Sunday, May 13, 2018
One of the more fascination ploys of the upper classes or elites is the volunteer “move.” It means never asking for something (asking implies the other person has power) but volunteering (which implies you are doing the other person a favor). This means no matter how much you want something, when you get it, it was a result of your charitable instincts. For example, I once chaired the committee that was to go to the meat market. Not everyone on the committee needed to go so in a meeting I made the mistake of asking who "wanted" to go. Not one person “wanted to.” Within days every person on the committee contacted me privately to say he or she was “willing to go.” And then when I announced I had too many people who volunteered to go, no one volunteered to stay at home.
It is pervasive. I was in a meeting a few months ago when one faculty member described how he did not want to hold an administrative post, a position now held by that person with an iron grip with no signs of change. And, there was a past interim dean who was described as being forced to be interim dean. The problem was it took a crowbar to get him to move on.
My favorite recent one involves the director of a set of programs that involve traveling to interesting places. When I asked to go, I was told that he had already “volunteered” to do it.
And, there are plenty of people who volunteer to teach an extra course, organize a conference, or teach at an inconvenient time. Sometimes volunteers are solicited and sometime people volunteer to do things that really do not need doing. It is the appearance of volunteering that is important.
But here is the quandary. If you volunteer for something and then do it, can you turn around and complain that you have too much on your plate or that you are deserving of a pay raise higher than that of someone who did not volunteer? This gets even stickier when you volunteer to do something that is not really needed -- you kind of made up a project, a program, a course, -- and then you turn around and want to be rewarded for it.
Perhaps those who step forward when volunteers are solicited deserve recognition. On the other hand, volunteers who create work for themselves and then seek a reward are not volunteers at all. They are operators.
Monday, May 07, 2018
Once upon a time the public good rationale might have been the basis for subsidizing legal education. Personally, I never bought the rationale. Instead I figured that people with property and money -- the ones needing lawyers -- decided it would be great if everyone could be taxed to help produce lawyers so that legal fees might be lower. After all, this is America.
You could think of it as income redistribution from the less well off to those better off. One of the great examples of this, which many people hate to hear about, is the state subsidization of tax LLM. programs. (Do you think Sally, the single mom down at the 7-11 needs a tax lawyer?) I actually do not know as a factual matter whether state operated tax LLM programs continue to be subsidized but, if so, let's hope we come to our senses.
But let's say I am wrong at least with respect to JD programs (even tax LLMs) and that there once was a legitimate public good rationale and subsidization was based on that rationale. Or, more cynically, a public good rationale had nothing to do with it but, as it turns out, there were unexpected positive externalities. Put differently, left to market forces, legal advice and assistance would be produced at inefficiently low levels. (If you know a thing or two about public goods you may be wondering who the free riders would be that would mean that demand for lawyers would be suppressed leading to too few lawyers. But let's say for now that 50 years ago the system made sense if only by accident.)
The fact that many people trained as lawyers cannot find jobs does not necessarily mean the public good rationale does not continue to exist. Maybe the problem is that people still cannot afford to or are unwilling to pay for legal services. Could the subsidization be too low? Perhaps all law school grads should get government stipends so poor people could afford their services or maybe the costs to those who demand legal services should be reimbursed. All we know is that many people graduating from law school cannot earn a living selling their human capital and have to find other employment. Pumping out even more publicly subsidized lawyers without determining the extent of a continuing public good rationale makes no sense. If there remains inefficiently low levels of legal assistance being sold, other avenues of subsidization should be considered.
But let's suspend our disbelief if necessary and say there continues to be a public good rationale. Let's see how law schools are responding in the era of a rankings race (or law school mutually assured destruction). Law Schools cut the size of classes as a way to increase their entering class GPAs and LSAT scores. The compete for and recruit students for the same reason almost as aggressively as college coaches. They attract students by paying them -- REGARDLESS OF NEED - and, unlike college athletes, there appears to be no limit to what can be offered. Yes, they pay students to attend a specific law school who would attend a law school somewhere without the payment. Law schools operate massive "development" offices that seek financial support for their addiction to the rankings racket.
How many of these practices are responsible reactions to a possibly imaginary rationale for public subsidization of legal education? None. The benefits flow to very very few and certainly not to the public.
