wants to Know

It is the time of year when invitations to interview in Washington are extended and for some, invitations to campus visits. The first stage is pretty much a beauty contest. Have the right credentials, dress conservatively and with good taste and sound eager and alert and you take a step forward toward your life-time sometimes- achievement-sometimes-no-so-much-achievement award of tenure. I've discussed the dos and don'ts before and, for many candidates, it's too late to do some of the critical dos -- go to a fancy school, get on a first name basis with some over hyped professor there etc.

You also have to be what today passes as liberal but is actually conservative and intolerant. That brings me to the most critical test. Tolerance. A deal killer is any signal, so matter how subtle or slight that you might not be totally tolerant of your potential colleagues' pervasive intolerance.

Friday, September 24, 2010

More on University Resources and Elitist Assumptions

What follows are two emails. The first is a generalized statement by a UF faculty member about the subject matter of my post from two days ago about the use of University resources. It also includes some good insights about the actual decision Florida was making. The second is my response. For people interested in class bias the first one, through its tone and content, may reveal some of the power the elites unequivocally claim for themselves.

First email:

Let me begin by apologizing for filling up a lot of mailboxes with more about
this issue for those who don't care about it. But I feel I cannot let the issue
drop with only silence from those who support this decision. So I reluctantly
will share some thoughts. First, for those who have personal opinions for or
against the adoption ban (whether based on religion, philosophy, or some other
grounds), I believe those personal beliefs are not, and should not be, the
foundation for legislation. If the legislature passes a law that targets a
particular group or treats an historically marginalized group in a
disadvantageous manner, especially in regard to a very important personal and
fundamental right, that law is properly scrutinized pursuant to appropriate
constitutional standards. And in this instance, there is simply no rational
basis for saying that every single adult in the State of Florida is entitled to
an individual judicial determination of fitness to adopt a child, except the gay
person for whom the courthouse door is barred and locked. This is especially
true when there are thousands of children out there waiting to be adopted.

Second, and flowing from the notion of legislative review by the courts, it is
precisely the role of the courts to protect the minority's individual rights
from the tyranny of the majority. Legislators, acting on personal beliefs or
political impulse, are generally prone to minimize, if not completely ignore,
the harmful impact their decisions have on the lives of others (especially if
they can get votes that way). I, for one, am glad that we have a tri-partite
system of government in which someone is watching out, albeit belatedly, for the
legal rights of the minority. Given the incredibly deferential standard of
rational basis review, this case is not an example of an activist judiciary
trampling the sound views of the majority - rather, it is the state unable to
make a defense for a law when the bar is so low that you can’t see light under

Third, the funding issue is a different concern, especially vis a vis the role
of public higher education. I should note that in this case the state used
taxpayer funds to defend this lawsuit. It used the state’s coffers to hire
"experts" who used religious and disproved junk “data” and tried to pass it off
as science to support what has now been held to be an irrational law, a law that
was passed in the aftermath of the Johns Committee’s witch hunts and the
shocking audacity of the Miami-Dade County Commission to pass a
non-discrimination policy to prohibit discrimination on the basis of sexual
orientation. These so-called experts (and there were only two despite a much
broader search) were not neutral analysts. Rather they were preachers of hate
and bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that
he hired a “rent boy” for his trips overseas, and when it was revealed he
claimed the “rent boy” was to carry his luggage. The specific facts of this
situation aside, it seems to me that the role of the University is to create
good scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency.

My response:

As I noted yesterday, I too favor the recent opinion. OR, in the alternative I
guess it would be OK to say that heterosexual men cannot be around daughters and
heterosexual women around sons. I mean, when you dig through all the crap, was't
the ban based at a gut level on the notion that homosexuals are of low
character and are potential child abusers. It made me ashamed of Florida.

In any case, Professor ------ has written such a wonderful paragraph I have
repeated it immediately below because it so richly illustrates the concerns I
voiced yesterday. The fourth sentence is what we give lip service to. The first
first three are how we often operate (and I do not exclude myself.) -- subtle
and not so subtle attacks, name calling, attribution of bad motives to those who
disagree. And the last sentence suggests we know the different between "justice
and truth" and whim. Justice and truth was once slavery and no voting by women.
It is anti semitism and female circumcision in other places. I get worried
about anyone who thinks he or she has a handle on truth and justice.

