Casebook Scam

I serve on two on two University committees, one of which deals with grievances and professional ethics. Surprising as it may seem, what I have learned makes me feel better about what goes on at the Law School. Here is one example of a scam that seems over the line.

A Professor teaching hundreds of students requires them to hand in homework on workbook pages custom made for his course. The books are available at the local Kinkos and sold at a profit. Students may not hand anything but the actual purchased pages. Evidently, handing in the correct workbook pages has an impact on the final grade. The professor takes a cut of the sales. The Dean of the College where he works is evidently unconcerned. (This newest practice is evidently a replacement for one that required buying CDs with codes in them so that actual purchase could be verified.)

Outrageous! . . . In the words of Lee Corso, “Not so fast my friend.”

Hasn’t the professor simply perfected the casebook editor/casebook publisher scam. Think about it. Is there a principled distinction between that professor and authors (clearly not just in law) who happily issue a new edition whether a new one is warranted. In fact, I recently received the new edition of a casebook I have used for years. It took an extensive search to find what was different. In addition, since the demand side of the market is, for all practical purposes, composed of professors who dictate which books will be bought, how are those professors different from a stock broker who mishandles a client’s portfolio?

I'd like to pin this indifference on class bias but I am not not sure I can. My own behavior is similar to that of the privileged. When the memo comes out each semester asking what the assigned materials are for the following semester, I typically name the book and add “latest edition.” In reality, when teaching contracts, I think I could almost get by with the classic Kessler and Gilmore (now that was casebook scholarship!) I had as a student many years ago. If so, that means I have cost 20 years of contracts students many thousands of dollars that went to publishers and editors without any substantial change what goes on in the classroom.

I admire the very small handful of my colleagues who keep using an older edition of a book even when newer editions are created in reaction to the used market. I have done it myself but it means complications. I admire even more the casebook editor who, when Thomson or Aspen comes calling about a new edition, says “there is no need for one.” Isn’t legal eduction, where the choir claims to be so concerned about the welfare of others, the best place to begin drawing the line when to comes to exploiting students via the casebook scam? Or, do you need the eggs?

Summer Rerun: 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 “referreed” 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 nine 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.

Summer Rerun: Captive 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.

Hypocrisy Studies

Ken Oldfield, referred to below in connection with his book, Resilience, Queer Professors From the Working Class, is engaged in a long term project, "Hypocrisy Studies." An excerpt from his entry on Scalia, the man who equates silk purses with admission to elite schools, follows:

"Antonin Scalia, the U.S. Supreme Court Justice. Another of Reagan's contributions to "Trickle Down" economics. According to one source, "Scalia's ascent to the pinnacle of his profession was proclaimed by many as an example of the American dream" ("Antonin," 1999) coming true.

Hardly! Scalia is of very comfortable origins. Antonin's dad received his Ph.D. from Columbia University and was a professor of Romance languages at Brooklyn College. Justice Scalia's mother was an elementary school teacher. His parents sent Antonin to The Right Schools, including Xavier High School ($34,800), a tony Jesuit military academy in Manhattan. He received his undergraduate degree from Georgetown University ($171,752). While there, and as a Sheldon Fellow of Harvard, he studied at the University of Fribourg (Switzerland). Presumably, he went to Switzerland to learn more about poor people, the primary beneficiaries of trickle down economics.

After learning to appreciate how the bottom half lives, Antonin returned to the States. He received a law degree from Harvard ($146,544) in 1960 and that same year married an English major from Radcliffe College, Maureen McCarthy. Her father was a physician, which might help explain the Radcliffe connection.

In 1977, Scalia's deep and abiding commitment to fighting socialism carried Antonin to Washington, D.C., where he became a Resident Scholar with the American Enterprise Institute. From 1967-71, Scalia fell off the free market bandwagon and into the grips of socialism when he became a law professor at the publicly owned University of Virginia in Charlottesville. Over the years, he has also taught at several other law schools, institutions that were, probably just like the University of Virginia, brimming with students of poverty and working class origins, including Georgetown University, the University of Chicago and Stanford University."

Thanks Ken for allowing me to reprint this. But back on Scalia and and the silk purse quote (immediately below). First, there is something nice about Scalia slamming the elite schools. Second, just to keep the barnyard idea going. Relying on elite credentials is like buying a pig in a poke. In my time in teaching, I have seen way too many silk purses that were empty.

And This Little Piggy Went to the Supreme Court

By now most people in legal education or practicing law have seen the article in the ABA Journal about Justice Scalia explaining the facts of Supreme Court and academic life to an American University student.

