Wednesday, November 30, 2011

Unpacking Votes

One theme in this blog is that for people of privileged everything is a means to an end that the end is whatever they want. One of the strategies is to unpack votes. Here is what I mean:

Suppose there are 2 candidates up for a position. The faculty votes and they each get a positive but borderline vote of 30-18. Most deans would not know what to do. Don't misunderstand, it's not about the candidate but an assessment of which group is safest to piss off. Now you may be thinking. "But it's 30-18, Isn't it easy." Wrong because in that 18 maybe the pals of the dean or at least those likely to make him or her most miserable if an offer is made.

So, unpacking starts. If you are in the 30 and are worried about an offer not being made, the argument is to identify the likely no votes and say why they voted no. For example, there were 18 no votes but some of those were based on racism or homophobia or disagreement about the 1st amendment. All of this may be true; then again it may not be. Deans in particular unpack votes to get the outcome to please those most likely to be troublesome if they are not unpacked. They do not unpack them, even of the numbers are the same, unless pushed.

There is another form of unpacking that is post vote knit-picking. For example, a candidate comes in and gets a decent positive vote that ordinarily would lead to an offer. The problem is that those in the minority do not want this candidate. So, the picking begins. Remember this is after the vote and the arguments are made to the dean. "I looked at Mark's footnotes and I can't believe he did not cite Jack Bauer." Deans do not go to the 35 who voted yes and ask if they were concerned about leaving out Bauer. To those 35, after all, the game is over. So the 18 or 10 no votes become heavily weighted because they begin unpack their own votes to suggest they are better informed than the others.

I've seen some unpacking lately and I am not sure what actually should happen. Some people do vote one way or another for irrelevant or even wrong reasons. The problem is that all the votes are tossed out when the unpacking begins, even those of people who had the right reasons.

One solution is for each person to state his or her vote and why. If you think law professors would ever do something so transparent, I've got some Florida swamp land we need to discuss.

Wednesday, November 23, 2011

More on Fungibility

Here is an interesting article on the fungibility of not just law profs but everyone else. I am wondering if most of the ills of law schools and universities can be traced to the belief that people are not replaceable.

Monday, November 21, 2011

The Rot and Enronification of Universities: Part 5: Self Dealing

Self dealing is the last of the characteristics associated with the Eronification of Universities. One has to be careful in using this term. I do not know of any University administrators who have actually fattened up their own bank accounts by stealing directly from their institution. And, I have to be extra careful because many readers assume my complaints are always about Florida, more specifically the Law School. That would be wrong. Sometimes I do not care for my Dean's decisions and decision making approach but he is as hardworking as anyone I have known the the idea of self-dealing just does not fit. What I mean by self-dealing is spending the institution's funds on yourself in the sense of making your life more comfortable regardless of the benefits to stakeholders.

Here is an example of what mean. John Lombardi, the topic of the article, is now President of Louisiana or something like that. His activity at Uf sounds like making people comfortable who made him comfortable. I believe at the time he was in the process of being tossed out, I read that he was making sure the University department to which he was headed was especially well-funded. Ironically, one of last significant acts was to appoint an acting dean at UF Law who, again this is hearsay, while in that post, transferred funding from faculty slots to the unit to which he would return. If true, this is the administrative version of apples not falling far from the tree. The interesting thing to me is that this is all evidently viewed as part of the business. Lombardi, as I noted, ended up being sought after for other administrative posts and his acting Dean pal is revered in some circles.

So the self dealing stops short of writing yourself a check. On the other hand, it is putting your comfort and the security of your post ahead of the overall interests of the institution. Or it might mean, as I think it does a UF, supporting a program in which one has a deep personal interest. It is a form or shirking. That is, unless there is a consistent coincidence that what is good for administrators is good for the institution.

Is it unfair to compare this characteristic of Universities to Enron? Of course it is -- to Enron that is. At least in the case of Enron, there is some chance of discovery, auditing and shareholder action. In a public university these activities, with the help of University counsel, the "not technically a lie" culture, an aversion to transparency and rules that are created on the spot can persist indefinitely.