"These so-called experts (and there were only two despite a much broader
search) were not neutral analysts. Rather they were preachers of hate and
bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that he
hired a “rent boy” for his trips overseas, and when it was revealed he claimed
the “rent boy” was to carry his luggage. The specific facts of this situation
aside, it seems to me that the role of the University is to create good
scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency."

This search for truth reminds me of my first article as a law professor. I
wanted to say something like "the courts generally. . . ." But I knew I did not
KNOW that. I asked a more senior person and he said, "Don't you know about the
"See for example" cite." And then I realized that most of legal scholarship is
"see for example."

A few more points. I think it is irrelevant that the legislature used state
money to fund defense of the legislation. I guess the implication is that we
have been hired to act as counsel on the opposite side -- of everything or
just the things we disagree about? I have a feeling the state attorneys defend
the legislation regardless of their personal views and therein lies the difference
between them and us. We cherry pick the ones that affect us, often by a
self-referential standard.

The irony of some law professors bringing up intolerance floors me. I would say
when to comes to political views we are as intolerant as you can get. As far as
I know we have one "out" Republican and no libertarians. Why? Because very
rarely does any one who does not toe the line politically and culturally make it
to campus or to an interview. And when they do there are hallway rumblings about
the quality of their scholarship.

Finally, I thought someone would raise academic freedom in response to my email
yesterday. I am glad it was not raised for two reasons. First, the biggest
opponents of academic freedom are law professors in their hiring and tenure
decisions. Second, my note was not about academic freedom. Academic freedom is
what economists would call a "free good." Everyone can exercise it and it does
not interfere with the exercise of others. University resources are a different
matter. They are limited and if someone is using them to promote one thing, by
definition, something else is not getting done. As I said yesterday, I am not
sure who makes that resource allocation decision but at least one faculty member
has told me that the Administration has the discretion to fund or not fund (not
necessary prohibit) specific endeavours and has exercised that discretion.

It would nice to talk about all these issues but that would require a level of
intellectual fervor that we lack for good reason. In all our discussions --
courses, programs, hiring policies -- when one side feels it is losing, it
gets personal, if not inside the meeting then in the halls immediately after.

Poster Professor for Sense of Entitlement

My goodness, you poor baby:

Thursday, September 23, 2010

Letter to UF Law Faculty

When University funds are used to support a political position, who gets to decide which position the funds should be used to support? Would the Dean or someone step in if the family law department had decided to oppose gay adoption or CGR decided that development of the Everglades by condo builders was a great idea? (After writing this a colleague informed me that when he was asked to write in support of a position he was told he needed permission and he would have to pay the costs.)

While I am very happy with this decision since the connection between sexual preference and adoption is completely lost on me, I am less happy that we use taxpayer money to promote positions that may be disagreeable to many taxpayers. (Of course, in the spirit of how our decisions are usually made, I fully support a system that allows me to decide how the money should be spent.) Back when I knew something about the First Amendment implications of involuntary speech I would have said this is analogous to that. I'd probably be wrong but, as I said, I am not sure I understand the logic by which one side is supported as opposed to another. (And, Pleeeze don't say this is not a political issue but a case of finding the truth because that is non falsifiable.)

The problem with addressing that issue is that it does not stop with things like this. Much of what we do is use University funds to advocate one position or another in our writing and in the class room. And, not coincidentally these are uniformly positions we personally hold whether based on faith, political inklings (very very small inks), having had a particular life experience from which we generalize or possibly because we did actual research on the issue. That may be fine for a private school but I am not as sure about a public schools. Not many law review articles are written by authors who start out with a clean intellectual slate and set out to find the answer to a question by use of the scientific method or any other version of intellectual neutrality. In other words, we seem to work in an environment in which anti intellectualism is accepted and possibly the norm. This is why the term "legal scholarship" has always struck me as odd. I think what we write should probably not be called scholarship but service because we are, in effect, often writing papers that advocate one side of an issue or another. In doing this service it may be important to note that the author is not expressing the views of the University or of those who pay the bills.