"“By and large,” Scalia said during the April 24 law school appearance, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”"

Assuming the Judge reversed the sow's ear and the silk purse, I think he just labeled everyone who did not attend at an elite law school a pig or at least an appendage of a pig. On the other hand, I think he meant what he said. That interpretation would be that no matter how bad the education is at the elite schools they cannot ruin excellent students. I certainly agree with the premise but but either they are ruining many of the best and brightest or they are not getting the best and brightest in the first place.

I'd like the Justice to visit a few law school barn yards for a closer look. The halls are lined with the "best and brightest" who are often sow's ears -- narrowly educated, anti intellectual and with an overpowering sense of entitlement. Many cannot think their way of a paper sty. I often wonder what would be the most elitist and expensive education possible in the United States starting from primary school. I think I have found it and all the sows' ears Justice Scalia could eat at the same time.

Gay and Working Class

There is an intriguing new book on the market. The title is Resilience: Queer Professors from the Working Class and as its title suggests it is devoted to the stories of gay and working class people who have made into the exclusive world of academia. The editors and contributors are are Kenneth Oldfield and Richard Johnson.

It is an interesting combination and, as Ken Oldfield says, while the academic community is far more welcoming for gays than it once was, there is little indication that the same can be said for working class academics.

One of the themes of this blog has always been that class trumps all other factors. This is most obvious in the case of white professors but, as I have written before, it seems clear that African-Americans are in the same position. Academic positions appear to be open to African-Americans as long as they come from the "right" background or have been appropriately groomed. On the other hand, any obvious link to the actual real world life of African-Americans in the United States makes the elitists who control hiring nervous.

Almost certainly the same is true for gays. Law Schools clamor to hire gay professors in order to display their "liberal" leanings (even if the gay professors are conservative). My hunch is that they would draw the line at a gay applicant with even a whiff of a working class background or one who would actual admit to such a background. But, for me at least, this is uncharted territory. I have seen working class whites and African-Americans get snubbed but I am not sure I have even seen a gay applicant who had working class characteristics. Consequently, I cannot tell if the same discrimination occurs but my hunch is that it does. In fact, the fact that working class gay applicants to not emerge may itself be a sign of how severe the discrimination is.

Randomly Distributing Babies

When babies are born hospitals take great pains to make sure they are identified so when the are taken to the nursery they are not mixed up and given to the wrong parents. I have often suggested that a better process is not to worry about the mix up. In fact, why not just randomly distribute them to the parents? What this means is that each newborn has an equal probability of being teamed up with affluent and intelligent parents. In effect, each child has a chance to win the life lottery. That seems so much fairer than being doomed at birth to have a stressful, deprived life depending on the identity of two people who decided to have sex.

After reading a recent article in the April 4th issue of the Economist I realize that perhaps the idea is not as facetious as I intend it to be. As it turns out, recent research shows that poor kids, as the Economist puts it, are "stupider" than other kids for a reason -- stress. More technically, theses kids have lower capacity "working memories" -- the ability to hold bits of information in the brain for current use. Researchers have measured what is called the "allostatic load" which measures stress. You can figure out the correlations. Kids born to poverty are more likely to have higher allostatic loads and more likely to have lower working memories. Of course the cycle goes on and on -- poor kids to poor adults to the birth of children also likely to live in poverty and the stress it creates.

In many respects this tells us how thin having a sense of entitlement is. When you get down to it, many of those smart kids who become law professors and think they are entitled to virtually everything from having the right color on the office walls to sitting around and with impunity labeling students stupid or crazy are there because the hospital did not randomly distribute them as babies.

"Pimp'n Out" the Students, Helping, or Both?

Many law schools have externship programs -- students work elsewhere in a law related jobs and receive credit. Schools divide on whether the externship must be in a non profit context. This question is, perhaps, more pressing, when the issue arises in the context of public schools.

If public law schools are based on a "public good" rationale and are not simply a means of redistributing income from taxpayers to people who do well on the LSAT, it is not easy to see the rationale for saying, for example, to Exxon, please let our students work for you for nothing and we will give them credit toward graduation. Does this mean we are paying students to work for for-profit entities and subsidizing those firms at the same time? After all, if the students do something, anything, that has market value, how can this not be viewed as a form of subsidization? "Pimp'n out" the students, as one friend describes it, is hard justify.