Wednesday, May 02, 2018
This is partly about me and not just about my faculty since I have heard these stories from many people at other schools. In fact, I've never visited a school at which I was not eventually cornered and told who the good guys and bad guys were.
Law teaching is a pretty great job. You are paid more than most academics (although this is lost on most law professors who have never lived the life of a real academic) and you get to do pretty much whatever you like assuming you are intellectually curious. A few times a week you teach a group of students and the only real downside is about two weeks of grading twice a year.
Cool job, right? So why do I see so many people who seem to be so unhappy. Drama is pervasive, Demands are made about the most trivial things. There are always conspiracies afoot. Someone else is racist, sexist, or homophobic, that is, if you listen to the gossip. High blood pressure is far from rare. Emails are sent that demand attention yesterday. There is never enough for whichever "me" you happen to be.
Is it the job or is that people cannot accept having one of he best jobs in the world? What is this with the office to office gossip, the complaints about the wrong room, the wrong secretary, and imagined slights? Really, do people need to be unhappy about something?
[Time out for a sec. I need to see if the dean answered my email yet. After all, I send it almost 20 minutes ago and she has not answered. Who the hell does she thing she is!??]
[Sorry, I am back now but first I had to figure out why Jane's office is being painted. No one asked me about painting my office. What is wrong with these people?]
Ok, so what made me do that? Why bitch about the dean and feel slighted. Why worry about Jane's office since the paint on my office is completely fine and it would be more inconvenient to have it painted than it is worth.
Why roam the halls, trying to convince that that guy who blogs should not be hanging out our dirty laundry. If you get 10 people to agree with the obvious (of course he is hanging out the dirty laundry that's the whole point and maybe if it is hung out and it looks bad you will make it less dirty) where does that get you? He obviously does not care because he is so uncollegial. I really hate that blogger guy because he might be talking about me.
[Sorry, I need sec here to tell the dean that I gave an important talk to people at the highest level at the Gainesville Car Wash Society. Also I need to put it on my resume. Actually one person was not that high.]
Ok, I am way too pissed off about my job to keep writing this and I feel a high blood pressure attack coming on. Really, I am never treated fairly. This job sucks.
Monday, April 30, 2018
A colleague of mine described law professors as "fussy." That's a great word. Basically it means hard to please. Fussy law professors want things like this:
1. I really must have my office repainted. Right now the light blue on the walls interferes with my scholarship.
2. When that visitor passed me in the hallway he only nodded hello. Shouldn't he have engaged me in a discussion of my work.
3. You cannot possible expect me to hold class on Mondays or Friday. Those are the day I write (at my condo at the beach).
4. The carpet in my office is getting a little dirty. I'll need to have the carpet replaced by hard wood floors. Otherwise I will have to write even less than I do now which will mean actually unwriting.
5. My office 30 feet from the nearest printer. Please have a new printer installed in my office.
6. I can't possibly be available to students after classes end and before exams. I need that time to write my exam and to spend time with my family.
7, If you make us offer a 7 semester JD/LLM program we will be demoralized. Please make a therapy dog available.
8, What, I have to share a secretary!? But my work is so important!
9. I cannot attend faculty lunches because some people there are not vegans and it offends me.
10. That painting on the third floor of Mother Teresa "concerns" me. To our students it could be seen as endorsing the possibility of a God.
11, Please arrange for me to attend the meeting by skype. I'll be home feeding my parakeet.
12. I'm deeply offended. The Dean did not mention me in her Twitter feed.
13. My classes must meet at 11 AM. Please do not schedule any other classes at that time.
14. I am offended. Not sure about what right now but I will think of something momentarily
Wednesday, April 25, 2018
I've heard it said that Joe Don Looney said, "I never met a man I didn't like except Will Rogers" but maybe I just read that somewhere. In fact. maybe Joe Don did not say it. Maybe Will Rogers, in a moment of self-loathing, said it.
I was thinking about Joe Don, Will, and my 150 page, 300 footnote law review article thanking all the tenured members of my faculty, several people I hardly know but may have met at a conference in Barcelona, citing myself 37 times, and whether I can wring out another article from what some would say is a narrow topic, when a law school pal walked in with a problem. It was a real problem but I could not solve it How does Joe Don fit in? Keep reading.