Tuesday, September 14, 2010

Kozinski On Elitism

Thanks to the keen eye of a former student, I have the pleasure of posting this recent excerpt fom a dissenting opinion by Judge Kozinski. I confess this is not something I thought I would do. In the quote, the Judge refers to the "unconsious cultural elitism" of member of the judiciary. In many respects his views are similar to those of William J. Stuntz in "The
Distribution of Fourth Amendment Privacy," 67 G. W. L. Rev. 1264.

I think I would modify that for most law professors to read "conscious cultural elitism." Ironically, for the most part, we are not actually culturally elite.

"The panel authorizes police to do not only what invited
strangers could, but also uninvited children—in this case
crawl under the car to retrieve a ball and tinker with the
undercarriage. But there’s no limit to what neighborhood kids
will do, given half a chance: They’ll jump the fence, crawl
under the porch, pick fruit from the trees, set fire to the cat
and micturate on the azaleas. To say that the police may do
on your property what urchins might do spells the end of
Fourth Amendment protections for most people’s curtilage.
The very rich will still be able to protect their privacy with
the aid of electric gates, tall fences, security booths, remote
cameras, motion sensors and roving patrols, but the vast
majority of the 60 million people living in the Ninth Circuit
will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but
there’s one kind of diversity that doesn’t exist: No truly poor
people are appointed as federal judges, or as state judges for
that matter. Judges, regardless of race, ethnicity or sex, are
selected from the class of people who don’t live in trailers or
urban ghettos. The everyday problems of people who live in
poverty are not close to our hearts and minds because that’s
not how we and our friends live. Yet poor people are entitled
to privacy, even if they can’t afford all the gadgets of the
wealthy for ensuring it. Whatever else one may say about
Pineda-Moreno, it’s perfectly clear that he did not expect—
and certainly did not consent—to have strangers prowl his
property in the middle of the night and attach electronic tracking
devices to the underside of his car. No one does.

When you glide your BMW into your underground garage
or behind an electric gate, you don’t need to worry that somebody
might attach a tracking device to it while you sleep. But
the Constitution doesn’t prefer the rich over the poor; the man
who parks his car next to his trailer is entitled to the same privacy
and peace of mind as the man whose urban fortress is
guarded by the Bel Air Patrol. The panel’s breezy opinion is
troubling on a number of grounds, not least among them its
unselfconscious cultural elitism.

Thursday, September 09, 2010

Elite Relief

If there is way to open doors for elites while closing them to others, law schools will find a way. And in the process they make some really questionable decisions from a economic perspective.

Take a recent policy adopted by UF. We now have a program of hiring people with "outstanding academic credentials" and with little or no scholarly record or teaching experience." (Yes it sounds like every other entry level hire.) They then work here with a reduced teaching load and summer grants for 1-4 semesters and, after our careful mentoring, go out to be recruited by other schools.

I'll give you one guess as to what outstanding academic credentials means to people who do law school hiring. It means people who have records like their own -- expensive and elite schools. (We stick closely to the Justice Scalia rule that silk purses are more readily made from elite grads than from your crummy old top of the class at say Wisconsin or Florida.) In this case, the candidates for relief are ones who had every conceivable advantage already and did not get a tenure track position by going through the meat market process. So what this appears to be is a relief program for elites who otherwise could not find a job.

I cannot comment on the relative productivity of our most recent hires who came from elite schools and seem to be doing well because we have no one here hired in the last six years, at least as I recall, who did not go the elite route and fit the profile even if it meant dipping pretty low in the class. As a general matter, however, at least, there is no correlation between elite credentials of any kind and productivity. In fact, it the may be inversely related.

So now we are taking it on ourselves to train elites who did not quite make the grade in the meat market. And then, after the investment is made and they are "all prettied up" out they out for someone else to hire. In other words we recoup none of the investment.

Wouldn't it make more sense to see if we can prepare potential law professors who did not have every opportunity to make the grade and fell short. Say someone ranked high from a decent state law school. Our "good deeds," as usual, extend only to those who look and think like us, no matter how conventional that may be.

I've been told we are doing this as part of a moral obligation to avoid free riding on other law schools. In the scheme of moral obligations that is an odd one. We are a State institution and have a duty to our stakeholders. Subsidizing the already privileged would not be ranked high, if ranked at all, among our moral obligations. Perhaps if we hired our own graduates it would make more sense but, although we pay others to hire them, we are apparently above that.