This seemed pretty simple to me. Why would a state school pay students to work for firms whose interests might be opposed to those of the State paying for the education of the students? And, having subsidized one for-profit firm, is the School obligated to subsidize others, particularly their opponents, equally. I mentioned this to another friend who told me, correctly, I was way behind on the issue. Most of the students are in law school in order to do exactly what the for-profit externship permits -- working for firms that may or may not have any connection to the public interest. In effect, the for-profit externship is just a continuation of what law schools, including public law schools, do anyway -- subsidize the private sector. (You never hear much about this but shouldn't it be a concern to both "liberals" and conservatives?)

I was way behind in another way. Relatively affluent students have always been able to work for for-profit firms in the summer. Getting paid was not that important. The students who could not participate were those who needed money even if it meant delivering pizza. By giving credit to these students, they are also able to participate in an activity that actually may help them hone their legal skills. I note this because no one is claiming that the for-profit experience is not a valuable one for students. Unfortunately, without a public service requirement, the skills acquired are not likely to be used to pay back the taxpayers who paid for the legal education.

It's not a simple matter.

Elitist Voting

Actually to be fair, maybe it is not just elitist but it is interesting nonetheless. I just return from a faculty meeting in which every proposal except one passed unanimously. The problem was that around where I was sitting, many people seemed to be opposed. So how can this be?

The best interpretation I have is this: When a matter is close, the yes votes go first and are a bit emphatic. This puts the no voters in something like a prisoner's dilemma. They may be able to defeat the motion but only if they all vote no. At least they can force a count.

If one or two vote no, however, theirs could be the only no votes and they have "outed" themselves. This is embarrassing and may have social implications. The risks for yes voters are not the same. First they cannot be accused as going against the grain and their vote is one that agrees at least with as many people constituting the committee making the proposal.

So the question is how many things pass when actually a majority of people oppose it. Perhaps one way to find out is to take the no vote first. But this may just reverse the problem.

What does this have to do with the elites? As I said, I am not sure but it has a great deal to do with gutlessness and thinking about one's place rather than what is best for the institution and that is clearly an elite trait. Just another example of shirking.

Upside Down World and Jeremy Bentham

Three things hit me the other day when I drove to Home Depot on a too hot for March afternoon. First there was the 35-40ish looking woman coming out of Domino's pizza with a stack of pizzas and getting into a rusted heap of a car. It was a delivery car and she was at least 8 months pregnant.

Across the street from the Home Depot a middle aged guy was sitting in the front of a dirty pick up truck. He was on the passenger side with the door open and his feet dangling out. His tool belt was hanging on the door and on the windshield was a hand-written sign "Will do electrical work $35."

Inside Home Depot was a man trying to sell A/C inspections in hopes that, if you got one and found out how much energy you were wasting you would buy a new unit. He looked like a moonlighting high school teacher. He also looked tired. No one paid any attention to him. In fact, there was hardly anyone in the store.

If you are a Law Professor, like I am, after seeing these things you may go to work and find:
1. Elitist A is all up set because another law professor wrote an email he did not like.
2. Privileged person B (employed for life, like A) is all torn up because her favorite faculty (also privileged) candidate did not get a positive vote for what in all likelihood would become a forever job.
2. And then there is over-affirmed C going office to office to gossip about a student who was not properly submissive in class because C is always looking for something to stress about.

These are all examples of the upside down world of the privileged. The pregnant pizza delivery person, the out of work electrician, and the moonlight school teacher probably sensed less than a tenth of the misery and injustice as privileged professors who have everything they do not -- a steady and relative easy job, a good salary, infinite flexibility, etc. The have-nots seem also to be the want nots. The haves seem distressed over things that would not even register with the have nots. If anyone thinks the theory of relative deprivation does not explain elitist angst, think again. And if there are any utilitarians still out there, think again about whether the disutility some people feel has any moral importance. What the have nots do not feel seems infinitely more important.

Class Priming

Priming is an interesting, mysterious process. For example, in one experiment subjects were asked to write a description of either soccer hooligans or professors. Afterward they played a game of trivial pursuit. Those asked to describe professors out performed those asked to describe hooligans. In another people were asked to unscramble letters. Afterward they reported the result to those conducting the experiment who (as prearranged) were then talking to someone else. Those who had unscrambled words that concerned aggression or rudeness tended to interrupt the conversation while those whose words were more passive were less likely to.

I think it is likely that priming has a class component. In other words, in real life, subconscious influences probably differ by class. Where this goes, however, I am not sure. The impact of being over affirmed, as so many children of the elite are, works at a more obvious level and leads to a sense of entitlement. Priming, on the other hand seems more subtle and affects not just attitudes but actual performance. As the two examples here suggest, it is not clear that the resulting behavior is admirable or beneficial.

