More on Fungibility

It rattled a few readers when I said that most law professors at any law school from the 20th on down are fungible. What I meant that any could leave and their absence would hardly be noted. It is actually pretty extreme. At my school one very productive and self-promoting type left as did another far less productive but equally self- promoting. In the case of one there was hand-wringing including some of my own. In the case of another there was more than a modicum of relief. Years have now passed and I could count on one finger the number of times their absence has been noted by fellow faculty. I could count on no fingers the number of times a student or alum has expressed regret at the loss.

This just raises the question of why deans will sometimes fight so hard to keep people by giving into their demands. For example, "give my spouse a job or I will leave" or "I must teach X or I will leave." Even assuming these are not idle threats I can think of only two reason to cave in -- the person teaches a course for which it is hard to find teachers (this makes them a bit less fungible) or the transaction costs of finding the replacement exceeds the cost of granting whatever is demanded. Let's face it, someone with an actual better offer is going to leave anyway. Those who make demands based on the threat of leaving have, at best, a marginally better offer.

Coming to grips with one's ease of replacement is not easy. On the other hand, it does make you take yourself a little less seriously. For a law prof that is not a small improvement.

The Next Big Law School Scandal

Just a guess but I think it will be externship programs or at least some of them. These programs vary I am sure, but it appears they all have in common the payment to a school by students for credit. That's fine, but when students pay schools it's not clear what they are getting other than credit. Some may have enriching externships that prepare them for the practice of law and some may be fetching coffee. Part of the problem is that the ABA or AALS version of a site visit to check on what is going on seems to be satisfied by having someone (a pal perhaps) at another school check or (am I getting this right?) just calling the site.

On top of that, what are the standards for what the student does? I've seen some that say "meaningful legal experience." That really does not narrow it down much. I got a speeding ticket once and that was a meaningful legal experience. There is precious little meat on the bones of what is actualy required.

There is another factor that maybe bothers only me. The students pay essentially to work for others. This subsidization is not so worrisome when those others are public entities but when they are private, it is free labor for the purpose of generating a profit for others. This all becomes a bit fishy. Shouldn't the students in these cases be paid?

Now toss in the fact that in some places faculty are paid on the basis of how many externships they generate. Sounds like giving the faculty member a finder's fee or a cut of the school's take for selling credit to students.

I am not informed enough about the politics of the relations between the ABA, the AALS and law schools but, from this informed perspective it appears like a huge case of the AALS looking the other way because no one has the courage to really ask "What is going on." Or, perhaps they know exactly what is going on.

More on the New Cronyism

I was pretty happy to see that over on PrawfsBlawg, Howard Wasserman­­­­ wrote a comment on my New Cronyism post (scroll two down) and it was followed by several – too many to read – comments. One thing is certain; there is no class warfare in law teaching. The privileged won long ago and many rushed to defend the stacked deck in the form of a practice that means privileged people help other privileged people cut in line when it comes to jobs. Make no mistake. This is not like a pal letting you cut in line for a theater ticket that will not be sold out anyway. No, these pals let significant others cut in line and there are not enough tickets. Every job claimed under the cronyism system is unavailable to someone else.

Among the comments was a fair amount of defensiveness by those for whom cronyism worked. That is to be expected. Some of the logic of the arguments, thought, left me worried about what goes on in teaching students how to think. And, of course, there is the infinite capacity to rationalize which I suppose we all put to good or ill use from time to time.

For example, the fact that partner hiring does not always work to mean more privilege for the privileged does not mean my general point is wrong. Second, the fact that someone got a job for a partner and it worked out fine or the University is pretty darn happy is silly. Surely every law professor knows and understands the notion of opportunity costs. With this type of thinking if you buy a car without shopping around you would also conclude – for no reason in particular – that you bought the best car.

Some folks seem rattled by my notion that law professors were pretty much fungible and, thus, any school that caves into the leverage of “if you want to hire me you must find a job for my partner” is taking the bait. Perhaps fungible is the wrong word to use here but it never ceases to amaze me at how quickly a school gets over the departure of someone and how little lasting effect there is of not hiring someone in the first place. I know it is hard to come to grips with the fact that you are not as big a shot as you thought but let's be real about the number of people who could do our jobs. I’ll stick to my position on this. Nevertheless, even if profs were not replaceable, fungible, whatever, you would have to balance that against the downside of not even looking at people who may be better than the trailer.