Maybe we plan to pay the relief candidates a significantly lower wage and this is a move to lower our teaching costs. In this way they "repay" us for our investment. This would not change any of the above but it would shift the silliness balance a bit to the other side. This, however was not part of the pitch.

Luck and Class

I've had some thoughtful responses to my last post about Nancy and the blight of children of working class families. It would be interesting to know the difference between working class kids who make it and those who don't -- other than working hard. Making it means having aspirations and aspirations mean have some examples or experiences that tell you what is possible and then having the self esteem to believe you can do it. If the working class family does not read, does not go to museums, and does not stress achievement then it comes down, I think, to teachers who inspire. Yes, the terribly underpaid elementary or middle school teachers may be key in determining what happens to working class kids. They can help the kids develop a "taste" for learning that they may not develop just from their parents.

This all gets to the point that I know of no working class person who status jumped (moved more than one rung up the socioeconomic ladder from his or her parents) without some luck. By the luck of the draw there is a inspirational teacher or second aunt -- someone who alerts the person to the possibilities. It could be a school counselor (as it was in my case) or just a school friend.

Wednesday, September 08, 2010

Nancy Died Yesterday

Not a Nancy that anyone reading this, except a few colleagues at UF, is likely to know. Nancy was in charge of the copy center hear at UF -- more specifically she was "the" copy center.

She was the one who had to deal with every irresponsible faculty member wanting 75 copies of a 5 page exam a hour before the exam was to be given. Or, everyone who could not understand why it might not be legal to photocopy a book or most of one.

The main thing about Nancy, though, is that she was reminder of the privileged status of others. I did not know her well, although we intereacted almost daily. You knew she was a person with no safety net, no middle class or rich mom or dad to help her out when her husband was out of work which was not uncommon. Her teeth were a mess owing to years of neglect resulting from being on the edge economically. So many other signs that she struggled physically and financially.

When I saw her I saw what could have been my mother had life's randomness not intervened. Working all day for not very much and seeing the rest of us all comfy in our nice houses and cars and working far less hard. She reminds me of every working class person from the State and their sons and daughters who will have very difficult time achieving what others achieve with far less effort.

When a working class person dies who seemed to always stuggle and had no real security and an inadequate amount of what law professors take for granted, I think of my favorite poem, The Village Blacksmith.

Wednesday, September 01, 2010

An Outside Look at the Inside

Today was one of those days in which you get to see your profession from the outside. I am on a committee that approves courses and the committee had to make a decision on one today. The proponent of the course, not active on the full faculty, was there. The course proposal came with a proposed cap of 24 students. When asked about the cap the first reason offered was it mean being exempt from the curve so the proponent would not be confronted by angry students. When that became awkward, the second reason was too many papers to grade. That did not carry much weight so the third rationale was that it was better for the students. Interesting that the course was on ethics.

But I have no reason to question the ethics of the proponent. In fact, quite the opposite. The insight relates to the proponent's perception of the faculty. The view evidently was that we thought not contending with "angry students" was a good solid reason to cap the course. And, if that failed, then surely too many papers to grade would appeal to the ethics of the faculty. In short, this relative outsider had the courage to tell us who he thought we were -- decisions were made for our convenience.

I found it uncomfortable. Maybe others did.

Wednesday, August 25, 2010

Response to Question on Experience

This was a good question posted as a comment to my last posting:

"I have posed this question to various friends and colleagues of mine who are in academia: At what point does the machine become so dysfunctional that the experience machine no longer operates? Is there a breaking po tint, or canhere be perpetual mediocrity?"

For what it's worth, I think the experience machine for students will eventually hit the wall. The student demand for high curves is a function of risk aversion. Even the best students want the curve to make sure there is a safety net in case they fall short. Eventually I think the market will force them to distinguish themselves. They will understand that part of the reason they cannot find jobs is that they refuse to take the risk of a grading system that will allow them to shine. For example, when I give a B, it really means anything from a to a B+. I think they may come to realize that the "nurturing," lecturing, multiple choice testing teacher may not be preparing them for life after law school.

