Thursday, December 19, 2013


Judging by what is on the internet and things with which I am personally familiar, the issue of what professors may copy from the works of others is a controversial issue.  The past insensitivity to the copyrights of others seems to be gradually waning  as schools and organizations struggle with guidelines when the Copyright Act itself in not that much help.

While faculty have generally been careless about using the protected works of others, the story changes when it is their own work. Consistent with  typical law professor hubris, copyright notices abound on everything including a vast array or works that are not copyrightable at all.  Evidently, if you write it down and you are a law professor you can claim copyright. But, if someone else writes it down,  it's yours to use as you please.

One basic thing should be understood. Putting a copyright notice on something does not mean it is protected by copyright.  Obvious lists, facts, dates, and many other things just are not copyrightable. The 5 points to remember about promissory estoppel. No chance. But what is the harm? Just go ahead and slap a copyright notice on it and if you are wrong, who cares?

Think of it this way. You drive out to a public park and put up a  big no trespassing sign to keep people off property that is not yours. Probably should not do that, right? The same is true with copyright. Claiming copyright when you have none can result in trouble. Jason Mazzone is the leading expert on the notion of Copyfraud and, although liability is rare right now it promises to grow. And, as law professors, don't we all want to act in a manner that is consistent with the law?  Ok, sorry for the note of optimism.

Tuesday, November 26, 2013


Every law school has undergone grade inflation.  At my school, like almost all others, an average exam gets a B+.  Also, like my school, virtually every school I have examined has more than one tier of grades. Large sections are subject to a lower curve and small sections, seminars, or other courses qualify for a higher curve.

Law schools have, in effect, created a shopping opportunity.  Students must make the not so hard decision -- do I take a course with a B+ average grade or one that has an (almost) A- grade. I think most would agree that choosing a course based on the curve is not consistent with taking courses that are the most helpful in terms of preparing for 40 or so years of practicing law. 

To overcome shopping you need to have one curve for all courses (or perhaps a limit on the number of high curve courses taken). At my school where the "low" curve is 3.2 and the high one 3.6 this would seem to mean meeting somewhere between the two. But here is where honest differences in opinion combine with self interest and a form of free-riding to make things difficult. While nearly everyone agrees there is a problem and understands the solution, many people do not want to give lower grades. In a sense they do not want to make a contribution to the cause. 

Sometimes the reasons are well intended and stated. Others are not stated.  For example, suppose you teach a vanity course (a  course that disappears if you do). And suppose you are able to get a small group to register. Further suppose that the reason they register at all is because the class is small and subject to the higher curve. I think you catch my drift here -- lower grades may mean the vanity course is not offered at all. Say you teach "Law and Really, Really  Deep (So Deep it is Hard to Think about Them) Feelings." It might occur to you that unless you can give an almost A- average you might find yourself teaching Civil Procedure instead.

Maybe people think giving an almost A- means better teaching evaluations. I have no idea if this is true but my hunch is that the high curve means a less competitive experience and that students are likely to enjoy that atmosphere. 

And then there is the most discouraging rationale of all:  "Some" students may not have done well in large courses and they need the smaller ones with higher curves to address GPA issues. Recently the word around the halls is that "some" refers to minority students. I cannot verify that this is the unstated rationale because this is always said privately.   Is it really OK to assume minority students will not do well? As an informal  empirical matter, in the classes I have taught that would be the wrong assumption. There is no difference in performance that I have noticed or been told about. 

This leads to a more interesting question. What do people who make this assumption and then act on it get out of it?  It has to be something they get because the notion that they are "helping" someone else, if ever true, is woefully outdated. 

Tuesday, November 19, 2013

Predatory Grading

At my school, there is a 3.6 curve for seminars. And, surprise, surprise, the average grade in seminars is close to a 3.6. Yes, according to those teaching seminars the average student writes an A- paper.

But that is not the real surprise. What was recently revealed is that some seminar graders were giving much higher grades than the curve allows. Like a 3.7 - 3.8  How can this happen was the question asked by one young faculty member. It's easy, just change grades after grades are submitted. But this hardly explains why it happens. Here was the answer he got to that question.

While I suspect your question is rhetorical, there is an economic explanation. There is an market for grades. On the demand side  are students. What these data tell us is far more about the supply side than we knew before. It is so robust that some suppliers of grades (meaning suppliers of supracompetitive grades) are actually selling grades (in excess of 3.6) that they technically do not have in inventory. So, where do these high grades come from? One point of view is that they are stolen from students not in those classes and the poor dopes who actually expect that there are rules and the rules will be enforced. We are all poorer for it. In language a few can understand, you might view them as predatory grades.

In most markets people do what is profitable. How can giving high grades be profitable. I am not sure. Clearly they mean fewer students complaining about grades. They could also help in the course evaluation area and in the enrollment area. You might even recruit some students to your political philosophy or convince them that you are deserving of their adoration. Put it this way. If the there is a profit in grading, would you want to be a high grader or a low one?

Cheer up. There is good news. Two types of good news, in fact. First, it could get worse so we are actually in a better place than we may be going.  Soon we will compete for students on the basis if the grades we give. Second, in the last year there were only two violators of the 3.6 limit. There is also bad news. One of the habitual offenders knows no limit to what he or she deserves and there is little sign that this or any other administration has uttered the word "no" to him or her.
I can use graphs or equations to explain this if you need it.

Your friend, Bruce

Wednesday, November 06, 2013

The Dentist or a Faculty Meeting

Upon coming out of today's faculty meeting, a colleague said in passing that she would rather have been in the dentist's chair than in the meeting.

I was surprised. I do not know what it is like at other schools but at my school we have norms that people observe in order to move business along in a collegial fashion.  What could be better than working with a group of selfless and wonderful bright yet humble people in order to solve problems. When we are go into decision making mode nothing can stop us. For example,

1. There are no hidden motives. People say why they are asking a question and its relevance.
2. Once a faculty vote is taken no one puts his or had up to again voice opposition to the outcomes as in "even though you just voted 50-3 against me, I still think you are wrong." No that does not happen.
3. No one views him or herself as someone around whom the law school rotates. For example, if we are thinking about raising the grading curve no one says, "I oppose this because I need to give low grades." Instead they think of the overall impact on the students.
4. No one says, let's give higher grades whether deserved or not because of the "market."
5. No one raises his or her hand to speak unless he or she is sure she is talking about the issue before the faculty.
6. If the discussion is about a motion to amend no one puts up his or her hand to talk about a unrelated part the proposal.
7. No one asks for more data that are unrelated to the decision.
8. No one ever just raises his or her hand to say things like, "I just don't know what to think."
9. No one thinks that when you are grading on a curve the grades are still based on absolute as opposed to relative performance.
10. When an issue is carried over from one meeting to another, people who were not at the first meeting do not jump in assuming their points have not already been made or that they have something novel to say.

