Tuesday, September 29, 2015


I have written so often about the racket of being law professor that I get sick of myself. Sometimes I hear myself saying "Oh just shut up!" "Oh come on" and other things.  Sometimes, though, you come across a gem of an article that sums it up in a  way you never could. In this case, it is an article by elites about elites. Here is the scaled down version as I have not been able to crack to code to get into the full article in Science.

Anyone generally familiar with behavioral economics (or has taken a decent course in law and economics not taught by an ideologue) knows about the dictator game. Basically it tests whether you are selfish or not or, in more specific terms, do you exhibit self-interested behavior as economists predict, or at least assume.

Ray Fisman, Dan Markovits and other authors varied the game a bit and applied the test to three groups -- Yale Law Students, Berkeley undergraduates, and a panel selected to represent average folks.

The test revealed two things. One was greed as opposed to fair-mindedness and the other was an interest in efficiency as opposed equality.

It will not be a surprise to anyone on a law faculty but the Yale law students and Berkeley undergraduates were far less fair-minded and greedier than the panel of regular folks. Yale law students were efficiency obsessed, even more than the Berkeley students and both were more efficiency oriented than the panel of average people.

I know if no reason the same result would not be found among students of other elite law schools. [I do have one reservation in that they do not appear to have tested law students at schools other than elite ones. This leaves open the possibility that, on average, all law students fall in the greed/efficiency category.]

Look at the law schools most law professors attended and you know the reason law schools are bastions of greed, self-promotion, self-interest, bogus conferences that are vacations, misleading resumes, demands to teach vanity courses, demands for special treatment including two day teaching schedules, truncated semesters, and extra pay for just doing the job.

It was never a mystery to anyone who thought about it but law school hiring committees fish only in the ponds of the greedy and hypocritical.

Best of all is the final part of the article that I think is wishful thinking more than anything else:
"Elites—in both parties—remain baffled by Donald Trump and Bernie Sanders’ appeal; and they prayerfully insist that both campaigns will soon fade away. Our study suggests a different interpretation, however. These bipartisan disruptions of elite political control are no flash in the pan, or flings born of summer silliness. They are early skirmishes in a coming class war."

Monday, September 21, 2015

Oh No, Say it Ain't So Cass

When writing my article with Amy Mashburn devoted to finding empirical support for the huge investment law schools make  in legal scholarship, the silliest defense I saw was one by Richard Posner. He likened law review articles to salmon swimming upstream. As I understood it,  some turn out to make it and some don't but that's the way the cookie crumbles. If we change the process, even the good swimmer may not make it.

Of course, Salmon have no choice. Plus, when they swim upsteam making it or not making it does not depend on the rank of the school they were once in. Instead it is quality of their effort. Perhaps I have misinterpreted Posner and what he is really saying is that articles in the reviews ranking below the top 20 are just floundering salmon.

But now here comes Cass Sunstein of HARVARD and other fame writing a defense of law reviews and legal scholarship or that is what the title would lead you to believe. Before I go any further, I want to tip my hat to his courage. Can you imagine the risk of asking a law review (if he had to ask) to print an article in defense of law reviews and putting the name Cass Sunstein on the piece. That takes double balls. And it really takes courage to label the writing with which he most disagrees as  smug and anti-intellectual. (Actually he only says there is a whiff of anti-intellectualism but I could not figure out how to get that in one sentence.)

If fact, his defense is a bit puzzling. As I read it I kept thinking maybe the real Cass Sunstein, whose work I have read, learned from, and admired did not really write this. I mean it's a bit like seeing Ted Williams take a job as a carnival barker and making the points of his critics without knowing it.

Here are some of the problems.  First is the fallacy of composition. The core of his argument is the example of seven book he refers to as some of the best recent law books. These books are all based on or derived from works published in law reviews. So, therefore, we should as he puts it "praise law reviews," Really? All of them, some of them, the top 20, the fourth review of the 177th ranked law school? Why would we praise law reviews on this basis?   This is an echo of every critic of the article Mashburn and I wrote who has thought of an article that influenced something and cited it as defense of a terribly screwed up and expensive system. Not you too Cass!

Second, if we praise law reviews for containing the articles that led to the seven best books, what about the tens of  thousands of articles that law reviews published that used up the time of students and professors, destroyed a few forests, and amounted to nothing except a line on a resume?

Third and this one it a real corker. Sunstein explains how each book was the result of prior law review articles. So you are probably thinking Professor A wrote something in one year and 5 years later Professor B added to the idea and then the authors of the 7 great books wrote their books. That is what I was thinking and actually looking forward to reading.  Not quite. As best I can tell, as it turns out the books were compilations of articles and essays of the same authors.(I attempted to cut and paste the paragraph here but it only shows up as one word per line but it is the first full paragraph of page 4)  Yes, the law professor recycling issue and definitely not standing on the shoulders of those who came before.  It is not as though the law reviews were repositories of the great ideas and small treasures  that were then picked up on and extended by others in subsequent generations.   Maybe I have this all wrong. Perhaps he is just illustrating that some reviews published some articles that were good enough to be on the Sustein must read list had they been books in the first place. If so, so what?