For faculty, I think the machine will never break. As standards slip there will be new rationalizations. If all else fails one can stay in the experience machine by reciprocal citations, self promotion and creating yet a another top 10 list. The point is that any threat to the experience machine is dealt with by modifying it and unlike the students there is no outside mechanism to force reevaluation. It is stunning to me how malleable the machine is. The other day I happened upon a popular teacher's power point. The entire power point had to have been prepared for form not substance. I cannot go into here but it was comparable to a slogan. No doubt students love it and the administration loves it when the students love it almost without regard for whatever the "it" is. The "it will move as necessary.

Saturday, August 21, 2010

The Experience Machine for Students and Professors

Robert Nozick is often credited with the the idea of the experience machine. The question he posed was would you enter a machine in which you were always happy. Your subjective reality would be wonderful and you would not know it is all induced by something other than your actual existence. I think Decarte thought of this earlier and, if course, The Matrix made it into an entire movie.

The question can be applied to law schools and students. For the students it comes in the form of the curve. As one of mine put it recently "Don't worry about class, there is always the curve." In short, the curve will make you feel subjectively better off but you may be doing miserably. For students it is hard because they cannot stay in the experience machine forever. They take the Bar Exam and some who were happy find they were in the experience machine of the curve. Law students demand the machine and faculty are happy to oblige but it is not their "real" reality.

Law faculty are far better off. They can enter the experience machine and never emerge. Most enter it at birth when born into privilege. And then comes the elite line up of Schools that are popular in large part because they make students feel better simply be being there. Clearly, these days there is no evidence that the students actually emerge with a better education than those who attended non experience machine schools. Then there is law professordom and a life time in the experience machine. Tenure assures a steady income for life and once hired not getting tenure is an uphill battle, especially if you are sociable and sing with the choir with respect to what today's "liberal" issues even though one must be very conservative to do so. By conservative I mean close-minded and intolerant. The main requirement of staying in the professorial experience machine is not to interrupt anyone else's blissful experience machine existence. Do not evaluate, do not suggest improvement, do not question.

Law School Risk Factor Redux

(I found this quiz at and am passing it along for a second time. I'd like to report that my law school's risk factors have improved significantly!)

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.

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.

Friday, August 06, 2010

The Blindness of Law School Hiring Committees

Although the details are not evident from this short article, the idea seems to be that the grades a law student makes in school are more important than the school attended in determining career success. I mention this because I have seen first hand hiring committee's turn their noses up at a top ten grad from, say, Minnesota, in favor of a bottom of the top third or even lower -- much lower- Harvard grad. There is no way to put it other than it is an empirically unsound way to make the hiring decision. Why do they do that. Not to bore you for the 10th time, but for the most part the committees are composed of elitists and the hiring is self-referential -- they are hiring themselves or what they wannabe. So each year another batch of elite grads roles into a profession that has grown terribly stale and humorless. Plus, they are not that well educated. In fact, when I consider the interests of, let's say, an Exeter, Princeton, Harvard grad (the most elitist combo I can think of right now) I wonder what is going in in the classroom.

Could we test this. Not really. A few years ago I compared publications by elitist school grads with those of non elite schools. The problem was that once you get out of the second tier of Law Schools you are hard pressed to find any non elite grads to make the study meaningful.

Really, I think Harvard and Yale could start producing the Yugo car and half the law professors in the US would salivate to have one (especially if it came with a Harvard vanity plate). Why do I believe that? Because they already produce Yugo grads and the profs salivate.

Monday, August 02, 2010

Revisiting Caterina

This Italian movie has a wonderful and dead center take on class that repeatedly plays out in law schools. As the title suggests, it is about a young girl's problems when moving to the city. She is torn between the lefties and the righties at school. (This all takes place in Rome.) Two characters are parents of two of her school chums -- one left one right. One parent is a lefty intellectual and the other a right wing politician. At one point there is a conflict at the school and the parents are gathered together. Caterina's father, a pathetic lower middle class character who craves being recognized by the privileged, is there too. He best scene of the movie shows his awakening when he sees how close the two other parents are even though publicly they are arch enemies. What he realizes that that they are united by privilege and privilege is stronger than any professed convictions.

It is good to remember this in higher education and legal education in particular. The self anointed liberals (there are no lefties) may from time to time find conservatives to argue with. But where they are rock solid united is in their rejection of non elitists. Do not let their battles fool you. When faced with non elitists they will close ranks faster than you can say hypocrite.