And, then there was something like “We we did not consider these people we would be limiting our choices.” WTF. I am not talking about not hiring married people. No it’s a matter of not hiring based on to whom they are married. If you put a thumb on the scale because a candidate is a partner of someone you want, you are already limiting your choices

Somewhere in all of the comments there was a sense of entitlement -- but we can't both get jobs if a school will not hire a couple. I hardly know what to say. You are both adults with more educations than 90% of the out of work people in the USA. Get a real job.

The most baffling thing is the lack of discussion of what is actually going on. Suppose a candidate comes along whom people thing is hot stuff and she has a spouse that would not have been looked at. Then suppose the “hire my partner” chip is played. If the partner is hired it is simply a higher salary for the wanted spouse. Antitrust experts will recognize this as just a form of tying and really all the benefits in the form of a job for the not-really-wanted partner can be attributed to the wanted spouse.

Is there really any difference between the "hire my partner" demand and a demand for a higher salary? Please don’t say it is because the spouse is doing something. As long as he or she would not have been hired in a completely anonymous process, the subsidy exists. For example, a hot candidate could say “I’ll come for 20K more” or “I'll come at the offered salary but my partner, who does not work, would like 20K for spending money” or "I'll come if my partner gets to cutin line for a job in legal writing or in the Spanish department." In contracts, I think that is consideration, there is nothing illusory about it, and it is a result of what the hot shot offers, not her partner. Next we may have the (single) hot property saying. "I’ll come for the lower salary but your next hire must be a single person about my age of whom I approve for a possible dating relationship." Ultimately, if they both would not have been hired on their individual merits, there is a subsidy. If I were a hot shot I would say I needed both a good salary and a really cool dog.

My point that seemed to be lost on many is that the system is rigged. It’s a cousin of legacy admissions to elite schools. The rigging is pervasive in America and the class version of it has long escaped the attention of law school (and you know why).

I conceded in my original post that I prefer not to have partnership faculty. I’ve seen it work OK and I have seen it be very divisive. If you have a couple and they both bubble up in an anonymous process and you also have 2 candidates who are their equal but not partners, I prefer the latter. If one or both are untenured, I feel even stronger. Why would the greater probability of greater diversity be less favored? This, though, is a different matter than a system of hiring that is rigged in so many ways it could pass for a the Santa Maria (and it is even older.)

The Law Suits Against Law Schools

I have only skimmed the complaint in the suit against Cooley but I assume the remaining cases must be based on the same theme -- Schools lied, students relied. For many reasons I'd be surprised if a class were certified and, if one is not, many attorneys and plaintiffs will lose interest. Still I applaud the effort and hope what legal education was not willing to clean up somehow becomes cleaner.

The whole matter is an indictment of people in my profession. We have known about this and participated at least by our silence for years. On the other hand, I have yet to hear of a faculty member badgering the dean to hire more of our own grads or admit more transfer students or offer more bar oriented courses. Unless I am missing something, most faculty would like the School to be ranked higher but are not losing sleep about it. After all, a higher ranking does not mean we are doing a better job and a lower one does not mean are students are less prepared.

Yes, most of us have stood by but my impression is that the vocal supporters of doing what ever is necessary are alums. I have heard that at my School, if we drop in the rankings, the alums have fits. I am not sure whether it is because we compete with FSU and they are terrified we could drop behind them in the US News and World Report "rankings" or because they somehow think that the education they had here is of lower quality if we drop. I am also not sure why we don't ignore them. Perhaps because we want their money. On the other hand, if they are serious about action and not whining, they could hire a few more or our graduates at better salaries.

Ultimately, though, when a public school begins hawking its products or programs like pajama jeans (Just saw them in an infomercial last night) an misrepresenting its outcomes, it's not much different than the government paying $16 for a muffin or $200 for a toilet seat. It stinks.