It's like Sunstein missed the debate and then stumbled into writing a big non sequiter. Or maybe he was pranked into writing a defense by someone who did not explain the real issue.  As far as I know, no one is lobbying for the end of legal scholarship or law reviews. The important and only relevant debate is about how much is too much. On this issue, he utters not a word about the possibility that we have overshot the mark in terms of investment, nor how we could make the system more rational, merit-based or accessible.

It's not as though he has forgotten that nothing is free. In fact, he devotes a good page and half to the costs of legal scholarship and concedes that most law review articles have very few readers and very little impact. [page 10].

Since the article is a "defense" it would be nice if Sunstein had defined what needed defending -- law reviews. legal scholarship, the writing style found in most articles? Perhaps just a more accurate title would help -- "Some Law Reviews Published Some Articles that Became Books that I Think are Important." I am pretty sure that is a better title.

By not being precise his worst sin is providing all future knee jerk responders to those who question the massive investment in legal scholarship with yet another mindless "See e.g." citation with the implication that it must be true because Cass said it and the Michigan Law Review printed it.

As for the fallacy of composition, the centerpiece of his defense is the description of seven well-know books that build on prior law review articles.

Friday, September 18, 2015


Dear Dean:

I do not want to take even one second  away from all the people telling you  what we need to do to  move up, make money, be nationally recognized. attract the very highest (higher than highest) level  people, place our articles better,  and  all the other great ideas law professor have because they are, after all, the elite of the elite (except, of course for those people who are even more elite, if any). And I would less than dream of taking up the time who want to bond by kissing your  . . . . . hand.

But I  have an idea to raise serious money. I got the idea when thinking of a friend of mine who spent a bundle to name a baseball  stadium  after  his company. He is a very cool guy and the best employer in the land.

I know we have sold naming rights to everything ranging from the entire operation to the toilet paper dispensers so we cannot become the Shell Oil Law School but so far we do not have uniforms with the names of our sponsors on them -- you know, like race car drivers, soccer players, golfers.

 So here is the plan:

Everyone gets measured for button down oxford cloth dress shirts in light blue and everyone gets five. (Former employees of Blockbuster may have a surplus.) On one shoulder we have patch that says "Steve Black." On the other shoulder a patch with "Winston Smith" (who. by the way. was one of the best people I have ever met). And then, a patch on the left side of the chest that says "Sweeden and Day" and so on. So like sponsors of race cars the name can be put on our uniforms for, say, 50K a year. Perhaps we could branch out -- Dairy Queen, Domino's, etc.

Your humble entrepreneur.
Chair, Professor, Director, Associated Director, and Certificate signatory
My latest books are for sale everywhere
Here is my SSRN website
I got a cool letter from a former student which is available on request.

Tuesday, September 01, 2015


My last post or at least the last I can foresee about the silly process of checking cites to determine which scholars or which schools have the greatest impact. Some of this sums up what I have said before but I could not help but notice parallels to the other areas of law.  So here are some things that make simple cite counting maybe the worse way to determine impact.

1. One of the biggest mistakes cite counters do is ignore the inter-generational transfer problem. Suppose Professor Cage, now approaching retirement, does not want to work on the treatise he started 40 years ago. He finds and eager younger person who will be listed as editor or coauthor. Since Professor Cage's treatise is the "go to" source, it is cited frequently and now, in the later editions the citations are to someone whose actual contribution, and impact if any, are unknown. There is also the reverse. The old guy gets cites based on things he never thought of.

2. You've had a book out for a few years, say in the 3d edition. The publisher wants a 4th and although you could do it, why not take on a coauthor who will spruce it up a bit and maybe add a chapter. The coauthor is now routinely cited but for what? The answer: Every word in the book regardless of their origin and impact, if any.

3. You get a contract from a publisher (Hart would be likely) and under the contract you are to round up 30 other people to write short articles (or maybe just find 30 articles that already exist or let Hart find them for you) and out comes what you will refer to as "your book" and for which you will be cited but in a manner that reflects nothing about impact, if any.

4. Cite counters tend to leave things out, like judicial cites. I was surprised to see that WestLaw now has (an maybe always has had) listings of cites in documents filed with courts. So your article about post Toasties (a previously unknown cult of marshmallow worshipers who were cooped by Peep worshipers)   is cited by an actual lawyer. The interesting thing about those mundane cites is that you can bet the citer and the opposing attorney actually looked closely at the work. [Sorry, my mistake to bring this up. I realize it is rarely about real law.]

5. Where does monopolistic competition come in?   First that refers to market in  which goods are soled with minor differences. So you write an article on "unusual" or "antitrust standing" or what ever. The next article kind of overlaps a bit, and so does the next and after writing 3 of these sort of overlapping articles that are all based on a closed universe of sources you BOOM make it into a book. You are kind of an editor of your own book of readings. Sure you do not get cited for things you did not write and, yes, maybe it means reaching a slightly different and equally indifferent  audience but somehow this seems like citations for good marketing, not good thinking.