Graduate School Credit

My sense is that on most campuses, law schools are not regarded a quite up to par as far as other graduate programs. If true it is unfortunate. As someone who has done both -- law school and graduate school -- I feel that law students work harder. Plus, given the market for Ph.D.s in most areas, law schools attract excellent students especially if they cannot afford 5-7 years more of college.

I was discussing this law school/graduate school issue with a close faculty friend (really) who said part of the reason is that legal scholarship only seems to rise to graduate school level when it is combined with another discipline and involves empirical work. I do not totally agree but I think there is a great deal of truth to the observation. On the first point, so many articles are already interdisciplinary that is hard to believe this makes a difference. I doubt there are many articles in law reviews that limit their sources and influences to cases and treatises. On the empirical end, I agree more with the statement. I cannot put my finger on it but I am not sure law can be regarded as an equal to others at the graduate level unless ideas are tested in one way or another and a body of “findings” developed that only law professors have the expertise to develop. At this time, law seems to have only a derivative claim to graduate level status.

I have often written that most legal articles are actually service and not scholarship. The dividing line for me being whether the author starts with a question or hypothesis or is writing to prove a point he or she want to convince others of. The difference would be like:

a. Courts have traditionally ruled in favor of tall people (This is usually written by a short person) and I am going to show you why you should agree with me.

b. Does height affect the rulings of courts?

Law teachers are generally trained to do the former and so that is what they do. Articles that disagree are like battling briefs and if you only read one you very likely to get one part of the story. As long as their scholarship is of this variety, their schools and their students will suffer.

Aside from the advocacy writing as opposed to idea testing what other things separate law from other graduate programs?

I have a hunch that law professors give more machine graded exams that professors in other graduate programs. It’s not the exams that matter but what the teachers teach and the students learn when the evaluation tool is a machine graded multiple choice exam. I could be wrong but please do not comment with examples one way or the other. This is the sort of thing that needs to be actually tested and not go down the usual law professor path of dueling briefs and examples. Part of this hunch is based on talking to some joint degree students who observe “A multiple choice machine graded exam makes the course all of a sudden seem less serious.” I mean, are Ph.D.s handed out on the basis of multiple choice questions and answers?

Another possibility is the nature of the evaluation at tenure and promotion time. I am sure the system can be gamed in other disciplines and that there are arguments about quality, but I doubt the panic is anything close to that of untenured law professors who worry about their reviewers. They are worried for good reason. They have written briefs and people who disagree have to overcome their own feelings on the issue to be objective. I have observed that people who disagree are more willing to be objective and praise a paper than people who agree with the position are willing to note when a project has been shoddily executed. And there is, of course, the market for letters.

On hiring I suspect there is also a different although I am sure it is of degree. Law school hiring often hinges on the advocacy of a hiring committee for one candidate or another. This advocacy, which can be just a notch above selling beer (Get it before it runs out! Everyone’s favorite!), is based on knowing the candidates for 30 minutes to an hour. Campus visits are not about the candidates but about the group who invited them and their desire to be seen as having made good decisions. Of course, the faculties never see the alternatives but, more importantly, in law there is so little to go on. There is no dissertation and consequently, largely irrelevant factors come into play.

It does occur to me that the rankings of law schools might be viewed as law schools that are true graduate programs and then the rest that simply train lawyers. Even if that is the case, becoming more graduate school like would seem to increase the effectiveness of law schools, their status, and that of their graduates. After all the degree is a doctorate.

Rio Lisboa and Law Faculties

I am not sure how to describe Rio Lisboa because what do you call a bakery, deli, grocery store, juice bar, snack bar, and outdoor café that never closes on a street in the Leblon section of Rio. What’s great about the RL is the constant feel of action, movement and goodwill. Grilled ham and cheese $3.00. Two eggs, $1.50. A complete roasted chicken cut up and packaged to take home $8. All that helps too. Bakers wrapping pastries in two layers of paper all tied up with string. Waitpeople moving in and out and around people as though they had done it eons. Smooth efficiency. No one seems to be trying but everything gets done. Unlike its closest counterparts in the US, No one seems stressed and no one is yelling.

