The Grading Problem: Are They All American Idols, or Where is Simon When You Need Him

A few days ago, without much success, I asked readers if there were different MoneyLaw rules for public and private schools. Now I have a different question for which I also do not have an answer: Is there a MoneyLaw approach to grading?

Grades are signals. First to students on how they did and, second, to employers on how the School evaluated the students. The problem of articulating a MoneyLaw approach is illustrated by two conversations I had recently.

Conversation one was by email. The registrar wrote to ask whether a student who had missed a month of contracts due to illness could return to class. My answer was: 1) I had no limit on excused absences, 2) Because of our curve (3.2) the student would like get a passing grade and 3) I could not promise the student would know much about contracts.

Conversation two was with a first year student who said she was anxious to get her grades to find out how she was doing. My response was to tell her that even after grades she would likely not know. With a 3.2 curve the pattern in a 110 person call is about 15 A’s, 10 C’s and all the rest are B’s or B+. In short she was likely to find she had the same grade as 40 others.

Apart from my view that current grading is a result the disastrous decisions of the 60s generation in which I fully participated. (At one time I consciously practiced affirmative action in giving grades and tutoring. Something I would not do now even if it were necessary, which it most certainly is not at my School.) It is also a response to the implicit bargain between professors and students that entails given high grades and then being viewed as fair or “a good guy” which then may show up as higher enrollments and teaching evaluations. Curves take out of play the “grade bribe” but do not take out of play the “less rigor bribe.” By the way, I do not think a great percentage of law professors fall prey to either of these but it only takes few to create the externalities to which others react.

So, do grading policies fall within MoneyLaw concerns?

Public and Private: Do the Rules Change?

My discussion with Orin Kerr leads to an issue that I think MoneyLawyers need to address: Are there different MoneyLaw rules for public and private law schools? Put differently, should there be different rules depending on whether students are paying full cost tuition or are enjoying taxpayer subsidization. If there are, the argument would be that the identity of the principal shifts and with it the programs, courses and opportunities a school might offer. In baseball terms, one could see it as whether the fans should vote on who is invited to the All-Star game. That decision – allowing the fans to vote – can be linked to a simple private sector desire to increase profit, not to a duty to present the highest quality play. Maybe private law schools should operate in a parallel fashion. Perhaps they already do. I concede that I have not done a comparison of public and private school offerings.

An argument that the rules should be the same and that student demand should not play a different role can be made by comparing law professors to any other professionals who are paid for their assessment of what is in the best interest of the client. Most physicians, do not just dispense whatever medication the patients think they need. One the other hand, could it be that private law schools should operate more like cosmetic surgeons and do more of what make students feel good? Is it even possible that the students know best?

I have already put my two-cent’s worth on this by saying that I do not see the rationale for public schools to offer a Tax LLM. I would add to the Tax LLM any relatively non public service oriented LLM unless the idea is to charge above cost tuition in order to cross-subsidize other programs. In fact, ideally, I would like all public law schools to vary tuition depending on a post graduation requirement of some form of public service. Yes, this means private law schools would have a better shot at relatively affluent students and that seems fine to me. This suggestion is impractical and not likely to happen but it illustrates the complexity of what it means to have fiduciary obligations in the context of public and private suppliers.

Personally Annoying

Orin writes in response to my turkey awards:

"Jeff, is "privilege protecting" some kind of MoneyLaw code-word for things that you find personally annoying?"

Not exactly, Orin. Just to stress the difference, here are things that I find "personally" annoying but have not included in the list of Top Turkeys:

1. Faculty and students talking on cell phones outside my office door.
2. Faculty who leave the board in the room I am going to teach in covered with their notes.
3. People who gossip carelessly without any thought to the damage caused.
4. Really awful art in law school public places.
5. People who take up two spots in the parking lot.

See, Orin, these are annoying things but they do not seem to me to have all that much impact on the capacity of a law school to give stakeholders a fair deal.

My theory is that being a law professor is a privilege largely enjoyed by children of privilege who have developed a sense of entitlement. This sense of entitlement results in a massive network of norms that have far more to do with protecting their privileged existences -- many of which are in my top ten list to which you responded-- than observing their fiduciary obligations to students, contributors, and the community.

"Annoying" does not quite capture how I feel about those things. It is more like wondering what the distinction is, morally that is, between those privileged faculty and folks doing time for embezzlement.

There is an important qualifier. Even at failing law schools there are many, maybe a majority, of faculty who are not part of the problem in a direct sense. But the informally, but well organized, block sets the norms.

I hope that clears things up for you and others who have not followed the thread.

2006 BIGGEST TURKEY AWARDS

Yes, Turkey Day means turkeys and there are many to go around. So, the ten worse privilege protecting decisions, people, or programs for 2006:

1. The Sloan Foundation Grant Program designed to increase job flexibility for university professors. (Not kidding. It's like growth hormones for Yao Ming.) The is easily number 1.

2. Appointment Committees that pass on candidates who graduated in the top ten from non elite schools in favor of "honors" grads of elite law schools.

3. Initiating a summer program in a western European country. (The supply already exceeds any possible measure of demand by students.)

4. Publishing yet another symposium issue composed of members of one choir or another preaching to each other.

5. Initiating (or electing not to discontinue) an IP program or Review. That bandwagon is completely full.

6. Initiating another specialty journal that is not refereed. Why would you do this???

7. Any Dean who views him or herself as an "agent for the faculty."

8. Allowing anyone to teach a 9 hour or lower teaching load who is not publishing the equivalent of a major (and new, not recycled) article a year.

9. Allowing paranoid tenure candidates to influence or complain about the selection of their reviewers without being swatted. This does not mean that they should not be permitted to reply to unfair reviews (if any actually exist).

10. You, if you let personal gain or social considerations (positive or negative) influence your vote on anything taken up in a faculty meeting.

11. Tax and other non public interest LLM programs charging less than full cost tuition.

12. Choosing Dante over Drew. Ok, so there are 12 and this has nothing to do with legal education. Get used to it. In the "Law Professor and Law Dean Actual Code of Professional Conduct" it actually says: "Professors and Deans are entitled to 100 Truth Mulligans per year or as many as necessary which ever is higher." That's section 203.11 (or so).

Yum!!

Counter-Preferential Choice and Shirking: Deans and Other Administrators

This is the final installment of my series on the potential failures of law faculties to observe their fiduciary obligations to law school stakeholders – tuition payers, contributors, and the community. I say potential because I have only taught at two law schools long enough to have standing with respect to what goes on. Still, as I noted previously, the conditions are probably riper for widespread shirking in legal education than in any other context – academic or otherwise.

The last critical piece of the puzzle is the lack of any effective sanctions for shirking. When I have observed sanctions directed at fellow faculty members it has rarely centered on duties to students and those outside the school. Instead, it is usually about not adhering to group shirking norms.

