Sunday, May 31, 2015

Ray Rice, Tenure, Swedish Fish, and Other Matters

Ray Rice may or may not get another job but, although his stats were not so great two season ago, it is obvious that something other than on field production kept him from earning a paycheck last year. If you want to think about law teaching jobs you might say he was fine as far as scholarship, teaching, and service but had a big problem in the "being a decent human being" department.

So what about law teaching and the "being a decent human being" factor when tenure decisions are made.   Are teaching, research and scholarship all that matter? I assume people disagree about this. I remember being on a a hiring committee meeting in which it was revealed that a very attractive (in terms of scholarship) married visitor kept an apartment near campus for entertaining "the ladies." This was discussed and then the Dean who was sitting in on the meeting said, "Ok, why don't we concentrate on the substance." Some of said "Isn't character part of the substance." I mean if it is in professional football, shouldn't it be raised in the context of legal education?

Think of a few possibilities. Assume in all cases, the candidate, although not stellar, would ordinarily pass the scholarship, teaching, and research standard. Further suppose these are known facts, not rumors.

1. There is a video of the faculty member punching his or her partner in a elevator.

2. A candidate  is arrested for mistreating a dog by leaving in a very hot car for several hours.

3. A candidate is caught lying about people on the faculty and students.

4, A candidate shoves or punches a student.

5. A candidate  is arrested for shoplifting Swedish Fish from a candy store.

6.A candidate is arrested for DWI or DUI for a second time.

7. The candidate  has a consensual affair with a student. (Yes, the power relationship begs the issue of what is consensual.)

8. A candidate member has an affair with another married member of the faculty and the marriage breaks up or doesn't.

You can mix and match these. Pretend the someone is the same person for all of them or for some of them.  Are these fair game to raise in a tenure and faculty meeting or, since they are arguable "only" about character, they must be ignored? Or can character be an issue? Or is it about character or illness?

Here are my druthers. I vote no on 1,2, and 3 even if told I may not consider them. They are dead ducks unless there is something deader than a dead duck. If so, they would be in the deader than a dead duck category.Seven and 8 are irrelevant to me -- consenting adults and all that,

Others are more complicated. On 4, I would have to know more about whether it was a fight or abuse. On 6, suppose it is an addiction. That is not character although knowing you have the addiction and driving may be. I guess that could be said about the liar. Suppose she  actually believes what she is saying and is unaware that she tells different people different things.

The most difficult is Mr. Swedish Fish shop lifter. I love those little fish with their gummy texture, the hint of cherry when you bite in, and then the every so mild after taste of fresh herring. I ate 50 at one sitting once and my hair turned blonde and I developed a knack for building Viking ships. But what if the lifter had simply though they were Laffie Taffy. Stealing those is always permitted. The lifter gets a pass from me.

[As an aside, we all know that these things will be factored in no matter what the rules are unless the person is on your side politically in which case all of this will just be rumor.]

Friday, May 22, 2015


I wish I had taken  photo. Today I got a cup of coffee from the faculty lounge which is also home to the faculty refrigerator which is the home of the faculty freezer. I wanted to drink coffee right away and it was hot so I opened the freezer for a cube of ice to cool it down.

When I cracked it open I found out that the speed of smell is faster than the speed of light because the odor was on me like cat hair on a furry sofa. I know this because I have two cats and two furry sofas. And then I looked and realized the the freezer was not a place for mixed company.

There were abandoned ice cream bars maybe dating from the fifties, frozen foods left from the ice age, and smears along the walls. I had not seen anything like it since I peered into a diaper pail.

So what was going on?  It takes no genius: it was global warming, overfishing, over hunting, clogged roads and every other Tragedy of the Commons in a one foot by 2 foot space. The first thing I though of was I will take my Law and Economics class next year on a field trip to the faculty freezer. No more field trips to Greenland necessary,  Everyone who ever wanted a freezer used the freezer as long as there was space. Spills? Who cares? [I have to be honest, though, the ice trays were full meaning that free riding in the ice tray department had not occurred.]

I mentioned to a pal who said "Why are you surprised, right there in front of you was faculty governance." He was righter than rain unless there is something even righter than righter than rain in which case that is how right he was.

Yes, everyone takes: they want their programs, their conferences, their foreign travel, teach their courses, at their times, 2 days a week max, smallest sections, blah blah blah. It is all put in terms of what is good for the commons but almost none of it is or, if it is, it is a fluke.