These rules clearly make faculty meetings preferable to the dentist chair. J

Thursday, October 24, 2013

The Actors, the Audience, and the Adversarial System : Are All Law Professors Anti Intellectual?

The recent New York Times article on the valulessness of law reviews set off a bit of discussion on my faculty and others.  The article is accurate. There are 6000-8000 articles published a year and, let's face it, may 10-12 new ideas a year. Nevertheless, many law professors, like trained seals, jumped to defend the status quo.  What is interesting about the defenses is how much they reflect problems in legal scholarship generally. They also reflect the tendency of law professors to suspend their disbelieve like an audience watching a play. Only in this case they are also the actors. Consequently the whole enterprise is like appauding oneself but never asking if anyone else wants to see the play.

This pretending is all part of the fundamentally anti intellectual nature of legal scholarship. Does this mean all law professors are anti intellectual? Actually no. Some are and some are not and some are some of the time depending on the topic. What do I mean by anti intellectual? Here are some characteristics of anti intellectualism all of which were revealed in one way or another in great law review debate:

1. Taking a position instinctively or for self interested reasons or because it is politically comfortable and then searching for support.
2. Citing something for a proposition that a careful read will show is not supported by that cite.
3. Believing that something is true simply because you think it is true.
4. Ad hominem arguments.
5. Relying on anecdotal evidence. This inclides making a statementsof fact and overusing the ever present  "see for example."
6. Not researching a topic because you might discover something that would be unacceptable to report and still be viewed by others as the right kind of person.
7. Writing about the same thing over and over.
8. Defending a defective system by reference to others that are arguably also defective.
9. Refuting an argument like that in the Times article by noting  exceptions. This one was a favorite of the legal scholarship defenders and is actually pretty embarrassing.

So what is up with this?  Part of it is that law professors as law professors do what they did when they practiced law. All of the things listed above can be found in many legal briefs or in oral arguments. They may be acceptable there  because it is supposedly an adversarial system. I do not want to call it all dishonest but some of it is but some is just aggressive representation. The notion of aggressive representation does not work so well in the context of scholarship. Somehow law professors are unable to or too lazy to recalibrat and understand that scholars do not treat legal topics like they are clients. (Of course sometime the professor is the implicit topic and then the possiblity of actual scholarship occurring is close to zero.) Nor do they seem to understand that conclusions follow from research not the other way around.

So, the actors act like they are doing scholarship and the audience applauds. The fact that virtually no one outside the realm of law professors cares to see the play is lost on them. And please, if someone comments on this do something other than cite an exception.

Tuesday, October 22, 2013

The Humility and Integrity Shortage: Statistical Certainties

There are two things one can depend on in faculty meetings:

1. People with the least useful information to impart will hold the floor the longest.

2. One or more people will disregard the truth in order to advance their positions.

I am not sure which is worse.

The first one means 20 to 50 (depending on the faculty) are held hostage. You cannot shut the person up. (That would be oh so inappropriate.) and, for the most part, you know what he will say before he says it.  Worse yet, he may be utterly unprepared to speak about the issue at hand. Does that stop him? Not on your life.  More likely than not these droners have not  paid attention to whatever is being discussed and then "opps" they realize either 1) this could affect me or 2) I need to make my presence felt. What is the arrogance that drives these folks to think they have something anyone in the room or the world, for that matter, care about. Was it the As their sorry ass professors at their elite schools gave them? Was it their parents who completely missed the unit on teaching your children even a modicum of humility.

The second eliminates the small possibility that rational discussion can take place. The need to make things up comes from wanting to be viewed as an authority.  Interestingly the same things that are a big deal in class (Mr. Jones is that really what the facts are?) is not valued at all in faculty governance.  I have been in appointments meetings in which the chair announces a candidate got only positive responses when it is demonstrable false. I have heard people tell of a policy designed to address someone's misbehavior when the misbehaving person retired way before the policy and was not mention in the discussion.  Funny, it's a bit like getting change back in Italy -- the mistakes always cut one way. When things are made up those new facts always favor the speaker's position.

And then there is the not technically a lie problem.

Tuesday, October 08, 2013

The Economics of "Put Me In Coach" and Other Transaction Costs

Any one who played sports as a kid knows that along the sidelines there is all kinds of lobbying. Some kids stand here hoping the coach will see how hard they tried and performed in practice and then let them play in the game. Others are constantly in the coach's face saying "put me in coach."  There is a good economic explanation for this. The self-promotional ones create a little disutility for the coach and he or she can escape it by just putting the kid in. At the margin this makes all the difference. In turn, the shouters raise the transaction costs of the quiet kids. If they too want to play they have get in the coach's face. These are transaction costs because they do nothing that is productive.

Law professors do the same thing. As I noted over on Moneylaw the "put me in coach" phenomenon has extended even to signatures. It's all about "look at me." This means those who sat quietly on the side lines hoping that their good play would be recognized either have to join the game or accept sitting on the bench. And, nothing productive happens.  Of course, the signature is only the latest form of "put me in coach." It goes way way back to the first instance of resume padding and extends through constant reminders of what you have done lately, kissing the dean's butt, and doing things that look like they are actual things but really aren't much. It all works just like gaming the Law School ratings until everyone does it.

Of course, none of this works unless there is a pay off. The coach who says," get your ass back on the bench" can stop this waste and reduce transaction costs. The coach, dean, search committee, or faculty member who responds to this just encourages it making it hard on those who are productive in practice but hope the coach cares enough assign playing time on the bases of merit.

Perhaps one measure of a good  law school is how much of this goes on and how much the administrators feel obligated to look at substance and ignore "put me in coach"  in its many forms. An administrator who is too busy or too worried about his or her own disutility only gives rise to additional waste.

Friday, September 27, 2013

I Am So Polite About Money

One of the things upper class people do not talk about is money. Most have never worked two jobs, struggled to pay a morgage, or had to send money to a relative to get out of jail. Money is beneath them! It's just downright tacky to show concern about money! (It makes we queasy just thinking abouty it.)

Not exactly! Part of the life long negotiation that governs their lives is not to show vulnerability including with respect to how much they are paid. In fact they do care. This is not to say that the money per se is the issue. Instead the money symbolizes whether they are valued by someone else as much as they value their selves.  And since everyone is above average (apparently this is a universal thing) each person deserves more than the average. (I am pretty sure this is numerically impossible which means one of a  law dean's most closely guarded secrets is what the average actually is.)