Tuesday, November 15, 2011

The Rot and Enronification of Universities: Part 4: The "New" Rule

In the first of this series of posts I noted 5 characteristics of institutions for higher education and have discussed two of the -- the captive legal staff and the obsession with fighting transparency. I also tossed in an old post I wrote about why faculty are too self interested and cowardly to speak up.

Somewhere in all of this goes the "new rule" strategy. That is, an administrator is caught at best just being incompetent or at worst playing favorites. When asked about it, the administration announces the new rule that applies in that situation that no actually knows about.

The worse instance of this came several years ago and involved the worst dean. After a year or two, people began to notice that without any explanations the teaching loads varied. Repeated requests for information went unanswered until the dean said the leaves were research leaves. We already had a sabbatical program so it was puzzling. When pressed about how one applied. . . well, there was no actual procedure. Asked about how the program had operated, there were no answers. Evidently we had a research leave program known only to the Dean and his buds.

My school has a policy that full teaching load is 12 hours but you can request 9 hours if you more or less promise to do research. Most people ask for and get the 9 hour load. Very recently, though, some even lower loads popped up. So, again, a request goes down to the office for an explanation of how one teaches less that a nine hour load. After an extended delay the answer comes that the 8 hour load is a result of the policy that if you teach a 10 hour load you get a 8 hour load the next semester or will teach 10 hours in the future. The problem is that none of the people with the light loads taught 10 hours and many people who have taught 10 hour loads have never heard of their entitlement to the lower load the next semester.

Here is the part that takes the cake. The administrator who announced the rule could not say whether it had ever been applied in the past. Huh?? I think I know why -- there was no rule until one had to be created to explain what made no sense.

Was Enron any less arrogant?

Sunday, November 13, 2011

Knowing What to Do, Not Doing It

The Penn State cover up and this recent comment on my facebook page:"Coverups abound. Just imagine this. Most of us in a university environment live under rules whereby professors are forbidden to have a romance with students in their units. Still, how many professors or students would tell their dean or another higher up of such an event if they knew of it. This is not to equate sex with minors with such relationships between students and professors. It merely illustrates the reluctance to speak up. The same thing goes on in the business world where sex between supervisors and staff is forbidden. Still few staff who know of it will say a peep. And some of this sex is coercive and where it is not it often results in the promotion of the complicit staff member over a more qualified staffer. Still most remain silent knowing that if they turned in the two love bunnies they would have no future in the firm. The rot surrounds us and sometimes we are part of it." led to the decision to repost this blog which I wrote over on Moneylaw a few years ago:

I appreciate the opportunity to write about capture and the self-dealing in legal education. There is one part of the system that I have not addressed directly. Every law school, or so I believe, has faculty members who know better and who are productive enough to have the legitimacy to influence their colleagues to put self interest aside and behave more ethically. By ethical I mean, as Dale Whitman has defined it, “[doing] the right thing even when it is contrary to our perceived self-interest.”

If there are excellent and potentially influential people at every school who know better, how does capture persist? I have already noted that lack of objective standards, weak deans, and appeals to “civility” play a role. Still, why don’t productive scholars and teachers overcome the inertia at their schools? I think a combination of two factors contribute to what is ultimately an institutional shirking problem.

First, being excellent as a scholar and teacher is not the same as having a backbone or any sense of obligation to anyone other than oneself. I believe this is called the independent contractor mentality. Law schools are full of them. You know them and you may be one of them. They go to a class visitation and privately concede that the person they observed was terrible but when their report appears the candidate was “a terrific teacher.” Or, they privately reveal that they read a tenure piece and it was not very good. Then at the tenure and promotion meeting they are silent. Or, they are appointed to a committee to assess the value of various pet programs. Privately they express concern that a great law school is not built by creating multiple tangential programs that have little value and reduce scholarship. But when it is time to actually have an impact, they are most likely to be found hiding under a desk.The world is full of brilliant and gutless people, but it is just possible that legal education attracts them in disproportionate numbers.