No one ever appeared to be shirking at RL. If you were waiting at the pastry counter for a slice of the amazing Brazilian version of French toast, you did not wait for long. No one appeared to be too busy chatting it up with another worker to do his or her job. Professionalism. Yes, even Adrianna serving a $1.50 cup of coffee did it like it mattered to get it right. Frequent embracing between the workers and between the customers and workers. No sign of strife. I saw no hints that anyone was interested in anything other than doing his or her own job the best it could be down. Envy and efforts to undermine seemed not to exist. I could be way off but these seemed like secure happy people and, at what I assume were modest wages, they were not being paid to fake it.

This made me thing of the recent books and articles about happiness and about law schools as a place to work. Or put differently, what do Rio Lisboa, Denmark, and Iceland have in common that law schools generally do not. For one thing smallness. It is not smallness per se that counts but the sense that you are in control of what happens in your life and have a real input into more general policies. Knowing what to expect is important. Another thing is the absence of envy. No one worries that someone else is getting more than he or she deserves or that being a butt kisses pays off. A relative lack of a fear of failure. In Iceland, for example, according to one report it is acceptable to fail. It does not define a person more generally. At Rio Lisboa I am sure that if anyone dropped a dish or served the wrong dish both customers and coworkers would have simply smiled about it. At law schools I think people often take pleasure in the bad luck of others.

Law Schools Should be Juice Bars

One of my favorite things in Rio is the juice bars. This photo is of my personal favorite. They are on virtually every corner. Most have not just juice but what I would call diner food. Actually, I am not sure I ever ate in a diner but it is what I imagine diner food to be. Some you stand at and some have seats with tables and then some have additional tables that you can pull up to park benches on the side walk.

I never heard anyone cop an attitude at a juice bar. I never saw anyone whine at a juice bar. No one care about status. No matter who you are you get the same juice and the same seat and the same service as anyone else and no one expects special treatment.

You do not pick a juice bar on the basis of its name or the training of the cooks and juicers who work there. Performance is the only thing that counts; the better the juice, food and service, the more customers it has. As a customer, if you do not produce you get no juice, or anything else.

Law schools should operate more like juice bars.

Still Worried About Pedro

My one month stay in Rio is almost over. After a month and some reading and many questions, I am no expert on Rio or Brazil. In some respects I feel like I know less because the complexities become more evident. What I can say is that in one month I met no one – professor, student, waiter, grocery store stocker, etc, -- with what in the States we call an “attitude.” (The law students were spectacularly well-prepared and serious about learning.) I also witnessed a number of signs of informal expectations of honesty. If you rent a beach chair you pay later. If you go to a club you pay the cover charge later. I bought an item from a beach vendor but did not have my wallet. He left the item and came back much later for payment.

This not to say there is no danger here. People are mugged, there is drug violence in the favelas and I was warned not to go in certain areas. Still, your average Brazilian seems kind, polite, humble, and honest with little interest in chiseling anyone. There was little yelling or speaking in cell phones at top volume while walking down the street. People form lines for elevators and buses.

I have heard Brazilians say they do not have race problem. On the other hand, slavery did not completely end here until the 1880s and close to 40%of the Africans taken into slavery and brought to the Americas ended up in Brazil. (6% for the US) There were, in fact, no dark skinned people in the classes I taught. I suppose it could be a class issue rather than race but I think it must be both. What observed was integration of every color of skin except for the very darkest people. At a movie I saw the other night the preview was for a fair-skinned-upper-class-girl-falls-for darker-skinned-favela-dwelling-boy themed movie. So the race/class issue must be part of the culture.

What makes the race issue so complex is that Brazil is largely literally a nation of “people of color.” There are recent efforts to create quotas for “blacks” but what does it mean to be “black” in Brazil. At one university one identical twin was accepted as part of the quota while another was rejected.

Someone wrote or said something like “Brazil is the country of the future . . . and always will be.” I hope he was only half right.

(Do not be misled by the photo of the dog my local beach. The most popular dog in Rio, as best, I can tell is the poodle. This is followed by the dachshund which goes to show that bad taste in dogs is international (As a former owner of a dachshund I am permitted to say this).

Worried About Pedro

I am finishing a month of teaching in Rio. My first trip to Brazil. I am teaching 30-40 students law and economics in the day and going to as many soccer games as I can at night. The teaching is easier going than in the States since they have all taken a course in economics. The beaches in Rio are fascinating. If you like shopping and I do, you sit on your rented chair and the "stores" come to you -- food, including set up and cook on the spot, drink, clothes, jewelry, tattoos.