Here is a little experiment. You may have noticed the photo of an elderly person above. Since seeing it, have you been moving slower. Do your aches and pains seem a little more severe?

The Thin Ivy Line

When I wrote about faculty gangs last week, I did not fully comprehend the sociology of faculties until talking to a friend's 10 year old. She told me of cliques, cruelty, gossip, and the type of piling on that I described last week in the context of faculties. Then I understood. Many faculty behaviors are slightly cleaned up versions of the typical interpersonal cruelties that start with 3 year olds. I wonder if today's cowards were cowards then. Are the gossips and bullies the same too? (I also wonder if today's people who object, refuse to take part, just do their jobs and are empathetic are also just continuing their own childhood behavior.)

The most frightening aspect of it to me is the pack mentality. Last week's example was based on an actual incident of open disparagement. The same target I now learn frequently has things ripped from the bulletin board by the same crew of cowards who are part of the schoolyard gang. This is only a little short of lying in wait after school to administer the type of beatings that ten year olds (hopefully) used to do. Yet, other faculty with more acceptable political messages have doors and bulletin boards that remain untouched and, by the way, are sufficiently trite to be better suited for a teenager's dorm room.

The pack mentality is not frightening because someone reads another person's email to the faculty with a disparaging tone or that someone else makes a nasty remark or another writes a public email bullying the person. The frightening part of it is that every one of those cowards correctly assumes there is a receptive audience. After all, it would not be a pack without the implicit permission of those who snicker or look the other way. Going against the grain by questioning authority is just not in the cards for these folks.

The pack does not stop with faculty. A student may be viewed as overly aggressive in class. One professor talks to another and that one agrees his or her behavior is odd. Another is drawn into the mix and with each added person the story grows from an impolite student to a psychopath. Just as the rumors about a fifteen year old girl might grow from "seen kissing Tommy" to being pregnant.

There is some good new here. I was discussing this all with a couple of understanding colleagues. They assured me that it is much worse in other departments.

Faculty Gangs

I never read much about the sociology of gangs but I did attend the types of school where people were picked on, outed and beaten up. Once the tide turned on these people I saw the worse instincts of others appear. Otherwise gutless people all of a sudden got the courage to belittle others.

It can happen on a law school faculty. For example, suppose someone on the faculty has beliefs that are not consistent with prevailing views of a faculty and that the person is a little different in other ways. At some point it evidently becomes permissible to ridicule the person. I've seen in manifested in a couple of ways. For example, at a faculty meeting which the "target" is unable to attend, he or she asks that his or her views be read to the group. One of the gutless ones in the meeting makes a snide, sarcastic remark and number of others snicker.

Or, the same target sends an email taking a position the majority does not like. For example it could be political but no less political than the vast majority of hiring and tenure decisions faculties make. One of "tough guys," not privately, but publicly, sends and email telling the "target" to shut up and stop interrupting his work (yes, the email interruption that is so dreaded). I have to concede I have never been interrupted by an email. I mean could someone tell me how that happens?)

In neither case does anyone say a word about basic respect or decency because they might be eliminated from the gang.

When the bullies actually say something out loud or in public email that takes on the administration or a member of the faculty ruling class, it may makes sense to listen but it is so sad to see adults engage in playground antics. And, more often that not the cowardly behavior comes from the children of privilege.

Jim Calhoun and Law Professors

I'm a big sports fan. I even watch Mike and Mike with my sling box when away. Golic is beginning to wear on me, though. Recently I have following the Jim Calhoun "we bring in $12 million for the University" affair. This, as you know, is the explanation for and defense of his salary and that of every other big time college coach. The fact that their salaries are set by the market is OK by me although I think it is a pretty screwed up market that values a coach in the multiple millions and the a high school teacher at 30K.

What concerns me is the way the argument has morphed into some kind moral defense as in "he's really a good guy" and I do not mean Jim Calhoun only. Let's be real. The coaches make their dough on the backs of a captive labor market composed predominately of African Americans and poor people. I'll stay away from the details but you know them anyway. Through a very profitable cooperative effort with the NBA and the NFL, the Schools exercise tremendous monopsony power. So, the next time you hear that the salaries are OK because they are set by the market, remember that the same cannot be said of the employees -- the players. When these high paid coaches concede their part in this exploitation and argue forcefully for extending the benefits of the market to their player I'll find the defense more compelling.