So, here is how it works. Let's say for the first time your law school has money to give raises. No one talks about it except maybe to their closest friends or in code by mentioning the type of work that is "valued."

And then, they individually directly or indirectly make their cases where no one can see. I do not know what percentage find their way down to the dean to talk about the importance of their work, how many students they teach, why they should be making more than Sue,  how the new salaries to new people mean they are not making a "fair" salary, why they were so busy with important matters that there was no time to write, or  the jobs they could get if their salary is not high enough.  Each one probably imagines he or she is different from the person who just left the office. Each story is imagined to be unique.

I probably agree with many of the cases they make. It's the pretense that puzzles me. Do they actually not know the dean has heard it 1000 times? One thing that is worse than the pretense is the, I hope, remote possibility that anyone listens.

Friday, September 20, 2013

Externships for Students or Employment for Graduates?

An empirical questions keeps occurring to me and it deals with the relationship between externships and employment. By externships, I mean the practice of law schools to grant credit to students who work for government agencies and various corporations without compensation. If schools offering these opportunities are true to their promises, these students are are not just fetching coffee and typing. Instead, they are often doing what a law school graduate might be doing if someone were not already doing it for nothing. Of course, externs take the jobs of others even  if they are only typing and fetching coffee but law schools aren't inclined to worry the "little" people. While encouraging externs, law schools wring their hands about the employment opportunities of graduates.  Part of the wringing can be traced to the negative impact that low employment rates  have on national rankings but there is also generalized worry about the future of the institutions, positions, and income.

Of course correlation does not mean causation. There is clearly a correlation between externships (free labor) and the unwillingness of employers to hire graduates (paid labor). It would be silly, though, to think more externships have caused the current conditions in the market for graduates.

But wait.  Is there really no impact at all? Is it really possible that hundreds of students willing to work for nothing actually have no impact on those who would like to be paid? I doubt that. That leads to question about just how much of an impact there is. For example, do 20 externs lead to one less full time paying job?  Externs and graduates are in many respects perfect substitutes, One is priced at zero. The other is not. If you were a profit maximizer, which would you choose?

So, are law schools offering an opportunity to current students that is paid, in part, by recent graduates. I think so but I cannot say  how much.

Wednesday, September 18, 2013

Law Professors and Veblen Salaries; Irrational?

At my school all salaries are a matter of public record. If you want to know who makes what, you can look it up. I did a few years ago and then I realized how little I knew. For example, all but a few get paid all year but for most only a 9 month salary is reported. In addition, there is an unreported bump associated with various chairs and professorships. The public record actually tells you very little about actual salary. (Why those actual salaries are not reported and how they are determined is too complicated to be explained, or so I have been told.)

All of this leads to a behavioral economics type of phenomenon. Recently I discussed the reported v. unreported salary matter with a couple of colleagues.  Both expressed concern that their public salaries were lower than their actual salaries. More importantly, they might be earning more than a colleague but it would not appear that way to the public.

In both cases the reasoning was that students and others might make inferences about their competence and relative competence based on salary. Moreover this halo effect could carry over to evaluations. Something like this: "Gee,  don't have any idea what professor Jones is talking about but he must be great because she makes $30,000 more than Professor Smith." When you think about it, it is no different from the institutional authority law professors and law review editors worship. You know, "OMG, she must be good, she went to Yale" or "The article must be great because the author went to Yale and thanks Professor Big Cheese for his comments on an earlier draft." Of course, we all know the Professor Big Cheese just shared a cab with the professor and said "Good luck in your job." So, the validity of institution authority must vary on whether it cuts for you against you

But the most interesting thing is this. Clearly some professors would accept less  in order to have their salaries reported as more. Presumably in a negotiation with the Dean, he or she  could say: "Bill your salary next year will be $100k but if you will take $98K I will report it as $150K. In fact, a shrewd Dean could auction off higher reported salaries. The bids would in the the form of a reduced actual salary. This is a great cost saving strategy for the Dean with budget problems.

Is this irrational? I am not sure. If a higher reported salary leads to better evaluations and a better reputation across the profession, maybe in the long run  high reported salaries have the same impact as high prices on Veblen goods -- it makes the product even more attractive.

Saturday, September 07, 2013


Wonderful article. Just substitute law professor for Brits. It's all about never showing feelings because if you do, others will know how you actually feel and anything but the most general and misleading statement is uncollegial: .

Wednesday, August 21, 2013

Vanity, Law School Hiring and Subsidizing Ourselves

If markets works, a lower demand for what is being produced means decreased need for labor which means either lay offs or attrition.

But when they do not work, decreased demand may be unrelated to the purchase of inputs and, in fact, inertia may mean keeping capacity at the same level. One of the best instances of institutions not responding to markets is legal education.

I have written before about the capture of law schools by faculty who then determine based on self interest what will be taught, when it will be taught, how many will be taught, and virtually every other aspect of the business. Think of it as something like General Motors with the workers making the decisions and those deciding are all based on what feels good to them regardless of how many cars are produced or their quality. The difference is the GM workers would not do that because GM would fold. Law schools don't fold.

One thing that law professors like to produce is cute little compact cars (courses) for which there is little demand but which they really like working on. These are the so called vanity courses or courses that would not be offered but for the presence of a particular professor on a faculty. Otherwise the course would be on the shelf indefinitely or not even in the catalogue.

What appears to increasingly fuel hiring needs is the unwillingness of faculty to be less vain in what they teach and their insensitive to costs. For example, suppose you are on a faculty of 60 and teaching "International Poverty Law for Accounting Majors" to 15 students a year. The school has a desperate need for someone to teach evidence and virtually any law professor could do that. But, it might mean giving up your beloved International Poverty Law Course. (Actually it would not but that would mean teaching more than the minimum possible number of hours and you know that ain't going to happen).

So, in a declining market, law schools continue to hire and increasingly the costs are passed onto students and the end result is to ask them to subsidize the teaching of a course that only exists to please a faculty member.

When push comes to shove we know that faculty always vote to subsidize themselves and their follies.

Thursday, August 15, 2013

Class at the Movies: Elysium

Tonight I saw Elysium. Yo! It was pretty crazy. The Earth becomes a dump and all the rich people move to a steering wheel in outer space. Max, homage to Mad Max, gets into a peck of trouble down in the dump and wants to get to the steering wheel to get rid of his troubles. I'll not tell you what the troubles are but I think he got his childhood sweetheart pregnant. Not sure on this because I was sleeping waiting for the next big fight scene to start and because the fumes from the bourbon the guy behind me was guzzling was over powering. And his girlfriend had this annoying laugh (not Max but the guy behind me) -- you know the kind, not really a laugh because she is laughing but laughing to let you know she "got it." (I wanted to slug her.) In fact, she got nothing because she did not laugh at all at the funny parts assuming there were funny parts which I cannot be sure of because of the nap between fight scenes.