There other day one of Rio's small children who are sometimes alone on the beach was near me. He was not begging nor was he selling anything. He was thin but in a way that 8 year olds are. He was also shy. Finally, I asked one of the strolling vendors to ask the child his name. It was Pedro. We shook hands and Pedro continued to sit alone sometimes venturing into the rough seas and then hovering about. After a a couple of hours Pedro left. The last I saw him he was crossing the very busy six lanes of traffic that separates the beach from the hotels all along Rio's coast line.

Elitist "Trappings"

Some time ago over on moneylaw Jim Chen wrote yet another terrific blog Elitist Trappings to which I wrote an fairly innocuous comment. This was when there was at least officially still a race between Obama and Clinton and I observed that the candidate with the least elitist background overall (Obama but we are really splitting hairs here) seemed to come off as the most elitist. A comment on my comment questioned what I could mean by this. He or she wrote (who knows because people and law professors in general are such wimps that even when they say nothing controversial they say it anonymously):

"I'm not sure I understand Jeff's question. In what ways has Obama taken on "elitist mannerisms?" And, what exactly are "elitist mannerisms" in the first place? I would think that an overbearing sense of entitlement would be one of them, but Obama has exhibited that far less than McCain and even farther less than Clinton.

Unless you consider intelligence, eloquence, patience and a calm demeanor (not to mention graciousness and candor) to be "elitist mannerisms" and therefore a burden to him. I suppose in America, these are indeed burdens."

This is a good opportunity for me to explain what I mean by elitist mannerisms. (I note that the idea of "burdens' was not in my comment but in typical anonymous fashion this is once again the case of "hearing" something not said and making it an issue.) First, it is most definitely not, at least publicly, "an overbearing sense of entitlement." The whole sense of entitlement means not having to demand anything. You deserve whatever it is. In fact, one of the most important elitist traits is not showing emotion. If you show happiness, anger, disappointment, etc., it signals a weak spot and since for elitists life is one big negotiation you never show where you are vulnerable. Elitists always strive to appear to be patient, calm, and gracious. They let their workers do the dirty work.

All of those characteristics the anonymous writer values cut both ways. Sure it hard to say they are bad but they also mean you know nothing about the person. When I meet elitists I nearly always come away wondering what they care about -- what makes them happy, sad, angry. What do they really value? Is there any "there" there?

I am not sure the accompanying photo is supposed to be Obama for whom I will be voting. I just thought the caption was appropriate.

The Kozinski Fuss

Actually I have no particular view of the Kozinski matter in part because the facts seem to change hour to hour. The materials that he allegedly possessed, as described initially, sounded degrading and generally awful. Each time something is tracked down it seems that the descriptions may have been a bit misleading. It's not that I am a fan of Kozinski, far from it. In fact, my own view is that I have never heard of a law professor or judge so obviously focused on his image, trying to get attention, and wanting to be viewed as "out there." (Not that the need to seem to be unconventional is usual for law professors. My own theory on this, which could be dead wrong, is that after years of kissing butt, never saying anything controversial, never showing emotion, and always being close to the vest some just have to go crazy and so they grow a beard wear jeans or stop wearing a tie.) For Kozinski, who seems to try so hard, I suggest wearing a beanie with one of those little propellers on top. It would be so much easier and he would not appear to be trying so hard.

What interests me are the efforts by some to defend him (here and here). The second one by Lessig is embarrassing. Unfortunately it also is representative of what passes for sound reasoning when done by someone with the right credentials or teaching at the right law school. Faster than I think anyone can imagine institutional authority and self promotion seem to be elevated above fact finding and reasoning. It reminds me of one of my first articles. I got to a point in the article where I wanted to make a general statement like "In general courts are likely to . . ." The problem was that what I was saying seemed to require some empirical assessment and I was stumped. I mentioned it to a more seasoned law professor who looked at me and said "That is where you put the 'See e.g.' cite, list a couple of cases and you're good to go."

One of the commentators on the Lessig post captures it when he says it sounds like you (Lessig) knew what you wanted to conclude first and then essential made up a way to get there. Obviously not a law professor commentator because if he were he would know that that is legal research.

I am sure there are equally bad arguments condemning Kozinski but there is only so much of this you can read. Thus, I cannot put one of those "heres" here to send you to one of those.