Monday, July 19, 2010

White v. Black

Thanks to one of my facebook friends, I came across this dead on NYT op-ed piece today. The theme is familiar -- whites and minorities pitted against each other for the benefit of the privileged.

Sunday, July 18, 2010

Democrats and the Working Class

I saw a bumper sticker yesterday that read:

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

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

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

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

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

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

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

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

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

Monday, July 12, 2010

Strategy and Volunteers: Summer Rerun

A few days ago, I wrote a blog about volunteers. It was inspired by an incident at my school that involved a person in charge of a cushy assignment “volunteering” to do the assignment himself. Here are some other examples. At my school, because we do not hire people to teach what the students need, 5 people are now teaching two large first year sections. I think when we all agreed to do it, it could be legitimately be regarded as volunteering because it looked like it would be difficult. Now a few of us have decided it is a breeze. One prep and 6 or 8 hours of your teaching obligation is done for the year – hardly anything that should create in the School a need to “compensate” us in one way or another. But a person employing the volunteer strategy will continue "I am doing you a favor" charade. I do not know if anyone is in this case.

Here is another one. In my second year of law teaching I was on an 8 person appointments committee. At our weekly meeting it was announced that the budget allowed for 6 people to go to D.C. Now we all know that profs moan and groan about going to the meat market but they really love it – be a big shot for a few days, drink, clown around. So, at the meeting the Chair asked, “Who wants to go.” Not a single hand went up. At the next meeting the Chair announced that every person on the committee had contacted him privately to “volunteer” to go. Wanting to go created no implicit debt but a “volunteer” deserves something in return.

Where is this going? Actually I know I may be manufacturing something here that does not exist at all. But, can the volunteer schitk be part of an overall pattern of professional strategic behavior? If it is, is it a law professor thing, an upper class thing or just something everyone does.

The overall strategy has three components. First is the voluteer. Second, you are always working hard and overburdened. Even if you just finished an hour of spider solitaire, webboggle, or surfing the net, when you come of your office you are in the midst of something pressing. So many things to do! Third, there is the “show no passion” strategy. Best to appear indifferent. Basic bargaining -- no one has any leverage with you when you do not care. Be sure to use words like “Aren’t you concerned about X” as opposed to “I really do not like X.”

Am I describing my school? Actually, I can only think of a few people that consistently fit the model and you would be hard pressed to convince me that my School is different from any other. Have I used these strategies? I am sure I have from time to time.

But think about the hell of keeping all of these going all the time. Such is the strategic life and my hunch is that it is a behavior found mainly among the privileged.

Wednesday, July 07, 2010

Bait and Switch?

If there is a theme among the many student and professor posts about law schools it is that they are involved in a bait and switch. Students are attracted by the promise of employment in high paying and exciting jobs. They then discover there are not that many jobs, they do not all pay well and they can be boring. The problem here is that law schools involved in the USN&WR game want to and do inflate their employment figures. Ironically, these misleading figure may benefit students by making their degrees seem more valuable.Just think how the students would feel if, after enrolling, a school's decided to play it straight and its ranking dropped from 30th to 50th.

Playing it straight means not hiring one's own graduates, not paying firms to hire them and not giving grants to students while working. The employment figures would drop and the School's ranking would suffer. Students would have a better idea of exactly what to expect upon graduation.

What students seem to want may be hard to achieve. I think most want the world to believe that their schools' degrees are highly valued. On the other hand, they also want to know the truth. But if the truth gets out, it undermines the first objective.

I do not know what will happen. When the market for Ph.D.s dropped several years ago, applications fell and departments got smaller. The market worked. I do not know if that was because departments did not make false claims about placements or would be applicants realized that having a Ph.D. most likely qualified you to drive a taxi.

And lurking in the background is that the students are in many respects means to the ends of law professors. Without applicants and high enrollments, teaching jobs for graduates of elite law schools would dwindle.

Finally, there is a point of view perhaps held only by me. I don't thing not finding a job means legal education is a waste. Instead I think a legal education is part of becoming a well educated person. In fact, I wish Law School administrations would stress this in their sales pitches.

Friday, June 25, 2010

The Game

In response to my blog on networking, anonymous comments as follows:

"Little and big cliques arise that tend to retard rather than advance the scholarship in that area."