The last possible source of sanctioning would come from oversight. That brings up the issue of law school deans. I cannot think of any circumstance in which a law school dean could “turn around” a failing law school without losing his or her job. I have elaborated on this before. The problems are both the near impossibility of the task and the generalized fear of deans to be involved in any controversy no matter how important the cause is. I have observed it repeatedly: deans arrive at a new law school with good instincts. Then they get a whiff of how the faculty will react and, all of a suddenly, they find they really prefer the money raising aspect of the job. In fact, they are so risk averse that they often pass on easy decisions that would not raise an eyebrow. But that begs the issue, doesn’t it? Should they be expected to do any of this? In virtually everyway they are ill-equipped to make a real difference at a law school that is in trouble.

But what if a dean with the right ideas were provided some backbone by a university president or provost? Maybe it happens. As I have said, my sample is small. But I have observed two things. First, a university president who has not had a legal background would prefer not to tangle with a law faculty. They are arrogance folks across campus who are simply tolerated. And, if they do not detract from the University, leave well-enough (no matter how bad) alone. Second, as one President recently told me: “The dean of the Law School is empowered to do what ever is best for the College.” It is hard to imagine a bigger misconception of how law schools work. Law school deans do what they are told by the faculty. Unless the dean is fortunate enough to have a faculty (and I think there are some) that acknowledges its obligation to shareholders, what is best for the College means what is best for the faculty. After all, some deans describe their jobs as “serving the faculty.” The outcome will be far cry from what is best for those the College and the University are obligated to serve.

So the question is whether faculty have internalized the values of stakeholders or are at least capable of counter-preferential choices. I have seen law faculty who do one or the other. I have seen many more that know what is right but are gutless. And, even more who have such a powerful sense of entitlement that they cannot help but equate what is in their personal interest with what is “right.”

You cannot play MoneyLaw without MoneyLaw players.

Happy Thanksgiving!

Redistribution in Favor of Status Quo

To say Jim Chen has stolen my thunder would be an understatement. But since I have already penned this, here goes. In a response to my blog identifying state-subsidized LLM in Tax programs as hard to defend, on another blog Professor Scott Schumacher writes: “why single out tax programs? . . . Are competent tax attorneys any less valuable to society than the competent contract attorneys that Harrison apparently believes are worthy of the public's largess? When you get right down to it, I doubt many citizens are happy to support any programs in the law schools.”

I will attempt to respond but first, a number of caveats. To begin with, Professor Schumacher has hinted at the harder question: Why subsidize legal education at all? I guess I would put it a little differently and say why subsidize without a guaranteed return on the public investment in the form of required public service? Second, I question the subsidization of the teaching of LLM students but not of the scholarship of their professors. Those who write about tax policy – both broadly and narrowly defined – may be producing the most important legal scholarship. Third, Professor Schmacher does not seem to defend an LLM program as much as say “what is the difference?” That is what I will take a crack at. Fourth, my comments are about law schools. I am similarly baffled by public subsidization of MBA programs and numerous others in which the students are likely fully to internalize the benefits of whatever they produce. Finally, this is an empirical question and I concede I do not know for sure. What I am also sure of is that responding with an example does not advance the discussion.

So, to the question: Is a tax LLM different? First, look at what law schools do. One thing is that they redistribute wealth or income from the public at large to people who jump through a series of hoops and make it into law school and to their professors. Now, unless someone thinks the redistribution itself is producing a "good" there has to be more.

The obvious "more" is that law schools should produce legal services that have value but which the market does not produce in sufficient quantities. First, this could mean that they produce legal services that are affected by market imperfections, including free-riding. Among the market imperfections, and contrary to what I think some economists would say, I include services to protect “goods” that are not subject to monetization – civil rights, environmental protection, etc. Second, to the extent we believe that all people have a right to effective representation, we operate to depress lawyer fees by making sure the supply of attorney services is high. (An inefficient way to achieve that outcome to be sure.)

I am not convinced that subsidizing post-LLM tax study contributes to the first objective. My hunch is that we could stop the subsidization of post-JD degree tax education today and there would be little or no unmet demand for the tax advice LLM graduates offer. The value of most tax advice would be fully monetized. I can think of few, if any, free-rider problems. Regardless of how the courses are taught, I think what is learned by most is Retaining Wealth I, Retaining Wealth II, and so on. Thus, the only justification for subsidization would be to depress the cost of tax advice. Maybe this is a defensible goal. If that were the goal we would have to revamp most of what is taught in an LLM tax program and include courses like “Tax Advice for the Poor and Working Poor.” But that is covered in the basic JD course. So whatever wage-depressing rationale may exist can hardly be traced to an advanced tax course. In any case, that’s my story and I’m sticking to it.

Counter-Preferential Choice, Shirking, and Moneylaw:Part 2&3:Law Professors as Agents

In previous posts I suggested that a number of factors account for the ability, of law professors to shirk from their obligations to law school stakeholders. This begs the qustions of who the stakeholders are and what law professors owe them, if anything. The stakeholders are tuition payers, contributors, and citizens. When tuition payers are subsidized by tax payers, as they are in varying degrees in state schools, a balance must be struck. The obligation shifts more toward citizens. This could change if subsidized students were required to practice some form of public interest law for a period of time after graduation but, as far as I know, they are not. Faculty are stakeholders only to the extent they are coincidentially members of the other groups. This means the check out person at the nearest convenience store -- you know the one, taking the bus to work because he has to and without health insurance -- is owed more by a law school than any faculty member. I do not mean the Kevin Smith "Clerks."

The obligations of the law school are:
1. Tuition payers are given the type of instruction that prepares them for the bar exam and, as much as possible, prepares them to provide competent legal services. In addition, they should be able to assist in bringing about legal reform.
2. Contributors are difficult to catagorize except in one very important respect. I have never heard of a contributor whose interest lay in helping a faculty member improve his or her quality of life unless that improvement increased the faculty member's ability to serve tuition payers and citizens.
3. Citizens deserve to expect a law school to produce competent attorneys who will be accessable and play a role in improving the overall welfare of the community. How else can we justify requiring them to subsidize faculty salaries?

I am sure this is obvious to most, if not all. Here is where it gets tougher. The decision to be made reminds me of something I tell my contracts students about exam-taking. I say, "Imagine I am walking through the classroom while you are answering the questions. Periodically I stop and point to a paragraph you are writing and ask 'Exactly what is the connection between this paragraph and the answer to what I have asked?'"

So, now someone wanders through your law school today and says, while identifying a program, a course, a building project, a desk, a trip, a photocopy, policy, coffee pot, library book, etc. ,"Could you tell me how that serves the tuition payers, contributors, or citizens?

Here are some things that could not pass the test at my school. (I assume you will keep them to yourself.) I'd like to hear about the ones at your school that fail the test, if you dare.

1. Operating an L.L.M progam in tax that is subsidized by citizens. Precisely what is the public good rationale here? Do you think there is any chance that many if any of these students are likely to be anxious to do public service work? Why not full-cost tuition for a program so obviously aimed at people who will internalize of the benefit of the State's investment in them?
2. Using the money from the check out person at the nearest convenience store to send a group of faculty to Poland to teach Polish students.
3. Building a $20 million classroom building that is vacant 1/3 of the time and always will be.
4. Flying in speakers for 30 minute lunch-time talks that barely scratch the surface, because if they were flown in for afternoon presentations that ran longer and included the expectation that the presenters' papers would be read ahead of time, attendance would be minimal.
5. Allowing a faculty member to teach on as few days as possible so he can have the maximum days free regardless of the impact on tuition payers and availability.