The Favela Tour

Favelas are the shanty towns throughout Brazil with Rio having perhaps the most well know. If you have seen Children of God you understand what a favela is. On the tourist maps of Rio there are huge areas simply labeled "favela." No streets are indicated. This would be like having a city map of a major US city and then having a poor section of town simply labeled "poor" and marked with a separated color without any other detail. The problem is that just using the term "poor" does not capture a favela. The "house" pictured here is only misleading because it does not fully portray the cramped condition.

While favela are simple "areas" on tourist maps they have evidently become tourist attractions. You can pay to go on a tour. Evidently you can buy trinkets and paintings and there is some benefit to the people. On the other hand, there may be something a bit off-putting about touring to view poverty and misery -- first stop Copacabana, second stop destitution. My sense is that the people running the tours are well motivated but I am torn. Maybe every visitor to Rio, before dropping $200 on a meal, should be required to tour a favela. On the other hand, if they become an attraction does it mean the misery of some becomes a source of enrichment for others?

Class in Cases

I have written here and elsewhere about the pervasive impact of class on virtually everything from hiring to recruitment to the impact on minorities and women. Miriam Cherry in an insightful article discusses class in well-know contracts cases. 28 Pace L. Rev. 235 (2008). Any contracts professor or present or past contracts student will enjoy this article even if not in full agreement. Class remains the elephant in the room that no law faculty will address because it leads to questioning the legitimacy of a great deal of what goes on in law schools.

Watermelon

One of the most pleasant lunches I recall was with Chesterfield Smith. He spoke of attending law school for a semester and the returning to Bartow, Florida to pick watermelons in order to return to Law School.

I wonder how many of today's law students have summer time experiences that are as likely to be as important in shaping their perspective for years to come or a life time. Instead they seem to want to settle for so much less. Many, I suspect, go to one of the many summer programs abroad where they are taught what they could learn in the USA in a setting that is carefully selected to be not all that different from being in the USA.

Others want clerkships or externships. Others go to summer school in the US. I realize that necessity may be a factor here. Those with clerkships may need the money and those in law school may need to hasten their graduation date.

The question is not so much what the students do in the summer but why they do it. If they go to a foreign program just because it is a neat thing to do in the summer, they are missing a great opportunity to pick watermelons or something like that to learn about a life they are likely never to fully understand. If they are building their resumes and there are pressure to do that, here again, it's a missed opportunity.

I'd advise to every law student to spend at least one summer picking watermelons.

Sensitivity Training and Non Writers

Over on Prawfsblawg, Geoffrey Rapp puts non writers on the couch in order to understand why they do not write. I think he has it pretty much right for why they do not write and in a sense I want to say thank God they do not because 7200 articles a year is enough. I want to say it but that would be silly. Whose to say those writing have more to say than those who are not writing?

Professor Rapp is evidently under the impression that all those not writing are actually doing other things that benefit their schools and thus my comments comparing non writers to thieves are incorrect. I disagree that all non writers are pulling their weight other ways. But if they are I am a bit less concerned. But no matter how you cut it, they have substituted what they want to do for what they promised to do when they applied for tenure while professing to "love" scholarship.

Are they thieves, purse snatchers, car jackers or bunny molesters? That is pretty strong language but when you take money without giving back what your promised to give in return and the money you take is supplied -- in a public school -- by tax payers, what should it be called? I guess if we get on the couch and try to understand not writing we could decide that these folks are just "misunderstood." Of course, many "misunderstood" people from lower socioeconomic classes are doing time.

I truly believe I have seen actions by law school administrators and faculty that are indicative the same value system and disrespect for others that lands lower socioeconomic class people in jail. I do not put non writing in that category. And maybe it makes sense to understand non writers. After all, they are not going anywhere. But let's not let understanding them detract from the the basic point that they are doing what they prefer to do, not what they promised to do.

