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.