Okay, as you attempt to connect these practices to the stakeholders, assume you are dealing with a hard grader. Please no rational relationship explanation. Better yet, explain to the convenience store worker or tuition payer why you are taking their money and what the return is to what truly is their investment.

Counter-Preferential Choice, Shirking, and Moneylaw: Part 2: Us

My theory that many law schools will have a hard time adopting MoneyLaw strategies is based on the idea that some law professors shirk from their duties to law school stakeholders. When the shirkers reach a critical mass, MoneyLaw is sunk. It's not that the professors start out looking for ways to shirk, but a variety of factors come into pay to make it hard to resist. For example:
1. Many law professors try not to lead an "academic lifestyle." They do not fit the book- wormy, egghead, Napolean Dynamite profile. No way they would support Jose for President. Instead, they have material aspirations that exceed most others on campus. Instead of thinking how lucky they are to be earning tens of thousands of dollars more than the average history professor, they think in terms of how much people in practice (or at the Med School) earn. They feel relatively deprived compared to these reference groups. A sense of duty to others is the first thing to go when personal "needs" become pressing. Big houses, expensive travels, tasteful but expensive cars, fine fabrics, the latest computer, and lots of leisure time do not leave much time to fret about the little people.

2. In a fascinating study, Tracey George found that full-time law professors who were appointed to the bench were, in fact, more ideological than non-law professor appointees. You should read the article to understand what she means, but a short and simple version is that they were more likely to decide cases in a way that was inconsistent with precedent but consistent with the ideology of the President appointing them. This could actually be good if it means improving things. Law professors may actually "know best" in the sense that they may have a broader vision of and a greater appreciation for the subtle theoretical underpinnings of the law. The problem is that the propensity to vote more ideologically than non-academic judges was not found just among liberal or just among conservative appointees. Both did it. Thus, the “knows best” explanation for their decisions only works if law professor/judges know best about everything including things on which they disagree. Unless there are two "bests" this does not work. This suggests, to me at least, that some law professors are not only not inclined to begin the analysis of an issue from an unbiased perspective, they are also too arrogant to care. I can think of no reason why this would not play out in hiring and faculty governance matters.

3. As a result of their education and practice, law professors understand better than most people the substantive implications of process and are skillful at manipulating process to achieve specific outcomes. I have very rarely, if ever, witnessed a discussion among law professors about what would be a “fair process” without a significant number there calculating “what does this mean for me and my institiute or center or career?” Just a touch of this in a faculty can mean that everyone follows suit and factions are formed.

4. Having been trained in the arts of advocacy law professors internalize the ethic of advocacy so thoroughly that it affects them even subconsciously. This means a virtually infinite capacity to rationalize why things that are favorable to them are also “right.” I have one quick and harmless example of this that amazed me as a young professor. I was on the appointments committee. Early in the year the Dean met with the committee and stressed the need to hire someone to teach trusts and estates. A colleague and I were assigned to a subcommittee to find qualified candidates. We blew it off. Several months later the Dean expressed disappointment to the committee about not finding someone to cover the course. I felt sheepish and was stunned when my colleague started speaking. He was red-faced and trembling with anger. "I'll have you know," he informed the Dean, "we have conducted a nation-wide search. Based on that search there were simply no qualified candidates in this field that we had a chance of attracting." After the meeting, I quickly asked him what we had done. He reminded me that when we received resumes that were mailed in by candidates, we had looked to see if any of them taught trusts and estates. He meant it! He could have passed a polygraph test administered by God. No problem. “National search” or rationalization? Or just scary?

Is there a critical mass of people on your faculty that fit any of these descriptions? If so, you are not off to a promising MoneyLaw start.

Deans as Agents

In my Post, "Counter-Preferential Choice, Shirking, and Moneylaw: Part 1," I listed a number of issues I plan to address over the next several weeks. The first question is whether law professors are different from others in terms of a propensity to shirk.

Nancy Rapaport and Jim Chen have responded with comments about a question that is further down on the list and one for which I am at an extreme disadvantage when it comes to commentary. I have never been a dean at any level (although I secretly – at least until typing the immediately preceding three words – harbored a hope to be appointed as a dean for two hours and then to be led away with a police escort and a new identity).
In my life as a law professor I have served with seven deans. One expressly regarded himself as an “agent for the faculty.” Another viewed his job as “serving the faculty.” “Serving” meant, in some instances, that staff heads rolled if a temperamental, whiny faculty member became upset. Two others behaved that way but never expressed it so bluntly. With one exception, the idea that any dean is an agent of the faculty concerns me (please consult the civility dictionary for what "concerns" actually means outside the world of law professors). Agency seems to slip into doing what you are told and when deans do what they are told by faculty – a persistent behavioral characteristic – it is often inconsistent with serving what I think are rightfully viewed as the stakeholders (another question to be addressed later but, generally, students, tuition-payers, the community) in a law school. Nowhere in the mix do I see faculty as stakeholders. They are a means to an end similar to the library, well-designed classrooms, and access to legal data bases. Sure, they need maintenence and special attention from time to time like other inputs, but it is in the interest of providing the best for the stakeholders. I noted the possibility of one exception. That exception would be when faculty themselves have internalized the values that advance the interests of the stakeholders. Then the dean and the faculty become a team.

As harsh as this sounds, I do not want to judge these deans too severely. The problem, as Nancy alluded to in her early posts about deans, is that deans, especially at mid- level and lower schools, must act as agents for the faculty if they want to last very long. I say mid-level schools because, first, in general, I think top schools may have faculties that include people whose self-interests are consistent with activities that make the school better. Second, deanships at mid-level schools are often attractive to people who have soured on scholarship and want to move to what is, in reality, a different profession at a higher-ranked school than he or she could achieve as an academic.The job description for those folks is “do what the faculty tell you to do or hit the road.” Why someone would take a job that includes a requirement of complicity in faculty shirking in order to keep the position is beyond me. The short tenure of deans as a general matter suggests they too find it intolerable. In fact, all other factors being equal, we might begin to judge a dean's character by the shortness of his or her tenure, at least at some schools.

In short, at a mid-level school, a dean must act as an agent of the faculty to keep his or her job. Yet the interests of many of those self-declared principals may have little to do with the interests of the relatively silent and powerless stakeholders. One more thing: in this untenable mix, where are the Provosts and Presidents of universities?

Counter-Preferential Choice, Shirking, and Moneylaw: Part 1

One of the most discouraging conversations I have had was with the vendor who restocks the newspaper machines around my university. This is the person who unloads the coins each day and hopes that the money matches up with the number of papers missing. I asked if she usually found that the coins inserted and papers missing matched up. Her answer, “It works out about right everywhere except with the machines at the law school. Over there, there are always far more papers taken than coins left.”