Class and Evaluations

Deborah Merritt has written a very interesting article about student teaching evaluations. Deborah J. Merritt BIAS, THE BRAIN, AND STUDENT EVALUATIONS OF TEACHING 82 St. John’s L. Rev. 235. I have commented on it over on Moneylaw. An element of the article I did not discuss there deals with the impact of class on evaluations. Merritt suggests that race, gender and class can have an impact on student evaluations. Merritt first notes experiments in which frustrated drivers are more likely to “honk” at older beat up cars. These type of cars are stereotypically associated with lower classes. Then she writes:

“Law students do not honk at professors who displease them, but the same attitudinal differences can affect relationships in the classroom. The "horn honking" studies expose a cultural tendency to vent frustration or hostility more readily against low-status individuals than high-status ones. Socratic classrooms, challenging material, and intense competition for grades are at least as frustrating to students as a stalled car at an intersection. Law students may express that irritation more readily on evaluations of professors with low-status mannerisms than in their assessments of faculty with more high-status appearances. Indeed, the horn-honking studies may explain the surprising degree of overt hostility that law students express on evaluations of some minority faculty.Those evaluations are a type of classroom "honking." (notes deleted)

I am not sure how class manifests itself in a classroom exactly but, if it does, Merritt suggests that it may affect teaching evaluations. In fact, most of the article is about how non verbal cues affect evaluations while being unrelated to teaching effectiveness. Many of these cues can be “faked” as illustrated by the example she gives of the actor hired to pull out all the stops while saying nothing and who then is rated as wonderful.

My own perspective is very limited because like every other professor I have seen very few other law professors teach. Still I have a hunch that the class distinctions are not made merely by virtue of non verbal cues. The cues come in the form of making sure the students know the professor attended an elite law school, worked for a prestigious law firm, clerked for a well known judge or simple name dropping.

The Real Class Bias

I have often wondered about the origins of public law schools. I have attempted to do a little reading but other things got in the way.

But think about it. Do you suppose public law schools were started so the cost of legal education would go down and the number of lawyers would increase and the masses could then afford legal services?

There are so many holes in that theory it’s hard to know where to begin. Law is ultimately about property and usually scuffling about it, protecting it, or getting more of it. That is fortunately not all that accurate today but it is hard to believe it was not accurate when public law schools started.

And what is even better for those with enough property to scuffle over than to have the tab for training lawyers who do the actually dirty work paid for by those who, as they say and with no intention to bring Michael Vick into this, have no dog in that fight because they have no property to speak of. Of course, they had jobs but those were and still are for the most part terminable at will. Another example of how “property” is defined by those with power.

I have made no study of this recently (many years ago I did study it for medical education and found a redistribution from low to high) but my feeling is that the net effect of public legal education is still an upward redistribution with tax programs being the ultimate examples. I do no mean simple upward to students but then to those who buy their services.

There is a way out of this. Charge every single student the full cost of their education and then subsidize only on the basis of need. Sure some of the wealthier students will opt for private schools but more of the students in public schools will be those who need the subsidization (which can be done with the same dollars used to subsidize the more affluent students) and the upward redistribution will be lessened.

Yale Recall

I guess by now most have seen or read the empirical study by
Royce de Rohan Barondes showing that the higher the percentage of Yale grad clerks a judge has the higher the likelihood that a decision by the judge will run into trouble on appeal. The correlation between other elite clerks and appellate problems is equivocal. In fact, the expected negative relationship between other elites and appellate difficulty only occurs if some classes of cases are ommitted. (I guess for the Yale grads you can get there by excluding all cases.)

What does this mean for the law firms that hire Yale grads, more importantly their clients and even more more importantly the law students who are taught by these graduates. I mean to the go straight from giving bad advice to their judges to teaching “not law” to their students. Do they give As based on how wrong the students are? Maybe they are just above the law – although the actual explanation may be an overdose on theory.

And, finally, what is up with the judges and appointments committees that continue to hire them. Talk about market failure!

Do'in the Legal Scholarship Shuffle

As I have noted before sometime in the mid to late eighties or early 90s legal scholarship took a shift to a race for lines on resumes. In think it roughly coincides with the ratings chase and the full development of symposia issues. I think it was June 17, 1991 but that could be off a day or two.

It was around then that scholarship stopped being counted as a feather in a law professor’s hat and numbers did. It was something akin to a mathematical breakthrough counter to the idea of not creating matter The question is how many different ways can a certain unit of actual scholarship be represented. One unit of scholarship is a amount of actual searching, reading, writing, and thinking. For the more fashion oriented the analogy may be to having one nice scarf and the question being how many ways you can wear the scarf. Or if you like squirting things out of aerosol cans (and what same person does not), its like filling a substance with air to make the volume increase.

So lets say you have completed 1 unit of scholarship. How can you make it 10?