Sorry for the digression. Anyway, Jodie Foster is in the movie with a wardrobe I would kill for -- all slick, beautiful fabrics and stunningly accessorized. She, unfortunately, developed a bit of a sore throat at the end was not able to complete the film. I was so looking forward to the next ensemble. Either that or she was seeing her tailor.

It all ends well. We stop sending aid to Egypt and instead reroute it to Earth. Jessie and Walt go back to cooking but only soup at a homeless shelter. Max and his girlfriend reconcile after a bit of a scuffle up on the steering wheel and live happily ever after except for one exception that is pretty insignificant in the scheme of things.

Sunday, July 28, 2013

Behavioral Economics: Why it is so Hard to Take a Hit on a 16

Everyone who plays blackjack knows you take a hit on a 16 if the dealer has a 7 or better showing. If  the dealer has a 6 or lower, you do not take a hit. It's strictly a matter of probabilities. With a 16 you are very likely going to lose and taking the hit lowers the probability only slightly. I think it is 3% less likely you will lose.

When you are at the table and the dealer shows a 7 and you have a 16 it is very hard emotionally to take the hit. Why? Probably because you are likely to lose no matter what but, if you take the hit, you have a sense of taking an active role in participating in your loss. If you do not take the hit, then you feel more passive. After all, you might think, I did not cause the loss.

Rationally you know that you should take the hit but what behavioral economics tells us is that people feel a greater sense of regret when they take an active step that turns out to be a mistake than when doing nothing turns out to be a mistake.  An example, is that someone feels worse if he or she buys a stock that goes down in value than if she or she declines to buy a stock that appreciates in value.

Casinos make a great deal of money on the irrationality of not taking the hit.

Monday, July 15, 2013

Class on the Queen Mary 2

Yes, I did just cross the Atlantic on the QM2. It was my first boat ride. I am told it is called a crossing and not a cruise. A cruise is when you leave Miami, eat and drink yourself silly for a week or so on a very slow boat and then come back to Miami. On a crossing, I am told, you are on the boat for the purpose of going somewhere. I guess all international flights are crossings.

There is a definite class system on the boat. The more you pay the more square feet in your room, the higher your deck (all other things equal), the more private your dining and the larger your balcony. At the lowest prices you have no balcony or window and eat mostly buffet style. But, frankly there are no poor or working class people in any of the cabins unless they are like me -- did not know enough not to do well on standardized exams and through luck (good or bad, I do not know) ended up in a profession in which he would hate to be anything but a misfit.

The people who work on the boat are a different story. For whatever reason the waitstaff  tended to be Filipino. The workers in the gambling areas were generally Eastern European. I am not sure their contracts are all the same but for the restaurant workers you sign on for 9 months -- no days off. They start breakfast at about 6 AM and finish dinner about 10:30 PM.  The one I got to talk about it seriously said that there is really just time for sleep and you have a choice -- sleep or have some kind of life for an hour or two. After 9 months you take 2 to 3 months off without pay. He has being doing it for 10 years -- ten years of missing birthdays, weddings, holidays, etc. Some workers contact their families daily. He does not because it makes him sadder.

I would think the entertainers have a better deal at least as far is leisure time.

So, why aren't there days off when the boat is in port? I am not sure but it appears the goal for the QM2 is to rarely stop. The boat dropped us off in Southampton on a Saturday morning. Later that day it was off to Norway only to return the following Saturday. On the same day it was back to New York.

I asked why someone would choose this life, The answer was that it was better than anything else in terms of the future of his children. Plus, it was addictive. It allowed him to have a house and a car -- and, of course, payments due forever.

Monday, July 01, 2013

White House Down: For the Spare Room in Your Brain

To see a movie is to invite the writers, directors, and actors, into your most intimate place -- your brain. While there they may trash it or enrich it by leaving you with lasting insights, memories, and a better understanding of the world. "White House Down" falls into the second category. Mr. Jamie Foxx and Sir Channing Tatum, along with all those involved are perfect brain guests. You want to o...pen the refrigerator of your brain and say "there is some good cheese in the cheese compartment, just under the baloney" or "have some of that cold water that comes right out of the door." You want them in your brain's guest room for ever and ever. You may whimper but do not be ashamed. They are family.

White House Down is a civics lesson as well as a lesson about the power of Mr. Tatum's forearms, beady little eyes, and enormous eyebrows. Kudos to the makers of this masterwork for not bowing to the pressure to bring those mammoth caterpillars under control. Mr. Foxx's turn as someone acting like they are acting like the President is so real you think you are in the Oval office with him except that you know you aren't because you are sitting in the theater hoping the teeny tiny battery in your watch that makes it light up does not run out because you are checking the time every 30 seconds or so.

When the film ended my wife said "I think that is the worse movie I have ever seen." I've tried to tell her that sophisticated movie-goers say "film" or "cinema." I attempted to explain all the stuff about brains, and house guests and cheese but she is not ready for the gifts that White House Down so graciously gave to us.

Thursday, June 27, 2013

Class Warfare in Law School

My law school has decided to hire a new supervisor of about 5 secretaries. Anyone can interview the candidates so I tagged along.  I do most of my own work and rarely use a secretary but have never had any complaints. Nor have most of my colleagues. It's a pretty good relationship.

BUT, as one secretary said in the interview "our biggest problem is the faculty." The story is like this. A couple of faculty make obviously out of bounds requests -- skirting copyright laws, tons of personal work and lots of work that would not be necessary if their own jobs were treated as full time -- If a secretary balks at all, off the faculty member is to the administration which promptly orders the secretary to "do it."

So you've got privileged over affirmed elitists who mostly have not done a hour of real work in their lives or come close to walking in the shoes of a secretary dealing with secretaries who generally have not been to college.  Oh, and they are tenured and quick to sue  if they feel wronged. Plus, no dean I have known has the balls to say "you are wrong and the secretary is right." My goodness, he or she is "just" a secretary right?  Instead there is appeasement and ultimately the "do it" order.

As I said before, respect should be afforded people in inverse relationship to their status and wealth. You will rarely go wrong unless you have an Aztec. Then you will never go wrong.