The New Cronyism

Cronyism is an interesting word. It sounds bad. No one says, "my heart is filled with cronyism" or "that was the cronyiest moment of my life." Yet crony just means friend. Somehow by adding ism it become a serious accusation: The hiring or granting of a right based on something other than merit. Recently I noted two new examples of changes in hiring practices: one is close to cronyism; the other dead center. But in the elite PC world of people who used to rail about ol' boy systems and favoritism, these practices seem to be OK.

1. OK, I am not sure this first one really is cronyism but it is close and I have been meaning to write about it. I was talking to a friend of mine at a different school who is on his hiring committee. I asked him if anything was different in the way it works as compared to, say, ten years ago. Without hesitation and with some level of frustration he said "yes." "I get a constant stream of letters from from well known law profs at highly ranked schools pushing their students. It's almost always the elite schools." My friend observed that ten years ago these efforts were not as aggressive. Of course these letters generally go to graduates of the same elite group of schools who desperately want to please and be remembered by their old profs. After all, a visiting position could be in the works. I understand the letter writers are not necessarily friends but they purport to be close to the candidates they are plugging and they want them to cut in line based on their connection.

2. The dead center one involves couples. Evidently, hiring a spouse or partner these days automatically means taking on the responsibility for finding employment for the other partner either in town, in another part of the university or in your own department. This is discrimination not on the bases of marital status but on the basis of to whom you are married -- cronyism.

As noted there are three forms: A person is hired who has a spouse who wants to be employed in a non academic setting. Deans call in favors to find him or her a job. Or, the person wants a job in a different department. This is actually one of the most undermining. For example, sometime ago my school sought to hire a lateral at a high but not "star attracting" salary. We found our person only to hear that the school had to fund another department to the tune of thousands of dollars to hire the spouse. WTF, I thought. If we knew we had that much to spend we would have been in the "star" market.

The final case involves the couple who teach in the same department. For me that is law. The trailer is usually someone the school would not and did not consider. The desired candidate is hired and the challenge is what to do with the "other." Others can be found stashed all over Universities -- assistant lecturer, research fellow. (Why don't we just call it what it is "Spouse of Tenure Track Professor," "Crony Professor," or "Special Position Filled on the Basis of to Whom you are Married") They go to the head of the line for any position that would fit, they make friends in a context in which social connections are almost everything, and all of sudden the are elevated to "incredibly well qualified" for the same job as the spouse holds. Of course, this is because they have cronies. I see no principled distinction between this cronyism and the 1970's version that usually involved white males and their pals. What I have learned (no surprise here) is that people who criticized cronyism in the past never did so on the basis of principle but simply because the wrong people were being hired. In both cases, though, friendship means thousands of equally or better qualified candidates are ignored.

I will concede to having some biases: First, in my experience, far more often than not, having spouses teaching in the same department has been worse than having two unrelated people holding the same positions. Second, I am so tired of hearing "We need to find a place Angelo. or we might lose Phil." Get real, from about the 20th ranked law school on down we are all basically fungible. No faculty member leaving any of those schools will create a hardship or a change in quality. The next entering class will not know Phil even existed.

I suppose someone disagreeing with me would say they learned so much about the other that he now feels the other is great. Lame, so lame -- you never compared him or her to the others.

Justice O'Connor's Gardener

I did not attend the period celebration of Sandra that we have here but here is an excerpt from the Gainesville Sun. The reporter usually gets it right.

"About half of U.S. states no longer require civics classes, she said. She contrasted that fact with the requirement that new citizens pass a written exam about government.

"Our high school graduates cannot pass that test," she said. "I mean, it's appalling we make some stranger pass it but we don't require it of our own children.""

So here is the deal. If you are a naturalized citizen, you are a stranger -- not one of "our children." That is, if you were born here and had no choice but to be an American, you are one of us. If you chose to come here, did a crap job for years, learned some English, and passed an exam you are a stranger.

Sandra's (people delight in being in the realm of those permitted to say Sandra.) classism and entitlement tendencies are showing. There are those of us born to be on the inside and then there are strangers -- the little people who work in her yard, no doubt

O'Connor Again? UF Grovels

Sandra Day O'Connor is, again, visiting the UF. I think she must be on the lecture circuit more than any former member of the Supreme Court. Does she wait by the phone for our call?