1. You publish an article.
2. You write a condensed version for a symposium.
3. Slice it up into at least three stand alone pieces.
4. You give it as a presentation – may 3 or 4 times.
5. Looking for a job? Use it as your job talk a but list it as a “workshop”
6. Include in as a chapter in a book to which you contribute a chapter.
7. Write your own book composed mostly of this unit of scholarship and some others.
8. Edit a book of readings and include it.

So when your dean asks for things you did to put under the scholarship column in the decanal glossy, list all of these. And, there is a good chance your dean will give full credit for all of them. You are a star. You are also jerk but that is not a problem in legal education.

Are You What You Teach?

This is rank speculation based on very few observations but, do people spend their lives going against type: For example:

1. I have known a few people who are psychologists or psychiatrists. The number of them who are a bit wacky or have wacky people in their families seems higher than other people I know.

2. The people know who are physicians seen to exercise the least had have greater tendencies to drink and eat too much -- to say nothing of their personal lives.

3. Please tell me why people who work in hair salons have the worst, I mean THE WORST hair cuts, color and styles.

4. I am sure everyone has heard the joke about the CRIT in his $2000 suit and home in the Vineyard chatting it up with the Law and Econ guy in his jeans and tee shirt.

5. The people in law school teaching who specialize in ADR seem to be the most self-interested. This last one worries me most. First, because one of my ADR buddies agrees. Second, what does that mean, if anything, in other courses. Are those people as concerned in their own lives about what they teach? I mean do family law people care about families or were they mistreated as children? Do people who teach about defamation gossip with little attention to the truth? Do environmental law teachers care about the environment? Are procedure people disorganized and do they cut in line? Are First Amendment teachers quick to draw the line at what others should not say?

Please do not misunderstand. I think most law teachers can teach any subject offered in a law school whether they have any personal feeling for the area or not. I just wonder if there is a pattern of what attracts people to certain areas. How often is it honest interest, therapy, or some combination of those and other factors.

Noblesse Non Oblige

I am not sure what to think about Noblesse oblige. I guess if there is nobility, members should do something to help others. Around law schools the message somehow has been reinterpreted to mean Noblesse Non Oblige. For example, a law professor pipes up and complains that many students who want to take a course can not get in. When it is suggested that he teach an extra section for those students about whom he is worried, he gets very quiet.

Or faculty in a meeting are trying to decide whether the work in a course warrants 3 credits or not. A straight faced suggestion is that we should call it a 4 credit course because the teacher could justify teaching only one course that semester.

Or needed courses are taught at conflicting times because professors cannot teach early, late or on Friday or Monday.

Some courses are desperately under staffed meaning that basic courses go untaught. When hiring season starts the candidates hired teach yet another fringe course and limit the enrollment to 25 because the people who teach those courses share their politics, travel plans and the absence of a sense of humor of those doing the hiring.

Faculty hired to teach first year or mainstream courses suddenly have a change of heart a year or two after being hired.

Multiple choice machine graded exams are used exclusively because, well, it means not having to get your hands dirty by examining the actual analysis of the students to see if the reasoning is good or bad and, if so, where it went off the tracks. This could come handy if a professor cared to discuss and diagnose what happened on the exam.

Every year law schools clamor to hire Noblesse and get precious little in the Oblige department.

The Faculty Meeting Bouncer

When I was an economist I attended my first faculty meeting. After about 20 minutes of inane discussion about the exact wording of a course description I felt myself getting angry. I actually thought highly educated people were above petty speech making. Disillusionment would not be too strong a word. I think I lasted 30 minutes before I left.

When I went to law school, my fellow students were demonstrating to be permitted to attend faculty meetings. Having at that point taught economics for 5 years and avoided the spectacles of faculty meetings, I did not get it.

Nothing changes. Now I also avoid faculty meetings. It's not that the issues discussed are not important. Sometimes they are and I'd like to have a say. Its the posturing, long-windedness and the indirectness that drives me away. Does it all go back to class and entitlement? To some extent. For example, I recently attended a meeting that was scheduled for one hour. Maybe 5 people were able to speak because two or three, once they are called on had no apparent consideration for others. In fact, one habitually long winded fellow was mistakenly called on -- hand not even up -- yet manage to speak anyway like he was being paid by the word. He probably took all the food for himself when he was a kid but it really wasn't all the food because mommy or one of the staff quickly replenished the serving trays.