Sure, this is a small sample but I could not help but think about a number of things. First, why do we (my law school, some law schools, all law schools?) evidently attract students who think what they do is okay if they don't get caught? Or, put differently, why do we get so many football-rules people as opposed to golf-rules people? In football, breaking the rules is okay as long as you are not flagged for it; in golf it is not uncommon for players to report their own rule violations even though they are undetected by anyone else. Or, maybe this is the difference between “law and economics rules” and Rawlsian rules, but that is another story. Second, most of these students may become attorneys, judges, and law professors.

Third, although I did not think of it this way at the time, is it possible to succeed or even play a Moneylaw brand of “ball” if one plays by football rules? This leads to the question of whether people are ultimately and exclusively agents for themselves –kind of an Adam Smith world. If so, can they shirk from that “duty” to serve the interests of others? Or, in the terms of Amartya Sen, is “counter-preferential choice” possible?

So here are the issues:
1. Are law professors different?
2. Do law professors have agency-like duties to "stakeholders?"
3. Who are the stakeholders?
4. Do deans have agency-like duties?
5. Are deans "agents of the faculty?"
6. Can a law school play Moneylaw if the dean is an "agent of the faculty?"

Ethics Lite

Nothing could illustrate the pervasive unwillingness to face the hard ethical issues in legal education better than the three essays, written by three top ethicists, and published in the most recent issue of the Journal of Legal Education. Those essays tell us not to plagiarize, not to harass and humiliate students, and to be good citizens. To be fair, there is a bit more, but not much. For example, one author does concede that personal commitments may shape scholarly activities. Not surprisingly, the elephant in the room -- the shoplifting problem (or its moral equivalent) -- is ignored. The quality of the authors and their capacity to say more makes this missed opportunity especially disappointing.

What is missing (whether a result of avoidance or ignorance) is a full discussion of the fiduciary obligations of law professors. Yes, I am talking about spending the money of others but not on yourself. Let’s take a pure case of shirking/shoplifting. An elderly person places his or her life savings in your hands with the understanding that you will invest it to maximize the return. You are paid a nice salary, have a flexible schedule and pretty much do what you want when you want. For one reason or another, you decide to take a little money from the principal (inventory) and keep it for yourself. I trust everyone reading this would agree this is an ethical problem. And, although garden variety shoplifting is not exactly shirking, it really is not distinguishable in any other way from the agent who shaves a little off the top. When law professors spend the money of others for personal enjoyment and social comfort, or just take the money and do very little, this too is the moral equivalent of shoplifting. In fact, it may be worse. Many shoplifters actually need what they take. Rarely is this true for a law professor. In addition, when done by law professors, it is done with a level of arrogance that Wynona Ryder could not muster. It is shoplifting that says, “I dare you to suggest I am not acting honorably.” Very few take that dare (you might be labeled "uncollegial"), and the three most recent essayists on “academic ethics” steer well clear of it.

I’ll take an essay about the ethics of law professors seriously when the author has the courage to open up those oversized pockets possessed by many law professors and talk about what is in there. Things like:

1. Tenure votes influenced by social connections.
2. Teaching courses that are more interesting to the professor than they are useful to the students.
3. Being less rigorous in class because it might affect teaching evaluations (or because rigor requires greater preparation).
4. Writing tenure review letters that avoid pointing out weaknesses and ultimately say little.
5. Sending tenure review requests to professors who are known to be either friends of the candidate or sympathetic to the candidate’s political position.
6. Starting yet another foreign program that offers nothing that is not already offered (other than more free trips for oneself.)
7. Hanging out at home gardening and doing the Times crossword puzzle except for teaching days.

There is a lot more loot in those pockets, but why not start with these? And for the majority of law professors and deans who, I assume, do not avail themselves of the old five finger discount, that's great, but do you still look the other way when someone else does?

Making Nice, Knowing Better, Doing Nothing

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

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

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

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

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

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

Thanks for Asking

In response to "Not Even Cake" Nancy Rapaport writes:

"Now, the hard question: how do we tell the difference between schools that are experimenting (something we want) and schools that are, um, engaged mostly in self-indulgence?"

I am grateful for this question. The truth is that I am not confident I know "the" answer. I do know that the hard questions about existing programs are very rarely asked.

That being said, the vanity press analogy is close to perfect and helps answer the question. There are at least three ways to make the distinction but I would modify the question and say it is not so much a school by school analysis but a program by program analysis.

1. Was there was a demand for the program before it was instituted. Or is it a case in which the supply came first? Even this might be OK if there was a vague unfocused demand that the supply helps focus. On the other hand, do there have to be huge promotional efforts every year -- for example, in the case of a foreign study program -- just to make sure students sign up. This would be a sign that the program, like a bad book or movie, does not have "legs" and that the experiment has failed.

2. Are there two or three faculty members responsible for the existence of the program who resist serious, objective, periodic review? If there are two or three who are the "but for" reasons for its existence, this leans toward it being a bad idea. An added element of this one is whether they make emotional and vague appeals to keep the program. Do they habitually understate the costs of the program? This ties to the civility issue. Do they send the message that questions about the program are somehow "personal" or "inappropriate?"

3. If the program had never existed, is it likely that a critical mass of the faculty would support starting it next year? This goes to the inertia issue. Suppose I had been going to France every year to teach American students American law. In the course of things I realized I like France and have friends plus it is really cool for people (outside of legal education) to know I spend my summers in France. I eventually come to honestly believe this is a good thing for the School. It is very hard to let go of something like this -- especially when someone else is paying the tab.

But in reality I think we all know which ones are right and which ones are vanity programs. In a log-rolling, captured faculty there is just no incentive to ask hard questions.

Not Even Cake

A few days ago yet another Harvard underachiever scoffed at a colleague who suggested interviewing promising candidates from The University of Minnesota Law School and the University of Texas Law School. Those who went to public schools did not have their feelings hurt but considered the source.

That incident made me think about the flip side of Moneylaw. Much has been written about the positives of a Moneylaw approach but little attention has been paid to the damage done by what I regard as the opposite approach – Faculty Capture. (I am aware that Moneylaw groups could and maybe have captured some law schools but my definition of Faculty Capture means operating a law school largely to benefit incumbent faculty.)

Yet on a day-by-day basis the cruelties that occur when a law school is captured by those for whom Moneylaw is frightening are astounding. Here are some examples:

1. A student from a foreign country for whom English is not even a second or fifth language approaches the teacher for help understanding some complex material. The stress the student is feeling is obvious. His enrollment was not an inexpensive thing -- for him at least. You might ask what he is doing here. Well, a small group of faculty members decided to start a program for foreign students to come and study American law. What did this mean for the quality of the school or the fortunes of those enrolling? No one knows and after several years, no one has checked. What did it mean for those who created the program? Travel at the school’s expense spreading the news of the Program, a better office, a secretary. And, most importantly, lowered expectations as far as teaching and scholarship.
(Think of it this way. Tony LaRussa has tenure as coach of the Cards. No one can fire him, no matter what. He is not that interested in winning games but has grown fond of Indian cuisine. The team will not let him hire a chef so he puts the Indian chef at third base with promises that this will open up many opportunities. So the chef catches a few line drives in the throat. That’s okay; Tony is getting the food he likes.)