One of the oddest pieces of advice I received from a law professor on trying to break into the academy was to approvingly cite influential scholars and follow up with them to create a "citation ion orgy."

As usual this "A" hits the nail on the head. It also sback a memory of riding in a car several years ago with a more senior law professor. In fact, it was one of my former professors who has done extremely well. WA bit of a mentor. We were chatting about a law professor who had been in the business about as long as I had and he observed "He really knows how to play the game." He said this with complete admiration. Playing the game meant that day's version of self promotion. For example, he might refer to a relatively modest book review in the Harvard Law Review as "my piece in Harvard." Actually today since Harvard has many law reviews this is an even more common ploy. No matter if you are in the 10th ranking specialty review you call it "my piece in Harvard."

But playing the game was so much more than just that. Today's technology means one can be a full time game player.

It reminds of a story told about Harrison Ford trying to get a job in Hollywood. Evidently he was being told why he could not succeed and the person showing him a clip of Tony Curtis playing a delivery boy. The director or agent said about Curtis, "You can just tell he is a star." Ford's reply was "I thought he was supposed to be a delivery boy."

And I thought law professors taught and wrote and did not worry about "the game." What I do not understand is why they did not go into another line of work -- business, sales, administration, politics, etc. Actually both the former professor and the young professor he admired so much did exactly that.

Tuesday, June 22, 2010

Summer Rerun in Honor of Futbol: Juice

One of my favorite things in Rio is the juice bars. This photo is of my personal favorite. They are on virtually every corner. Most have not just juice but what I would call diner food. Actually, I am not sure I ever ate in a diner but it is what I imagine diner food to be. Some you stand at and some have seats with tables and then some have additional tables that you can pull up to park benches on the side walk.

I never heard anyone cop an attitude at a juice bar. I never saw anyone whine at a juice bar. No one care about status. No matter who you are you get the same juice and the same seat and the same service as anyone else and no one expects special treatment.

You do not pick a juice bar on the basis of its name or the training of the cooks and juicers who work there. Performance is the only thing that counts; the better the juice, food and service, the more customers it has. As a customer, if you do not produce you get no juice, or anything else.

Law schools should operate more like juice bars.

Wednesday, June 09, 2010

Marti Gras in Your Mouth

Here is a dessert treat I think I invented. You'll need some angel food cake, that really good greek stype yoghurt, and sugar. Maybe some colored sprinkles.

Put a slice of angel food cake in a bowl and chop it up. Add the yogurt and mix thoroughly untill there are only chucks of the cake. Now take a bunch of turbanado or "sugar in the raw" and mix it all in. Also add a dash of colored sprinkles -- mainly for presentation purposes.

Chill and eat. Wonderful sometimes crunchy, sometimes cakey and sometimes a little tart flavours all follow one after the other. You will be smiling and reaching to make more. Eat with your eyes closed and it is even better.

Tuesday, June 08, 2010

Behave for success: Part 2

[A recent commentator responded to the post below with the question of whether I do any of these things. I am pretty sure that I do not. I am not as outspoken as I once was but it has nothing to do with strategic behavior designed to advance my own interests. Instead, as a friend advised me, I was just spitting into the wind.]

It's not an official term but what I use to describe those with working class backgrounds who end up in the world of academics is "socioeconomic displacement." In other words, your parents did not go to college, you are the first in the family to do so and your natural career path might be middle management somewhere. Instead you end up is a strange world. The big advantage of the displacement is to observe the behavioral traits of those born to privilege and choose whether to imitate them. If you are willing to imitate, here are some sure fire tips some of which have appeared before in this blog.

1. Be careful not to overuse "please" and "thank you." These are words of weakness. They suggest you are asking for something to which you are not entitled or have received something that was not rightfully yours all along. So you write to a college and ask, "Could you explain the difference between Marx and Ted Koppel." When the careful answer comes back do not instantly write. "Thanks. That really helps!" No, say nothing or if you feel really pinned down when you see the person say "Thanks for your response." This does n0t mean that the response helped -- that would be too much to concede -- but gets you off the hook from expressing any sense of obligation.