Tuesday, June 18, 2013

Income Redistribution Summer Program Style

From high school through graduate school study abroad programs are always iffy. I did not realize it completely until one of my high school age kids asked about going abroad on a program offered by a teacher at his school. When I checked it all  out, I realized that if the professor got enough students to sign up, he and a partner could go free. And, behind it all was essentially a travel agency that arranged everything. The teacher was for all practical purposes the agent of the agency casting about for students.

But that does not really take the cake. It might well had been worth it to have a chaperoned trip to Europe or where ever.

What takes the cake is more like this. A public law school offers study abroad summer programs.  The school pays the teachers' salaries and the students pay enough for their own housing, meals,  and transportation and for the housing and transportation of the professors.  This is great for the professors and the students. The students get credit while essentially hanging out. Not so great for taxpayers. They are the ones who foot the bill for the biggest expense of all - tens of thousands of dollars for teachers teaching a handful of the students.

But wait! What's the big deal. This is the way public schools work after all. Taxpayers pay and students are subsidized.

The little twist is that, as you look over a sea of students,  which ones would you expect to be the ones who can pass up  summer jobs and afford to travel abroad for six or seven weeks on their own dime?  I'll go way out on a limb and suggest it is, not always but most of the time, the relatively affluent ones. When you get down to it, it is a matter of taxing everyone  in order for the well to do to have a good time abroad. After all, we would not want the rich to actually pay the full cost of educating them in places those paying the tab can only hope to go.

Friday, May 31, 2013

Fast and Furious(ly) VI

Fast and Furious(ly) VI: Years from now when film study students climb the Everest of cinema they will find Citizen Kane at the base camp. At the last camp before the summit there will be the French Nouvelle Vague. The peak will be Fast and Furious(ly) VI. They will marvel as their grandparents did when watching Citizan Kane about the editing, the cinematography, the special effects, the script, and the lighting. No where in film has any director been able the produce the tension and magic of the relationship between Mr. Vin Diesel and Mr. Dwaye Johnson. It's Tracy and Hepbern, Crosby and Hope, and Astaire and Rogers wrapped into one, except no dancing other than the dancing of lines that never vary from perfect. 

No review is complete with mention of the consistent theme of family and final airplane action scene. It features the longest runway in the world. The large place taxis for about 20 minutes before trying to lift off with lots of vehicles dangling from it. And when Mr. Diesel emerges from the carnage (an obvious homage to Dorothy's return from Oz) the audience burst into applause and this reviewer wept.

Saturday, May 04, 2013

Confused: Law Professors, and "Class" -- Is This Serious?

I have just finish reading a post and numerous comments over on Prawsblawg. My goodness. It seems to start with a casual mention of a book or article or both by Brian Tamanaha on the impact of tuition increases on less affluent students. He takes to task so-called liberal law professors for their inattention to matters of class. Evidently, he give special attention SALT and CLS  for what I think could be called hypocrisy.

After  the initial post the comments devolve into a discussion of whether he has fairly characterized CLS as ever professing to care about class and who mentioned or thought up some kind of national debt relief for overburdened law school grads. Frankly, I could not follow it all and it seemed to include a fair amount of typical law professor prissy debate that leaves plausible deniability with respect to who was "uncollegial" first.
(The movie "Mean Girls" comes to mind here.)

I have just a couple of comments. Any notion that CLS really had anything to do with class is pure hokum. CLS was a showcase for the ultimate in limousine pseudo lefties. Typically privileged people who found a niche that made them seem  oh-so-interesting at least to each other.

Second, isn't it interesting this so called concern about class and the affordability of law school for the less affluent comes along at a time of declining admissions and the threat that law professor jobs may be in jeopardy.  (If we are so determined to subsidized the less affluent, why not start by not subsidizing those who could afford to pay the tab?)

But there something more fundamental than any of this.  This discussion purports to have something to do with class and often the word "poor" comes up. For the most part, law professors would not know what poor means if it bit them in the ass. The idea that the focus of law professors worried about the "poor" would be the impact of tuition on people who have high LSAT scores and GPAs it mind-boggling. This is not to say so-called liberal law professors do not have an intense focus on something. It just happens to themselves --e.g. do I have the best printer, will you pay for my trip to Rio, my offices needs new carpet, I need a new office, 26 students is too many for me to teach,.

The discussion has almost nothing to do with the "poor," disadvantaged, or even social class. Those people have always been around, pushed to the side and ignored my law professors.  Instead it  is about how to keep the law school industry moving forward. A subsidy for a down-trodden law school applicant is a subsidy to a law professor. I'd much rather see things like debt-forgiveness or other forms of subsidies be linked to buying a car that runs, getting decent dental and medical care, having a rat free home to live in, being able to buy a decent pair or shoes, having regular meals on the table, never having to worry about the electricity being turned off,  or in home care for an elderly grandmother.

The poor should be so lucky as to worry about law school tuition.

Friday, May 03, 2013

Tamanaha and Tuition Class Bias? Oh come on!

I write mainly about class basis in legal education meaning that to be professor one almost has to come from a specific sheltered and privileged class. This means that most law professors also come with a powerful sense of entitlement that means that law schools are  operated to achieve their ends.

There is to be sure a class bias when it comes to admissions. By the time a person is  21 or so, he or she has gone through a multitude of filtering processes that gradually eliminate the vast majority from attending law school and much of this filtering is class based.

I know not to trust second hand reports and particular news reports. My last post was about scholars as salesmen. They are topped, however, by news reporters whose livelihood depends catching your eye and telling a story and, as the person discussed in my last post describes himself, they too have a post modern relationship with the truth.

That being said here is a quote, out of context and according the to an article writer from the new book by Brian Tamanaha (talk about someone making a career out the law school disaster);

“The pricing structure of legal education has profound class implications,” Tamanaha writes. “High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies … in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools [where they qualify for better aid packages]. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. … Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it.”

Anyone reading this blog knows how much I love to pounce on elitist hypocrisy. It's so easy -- vanity courses, capped sections, the me mentality, a total blind eye to matters of class. The list goes on and Brian has definitely tapped into one. I too have heard very little from self appointed liberals about class. But what is new? Class based issues terrify them. They are fine with race, gender, and sexual preference became they do not even implicitly lead to questioning the legitimacy of their positions. Class, however, is another issue altogether because it forces the question "What did you personally to merit your job." As one friend replied when I asked why we never talk about class, "Too important."

Thus, the indifference Brian writes about is true but the quote way overstates its important. Higher tuition may have the effect he describes but it is only at the extreme margin. Tuition may be something progressive law professors should be concerned about as should commentators like Brian. Maybe they are but, even a tiny focus on that ignores the things that people who have actual contact with poor families know. Believe me, they should be so fortunate that higher tuition is what keeps the out of top or any law schools. If the quote is accurate and not taken out of a broader context, it is  a sad commentary on the lack of class consciousnesses.