2. A number of students get to the middle of their third year with average grades (B+ or so) and they have no job offers. The School starts a new program – a specialization that takes an extra semester. Students sign up thinking this will mean a better chance of finding jobs. They are wrong and the School knows it. The cost to them is high. What is in it for the capturers? An office, the title of “Director,” lowered expectations as far as teaching and research, and travel opportunities to conferences devoted to the specialization.
(So maybe this is not a line drive to the throat. Maybe it is more like selling diet plans to Mick Jagger or Nicole Richie.)

3. Everyone reading this has experienced this one. A student comes up after class – probably near the end of the term – and asks THE question. Sadly, the question is the one that communicates to you that the student has no clue and that he or she is not going to get one between now and the exam, if ever. Further conversation reveals that the student had a pretty good job before law school. Then loans were taken out, his or her spouse is working, and the kids are in daycare in order to realize the law school dream. You wonder, first: is there anything I can do soften the crash? Then you wonder why the student was admitted. Was it because you admit 300 students every year no matter what? Or, was this particular student important – even if only as a token – to the law school?
(Line drive to the throat? Can there be a slow line drive to the throat that results in pain that lasts for years?)

4. A faculty member meets a warm and friendly lawyer from Prague and falls in love. Obviously, this means a great deal of travel and expense unless, unless. . . . Yes, by golly, the Law School, which is in a small American town in a state with no connection whatsoever to Prague or the Czech Republic, for the benefit of mankind, could set up a Program in Prague. And who would be the perfect director? – no need for a search in this case. The Czech students pay their tuition to listen to lectures in English that most do not understand and at the end they get a certificate that, well, is suitable for framing. And the capturers get many trips to Prague with stops in between and, most importantly, a sense of being oh-so cosmopolitan.
(Line drive to the throat? Hardly. A paper cut? Who cares when you are helping the world?)

Moneylaw can cause disappointment. But the victims of a captured law school seem more vulnerable and the cuts to them go deeper.

In Praise of Incivility: Priss and Circumstance, . . . and Neville Chamberlain

Obviously, a Moneylaw approach to administering a law school scares the hell out of people, especially if they are comfortable being a Devil Ray, Royal, or Rocky. But it's also likely to worry those at higher-ranked schools when the conversation turns to ignoring credentials and other symbols of institutional authority, conducting serious and substantive post-tenure reviews, or auditing pet programs.

Let’s face facts and not about the Miami Dolphins. Most law faculties are clubs. Once you’re in, it’s for life and as a tenured colleague on my faculty recently told an untenured colleague, “it’s not enough to be colleagues, you really need to at least act like you are a friend.” (Civility-speak for "kiss butt kid or you are out of here.")

Appeals to civility are critical as means of perpetuating the club and heading off a Moneylaw approach. Civility standards are, after all, invariably “drafted” to protect the positions and status of those in power.

In the prissy world of law professors-- the world of the velvet mob -- it’s nice to think civility is about respect and the form of discourse. That is a fantasy. It is just as likely to be about disrespect and anti-intellectualism. When questions of civility are raised, it is rarely about form. Instead, it is a means of defining the topics of discourse and even the positions expressed. It does this in two ways. An unpopular view expressed civilly can be ignored because no one in the club need pay any attention. The same view expressed loudly and aggressively is obviously to be ignored since it comes from a person who is behaving unacceptably.

If the quietly expressed view seems to be gaining traction at all, the response will be "I am offended!!” or “That is inappropriate”(the latest most overused word which actually means "I do not like what I am hearing"). Those charges, along with the threat of being labeled a racist, are brick wall discourse stoppers exactly at the point at which the discourse gets interesting -- most likely when something substantive is said that could have an actual impact on the club.

Let me give an example. At my school for years faculty had family members in their classes and generally the family members got A’s. It was evidently an accepted benefit of being a club member. (Think of it as a discounted green fee at the country club.) Trying to begin a conversation about whether this was a good practice – no matter how politely -- could quickly be met with “I am offended, you are accusing me of being dishonest.” Eventually, agitation embarrassed the faculty to take action and forbid the practice but appeals to civility retarded the action for several years.

Now think about the prospects for having a civil conversation about whether tenured faculty have been sufficiently productive or whether a program should be discontinued. It this really going to be carried on in carefully measured tones with appeals to reason? Or, is the very topic likely to raise the hackles of those threatened to the point that there are “friends” and “enemies” and “offense” is taken? Those threatened will be the first to raise the shield of civility. Behind that shield are some very nasty goings-on and the velvet-gloved mob. Civility is like a giant thumb on the scale in favor of the status quo.

And now for those unschooled in civility here are some translations:

1.The civil version: Your analysis is incredibly astute and I had a small concern about one little passage and I am only worried that someone else might bring it up.

Actual meaning: I don’t think your analysis is correct.

2. The civil version: You are one of our most productive people. Lately I find myself uncomfortable with what I must have done that is preventing you from doing what you love -- scholarship.

Actual meaning: One article every two years is not enough for someone making that much money.

3.The civil version: Do you think we really have a chance at hiring your son in law? Wow, being on the faculty with someone as productive as you could really put some pressure on him.

Actual meaning: I think it is a bad idea to hire your son in law until we have conducted a search for the best candidate.

The Matrix

I think everyone has seen the movie, The Matrix. If you have not, it portrays the battle between being "real" and feeling good. In effect, machines have taken over the world and cultivate humans as an energy source. They--the humans--actually grow in really yummy looking little pods. They are content because whatever consciousness they have is simply the result of a computerized reality.

Some bothersome Moneylaw-type humans are actually fighting for real reality even though it means some unhappiness. In the movie, the evil forces are those who want to perpetuate the sense of well-being. Thus, the movie assumes, counter to what the current demand for mood-altering drugs indicates, that we are instinctively on the side of those who fight for the real reality. The movie skips over a question that philosophers have addressed one way or another for centuries. Are we actually on the side of the real? Descartes saw the issue as whether our consciousness is imposed by some outside force or the result of our free will. The idea is reflected in Robert Nozick's Anarchy, State, and Utopia when he asks whether we would willingly enter an experience machine. In the machine everything is dandy, and you do not recall that you opted into the machine. Nozick makes the case that there are reasons for not entering the machine.

Most law professors seem to crave the painlessness of the Matrix. In terms of the experience machine, it amounts to a preference for sensing that one is part of a productive endeavor over actually being part of a productive endeavor. Having gone through the contortions necessary to change perceptions of themselves, their schools and programs, they then begin to take satisfaction from those appearances as though they were real. In terms of the film, it is comparable to constructing the Matrix or Nozick's experience machine and then happily jumping in. The pull is irresistible to many. Indeed, the unhappiest people I have known in the academic world are those who are unable to suspend their disbelief sufficiently to enjoy the illusion.