And then there is the posturing. Name dropping -- "when I was at Harvard," "I was just talking to Guido or Randall" or "When I was testifying before Senator ________'s subcommittee" and the broad and boring displays of irrelevant knowledge -- "In know in the Equine Psychology literature it works this way." Pleeeeze, no one impresses anyone when these games are played in faculty meetings. How about a 3 minute limit on comments. This is actually 2.75 minutes longer than necessary for most.

And then there is the BS. A committee comes in and recommends a new program and is asked about the need. "We determined there is a very high need." And how did you determine that? "Oh, well, several students actually inquired about it just last Thursday when I asked them about it." Huh? Then the question is what will the impact be on the curriculum. Answer. "We examined this and except for ordering one new book for the library there will be no impact." And how did you determine this? "Associate Dean Jones who is not here, surveyed other schools and I have a letter from Professor Smith who retired three years ago and he says it is a good idea." And this question can come up. "Isn't this actually against the law?" Answer "So what?"

Every faculty meeting needs a bouncer with one of those big hooks that yanks people right out of their chairs and out of the room if he or she talks for more than 3 minutes, drops a name, says anything irrelevant (the bouncer should be well versed on evidence) or claims to have studied something but cannot produce tangible evidence.

Introducing myself

Jeff has been kind enough, or careless enough, to invite me to contribute to Class Bias in Higher Education. When I started my own blog a few months ago, I called it Lucky Jim, J.D. in homage to my favorite comic novel. Lucky Jim recounts the misadventures of Jim Dixon, a working class lad who finds himself navigating, without noticeable aplomb, the class-bound currents of academia. Though set in post-WWII Britain, the novel raises themes that resonate in U.S. academia today.

In my sporadic contributions here, I plan to explore the various ways in which class issues get short shrift (and often no shrift at all) in legal education, from admissions to career placement and at all points between. I'm grateful to Jeff for giving me the opportunity to share his platform.

Even More Careful

One theme of this blog has been how elites want you to believe that there is give and take in the world and that life is a series of negotiations as in "we can work it out." It is a strange negotiation because they actually rarely negotiate in the sense of giving anything up. This is the result of a sense of entitlement.

In my last post I noted that one element of carefulness, with respect to oneself that is, is never taking position on the basis of principle but to wait and see which was the wind is blowing. The wind is never blowing in the direction of questioning authority. Thus, I used the example of the "I have to assume the administration knows what it is doing" in the context of a staff member being fired after decades of service. "Having to assume" is a non sequitur. Instead people choose to assume when it suits their self interest.

Here are two more elitist cop outs. The apology that goes like this: "If I hurt your feelings I apologize." This is the deniability apology. It accepts no responsibility and involves no admission of fault. Of course you have have to actually corner the elitist to get even this worthless apology. Can you hear George Bush saying "If I caused unnecessary loss of life in Iraq I am sorry." Thanks George, that really takes care of it.

And this is one I have seen more recently. Suppose someone has been turned down for tenure or does not get an article accepted at a top law review after it seemed to be definite. That someone is disappointed and the response is "I am sorry that you feel bad." Notice how surgical this is. First it is probably not true that the person is sorry. Second he or she is careful to stay miles away from actually recognizing the validity of the reason for feeling bad. How about "Getting rejected really sucks and I wish it had not happened to you." The "I am sorry that you feel bad" is a bit like someone coming upon you while you are double over with acute appendicitis and saying "I am sorry your appendix seems to be causing you discomfort."

Remember as an elite, say as little as possible, let the others to the work whenever possible, and never commit. But this leads to the question. Do law professors who have no passion really only lead half a life?

Being Careful

Close to the vest: I am not sure of the origins of this phrase but for me it means the tendency of people to disclose as little as possible and to commit to an identifiable position as infrequently as possible. These are two different types of behavior that are common to law professors and elitists generally.

Let's take the information matter. Having information others do not have is a source of power but it only works if the "others" know you have the information. The strategy here is to let people know you know but then withhold. Here is an example. At my school meetings of the appointments committee are open. Everyone can attend even someone walking by the School on the way to the grocery store. So one professor says to another who is a member of the appointments committee:

"Are we finished hiring this year?"

The reply, "Actually we are talking about bringing in one more candidate."