In the course of the conversation my pal said (and I am changing the names) "Emma told me that Jane told her that Phil had personally attacked, Lucy." Well, I was taken back because I know Phil; Phil is a friend of mine and he's as sweet as pumpkin pie with double Karo. I wondered what Lucy had done but I realized that even if Lucy were OJ and Phil was Mother Teresa, under law professor rules, Phil was a really bad guy.
Then I realized that "personal attack" accusations are all part of the civility game -- the way the "ins" stifle dissent by the "outs." You can be dead on right about something but if the culprit kicks up enough dust about the fact that you mentioned it, you have violated law professor rule 1.23(a)
Actually lots of people have been writing about this lately (including me since this is a slightly revised version of a post from two years ago.) Other than the personal attack accusation, there are other was to use civility as a weapon. The most direct (if there is anything direct) way is "I don't like your tone," or "I am offended." It goes like this. You express alarm to see Jack stocking up school supplies to take home, enjoying a side deal unavailable to others, or belittling a secretary. Jack's reply is "I don't like your tone," as he closes the back door of his Volvo on 1000 reams of 8.5 x 11 he forced a secretary to load. Another version is "I am offended." No one asks why because the civility rule is that everything stops when someone shouts "Offense." In fact, right now I am getting pretty offended by just thinking about the "O" bomb. Unfortunately when I am offended by the "O bomb" no one really cares.
[I am stopping here to catch my breath.]
Let's go back to the "personal attack" accusation. Here is how it works. Go back to Jack's Volvo or any other transgression. No matter what the perceived transgression is, if anyone can figure out from what you say about it, you have engaged in a personal attack. So, Billy Joe has been running a questionable foreign program for 20 years. If you complain you have personally attacked Billy Joe. It does not matter that you would complain no matter who is running it. You can avoid this by saying "It is possible that someone, somewhere, at sometime, is running a less than 100% indispensable foreign program" or, in the case of Jack's insatiable need for 8.5 by 11, "Golly, I wonder where all the printer paper went." In other words, say nothing.
The personal attack is different from the ad hominem attack as in: "Bill can't be right about that because he is a puppy kicker." Therefore, so the reasoning goes, it must be OK for me to take 1000 reams of paper for my personal use.
Tone complaints, do not engage, and accusations of personal attacks are ways to protect what is and to stop change when it threatens your fussy little world.
And, Joe Don Looney? He never met and, therefore, did not know Will Rogers. He did not know what he was talking about any more than Jane knew what Phil had actually said. [see above]
Tuesday, April 24, 2018
The big topic in antitrust these days is two or more sided platforms. These are things like Open Table, Amazon and both Scholastica and Expresso. They serve two markets and reduce the transaction costs of having those markets interact. For example, in the case of Open Table, diners do not want to call several restaurants to find a table and restaurants would prefer not to spend hours on the telephone so they join the Open Table listings.
In the case of Scholastica and Expresso, writers of law review articles would prefer not to print out, address, and mail articles to law reviews and then wait for post card acknowledgments. And law reviews benefit by a standardized method of receiving submissions. Given the lower costs to submit, they are likely to receive more submissions as long as they are signed onto the system.
Here transaction cost reduction means reducing quality, in a sense raising barriers to entry. In the olden days, professors send out articles by mail, maybe a batch of 10, then a batch of ten more as they work down the rankings. I explained this to a law review editor several years ago at a very low ranked review and he asked -- due to the paucity of submissions the review had received-- when the review could expect authors to finally send drafts. Yes, there was a time when a 50 or 60th ranked review might get only a smattering of manuscripts.
Recently I asked a colleague how many reviews he had submitted his latest to. The answer was 90. I recently submitted a piece to 99 reviews. Why? Thanks to the platform, the cost in terms of time and dollars is inconsequential especially if your school picks up the tab.
But what does this mean. Law reviews receive, in many cases, thousands of submissions. They are swamped. Do they read each one? Can they even begin to read each one? Of course not. This means the flawed process by which articles are selected is made even worse - editors rely on institutional authority more than ever. They count citations of those submitting articles, they consider the schools at which authors teach as well as those from which they graduated. It is even harder for authors who depend on substance to gain entry to the elite reviews. There is no known correlation between the quality of a work and institutional authority. There is a known correlation between citations and the rank of review as well as the rank of the schools professors graduated from and attended. If citations are correlated with reading then articles are read on the basis of who wrote them, not the quality of the ideas.