Some features of the Matrix are:

1. A new professor is asked to write an article for a symposium by a senior colleague. The article is called “referried” because no law review students were involved. The article comes out and the senior colleague publicly congratulates the new professor and reviews the article for tenure purposes.

2. A popular faculty member is proposed for tenure. His teaching evaluations are good to average. His volume of scholarship is high. In the file is a negative letter from a national expert asserting, correctly, that 30% of the candidate's work is recycled from earlier work. After twenty minutes of laudatory commentary at the tenure review meeting, nothing is said about the negative letter and its claim.

3. Another popular candidate is proposed for tenure. She, her husband, and their children are regulars at faculty social events. Dinner at her house is always fun. Her teaching evaluations are average and class visits reveal that she is, at best, an average teacher. In addition, even though she has met the numerical requirements for number of articles to be granted tenure, most of her writing came in the last year. Both of her last two articles--one of which was a fifteen-page symposium piece she submitted at the request of a friend--were in manuscript form when evaluated. The tenure vote is positive.

4. A faculty member travels to Italy where he has family members. He proposes starting a summer program in Italy. None of the students at your school speak Italian, your state has little trade with Italy, and United States law would be taught at the summer school. At least two other faculty would travel to Italy, at the school's expense, in order to do the teaching. The program is approved by the faculty.

5. Your faculty teaches twelve credit hours per academic year. This translates into six sixty-minute teaching hours per week. A faculty committee proposes reducing the teaching load to nine credit hours per academic year and reducing the class period to fifty minutes. The reasoning is that you would still comply with accreditation requirements.

6. You have read this list and decide none of this has happened at your school.

Grades, Courses and Capture

I have written about the variety of ways it is clear, to me at least, that many or most law schools are captured by and run for the comfort of privileged faculty. Comfort is increased when faculty teach what they want to teach whether or not those courses have much to do with avoiding and resolving disputes -- a problem I believe is independent of any lasting Langdellian influence. Faculty comfort is also increased by high teaching evaluations and low numbers of student complaints. To this end, although the trend may be reversing, everyone is more comfortable when high grades are are given. For example, at my Law School, there is a mandatory 3.20 average and I suspect we are not out of line with other schools. At the same time, our bar failure rate is now at 20%. What this means is that a higher percentage of students fail the bar than have a C average or lower. We are evidently proof of the Lake Wobegon dream in that all of our students are above average – at least until they leave Lake Wobegon.

Some of the arguments I hear for giving high grades are surprising. One is that low grades hurt the feelings of the students. Another is that it is hard to give a C to someone you have come to know. The most compelling argument for increasing the grades is that students cannot compete in job markets with graduates of other law schools who were subject to high grading curves. The stunning thing about this is that it assumes law firms look at G.P.A. and not class rank. What an amazing example of not getting the Moneyball message. Recently hired faculty who have been involved in law firm recruiting decisions assure me this is true to the extent that a student with a GPA below a certain level will not be looked at regardless of rank. (I wonder why we just don’t raise the curve to 3.9 so they will all get jobs or create a new grade – how about A-squared.) If markets worked, those firms hiring without paying attention to the relative curves of Schools eventually should be left in the dust.

But, I digress. My real point is how the grade scam plays into faculty capture. Faculties have choices. They can offer the types of courses Jim Chen has described. This may mean retooling and long hours of preparation. Or they can simple pay off those who are affected negatively by the choice of "business as usual." What better way to pay off the students for, say, not raising questions about course offerings that seem only distantly connected to avoiding and solving disputes than to give high grades. High grades make faculty, parents, and students happy. And, law firms, so I am told, are indifferent to what the grades mean. Make no mistake this is a real payoff. If a student’s job prospects go up with higher grades, even if the student is no more qualified, it is a real pocketbook-affecting payment.

There is, in fact, a contract of sorts. For faculty it means less class preparation, fewer complaining students, and the illusion of being productive. For administrators it means no pressure to modernize the curriculum by asking faculty to broaden their offerings. And, for students it means a resume that, to them, looks good. And, in these days of self-promotion, glossy brochures, and symposia stuffed with pals they are learning from the best.

As an aside, isn’t interesting to watch markets work and not work. On the one hand, law firms, at least according to my recently hired colleagues, are less responsive to class rank than grades. On the other hand, private schools have higher grade inflation than public schools. (There is, however, contrary evidence.) Private school students have a more elastic demand and schools must lower the “price” of attending or raise the grade payoff to stay competitive.

Class Bias: Part 3

Then I got Mary pregnant
and man that was all she wrote
And for my nineteenth birthday I got a union card and a wedding coat
We went down to the courthouse
and the judge put it all to rest
No wedding day smiles no walk down the aisle
No flowers no wedding dress

The River, Springsteen

Parts one and two of my discussion of class bias in law school hiring addressed the different perspective that economically disadvantaged people (e.d.p.'s) bring to the job and the ways more of this perspective would improve the service, teaching and research of the institution. This last installment is about finding those people. In a sense Jim Chen has made all of this easier. I am tempted simply to say: do everything he outlined in his latest piece, but first screen out all candidates who attended private schools or high-tuition state schools.

There is also another short cut way to describe it. Most law professors know how to find good e.d.p.'s – all it takes is acting counter-intuitively. It’s along the lines of "if it tastes good or feels good, it is probably not good for your health." In hiring, if you feel comfortable with and connected to the candidate, it’s probably bad for the School. That is what it is about, right? The School? Or is it about hanging out with similarly privileged buds?

There is some profiling to be done here, but it is okay here since the only groups affected are those who are economically advantaged or disadvantaged. I concede that screening out all private school and high tuition schools can mean losing some good candidates but, if you take a look at the numbers published in the latest issue of the Economist (September 23, 2006, p. 38), you are mainly passing up on beneficiaries of affirmative action for the privileged. Moreover, what we know is that the only things positively correlated with expensive credentials is the probability of landing a law school teaching job and the level at which one’s articles are placed. There appears to be no correlation between expensive credentials and the ability to carry on an interesting conversation about art, music, history or not to be hopelessly boring.

So narrow the universe to candidates who excelled at inexpensive (some State) law schools. Then narrow your scope to the top ten – not top 10% -- in the class. Now it gets tougher because some e.d.p.'s will try pass for privileged (pfp). With hard work you can “out” most of them. You want to eliminate anyone who traveled widely in the summer, spent any semesters abroad, and did not work at some menial job for, at least, some summers. The keepers are ones with crooked teeth and pock marks. For a woman, look for a skirt that is a bit too short, heels too high, or too much make up. (For men the make up is OK only on Elvis impersonators -- in fact, maybe a per se hire.) Gold jewelry on a man or a woman is a good sign. Any inkling of a mullet is a definite yes for a man as is a jacket with a double vented back or a tie that is too wide or too narrow.

You have narrowed the universe to e.d.p.'s. Some of those who have figured out how to pfp will also be eliminated. Not a big loss because they may also pfp in their service, teaching, and research.