When you think about it maybe they are not much different from many law professors. Law Schools charge ahead to hire new professors from the privileged classes know that the economic downturn may be felt predominately by the non elites at their Universities. Is there that much difference between these two forms of indifference to the condition of those at the bottom of the ladder?

Don't Smile

I am not sure I agree but here comes another indicator of how class differences are manifested and, to some extent perpetuated. In a recent article Michael Kraus and Dacner Keltner describe different body language tendencies that are correlated with class. Here is part of their summary (the link above is to a short article about the article, not the original)

"Informed by recent advances in person-perception research,
and theoretical analyses of resource dependence and power, we
examined how SES is signaled in a face-to-face interaction. Our
first prediction was supported. SES was reliably associated with
a set of nonverbal cues: Upper-SES individuals exhibited more
disengagement and less engagement during a get-acquainted
interaction than did lower-SES individuals. Our second prediction
was also supported. Naive observers reached consensus
and identified participants’ family income, maternal education,
and subjective SES with greater-than-chance accuracy, despite
being exposed only to participants’ behavior during the get acquainted
interactions. Finally, these naive observers based
their judgments of targets’ SES—and rightly so—on targets’
disengagement- and engagement-related nonverbal behavior.
This study is the first to reveal relations between SES and social
engagement, and it is the first to show that SES can be readily
‘‘thin sliced’’ by naive observers."

What this means is that upper social class people have learned to signal their elite status by seeming to be disengaged, even bored, by others. This is especially true when getting acquainted because relative status has yet to be established. The authors suggest that the difference in behavior is an indicator that one is of high enough status that no approval of others is necessary. I'd say this reflects what I have described before as playing it close to the vest and revealing no emotions. Smile and nod too much and someone may think you are from a lower class. Be stuffy, and you are golden!

Law Suit

Several readers have asked if I am going to blog about the pending law suit against UF and the Law School that Paul Caron has publicized.

I really cannot. I have thankfully been out of the loop on virtually all of the details. This is a huge Law School and I doubt very seriously that one person's take would be accurate.

Privatizing Social Capital

A couple of years ago over on money law I wrote a blog on making nice and doing nothing -- a common trait of the elites. Now it occurs to me that it is a great example of capitalism only the capital is social.

Let me provide some background. In the higher education contexts in which I have participated, there is always a subtle form of extortion. People can disagree but they never show exactly how much something really matters because if he or she does that to the point of causing discomfort, there are sanctions ranging from being the subject of gossip to being discounted or socially ostracized completely. When this happens -- pushing hard enough to make someone uncomfortable -- social capital is used. Kiss enough butt or scratch enough backs and you and regain some of it.

Discomfort is the operative concept here. Make enough people uncomfortable and you use up all your capital. Also we are not talking about right, wrong, truth or beauty. Even pushing the most dead solid truth or good cause can lead to discomfort. Never use social capital and you are completely ineffective. Use it all up and you are equally ineffective. I know people at both ends of this continuum.

There is another continuum as well and this is defined by how you use the capital if you choose to use it at all. You can use it for yourself -- complain about a teaching assignment, fight for your favorite program or more travel money because, afterall, you are special and doing God's work -- or you can use it for others -- a change in law school policy in which self-interest is not involved.

You could graph all this and if I knew how I would. The horizontal axis from left to right would be not willing to use social capital to very willing to use social capital. The vertical axis would be from bottom to top, use social capital for self and use social capital in matters in which there is no self interest.

Now we could take each person and put a point on this grid and the all four quadrants would have some points. Just for orientation sake, the bottom left quadrant would be little use/ but personal use when used. In this quadrant you find many law professors. I would say "most" but that would mean over 50% and I am not sure. But if you had to pick one quadrant and put $5.00 on it, that would be your best bet. They hoard social capital and spend it one themselves.

I think there is some sociological literature to the effect that this behavior is very common among the upper classes and it is critical for a someone trying to climb the ladder to stay solidly in that bottom left quadrant -- or at least appear to be.

Class Bias in Practice

The term "class bias" like many others has an idea or theory behind it but is not really brought home until you see it in practice as I have over the last few months. In the midst of my University's huge budget cuts, the Law School has avoided any cuts at all. It has done this by raising tuition and cutting class size. Some faculty feel shame at the idea of eliminating 25% of the students while increasing the law school budget and faculty size while the rest of campus suffers. Some feel it is simply a way to up the US News ranking by lopping off the bottom of those admitted. I hope not but this will depend on admissions practices which have not revealed themselves yet.