Second, speaking out at a school that has not already internalized a common commitment to excellence is met with sanctions. So even if the productive and potentially influential person has some sense of obligation other than to him or herself, there may be a price to pay. (Of course, isn’t the baseline measure of ethical conduct the willingness to pay that price?) One is the threat that the faculty member will be described as “not a good colleague” when higher-ranked schools express interest. This has always been the black ball for decanal candidates, but it seems to be the black ball for faculty hires as well. The result is very “careful” people. In fact, good advice for an ambitious scholar is to avoid controversy – even if on the side of righting an injustice – at any cost. The second sanction is internal social exclusion.

The productive but weak must respond to these sanctions or forget about moving up or being invited to the latest faculty cocktail party. Many professors I have observed who could have influence just cannot do it when anything is on the line that may get in the way of personal, professional and social ambitions.

There is an ironic twist to this. If a higher-ranked school actually is thinking about hiring a promising scholar or a dean, what are they getting if the candidate has pleased or even attempted to please everyone at his or her captured, mediocre, self-dealing, and underachieving school?

Saturday, November 12, 2011

The Rot and Enronification of Universities: Part 3

Part three is about the captive legal staff of Universities. First, though, there was a facebook post by someone that rang true. Maybe I am really describing all organizations. That led to thinking about the inherent arrogance in all of us. People who have no power at all may be made a team captain or a low level administrator and, pow!, they become arrogant. I remember one true asshole dean telling me, while he wore a cowboy hat, "I don't get ulcers, I cause them." That is an extreme example to be sure, but what is it about a little bit of power that fuels the worst in human behavior.

Now to the legal staffs. If you are hired by a corporation the corporation is your client. Ideally, like any client, you advice them about what is legal, illegal, risky, etc. And then if they get in trouble you advocate, within the bounds of ethical standards, the position that benefits the corporation meaning the shareholders. The key is that it is not about the individuals. When someone in the organization is in trouble there should be a decision about how can the staff best serve the client and not the individual. The problem is that it is the individuals who can hire and fire the legal staff. It may be fine for an individual client to shop around for an attorney but a corporation has to depend on others to do that.

Universities have the same untenable arrangement. The client is the institution, not the President, the Provost or the Dean. My sense is that the arrangement holds up pretty well before decisions are made. For example, a President may ask about a proposed program and the legal consequences.

Where is falls apart is when there is trouble. Instinctively the staff decides it must serve those who are in trouble without first asking, "What is best for the client." One of best indications of this, possibly unethical, tendency is how quickly a Dean will call the University's legal staff when he or she has screwed up. The idea that the staff should weight its obligations to its client, the University, when discussing an individuals dean's screw up is out the window. There appears to be no stepping back and saying "if we successfully defend what you have done will the client actually be better off." Again, the university counsel who declines to respond to the individual because it is not in the interest of the institution is also failing to respond to the person who can hire or fire them.

Yes, they are caught between a rock and a hard place and I have yet to know of one who has put the interests of the institution ahead of an individual administrator's cry for help. For the basic practitioner, adhering to ethical standards may mean losing a client. For University counsel it may mean losing a job which is part of a different career path thus also meaning the career path is blocked.

This all portrays University counsel as victim and that would be unfair. They can also aid in the desire to avoid transparency and the "not technically a lie" culture. Two quick examples:

1. A year or so ago at my schools a faculty member assaulted a student by shoving him. The punishment was one week suspension with pay during a holiday. Aside from looking for 14 students I could shove in order to get a semester off with pay, I was curious about University policy on physical altercations involving faculty. Repeated requests to University counsel finally resulted in the "why don't we meet and talk about it." Obviously no policy was to be written down and no one actually claimed to know anything about a policy.

2. Sometime ago the University issued a warning about using one's University affiliation to promote an idea. The idea, as I understood it, is avoid the implication that the University has a position. I wondered, how can this be the rule when law professors write briefs using University funding and identifying themselves as part of the university and invariable those briefs represent their personal views. So, I asked. "Difficult question," was the answer. "We'll look into it."