As for me. How would I finance higher education.It's easy. Every student in every field would be given a bill for the full cost of their education. Assistance in paying that bill would be based on need. The logic that the state pays for those who score high on test regardless of their means is just another example of the haves getting even more.

Thursday, May 02, 2013

Con Men, Salesmen and Law Professors

"What the public didn’t realize, he said, was that academic science, too, was becoming a business. “There are scarce resources, you need grants, you need money, there is competition,” he said. “Normal people go to the edge to get that money. Science is of course about discovery, about digging to discover the truth. But it is also communication, persuasion, marketing. I am a salesman. I am on the road. People are on the road with their talk. With the same talk. It’s like a circus.” He named two psychologists he admired — John Cacioppo and Daniel Gilbert — neither of whom has been accused of fraud. “They give a talk in Berlin, two days later they give the same talk in Amsterdam, then they go to London. They are traveling salesmen selling their story.” " NYT, 

 This passage is from the Sunday Time story about Diederik Stapel's huge academic fraud which consisted of making up data to support outcomes that would jazzy, eye-catching, and therefor, of interest to journals and audiences.  Think about it. He is in a field in which the accuracy of what one does can be checked and journals are refereed.

Now think about legal scholarship -- no numbers, no testing of hypotheses, no referees and no accountability. While Stapel -- a psychologist -- largely wrote for people who were able to understand numbers, law professor write for a far less sophisticated audience, at least as far as assessing reseach methodology.  It took years to catch Stapel. Law professors, unless they outright plagiarize may never be caught. In fact, "caught" may not even be relevant if the norms for care and accuracy are low enough. 

If psychology research  has become a business in which scholars are sellers and tempted to do whatever it takes to advance personal interests, what are we to make of legal scholarship? Certainly law professors are no less self interested and far less likely to be detected when engaged in sales -- whether  in the form of catchy titles, overblown  resumes, and fudged empirical as well as impressionistic results.

Can legal scholarship be trusted when every factor that would have discouraged cheating in the sciences is missing in law?   

Thursday, April 11, 2013


As I lay me down to sleep tonight and pray the Lord my soul to keep, I will also pray to have a  faculty meeting judge.

You see, here is the problem. Privileged people have very bad judgment about whether their ideas are good or bad. This is because they have so often been told their ideas are good sometimes by fancy law schools that are paid to do just that. And, they rarely utter a work they do not think is important. And then there are the peeing cats. These are folks who talk just "mark" their spots. They've got nothing to say but they are saying it anyway. Finally there  are people who are one-way thinkers. The one way is negative -- "here is what is wrong with that" as opposed to "is this a good outcome."

What this means is that the quality of discussion can be dismal because there is no correlation between inclination to speak and the quality of what one is saying or how constructive it is.  It could be better if we had law school faculty meeting judge. The judge could make two rulings at any time at his or her discretion. These are:

1. Irrelevant:

Let's suppose the issue is whether a candidate should be given tenure. From the faculty comes the following:
"He is a really good father."  The judgment here is an easy one. It may even qualify for the second category but it fits nicely here. It's like a huge non sequiter. In some rare instances the faculty judge may actually choose to escort the person from the room.

2. Too stupid to warrant further discussion (or actually even to be stated in the first place).

 Let's say the discussion is about students taking courses from their parents and the faculty votes, as mine has, that it is not permissible. Then someone notes that we will have to decide what to do about the grades of the students who are currently in the classes of a parent. From the faculty we hear, "Give them all As because that is what they expected when they signed up for Dad or Mom's class." This can overrule as too stupid and again the judge may escort the person out of the room.

I pray for the law school faculty meeting judge. Amen

Monday, March 18, 2013

Elitist Resistance to Class

Last Sunday there was a terrific piece in the NYT about  one of the barriers poor but excellent students have with respect to attending  elite schools.  In a nutshell, they do not know how to do it or even what it means or what difference it would make. For many ":Harvard" is a fancy cheese and Columbia has something to do with the space program. Often,  my friends who claim to have had lower class roots talk about working their way through Princeton or Harvard. My thought is that they miss the meaning of class. It  is  not just money but it is environmental.  Even if you were poor, if you grew up in an environment in which Harvard, Yale, Princeton, etc., were names uttered in your house, you enjoyed far more of a head start than many others.

The article in the Times makes one mistake, I think, and could have added examples of class blindness. The mistake is the assumption that the elite schools would even like the diversity associated with working class students. Working class admissions  bring no glory to the limousine liberals who populate elite faculties. And, they could actually be conservative, go to church, eat meat, and own a gun.  The disinterest in working class people is probably driven by politics more than anything else.

Something that happened today reminded me of the class blindness matter. There are two aspects of it. First, the elitists who might want to have greater class diversity know virtually nothing about the things working class people have to deal with to go away to college -- family members that may need care, inability to go home at Christmas or any holiday, etc. The other one is more subtle. For example, today I mentioned the obvious class bias of unpaid externships. In my town most students sign one year leases. To enroll in an externship, most of which are out of town, they must pay double rent, not need to earn income in the summer, and be able to move. When I mention this the usual upper class response is "there is financial aid."  Do the elites not understand that financial is usually just a term for debt? And have they missed the fact that in today's market, paying that debt is close to impossible? I am quite tired of hearing  term "financial aid" used like it is some kind of economic equalizer. It's not but it is becoming the principal rationalization for ignoring the have nots.

Sunday, March 10, 2013

Adderall for All: Students and Professors Alike

A year or so ago a colleague, far, far  closer to retirement than to taking a law school exam, told me he went to his doctor to get an Adderall prescription. The result was just what was hoped for. He could focus longer and write more articles. As I understand it, Adderall is available to all will shop around for the right doctors. I would like to write more articles too so I wondered if I should get some Aderall myself.  And, since we all want to do "our" best, should we all feel obligated to take Adderall or its therapeutic equivalents so we can be more productive. In fact, maybe employers should require it.

All of this is less important for professors since the measures of success are so elusive. On the other hand, if Adderall is an undergraduate epidemic why would it not also be widespread among law students where grading curves and class rank can made the difference between a job or no job. If it is widespread or likely to become widespread,  what of it?  One article I read suggested it was a great opportunity for lower socioeconomic kids because their families can substitute Adderall for more expensive prep courses, tutors, etc., to which wealthier students have access.  I wonder about the logic of this. In a competitive world won't the rich kids use all their expensive aids plus Adderall. Of course, maybe I just misunderstand how Adderall works.