2. If you do anything ever, no matter how greedy you were about it, remember to express it as "volunteering." You know. "I am volunteering to let you pick you the tab for lunch." Or, "I volunteered to fly to Paris for the law and fashion conference." Volunteering means someone owes you, not the other way around.

3. Never oppose the administration on behalf of someone other than yourself. A faithful employee gets fired, not your problem. The dean says he is giving his buddies a raise and asks you what you think. It looks good to you as long as you were not eligible for the same raise.

4. Take no position unless you have a great deal of company. This is important. There is no right, wrong, good or evil. It is all about protecting your options. Even if you teach professional responsibility, talk about ethics or attend church or temple. Lying, half-truths, nondisclosure are all permitting in service to yourself no matter how low the benefit to you or high the cost to someone else.

5. If you take a position, show that it does not matter that much. If you show passion or caring you show weakness.

6. Use information strategically. If you have information that someone else wants it is of value to you if only because someone else wants it. Even if it seems worthless to you, hang in there. Some one may ask you and instantly your importance increases.

7. If you are in a discussion and feel you are not convincing the other person, quickly pull out one of the old favorites -- incivility, bullying, offensive behavior. Forget the fact that overuse of these words minimizes real instances of cruelty and inequity.

You are on your way to being a true "professional."

Monday, June 07, 2010

Obama, Look behind you!

Yes, Obama has now announced he is trying to figure whose "ass to kick." Duh, welcome to the party dude but you are about 6 weeks too late. Doesn't the USA have a few thousand boats at least some of which could be used in the clean up. Or a few thousand national guards people who can use a shovel.

Obama, want an ass to kick? Other than BP, I suggest looking behind you.

Sunday, June 06, 2010

Oil Spill Chesapeake Bay

I'll just throw this out there. Suppose the BP catastrophe that is affecting mainly working class people in Southern Louisiana, Alabama and Mississippi were in the Chesapeake Bay. Do you suppose there would have been more national attention, more pressure brought to bear on BP and Obama may have become "furious" sooner? Which group has more clout? Red neck shrimpers on the Gulf Coast or well-heeled North Easterners with vacation home on the Bay. Or how about a spill off Massachusetts maybe near the Vineyard.

Friday, June 04, 2010


I read in the paper today that Obama is furious about the oil spill. That really helps!! Right?

Monday, May 31, 2010

Comment on Networking

[I have elevated this comment on my last post to a post so that readers will see it.]

Yes, The issue here is not networking perse but its place and use relative to other factors. Networking in a useful sense is collaborating with people to gain insight share resources and do anything that results in a more productive outcome. However the problem arises when networking surpasses functional things in importance. When you connections are more important than your work or ideas or your advertising is more important than product your are selling then there is a problem. In a sense it is an odd commentary of sorts on the level of rationality our society possesses. As much as we like to consider ourselves products of the enlightenment we really are sort of primitive if not mystical about many of our decisions. Of course instead of the sun god we worship "the market" brand loyalty and the ivy league.

Saturday, May 29, 2010

Networking or Substance?

A comment, which I urge you to read, to my last post inspired this one.

I am not sure how to create a Venn diagram on this blog but I'll describe it. One is the universe of all law professors who are big on networking. They are at every conferences, give lots of talks (typically the same one), email and call others usually to make known what they have doneunder the guise of complimenting the person they are calling. At the extreme they are relentless name droppers.

The other big circle is of those law teachers who produce articles, books, think hard about things, and let their work largely speak for itself. They also spend time preparing for class.

These groups are far from mutually exclusive and so there is what I think is called the intersection. The circles overlap -- networkers can be substantively productive but many are not. Instead they, well, network and it becomes in the eyes of others a substitute for production.

For example, when I first took one of the jobs I held I was told all about the person I had replaced. He did this! He did that! and so on. After hearing this for weeks I did a literature search and discovered almost nothing. But somehow he had taken the small amount he had done and made a mountain of a molehill.

The internet has now made networking even easier and that's good because networking is not per se a bad thing. When it substitutes for substance is it. Or when it becomes exclusively self-promotional it is. One thing that seems pervasive about networkers in certain areas is that they cite each other. In fact, there is seems to be reciprocal citing. Little and big cliques arise that tend to retard rather than advance the scholarship in that area. Why? Because if you network enough, no one will criticize because to so so would be to lose a reciprocal cite.