Still the idea of fewer students and higher tuition is not unreasonable. Fewer students can mean lower class size and, since our tuition is very far below the average, raising it, while unfortunate for students, does mean that those who benefit from the Law School pay a bigger part of the cut. It also lowers the stress on taxpayers most of whom are less able to pay than the students and their parents.

So where is the class bias? While law faculties grant tenure to the children of privilege year after year without a serious inquiry into whether they deserve a live time job and continue to hire even more of the privileged, they ignore the plight of maintenance workers, secretaries and year to year contract people are on the chopping block.

To be fair, a few have volunteered to teach extra in order to decrease the need for new hiring under such extreme conditions. But, for the most part there are excuses -- how do we know where the money will go? It's important to grow the law school, etc. And there are leaders who want to be able to take credit for steering us through hard times. Those negatively affected by this tunnel-vision will be unheard from when the "credit taking" occurs.

And finally there is the tendency to become company men and this I cannot claim to be class based. To understand what I mean think of the last time you had any kind of complaint about a product or service and had to interact with a clerk who immediately became defensive on behalf of the company. So too with faculty. At some point the goal is not to do good but to protect the School or a program regardless of what it is doing. Having always been an outsider, I'll never understand the transformation to company man when the company has gone astray.

Consistent with my New Year's resolution to be too quick to judge, I've searched for a charitable interpretation of events but cannot come up with one. If there is one, I'd like to hear it. But that would violate another rule the privileged go by: To engage on an issue is to concede there may be two ways to look at it. So, do not engage.

Phil Ochs, Limousine Liberals and Going Green

In a comment too rich to be relegated to a comment, Professor Eric Fink of Elon College, who has his own most excellent blog, reminds you -- not me because I never knew -- that Phil Ochs captured the notion of a liberal years ago with the observation that liberal means: "Ten degrees to the left of center in good times. Ten degrees to the right of center if it affects them personally." I'd say that pretty much captures most law professors and my description of events at my school in the post that is immediately below this one.

The frequent complaint is that there are very few conservative or libertarian professors or, put differently, too many liberals. There are too few conservatives and libertarians for most law faculties to be intellectual interesting but tenure sometimes solves that as closet doors open. Perhaps an even better case can be made that there are practically no law professors whose views represent the left. One indicator of having some leftist leanings is a willingness to talk about class but law professors rarely go there. As my friend once said, "Discussions of class are too close to the bone."

I think the appropriate term here is limousine liberal. I've thrown the term around not really knowing how it originated so I googled it. At least one view is that it originated with the 1969 mayoral race between Lidsay and Procaccino.

One of the more bizarre illustrations of limosine liberalism (a term that I now think is redundant) involves the purchase by supposedly greens of pollution rights. It's a crazy combination of the Coase Theorem and limousine liberalism. Feel guilty about driving your SUV, limo or flying the private jet? Just buy some carbon credits. No less pollution but someone else pollutes less so you can. Is this something like paying someone to take your place in the army? So, as I understand it, it's OK to pollute as long as you win the right in an auction. Guess who wins those auctions -- money counts, not need. Duh, doesn't it make more sense to buy them and not use them?

Liberal For You; Conservative for Me: Public Law School Financing

Those who study regulated industries know that regulatory bodies are less concerned with how much a utility spends than with how much is passed through to rate payers. This "above the line/below the line" idea applies in many, but not all, respects to higher education. State legislators are less interested in how much is spent by a University than they are about how much of that cost is passed through to taxpayers.

What this means is that one solution to budget cuts is simply to decrease class sizes (less demand for state funding) and raise tuition (to maintain the status quo). For a University unit, like a law school, that has the principal goal of maintaining the status quo or even expanding while so many others cut back, it works out fine. Of course there must be an agreement that the tuition raising unit gets to keep the tuition hike so, as one administration puts it, "dollars generated are returned to the benefit of the college whose students paid those dollars" -- to say nothing of the faculty and the programs they favor. This sounds a great deal like the idea that law schools should do what benefits those who pay the bills. Yes, the stakeholder/fiduciary duty model appears but only in a limited way -- very little mention is of made of taxpayers who still pay most of the tab.

This is a highly popular strategy for the faculty-beneficiaries but raises a number of questions. If that is the approach one takes to higher education, it means shutting down or downsizing departments whose students do not generate sufficient revenue. Good-bye humanities; hello giant classes. (Now, we don't want that do we? On the other hand, someone else should pay, right?)It's a very conservative view and completely at odds with the idea that some units of the system should cross-subsidize other units or even that tax payers should subsidize anything. Here again the public utility analogy comes into play. Most of those opposed to cross subsidizing others in the University probably think it is a great idea for taxpayers to pay their salaries and, in the case of utilities, for example, for some rate payers to pay more to subsidize life line rates for poorer rate payers. It is the "liberal when it comes to your pocket book and conservative when it comes to mine" philosophy of the elitists who control higher education.