Another article I read indicated that the abuse of Aderall is more common among middle and higher socioeconomic students. I am not sure what "abuse" means but it does include illegally obtaining Adderall. This surprised me because the richer the kid the more able he or she is to doctor shop. In either case, when it comes to aids  -- legal or illegal -- is there really any serious doubt about which class will have greater access and be able to squeeze out the greatest benefit.

Where do law school administrators and bar examiners fall into this. Nowhere is what I expect because a general rule for adminstrators seems to be to do nothing unless forced to. This may be the right outcome. It does not seem practical to test the test takers. Plus, what would the sanction be? Still, it's just another way to game the system and it seems inconsistent for state bars and some law schools to obsess about "background" but then turn a blind eye to dopers.

Monday, March 04, 2013

The Venns of Faculty Governance: Ask/Demand Policy

I see that Professor Campos is finished with his effort to expose the Law School Scam.  I read his blog once or twice but felt like I knew and agreed with most of what he was saying so I did not keep up.  Judging by some of his enemies, how wrong could he be?

Frankly, I am pretty much out of gas on my far more modest blog too. It has always had a goal that was a bit different than that of Professor Campos. Its goal was to reveal the persistent and destructive effects of institutions run by elites for their own ends.

Here is one more effort to explain the problem.  The people I know can be placed along a continuum. At one end are the "demanders." These are the folks who feel entitled to virtually everything and "demand" that their desires be met. Slipping along the continuum we come to the "askers." What ever they can think of, they ask for. At the far end are the people who do not demand or ask. If you know anything about relative deprivation, you know that to demand or ask you have to be in a context in which things are perceived as possible for people like you. For example, I remember a few years ago when two new faculty hires were told they would be given a certain sum for moving expenses. The reaction of one way, "What? They will actually pay for me to move. What a great surprise." The reaction of the other was "I cannot possible move for such a small amount." The important thing to note is that there is no correlation between need, merit, productivity, student welfare or institutional success and a person's position on that continuum.
In addition, administrators say yes to these requests and demands for a host of reasons other than student or institutional welfare. For example, an administrator may say yes just to avoid the harassment or to make sure he or she is not accused of 'insensitivity" to one political group or another. Or, the administrator may be concerned that the asker/demander is capable influencing others to believe he or she has been unreasonable.

Here is my best try at using Venn diagrams to illustrate the problem. The larger two circles are things people ask for or demand and reasons administrators say yes. The smaller circles within each one show things asked for or demanded that are consistent with student or institutional welfare and the times administrators say yes for reasons related to student or institutional welfare. That tiny overlap in the middle shows how much these interest coincide. A much larger area indicates when requests and demands that have nothing to do with student or institutional welfare get a yes answer.

Friday, February 22, 2013

Reverse Respect and My Mom, the Dean

The default position for me has always been to respect people in inverse relation to their status, money, and authority. The error rate is pretty low but there are times when the privileged can work their way out of the hole and ways for highly respected people to lose my respect.

How does a person come to that view of others? I think when your grandfather comes from Italy at 16 and is told at Ellis Island that his name, Diaco, is too hard so he is Ross now, works as a coal miner till he drops dead putting on his boots, marries a hillbilly, has 5 kids and 10 or so grandkids and only two in the lot finish college and your family get togethers are warm, friendly, and happy but always include subjects like night shift, car payments, trouble with the law, and so on, you learn to respect lower class people and distrust upper class people.

My Mom, one of those 5 kids died two days ago. She worked hard, sometimes a day job and a night job.The last job--at 70 something -- was handing out samples at Publix. By that point she did not need the money but you could not convince her that it was OK not to get up and go to work every day. She never quite understood what it meant to have a Ph.D. or to be a law professor. To her, almost all law was criminal law. She was extravagant in two ways -- gifts to her grandchildren and jewelry (when she thought she was getting a good deal which she actually never really got.)

I cannot help but think how different her life was than mine and how  she might have reacted to some of the things I see in the privileged world of law professors. Let's take some examples and her reactions if she were Dean for a day.

1. A professor tells her  what he will teach, when he will teach, what room he will teach in and how any students are permitted in the class. Her reaction.  "Could you repeat that because, if you asked what I thought, there's the door. Don't come back. I think Publix is looking for people."

2. A  professor with the most expensive education in American asks to "teach" a class of only 12 about feelings. Her reaction: "Could you repeat that because, if you asked what I thought, there's the door. Don't come back. I think Publix is looking for people."

3. A professor asks a secretary to scan a casebook so he does not have to worry about carrying it around. "Could you repeat that because, if you asked what I thought, there's the door. Don't come back. I think Publix is looking for people."

4. Ten or so people want to fly to Rio for a day long conference and then many will branch out and take a vacation essentially on the school's dime. "Could you repeat that because, if you asked what I thought, there's the door. Don't come back. I think Publix is looking for people."

5. The Dean (my mom) announces that budgetary problems mean that we should not all have our own separate printers with unlimited toners supplied by the school. One faculty member objects, calling the measure "punitive." And her reaction,  "Could you repeat that because, if you said what I thought, there's the door. Don't come back. I think Publix is looking for people."

6.  A faculty member complains about missing meetings because a secretary did not open the faculty member's email and tell the faculty member about the meetings."Could you repeat that because, if you said what I thought, there's the door. Don't come back. I think Publix is looking for people."

7. A faculty member proposes  a groovy new teaching arrangement. She will teach in the summer using taped lectures that will be available on line. Even though on line, enrollment is limited to avoid too much grading. For this there is teaching income. And, since the teaching is a breeze, she can also be paid to do research."Could you repeat that because, if you said what I thought, there's the door. Don't come back. I think Publix is looking for people."

I did not tell my Mom about these things and I am not sure why. I think it had something to do with shame, or perhaps the absence of it.

Sunday, February 17, 2013

The Cruelty and Hypocrisy of Law School Grading Curves

Maybe the most remarkable thing about law professors (and perhaps others) is how 3 years of doing well in law school makes them experts on anything from administration to meditation. Lately, though, I have been thinking about law school grading curves and the lack of rationality created by these self-appointed experts.

I first found out about curves in calculus class. The teacher gave an exam and the best test taker got about 50% of the problems right. The teacher said, not or worry, the grades would be curved. I did not understand why but it was definitely OK with me. I thought curves were for when everyone did miserably but the teacher for one reason or another could not bring him or herself to report accurately how the students did.