The point is that the University legal staff is in a tough position but they are part and parcel of the cover ups. Anyone who thinks the ill fated moves or lack of them at Penn State all took place without University Counsels' involvement at some level is more than likely in for a surprise. They are important cogs in the Enronification.

Thursday, November 10, 2011

The Rot and Enronification of Universities: Part 2

In the immediately preceding post, I noted that the events at Penn State inspired me to think and write about the Enronification of Universities. I listed 5 characteristics and discussed one -- the struggle against transparency. It occurs to me that this struggle cannot be separated for the culture of "not technically a lie." It's the strategy of misleading people or knowingly not disclosing a straight answer when you know what is being asking. I don't think this needs an explanation beyond three examples.

1. Statement in Email to faculty: "Professor X will be unable to participate in our foreign program in Spain." Actually story, the person writing the memo (Professor Y) did not want to go to the summer program he was scheduled to participate it. It is more desirable that Professor X's assignment. So, Professor Y asked Professor X not to go to his initial assignment but to take his place.

The straight answer: At my request Professor X is now going to take over the summer teaching I had assigned to myself.

2. As I understand it an email exchange with Kyle Cavanaugh who is at Duke now. Here he was generally explaining how the grievance process works to a potential grievence filer. Just to set this up, one of the procedures we have at UF requires you to grieve to the Provost -- not the real provost but Dr. No. That decision can be appealed to the provost and if you do not like it you can pay for an arbitratio, The President can then decide whether to accept the impartial arbitrator's decision or not. I know what you are thinking but it is true -- after arbitration the President can decide. Kyle explains all this the interaction continues:

Q: After the President decides can you then appeal to the courts?

Kyle: At that point the is process over
Q; Yes I see that there is nothing else to do at the university level but can it be appealed to a court.

Kyle: At that point procedure is over.

Now think about this one. Why do this? The answer is yes or no and if Kyle does not know he can say do. It's just being an ass. In this case the questioner found out in about a minute and quickly emailed Kyle back that "yes," one can then appeal to the District Court. This way Kyle could be sure to "help" others who ask.

I concede I may have some of the exact wording wrong and Kyle did not lie just displayed the arrogance and hunker down mentality of a company man when it did not help the company.

The straight answer. "I do not know." or "I will not tell you."

3. Letter to Law School administrator: I noticed that you dropped course X from the spring schedule. Most of the 50 students who would have signed up for that class will now sign up for my course even though they would prefer the one originally schedule and we have someone who wants to teach it.

Answer: None

Finally an answer: Let's make and appointment and talk about it.

Response of questioner: Would it just be possible to explain in an email the rationale for dropping the course?"

Answer: None

The straight answer: "the truth is I . . . .

So, it may be deliberately misleading as in example one, sleazy as in example two, or just the paranoia of people who are afraid to just write it down.

I am willing to bet that all of this happens at Penn State and Enron. It represents the mentality that helps explain why institutions go off the rails.

Wednesday, November 09, 2011

The Rot and Enronification of Universities: Part 1

This is not about class. Instead it is inspired by the events at Penn State. The whole matter has an Enron feel to it. The catch is there there is no reason to believe similar events could not happen at other universities. What has occurred is that universities do not act like they exist at the pleasure of taxpayers and are means to an end. They make rules rather than follow them and when they are caught they hunker down. There are some key elements that allow and encourage this behavior. They are:

1. The struggle against transparency.
2. Self Dealing.
3. A captive legal staff.
4. The "not technically a lie" culture.
5. No real rules.

I will discuss one in each entry. The struggle against transparency is part of the believe that information is power. Universities fight to avoid disclosures. One of my own experiences with this was a request to an administrator at my school, per University instructions, for the documents I wanted. I was told that I had to make the request to a different University official. I did. After weeks of waiting I contacted the official who told me the request was actually forwarded o the administrator I had asked in the first place. Eventually, weeks after asking, I received a partial request. That is minor matter but at the other end of the struggle against transparency is lying to a grand jury. Take a look at the two Penn State officials who are accused of doing that. Are their backgrounds and educations any different than those holding similar posts at your school. Are you sure. But for the randomness of life they could have been Enron officials. You may say they were involved in a cover up while avoiding a documents request is not a cover up. Well, the best cover up is to make sure the information never gets out in the first place. Many university officials just can't stand the fact that what they do is your business, not theirs. When they keep the information to themselves they are stealing what belongs to you.