Now proceed to the Chen questions and you’ve got it.

Finally, a word on race. Race is not per se indicative of economic disadvantage. That’s not to say there are not arguments for considering race for other reasons but in recent years, at least in my hiring experience, there is a tendency for law faculty to feel most comfortable with minorities from private or high priced schools who have professional level parents. These folks are indistinguishable from whites in terms of their sense of entitlement. Thus, even with minorities it is important to look beyond the surface.

Class Bias: Part 2

Keep you doped with religion and sex and TV.
And you think you're so clever and class less and free.
But you're still fucking peasants as far as I can see.
A working class hero is something to be.
Working Class Hero, John Lennon


In part one of this three part series, I discussed the different perspective of those who were economically disadvantaged people. I also noted that I am not confident that e.d.p.s (OK, no pun intended) share a view of how specific issues should be decided. Instead, I wrote about bringing a needed perspective to teaching and research. I should have included service as well, especially faculty governance. At the outset, however, consider the proposition that is opposite of the one I will discuss: The quality of legal education is increased by systematically excluding e.d.p.s from the profession. I doubt many would say they agree with that view. On the other hand, maybe actions speak louder than words.

With respect to governance, I have noted that when in the company of other professors with working class backgrounds, we seem to have a greater understanding of the fact that we are making decisions about spending the money of others. Colleagues with senses of entitlement, on the other hand, are less likely to have a vision of those who actually pay the bills. (Do they ever think of the convenience store worker or stock person at Wal-Mart when deciding that a summer program in France would be just the thing?) Recognition of concepts like “can we afford” something or “is this the best use of the money” seems to follow more readily when someone has been forced to deal with those same issues in his or her own life.

This sense of fiduciary obligation affects the way in which e.d.p.s approach teaching as well. A sense of entitlement seems to go hand in hand with canceling classes at the drop of a hat, taking off a couple of weeks in the middle of the semester for a foreign conference, teaching a self-indulgent course with a tiny enrollment, and feeling annoyed if students ask too many questions. It comes down to a view, shared by the children of privilege, that law schools exist for the faculty as opposed to the reality that faculty are but an input. Think how everything changes when faculty realize that they are not there to be served but to serve – and their jobs depend on serving. For those who have had a lifetime of being served, this an alien perspective.

When it comes to the substance of teaching and research, it is not that e.d.p.s are better, only different, and that teaching and scholarship are enriched by different perspectives. For example, a contracts teacher who has experienced being on the losing end of an exploitative contract is better able to understand the illusion of Pareto superiority and discuss, in real terms, the failings of contract law (as it has been shaped to serve those of privileged classes). My hunch is that this same perspective carries over to any course in which there is an interactive element.

Finally, on scholarship. Where do the ideas for articles come from? What fuels the analysis? That spontaneous flash that leads to questions or that leads to analysis and research is akin to “taste” – here a taste for which questions one will devote his or her life to. Taste is hardly the result of eight or more years in college. Different life experiences result in different tastes. Look at most faculties. Which people are writing about race? About woman and families? About environmental questions? There is a self-referential and oft times a self-interested element to how tastes are formed. In each case, there is a story that connects the person’s life with the direction his or her research has taken. Now compare a faculty that has screens out an entire segment of life experiences and compare its diversity and quality with one that purposefully includes all qualified people, whether or not they increase social comfort. My case is simple: when it comes to the analysis of law and the teaching of future attorneys, the second faculty is superior.

Class Bias: Part 1

Give me your hungry, your tired your poor I'll piss on em
Thats what the statue of bigotry says
Your poor huddled masses, lets club em to death
And get it over with and just dump em on the boulevard.
Lou Reed, Dirty Blvd.


I have been asked to clarify my views on class bias in law school hiring. As I see it, there are three questions. What do I mean by economic diversity? Second, what does economic diversity bring to the table? Finally, how would one go about hiring for this type of diversity? (I’d prefer not to use the term “affirmative action” which seems to have different and shifting meanings.) Before addressing these issues – one per week – I want to add a qualification. My focus is purely utilitarian. Will an increase in economic diversity (assuming the premise that it does not currently exist is correct) enhance teaching and research? Although I personally feel that children of poor and working class families have been excluded and there are issues of equity to consider, that is not my concern here. For now at least, I am not willing to ask today’s taxpayers to compensate today’s working class children because of what may or may not have happened to their parents. In the context of public schools, that may be nothing more than an intra-class redistribution.

To me class differences in the classroom and in scholarship are not about likely positions on specific issues. If that is what I were after, I am not sure economic diversity would get me there. (Plus, to be honest I am weary of hiring decisions, particularly at my School, based on how the candidate is likely to vote on specific issues.) I am thinking about a different perspective or sensitivity. I know this gets uncomfortable but a good example of what I mean by sensitivity or awareness involves an experience I had a few years ago when I shared a cab with a very privileged colleague – one I have enormous respect for. It was a battered cab with a driver whose clothes and demeanor said “working class.” She noticed a radar detector on his dash and attempted to engage the driver in a conversation about it. He nodded in response to her attempts. Somewhere along the line she announced with a big grin, “We got our radar detector from the Sharper Image Catalogue!” (This was several years ago when the Sharper Image had just come on the scene and carried with it some status.) She said it as though they had now bonded and would begin sharing Sharper Image stories. He was deer in the headlights. She was clueless that she was from a class of people who were inundated with Shaper Image catalogues and he was from a class that had not heard of the Sharper Image. This is all very dated now. Shaper Image has been exposed is now discounting on Ebay. So, substitute in this story something like the Design Within Reach catalogue. Or, virtually anything from San Francisco, of course.

This is just an example but I see the same disconnect played out repeatedly. I have talked to students who were turned down by my colleagues for research assistant jobs, but I did not tell them that jewelry, wide lapels, crooked teeth, and make-up make law professors nervous. Similarly, I have been in job interviews for teaching positions that were dismal because the candidate could not connect with interviewers by name dropping Guido, Cass, Eric or Ian; discussing biking in Italy or anything in the New Yorker; and let it drop that having a brand new car, as opposed to a fashionably old Volvo or Mercedes, would be cool.

If you agree that there are differences, the next question is whether having people on a faculty with this different sensitivity would make teaching and research richer. I will have a go at that next week.

POST TENURE SCHOLARSHIP

A few years ago I was struck by the fact that people on my faculty who wrote last minute articles to meet tenure requirements seemed rarely to write again. I conducted a small in-house study that confirmed that “late writers” wrote, on average, .1 articles (yes, that is a decimal point) a year after receiving tenure and “on time” writers averaged 2.1 articles a year. More recently, I attempted to expand the study to law teachers more generally, see 17 J.L. & Pub. Poly. 139, without much luck. By only using public sources, I was unable to accurately distinguish late from on time writers. If the trend I found at my school holds for others, however, the best predictor of post tenure scholarship may be not the amount of scholarship but the timing of it.