Can you blame the editors? Hardly, what are they to do? Can you blame the authors? I do not see why. If someone is submitting to 60 reviews it's best to do likewise.
Wednesday, April 18, 2018
The State of Florida, as do most states, runs a controlled experiment each year -- the bar exam. Why is it a controlled experiment or, at least, somewhat controlled? Each fall eight or so law schools admit students. Three years later they are given the same exam. Pass rates differ dramatically. Some schools do very poorly. Others have students who, though seemingly less qualified, do much better.
I can think of two possible explanations both of which may fall into the category of no good deed goes unpunished. The first is the availability of courses and the freedom of students to opt out of courses that are tested on the bar. At one school that tends to underachieve, the selection is enormous. Students can go to China over spring break and pick up some credits. The can go to the beach to study environmental issues. The can take a long list of course on a pass/fail basis or spend semesters away and take no classes at all or classes that have no relation to the bar exam. Many of these "opportunities" are vanity courses. These are courses that would not exist if there were not a professor promoting offering the course. I would bet that bar passage rates vary inversely with the number of vanity courses available and directly with the number of required courses. This nonchalant attitude toward bar passage may make sense in private schools (not that any could survive long with dismal pass rates) but for those that are subsidized by taxpayers it makes sense to prepare the students to actually become licensed. The rub is that funneling students into bar courses likely displeases some of them and would require faculty to give up their pet courses.
The other explanation is more tenuous but what the hell. In a year of teaching I have seen faculty hand out candy, cookies, ice cream, pizza, donuts, coffee and I am sure I am missing something. I personally want to take all of my students to Disney World but cannot afford it. I tell them that is my hope because it is, after all, the thought that counts. My reason for taking them to Disney World is that I want them to realize what a good guy I am. And, if I could just prove to them that I am a good guy maybe they will give me high marks on my course evaluations. OK, I know you are thinking "shouldn't your evaluations be directly related to how much the students learn in your class." In fact, studies have shown that the correlation between evaluations and learning is tenuous and sometimes negative. In one amazing study student were asked to evaluation professors after seeing a short soundless video. Then they were asked to evaluate the teacher after the course. As I recall the evaluations were the same. Actually experiencing the course was irrelevant. Probably the best evaluations are for those who appear to be rigorous (but not really) and caring. So, if the appearance of caring is positively related to evaluations and your evaluations determine how productive you appear to your bosses, you know what any rational person will do -- stand back the swag is on the way.
Oh, that's Roberta Flack singer of Killing Me Softly.
Wednesday, April 11, 2018
There is no limit to the number of "Future of Legal Scholarship" conferences that can be held. I am not sure how many there have been so far but my guess is hundreds. We are only scratching the surface. The second generation will be a Conference on Conferences on the Future of Legal Scholarship. And, then (you know it's coming) the Conference on Conferences on Conferences on the Future of Legal Scholarship. The funny thing is that, as a matter relative to most legal scholarship, these will be no less useful than most of what fills the majority of law reviews.
Law professors, if nothing else, are fussy. In the dictionary you could have a picture of a law professor beside the word fussy and that would tell the whole story. I mean they are fussy about the food they eat (when we have lunch at my law school the caterer has to have 22 varieties of food for every diet: my favorite is the selection for low-salt-vegans-with-peanut-allergies-and-soft gum disease), when they teach, the days they teach, the rooms they teach in, the arrangement of the chairs at a conference, the location of their offices, the art on the walls, and so on. I am not making most of this up.
An emerging version of fussy is when they will be available after classes end and before the exam. Today I was asked in class, "How late is too late to ask questions?" My answer: "Once I hand out the exam, no more questions." There was a gasp. I asked, "What's up. Is that surprising? "Oh," a couple informed me, "Our other teachers have cut off dates." I asked why.
Reason one: If I do not have cut off date everyone will ask questions at the last minute and it will be too crowed. I smiled at this one but I wondered, once you have a cut off date won't there be a rush to make it by the cut off date creating the very same issue.
Reason two: I might be writing the exam and if you ask a question it may affect how I answer the question. I thought "so what." Plus writing the exam a week or two before the end of the semester might address this supposed problem.
Reason three: If I answer your question it may disadvantage the students who did not think to ask the same question. As I understand it, under this line of reasoning you would never answer any question with out recording the answer (video, of course) and playing it back for the entire class.
Reason four: Hey, this is my time off. Don't bother me!!