The Commons can be solved in a variety of ways. Private property rights supposedly encourage people to internalize the costs of their efforts to benefit. I thought about assigning to each person a designated  4 cubic inches of freezer space but some of that space would be suspended in mid freezer and not usable. As far as faculty graspiness, I do not know how you gets a person who wants to fly a dozen or so people to a continent just below ours so they can confercate to internalize the costs

There also can be contractual rights. I suppose everyone could agree to not leave anything in the freezer for more than 7 years and to clean up spills. This would not work unless there is an enforcer. There are no freezer enforcers. (I Googled it.) As far as faculty governance, few deans with ambition to last for more than a year or two or move on would dare enforce or question whether faculty governance is anything other than Jim Dandy (is that supposed to be capitalized?).

Freezer dictatorship is what we need. He or she has complete control of the freezer and it is only used with permission. Anyone abusing the freezer loses freezer rights for a year or, at least, has to eat one of the ice cream bars abondoned in the late 60s. (Actually, strike that. I'll have one of those myself.)

And, I think that is where I end up on deans and faculty governance. Faculty governance, as everyone knows is another way of saying "free for all." I want a dictator dean. One willing and able to say NO to anything that does not, in a very obviously fashion, advance the welfare of the commons.

Tuesday, May 19, 2015

Faculty Report Card

At my School where w are big on counting, it is (self) report card time.  We get a form that goes on forever and asks questions about every imaginable part of the job. For example, did you read any manuscripts for students? I stopped keeping track of that . . .  actually I never kept track of it. How many people did you suggest should download your articles, How long is the list of advertisements after your signature on a letter.   How many externs did you supervise? (That one is important because that is where the students pay us to work somewhere else for nothing and we bankroll the take. )  And then there is "Did you turn off the light when exiting the men's room." I've always felt that one was unfair because someone else may be in there and you may have to fess up that you did not turn off the light. Nevertheless, even though there are no other light sources or windows in the men's room,  I always turn the light off because it is cool to hear the cursing and screaming.

There is the usual  stuff: How many students did you teach? I think they may actually have that in their on records somewhere -- Don't you think?  I always put down zero because I think it is a trick question. I know how many are enrolled but how can I know how many I taught? If you look at some of my exam answers the number is pretty low.

How about this. Did you attend any conferences at which you did not make a presentation? If "yes" where did you eat?  Another trick question. Is it to determine how much of the school's money you spent confercating or is it some kind of feather in your hat to go somewhere and sit there.

I am not sure who grades these reports but I hope is it not the little girl who sat in front of me in 2nd grade who, when we exchanged papers to grade, would always put a big X on my paper if I did not dot an "i" and then wave her hand until the teacher called on her and say, "How many points off for not dotting an "i."

We are supposed to present evidence of our impact in the profession. It's like "did you have an impact in a terrarium."  Like the tree in a forest I wonder if when a law professor says something does anyone hear it outside the terrarium. Law professor praise is the ultimate in the one hand clap. Nevertheless, the right answer is 50,000 SSRN downloads, 852 judicial citations, 3400 citations by  other scholars, 53 Papal references, and 2300 texts. I always write down that answer and then, if challenged, threaten to sue the school and the dean for destroying the only evidence I had. I really hate them for doing that and forcing me to make that threat but I know what they are up to and they know I know.

I give way too many talks to remember and organize a conference every day. In fact, what you are reading now is one of my scholarly papers. And when I am in the lounge getting a cup of God-awful donut flavored coffee, that was a conference. I had 5 cups today alone. Sometimes I give asynchronous talks. I go into the lounge alone and give my talk and people who come in later may hear the echo.

So far, my annual report is only 100 pages long but that's fine. I just changed the date on the one I have been submitting for 10 years.

One thing I am really proud of is that I always get very high marks on "getting along with others."

Tuesday, May 05, 2015

Bullying for a Good Cause: (Another Hot Potato Post that No One on Facebook will Dare Like)

When I was an even younger boy than I am now, there were two bullies in my life. I remember both their names but will not reveal them in case their family members might read this (or that they may still come after me).   When you were around them you remained silent and did not question them or even make eye contact. They ruled by how much they could hurt you. (Actually, in the interest of full disclosure one of them liked to shove you at the water fountain so your face would go into the water or your teeth would clang against the spigot. That ended, though, when for some reason I spun around and clobbered him right in the puss. It was a wonderful moment -- maybe the most important in my life.) Live was so much simpler.

Lately I have been applying the notion of a bully to law faculties and I really cannot say there are people roaming who I would regard as traditional bullies.  No one walks up and punches you in the stomach and says "for a dollar that will not happen again," Instead, it is white collar bullying and I have learned there is a huge literature on it.