In that expanded empirical effort, I studied post tenure scholarship more generally and attempted a regression model with post tenure scholarship as the dependent variable and rank of law school where teaching, rank of law school granting degree, pre tenure output, and several other factors as dependent variables. Some variables had the expected impact but only number of pre tenure pages was statistically significant as a predictor of post tenure scholarship.

The most interesting result to me was the overall negative impact tenure itself seemed to have on scholarship. On average, the professors studied published 15 fewer pages per year after tenure than before. This held true at all levels of law schools. This may not seem like much in the context of 100 page articles but in making the comparison, post tenure scholarship was overstated, meaning that the drop off was in reality much greater. What I found in post tenure scholarship were the following: a much higher incidence of casebooks and treatises, books of edited readings, books that were composed of previously published articles, and articles that are best described as “spin offs” of prior articles. I attempted to adjust for some of these but could not adjust for all. This means that post tenure number was inflated as a measure of real scholarship and the 15 page fall off is greatly understated.

Given these results, a robust post tenure review process would seem to be in order. In a professional environment in which courageous administrators are rare and schools are operated for the benefit of faculty with powerful senses of entitlement and log rolling mentalites, no such process is likely to emerge.

COMPLICITY OF LOCAL NEWSPAPERS

If you live in a college town you are likely to find your local newspaper complicit in the preservation of control of the University by the elites. The Gainesville Sun seems to be a good example. The Sun, despite open meetings and open records law appears to have little interest in examing the University of Florida and seems wary of any op-eders who challenge them to do so. In fact, all indications are that the preferred action is to look the other way. Recently the University constructed a $20 million Law School building that is vastly under utilized. This is because those with a sense of entitlement -- the faculty- resist efforts to spread classes over the full week or to offer summer school classes, unless taught overseas. The prime teaching times are 10-3 on Monday through Wed and that is when most of the classes are offered. Of course, the students are left out of the equation because classes are jammed into a short period of time creating many conflicts.
Our local paper evidently sees nothing wrong with this or with faculty junkets to far away places to meet with other faculty at conferences that were created so there could be faculty junkets to far away places. Foreign programs, centers, institutes and programs are evidently immune from scrutiny. (This was not aways the case. In the past, one President was discovered making huge increases to the budget of an institute he was destined to land in once he left the presidency and rewarding his closest staff with shockingly high raises. These revelation by the newspaper were instrumental in helping move us to a more responsible Presidency.)
What accounts for the failure of these monopolies to serve the public welfare. Frankly, I cannot say. It is possible that the need to have full access to sports news which then sells papers is at the root of it but this is not a theory I would bet on. Another possibility is the small social environment that exists in a college town. Publishers may be pals with local politicos or high ranking University officials and close scrutiny may damage these valued relationship. It is, in fact, a type of log rolling where those involved get what the want and the public is treated as though it is irrelevant.
Ironically, "my" local paper, The Gainesville Sun, ran a long editorial praising Judith Miller the NYT reporter who went to jail for journalistic independence. Yet, no one at the Sun seems to have similar backbone when it comes to scrutinizing University expenditures.

LOG ROLLING IN THE TOWER

Recently I described to a friend a program we operate at my school. Each year we send several professors to Poland to teach Polish students about American law. We do this largely with money collected from Florida taxpayers. The students get a certificate that may make them more attractive to Polish law firms. It is not clear why since there are major language problems and their performance on exams, because of the language issues, is not good. No one has identified a benefit to the Florida taxpayers. It is a fun trip and essentially a charitable contribution to Poland from Florida taxpayers with the law faculty deciding who gets the contribution. When we got a new dean his immediate reation was that the program should be operated with private money only. (This view seemed to fade when his fundraising efforts were not successful and the fading did not change when it was discovered that the program was far more expensive than initially reported.) The program continues although as far as I know no faculty member feels so strongly about it that any personal money has been sent to Poland. Any efforts to examine the program are met with strong and personalized resistance. In effect, it satisfied the need to travel and feel that one is an internationalist.

My friend asked how can this be? How does such a narrowly focused program become immune from scrutiny? The answer is that the program is a piece of the process of log rolling. Sure, maybe only a few faculty actually care about the program but stopping it would mean that every other faculty member with a pet program could not count on the Poland supporters for their votes. This is not log-rolling in the traditional sense of, say, a Senator from Alabama agreeing to vote for funding a project in Alaska as long as the Senator from Alaska votes for funding an Alabama project. It is more subtle. There are no tit for tat arrangements. Instead, the academic log rolling process is one in which it is a given that no program sponsored by a faculty membr will be challenged because of the implicit understanding that the same treatment will extend to everyone. In effect, every faculty member actually has a stake in every program regardless of what that program is.

Capture and Job flexibility

The extent to which the privileged watch out for themselves is exemplified by a recent effort by the Sloan Foundation. As a general matter the Foundation sponsors a great number of worthwhile efforts. Now, however, one of those efforts focuses on academics and the question of how to increase their work schedule flexibility. Precisely why a prestigious and generally well-meaning foundation would concern itself with the flexibility afforded those who already enjoy the greatest flexibility is most likely explained by the self-interests of those intiating the study. Certainty, it is not the work of working class mothers and fathers who have no flexibility and who, by the way, pay the salaries of the academics.
Evidently the foundation makes awards to Schools based on a the survey. It is not clear whether the award is to be made to those schools with flexibility already or those who could actually use financial assistance to increase flexibility – that is, if the occupation could actually stand more flexibility. The questions on the survey are embarrassingly slanted to signal the “right” answers to privileged professors who want even more. For example, agree or agree:
1.My department chair is “mindful” of schedule courses and meeting to accommodate faculty with child care responsibilities.
2. My department chair supportive when I have a personal or family issue to take care of.

Do you think that most faculty members, with their powerful senses of entitlement, are likely to agree if they have heard “no” from an administrator no matter how reasonable?
Remember, this money is invested in a study of people with salaries high enough to hire childcare, who are in the classroom 5 to 10 hours a week, who can cancel and reschedule classes at any time, and who can do most of their research at home. I wonder what the car mechanics, convenience store workers, child care providers would think of the direction the Foundation has taken.

CONTROLLING WORDS

One of the ways the children of privilege control higher education is by the use of codes of conduct. Typically this involves accusations of uncollegial or unappropriate conduct when they are threatened by the substance of an exchange. Case in point: The Deans of my School in recent years have been known for avoiding controversy and on more than one occasion have used "soft" words to avoid actually saying anything. Or, they ignore questions altogether. For example, a faculty member may ask a direct question like: Should we offer classes in the summer? and the answer might be "We need to operate a 'robust' summer program." When asked what "robust" actually means, the response is silence. Or a dean may be asked to provide a list of people on leave in order to assess whether faculty have received special favors. The answer might come in the form of a data sheet in which the term "leave" has be redefined and then the quesion answered in order to conceal a direct response. Evasion and half-truths are acceptable forms of conduct to those in control. But any effort to pierce this duplicity by asking pointed questions that cannot be evaded results in charges that one is being uncollgial and, thus, the substance of the question itself is irrelevant.