Of course there is a possible extension of this new conservatism and that is privatization. The new approach is one that embraces privatization as long as it is beneficial to law teachers. In short, there is no principle involved, just the idea that a bit of conservatism is not so bad as long it means preserving the ends -- us.

Whose Gravy Train is This?

Over on Moneylaw there is a terrific new post asking if the gravy train is over for law professors. I doubt it because so many law professors are blinded their sense of self importance and trained to be successful advocates especially when they are their own clients as so many are everyday.

In the Moneylaw post, my old Dean, Rick Matasar is quoted as saying, "We are an input-focused business, and outputs are what the students are paying for. . . . Law school needs to be about what people need -- not what we're good at. ... Most of us are social misfits, and we're the ones who've been designated to teach the students how to work interpersonal skills. . . .We should be ashamed of ourselves. We own our students' outcomes. We took them. We took their money. We live on their money to pay to come to San Diego. And if they don't have a good outcome in life, we're exploiting them."

His reference is to the latest law professor convention in San Diego and I think his comments need to be amended a bit for those of us teaching at public schools.

I agree with Rick on much of this but feel he has underestimated the problem. It is true that law professors focus on inputs --- how else can narcissistic hiring policies be explained. They also focus on outputs. The problem is that the chief output is law professor well-being. Thus, the students' money as well as that of other stakeholders is taken to advance the ends of law professors. How else explain the constant angling for low teaching loads, caps on class sizes, two-day a week teaching schedules and machine graded multiple choice exams?

Right now, even though applications may fall, the number of people who want to go to law school far out strips the number of seats available. As long as that holds true, the gravy train will continue even if it means admitting and graduating poorly qualified students who will fail the bar or fail their clients. The gravy train will only end -- and only then for the lowest ranked schools -- when demand falls so much that no amount of foraging for students will fill the seats. Only then will outputs become important because then the real output "professor well-being" will be threatened.

The Law School Football Team

From time to time a law professor at another school writes to me rather than comment on a post. Here is part of an email from what I assumed to be a first or second law professor. He or she had just come from an appointments meeting at which a number of candidates were discussed.

"I assumed that the hiring meeting would show me that people took the hiring process seriously. While this was certainly true of a number of people on my faculty (I suspect a majority), others really surprised me. Lessons that I learned from the faculty meeting (based on oral comments at the meeting rather than the vote itself):

1. scholarship matters except for when you like a person

2. the job talk matters except when you like a person

3. when you don't like a person, you say it indirectly ("something does not seem right about them" without explaining what it is)

4. scholarship matters except when you don't like the person

5. written faculty comments on the visit matter except for when they do not

6. we arbitrarily either count or discount practice experience based on how much we like the candidate."

Note that "like" a person plays a role in 5 of the 6 rules. I wonder how the rules might apply to selecting members of a football team.

1. Wide receiver speed matters except when you like the receiver.
2. The punter's hang time matters except when you like a person.
3. When you do not like a lineman say it indirectly. ("Something about his stance just does not seem quite right.")
4. The quarterback's accuracy matters except when you don't like the person
5. What the experts think matters except for when they don't.
6. Past yards per carry for a running back either count or are discounted based on how much the candidate is liked.

Pretty crazy way to pick a football team right? The team would lose every game. Is there any reason to think the "like" factor is different for law faculty success. At least in football there will be an objective measure of success and an opportunity to cut players. In law school hiring there are no measures and the initial hiring decisions are for lifetime jobs.

What the young law professor described at his school sounds like a great approach if you are deciding who you want to go down to the bar with after school for a drink. It's a disaster for the stakeholders of a law school.

Outliers, Class and Law Professors

Malcolm Gladwell's newest book, Outliers, is an interesting read. It is devoted to the reasons some people succeed and some don't. The reasons are often not what you would expect. On the matter of class, he captures the difference in impact "wealthier parents" and "poorer parents" have on their children very nicely. He sums up his discussion with "the sense of entitlement that has been taught is perfectly suited to succeed in the modern world."