 On my faculty I have seen people in fear and administrators paralyzed. No,  it's not fear of teaching 12 hours, or of a new Dean, or any of that stuff.   Instead it is the fear of being tagged with a label that could follow you forever. (And yes, you are right. It is the fear you are thinking of right now and wondering if someone is actually allowed to write what follows.)

For example, about a year ago in a prior Dean search one faculty meeting suggested that very well qualified candidate may have homophobic tendencies. Maybe someone asked why but no one pressed the issue. Evidently she just "knew" it. More than a decade earlier, also in a Dean search, someone indicated at a promising candidate had a "problem with people of color."  In neither case did anyone ask "why," "what happened" or ask for any kind of foundation. No one dared press the issue or maybe they just enjoyed watching bullying. More recently,  a person said about another person that "he was widely known to be an extreme homophobe." Was there a reaction? The victim, now deceased, could hardly respond which made it easier for those who mourned him and spoke so eloquently about him at his memorial to remain silent.

What makes this type of bullying so difficult to handle are four factors. First it is especially powerful, The victim cannot spin around, like I did at the water fountain, and stop it. In fact, in these cases any form of denial just means the bully must be right.

Second, some people  who spread the word that others are homophobic or racist or child molesters, may be right but even if they are not right they have conviction of a right wing Christian and, as in the case of other forms of bullying, there is no answer but to nod in agreement.

Third, those bullying are likely to have been bullied in the past. In fact, thinking of well known bullies throughout history, I wonder if this this a characteristic -- those bullied become bullies if it is possible. If this is the case, why didn't  the experience of being bullied result in some level of empathy?

Fourth, and this is the really tough part:  bullying, in the examples I have identified here, is aligned with a good cause. It's like bullying for better treatment of animals, children,  and adults. As for getting it wrong sometimes, an economist might say, "So there are a few innocent victims here and there but the costs of their careers is easily offset by the benefits." Some victims are just necessary collateral damage like the dead children after a drone strike designed to protect us all from another 9/11. I guess we can all understand that but it does not help those who find they are collateral damage.

The problem with this fourth point and possible justification is that it drives the evil that gives rise to the bullying underground. No one's mind is changed and on top of whatever ills there may be, there is now a further layer of resentment.

I do not like bullies of any kind because they get their way by threatening to harm people. Plus, they change  no minds and, if  they claim to be acting to advance a cause, they are more than likely to  set it back.

Sunday, May 03, 2015

Decency and Law Profs

Lately I have been thinking about two very different incidents. One is the well-known Fisher/Welch/McCarthy incident that let to the following rebuke by Welch when Fisher was accused of being a Communist because he had been a member of the National Lawyers Guild.

"Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man, but your forgiveness will have to come from someone other than me. . . . We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?"

The second is the recent controversy at UNC concerning the Poverty Law Center and the attack on the Center by the right wing politicians that was viewed as actually aimed at its Director. Faculty jumped to the defense of the Director. Just like Welch and McCarthy?  Well. .. not quite. In fact, not by a light year.  . . .It took no courage to defend a liberal cause in the midst of liberal faculty although I sure it resulted in a great sense of righteousness.   (It was interesting, though, how some people, perhaps uncomfortable defending the director, framed the issue in terms of the ridiculous idea that if the Center had out-lived its usefulness, the faculty would terminate it. I'll believe a law faculty will stop a program that anyone wants to continue when I see it.)

Now lets shuffle things.  For the McCarthyites substitute folks today who are as willing as the witch hunters of that era to label people as something they may not be  and with as little knowledge -- maybe less -- as the tail-gunner and his henchmen  had at the time.  Shift the context to a law faculty -- one like UNC where there was such outrage and where, I am sure, everyone claims to be for fairness and justice. For Fred Fisher, substitute the names of individual law faculty. And for "Communist," substitute "homophobe"

1. Would there be Welch courage? Would one person on a law faculty step forward to say "before those named "bear the scar" we need to make sure the charges are true."
2. Would there be UNC courage? Where many people would step forward because it is safe to do so and law profs, with the exception of a few, only move in mobs.
3. Would there be no courage at all?

When it comes to law profs, I am betting on 3. I think I have seen 3. I have also seen occasional acts of courage and the price those few souls pay.

Of course the victims of witch hunts cannot be the ones to speak up. They are already suspect. Instead it takes some courage and leadership.  In the law teaching field you can count the number of those people on less than one finger.