There are other version of the transparency issue including the refusal to write things down --"come down and we can talk about it"-- and not technically a lie. More on those later.

Tuesday, November 08, 2011

Cheaters Without Cameras

The stair machine must be the most boring exercise ever. The TVs installed in them do not help much unless sports is on. Typically I flip through the channels looking for the least inane programming. Today one of those channels that did not exist when I was growing had a show on about how casinos deter and detect cheating among gamblers and casino workers. The security people are up in the ceiling watching monitors. Those security people come and go by separate entrances and do not socialize with the other casino workers. Makes sense. If you do not know the people you are more likely to be objective. Temptation to cut someone some slack when they steal from the casino is greatly reduced. (I must admit the idea of casinos being cheated by others is a little hard to swallow.)

So what about law school cheating. There are many ways it occurs:
1. Favoring or disfavoring students.
2. Not honestly evaluating scholarship for tenure and promotion purposes.
3. Not honestly reviewing the teaching of tenure candidates.
4. Being influenced in hiring because there are friends or spouses involved or the candidates attended a specific set of schools.

My law school has done all that can be done with respect to number 1. Grading is anonymous and professors are not permitted to teach relatives or the equivalent. The last part of this was not always true and for many years the School dealt with the discomfort of parents teaching their children.

My school and I suspect most others have done miserably with respect to cheating in forms 2-4. The problem is that there is no "security staff" that observes without being influenced by personal connections. This is not to say the personality is irrelevant but scholarship, teaching, and hiring should be independent of personal connections. This would be the law school version of the cameras.

Could law schools get a little closer to the ideal. Suppose all articles from a group of schools were submitted to a panel of scholars. Each piece would be anonymous and the evaluators would assess several pieces and each piece would be reviewed by several scholars. A ranking would be provided to the schools involved as well as an absolute score. Teaching is a bit harder partly because the occasional pre-announced class visitation is so full of holes as a valid form of evaluation. It is close to silly because virtually anyone can do a decent job for a few days and faculty visitors would rather do the stair machine than actually put in writing anything that is negative.

One big step in hiring is not to hire into a specific department anyone who is closely related to a current faculty member. That would reduce some of the temptation. When the hiring of the trailing spouse is in a different department, it should occur only after an national search and an audit of the search procedure.

Law schools are not casinos but are affected by cheaters. They are way behind casinos in efforts to curb cheating. Maybe they just do not want to.

Thursday, November 03, 2011

More on Fungibility

It rattled a few readers when I said that most law professors at any law school from the 20th on down are fungible. What I meant that any could leave and their absence would hardly be noted. It is actually pretty extreme. At my school one very productive and self-promoting type left as did another far less productive but equally self- promoting. In the case of one there was hand-wringing including some of my own. In the case of another there was more than a modicum of relief. Years have now passed and I could count on one finger the number of times their absence has been noted by fellow faculty. I could count on no fingers the number of times a student or alum has expressed regret at the loss.

This just raises the question of why deans will sometimes fight so hard to keep people by giving into their demands. For example, "give my spouse a job or I will leave" or "I must teach X or I will leave." Even assuming these are not idle threats I can think of only two reason to cave in -- the person teaches a course for which it is hard to find teachers (this makes them a bit less fungible) or the transaction costs of finding the replacement exceeds the cost of granting whatever is demanded. Let's face it, someone with an actual better offer is going to leave anyway. Those who make demands based on the threat of leaving have, at best, a marginally better offer.

Coming to grips with one's ease of replacement is not easy. On the other hand, it does make you take yourself a little less seriously. For a law prof that is not a small improvement.