When I started law teaching there was no curve. Then, in response to some low graders there was a suggested curve. I do not recall if this cured the low grader problem but it definitely coincided with the "grade race" and grade inflation. This was in the era of student teaching evaluations and the beginning of vanity courses. High grades reduced the risk of bad evals and could pack students into vanity courses if one was known as an easy grader. I might add, this was also the beginning of the -- what to call it -- "do not hurt their feelings"  era and anything might just do that. Actually, I do not mean to criticize this change since most of the harshness, I felt, was contrived.

So in response to a lack of grading norms (or one might even say collegiality) and complaints that the School's GPA meant that our students could not compete with others schools giving higher grades we, like may schools, instituted a curve.  (I never understood the student competition argument. I thought law firm recruitment people would be bright enough, in a world of different curves, to rely on class rank. I was assured that this was not the case.)

So in this era of "be kind to students" the solution was to pit them against each other and ratchet up the competition. Grading became a zero sum grade. No matter how you cut it, if one student were given an A, it decreased the probability that another could have an A. Instead of grading on the basis of each student's merit most schools pit their students in a horse race. It seemed to be welcomed by the students because the numbers were high enough that all horses appeared to win. Eventually, though, they adjusted as they realized that B did not mean "good" but average or, in the case of most curves, below average.

There was, however, an even more bizarre twist. Although the advent of the curve meant that no student was evaluated on the quality of his her work, the argument was made that in some classes, the curve should be higher. The reasoning was that individual merit could be counted in some contexts and for some reason this was in small classes -- yes back to packing them into vanity classes.

In the name of being fair to the students this twist meant students were torn between taking small course in something they had no interest in or even scoffed at  in order to boost their GPAs or taking classes that were often more interesting and more useful. In fact, most law schools, unless they normalize in some way,  now have multiple curves. How many? As many combinations of high and low curve courses possible in an 88 hour teaching load. And, if they then rank the students on the basis of GPAs calculated on multiple different  curves, they are being about as honest in those rankings as they are with their employment figures.

Since it does not change, I assume the students like the increased pressure and the perversion of their decision making and professors will keep doing what is "best" for their students (and for themselves.)

Monday, February 11, 2013

What Are They Thinking??

Law  School graduates are having a hard time finding jobs. It is a sorry state of affairs in part because many of those now graduating may be better at doing what lawyers do than students who graduated years ago. Just like tenure, getting there first may block things up for capable and more talented people.

But this is not why I writing. Law schools are all out to somehow do something "radical." Radical means, in this setting, teaching more skills or making law a two year degree. The demand for more skills is really a call from those in practice for greater subsidization from public and private schools. That may be fine for private schools but I have never figured out where profit making law firms get off asking for handouts in the form of instruction. What is the distinction between that and paying them to hire law graduates. In fact, why not just pay the firms directly and let them to the skills training. After all, the dirty little (not really so) secret fact is that most law professors practiced so long ago or so little that they do not have an inkling of how to teach skills.

The two year degree may be a good idea but, if it is, it has nothing to do with the current crisis. Sure, it means a lower investment in legal educations and and an easier time paying off loan IF salaries do not similarly decline. How many people actually think  the 2 year law graduate is going to demand the same starting salary as the three year graduate?  In short, the two year option is likely as not to leave people exactly where they are.

You can think if it in terms of supply and demand. Demand has shifted to the left or not shifted to the right sufficient to offset the rightward shift in supply. The resulting surplus means unemployment. In theory, wages could fall so there is less or no unemployment and but the salaries would be rock bottom. Just how far they would have to fall to soak up the surplus I do not know. Lowering the cost of a legal education by going to two years does mean less debt. It also shifts the supply curve even further to the right -- an increase in supply. Does increasing the supply of lawyers -- even two year lawyers -- seem like a sensible solution to the current glut?

Again, maybe the two year degree idea is sound but I am not sure how it is viewed as a serious reaction to the current plight of law grads.

Sunday, January 20, 2013

Faculty Communications, Spanking, and Strategic Voting

Faculty votes on hiring and tenure and promotion matters can be fascinating because of the dilemmas and strategic behaviors that evolve.

Some people will vote no on a candidate not because they believe or actual want the candidate not to be hired or promoted.  Instead they want to voice disapproval of something about the candidate. It's hard not to believe this is the case when, at least in my experience, there are many votes that are not quite unanimous. For example, how do you explain a 35-1 vote. Did the one person really have a completely different evaluation of the candidate.?

The fact that a no vote can be intended to be something akin to a spanking or reflect a belief that the candidate really should not be promoted or hired leads to strategic risks. These risks are increased when candidates are not discussed freely and openly.

 Suppose a candidate is fine with respect to teaching and research but a pain in the ass otherwise. Or maybe they engage in conduct that seems questionable.  The voter who wants to administer the spanking would probably be happy with 10 or 20% no votes. Suppose 40% no votes would put the candidate's job in jeopardy.

The problem is that if many in the faculty vote for the spanking the no vote could easily reach 40%. Yet none of them really felt the candidate did not deserve to be hired or promoted. Conversely, if all those in favor of a spanking fear that everyone else will vote for the spanking they may not vote no and the candidate has no signal that anything is amiss.

Of course, one could avoid all this by never voting for a spanking. The problem is that it is not always easy to separate the spanking motivation from concerns about performance over the long run. Plus, if the faculty has a sense there is no administrative reaction to bad conduct, it is more likely to feel it has to intervene.

In all cases, the votes can distort actual preferences.

Thursday, January 10, 2013

Mindfulness or Mindlessness

I have been tracking the popularity of mindfulness but I am not an expert. I have read several how to's and watched internet instructions. I do it as best I can and find it relaxing.

I am told it is the hot new thing in legal education but that scares me. When I practice mindfulness I concentrate on my breath or a spot in the middle of my chest and when I get settled down the thoughts, worries and impressions come and go. I do not judge them and as soon as I remember I return to my breath and my spot.

For example, there was an email that I got today and it was just about the time my mindfulness gong sounded. So I stopped everything and went into breathing and not judging mode. What I discovered is that the email made me sense feelings of anger (or is that it made me angry you never know about mindfulness.) I also felt a bit of nausea and a strong sensation of what I can only describe as "what the fuck." I did not judge these feeling or are the "sense of feelings." Yes, it is hard to figure out with mindfulness if they are your feelings or just feelings that flow through an emotionally empty vessel.

Ok, I admit that this afternoon I kicked a dog and yelled at a grocery store cashier. I felt really bad later but after a session of mindfulness I was feeling fine. I let those thoughts of regret and that I was being a dick drift right through and out again. It resulted in great clarity. I put the past behind me. I was in the now. What a wonderful feeling!

I am told this clarity will help me make decisions with a clearer head and to achieve my goals. That's good because I don't want to worry about it when I do what I like best -- avoiding any sense of responsibility.