"Really, who is it?"

The reply, "I don't think it would be appropriate to disclose that."

Thought of person asking "You really are a complete a**hole."

Information hoarding gives rise to a great deal of gossip. In fact, the same people -- very often administrators -- who are annoyed by the gossip, create the vacuum it fills. So you get announcements about "retirements coming up" or "financial problems" but no details although there would be no downside of the disclosure of the details.

The other characteristic of the elites is not to commit to virtually anything that is not ultimately self-serving at some level. Recently at my school a staff person was fired. Been here for long enough for the firing to have retirement implications. Could be he/she deserved it meaning that after decades of work something happened that meant he/she was now out of bounds. I do not know but I was curious because staff firings can be based on some over-affirmed professor getting into a scuffle with a staff person. I asked some people who knew the soon to be former employee what was up. The answer was "I have to assume there were good reasons." Let's consider that response. First the idea of "having to assume" anything seems a way to avoid the issue. Precisely what would that assumption be based on? But what is really going on? This is the sort of mentality that leads to driving by an accident or ignoring an injured animal on the side of the road.

The elites are very careful which means hoard information like your grandmother stocked can goods and never questioning authority.

Haves and Have Nots: Law School Classes

At law schools there tend to be three divisions. One is between faculty and staff. And then there is the tenure track/non tenure track faculty division. Finally the high paid and low paid tenure track people. This last division is not necessarily between tenured and untenured people. Sometimes tenured people make only slightly more than untenured faculty and much much less than the highest paid faculty.

Obviously law schools operate as though staff are second class even though the have families, children, hopes that those children go to college, etc. I have rarely seen a faculty class person stick up for a staff person when an injustice occurs. In fact, most of the elitists in legal education probably cannot image the life of someone making 20-30K a year and whose job depends on being subservient.

The tenure track/non tenure track division is only slightly less stark. Sometime non tenure track people are hired because they provide a buffer in times of economic woe. Since they are on one-year contracts, they can be fired thereby sheltering tenure track faculty from economic downturns. It's a bit like diversification except it means using people. Generally tenure track people doubt that non tenure track people can cut it primarily because those folks did not attend the "right schools."

The high pay/low pay division is less obvious but not when you think about it this way. Do the high paid people want to rock the boat? Not on your life. The high paid people are likely to think an existing administration is responsive, thoughtful and doing a fine job. They may look at an inexplicable salary structure and decide its not all that bad. The idea of taking a risk or speaking out on behave of the "low classes" is just not in the cards. Of course, they will call for collegiality when they want help. But they do not "give" collegiality when it means the outcome may upset the class system. Do not get in a fox hole with a high paid law professor.

Replay: In Praise of Incivility

Let’s face facts. 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 change. 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 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.

Volunteers Yet Again

One of the more fascination ploys of the upper classes is the volunteer “move.” That is, no matter how much they want something, when they get it, it was a result of their charitable instincts. Once I described asking a committee of law professors in a meeting who “wanted” to go to a out of town meeting. 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 wanted to go, I was quickly corrected. Yet each one insisted on going.

It is pervasive. I was in a meeting a few days 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, a past Interim Dean was described as being forced to be Interim dean and, as you would expect, the faculty nearly had to use a fork lift to get him out of the office.

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.

What’s up with this. Do these people learn this in law school or at their parents’ knees? It is all part of life is a negotiation and you never appear to want something because, if you get it, you should not ask for more. And privileged people always want more.

Ways to be a Big Shot

I guess this is for new law professors because all the veterans know how to frame things to may themselves look more important. So

1. The third level law journal at Harvard has agreed to publish your article: From here after you refer to this as "My article at Harvard."

2. One of the second tier law schools near or in Boston invites you to give a talk. From here after you refer to this as: "I will be in Cambridge [be sure to book a room there] giving a talk."

3. You get a brochure about a opening for dean at a law school. From here after you refer to this as: "I am talking to the University of ________, with respect to an administrative post."

4. Your parents live in Dade City Florida. You visit them once a month. From this point forward, "I'll be in D.C. for a few days."

5. At a huge cocktail party you are in the receiving line and meet the governor. From this point forward: "I was just taking to Charlie about that problem the other night."

6. You spot Al Sharpton in a coffee shop where you are having breakfast. From now on: "I was having breakfast with Al just the other day."