Those who are intrigued by class differences will not be surprised. The wealthier parents encourage all kinds of special activities, have interesting reading material around the house, encourage their kids to speak up on their own behalf, etc. He quotes sociologist Annette Lareau as follows, "Even in fourth grade, middle class children appeared to be acting on their own behalf to gain advantages. They make special requests of teachers and doctors to adjust procedures and accommodate their desires."

Again, although there is little that is surprising here, I was reminded how institutionalized the "special requests" have become when I visited my son's school to pick him up after an exam that ended at 11 AM. I came across a room full of kids still taking the exam at 11:30. He was not among them. I asked if the test had run over and the answer was "No, those are all the kids who get extra time for one reason or another." And then the teacher added, "For a couple of thousand dollars evidently anyone can have a child diagnosed with something that results is extra time." Yes, the teacher was describing yet another market the wealthy visit far more than the working class -- the market for the disability advantage. In the room were kids with real disabilities and then kids who parents bought them a ticket for more time. (If you are wondering, in the article discussed in the post below, it is noted that "extra time people" score significantly higher on the SAT than others.)

The second thing that struck me about Gladwell's description is how much the entitled children behave like life is a zero sum gain. They "act to gain an advantage." Nowhere in his description of the lives of wealthy children is there a word about teaching empathy or even that one's efforts to gain an advantage usually mean leaving someone else with less. I suppose that type of consciousness is actual a form of disability.

Finally, although it goes without saying, Gladwell has perhaps unknowingly described something about law faculties. There are, of course, very few people on law faculties without the sense of entitlement he describes. For the average entitled law professors asking or demanding special treatment causes no angst because whatever is wanted is deserved. For the handful law professors who do not feel so entitled, asking for anything special is a struggle and they are still, to their disadvantage, under the impression that special treatment is something that is earned.

Over Parented (or is it Parenting) Law Professors

There was an extended book review/ article in the New Yorker a few weeks ago about over parenting and how it can result in a fairly inept adult. Over parenting, if you unfamiliar with the term, is the largely upper middle class tendency toward making sure a child never experiences a sense of not succeeding. This means the child spends his or her life in a protective bubble that hardly prepares him or her for life.

Over parenting has clearly hit law schools. At mine, untenureds are given the first and every other summer off with pay, assigned multiple mentors, and have teaching assignment tailored so they can write. I doubt it is much different at other law schools.

At first, I thought these changes were a reaction to the first wave of over parented kids becoming old enough to be law professors. In effect, their protective bubbles would continue at least until the point of being tenured which, then, is like a life time protective bubble.

This model did not fit the actual individuals hired since they seem, to me at least, to be pretty adept at dealing with life and the job. In fact, a couple have confided that what I am calling over parenting makes them uncomfortable. It would drive me crazy.

I realized then the problem may not be with the untenureds at all. Isn't it more likely that the impetus comes not from the parented but from the parenters? It seems increasingly clear that overparenting adults cannot distinguish between their own children and people who they relegate to the status of children in the work place. In the case of conventional over parenting, those engaged may get something out of it that goes a bit beyond love and caring. Or, if it is only love and caring, it is the type of smothering that eventually hurts the person who is loved.

What we will not know for a few more years is whether over parenting of untenured law professors will be as disabling as it is for children.

Are Law Schools Recession Proof?

The pecking order at law schools is pretty well set. First are the tenured professions then the tenure track but yet to be tenured. Next, oddly enough are the yet to be hired untenured people. After that are year to year, untenured people who typically teach skills courses. Then secretaries of various sorts and finally the maintenance crew. I suppose actual and potential students fit in here somewhere and I am inclined to say at the very bottom.

When budget cuts come, the ordering of cuts can follow the ordering but in reverse. A school may or may not save money by reducing its enrollment. If it can, the potential students will be first to have opportunities removed. Next up the line in terms of vulnerability are the people who earn the least and, thus, can least afford to lose their jobs.

Law school policy, even with respect to budget cuts, is largely faculty driven. Perhaps a test of the character and humanity of the faculty of a law school is how it deals with cuts. For example, if it is possible to preserve opportunities for students or the jobs of those at the bottom of the pecking order, are those at the top willing to teach extra hours or courses that are not their main interests. Are they willing to open classes they do teach to greater numbers of students? Are there programs that seem to have outlived their use that could be eliminated? These things mean reducing the need to replace retired professors with new ones or with visitors.

Only in the rarest of instances are tenured law professors likely to have their job security threatened by economic conditions. Their decisions, however, do affect the job security of others. Maybe they are not the Godfathers of those lower in the pecking order but they have the capacity, if they care to, to soften the blow of economic hard times.