It's ironic that UF rolls out the red carpet for her. Her shock at the possibility that Gore would win Florida in 2000 election is well documented. Bush v. Gore was easily one of the Modern Court's most unprincipled decision and she telegraphed her vote before she heard the arguments. It was a vote that essentially said we are terrified of knowing how Florida actually voted.

Then we had the the Bush wars, the war on the environment, Supreme Court appointments that turn back the clock, and the economic melt down that seems never to stop. The whole thing illustrates how we grovel around high placed people even when they tell us their ideology trumps our fundamental rights. People always complain that law schools are populated by liberals. They are right but, as the O'Connor visits illustrate, they are elitist liberals without an ounce of conviction.

The 2000 election also makes me think of the Florida Nadar voters whose little snit made it close enough that any of this mattered.

Conferences and Opportunity Costs

One of my facebook friends, Babara Burke, wrote the following dead solid perfect post:

The NYLJ reports that Suffolk City has depleted its 18-B attorney funds. Adequate representation to the indigent, welfare for lawyers, call it what you will but it provides a needed service in the county. Perhaps, my alma mater the only law school in Suffolk will see this as the impetus to awake from its complacency, and channel its own funds into creating a post-graduate grant program for those wanting to assist the poor. I'm thinking one Prof's trip to Brisbane can pay a year's salary.

This makes me thing of all the upside down priorities in which law schools are involved. Conferences and foreign travel are good examples. I can read much faster than I can listen. And, people can read what I write (if they care to) much faster than I can say it. Mostly at conferences you see people preaching to the choir, showing off, goofing off, or hanging with pals. A huge portion are trolling around looking to relocate. I'd make an exception for the recruiting conference which does seem like a good way to see many candidates. On the other hand, why send more than 3 or 4 people?

I'll pass on some of the ways my own school has chosen to spend money but there are some doozies. So many seem to exist because no one has the balls to actually say "Why are we doing this." They don't ask this because we know the answer: We do it because someone on the faculty wants to and will have a tantrum if anyone questions the program. As far as I know, like most schools, no program has ever been discontinued. Is it really possible that we got it right every time? I am not sure I have met a law professor who fully understands and has the courage to act on the notion of opportunity costs.

We used to have ridiculously expensive retreats. We'd go to the beach at the School's expense, eat, drink and talk about nothing. I once asked to have the cost of my attendance contributed the county we are in because it could not afford school books. I was looked at like I truly had lost my mind. Turning down a free trip to the beach? Thank goodness we now have a dean who has retreats at school with sandwiches for lunch.

To bad every law school can not start over -- add courses when absolutely necessary, reevaluate all tenured faculty, and only add programs when disinterested people say so.

The Prissification of Law Profs: Leiter, the Scam-man, and Commentators

I am feeling ashamed of being a law professor right now. First you have the author of the law scam blog who was too prissy to identify himself. Go figure, you're a fucking law professor. What is another law professor going to do to you? Snub you at one of those meetings at which everyone one is looking over everyone elses' shoulders in case there is someone else in the room whose ass it would be better to kiss.

And there was the prissiness of the discussion about what should be made of his effort to be anonymous and other matters already discussed a zillion times. Just replay tape 54. Really is this high school? And then it is followed by even more.

But Brian Leiter takes the cake in this prissing contest. Evidently he is deeply offended and, thus, has launched an extended ad hominen attack on poor timid Mr. Scam-man. Oh, my goodness! For example, according to Mr. Leiter, Mr Scam-man is "notorious in the legal academy." Ouch, now that is big. It's about as important in the scheme of things as being notorious in a Denny's kitchen. And he notes of Mr. Scam-man's accusations, which admittedly are exaggerated, " "None of this warrants the absurdly offensive description of American legal education as a "'scam.'" When was Mr. Leiter appointed the protector of the virtue of American Legal Education. Where was he when Hester needed him? And then, we find that Mr. Scam-man is a "failed academic." I have never actually followed the logic that a "failed academic," even if that is true, cannot observe and report on what he sees. But, if Mr. Scam-man is a failed academic and his record is the standard, he joins 95% of the other law professors who few people know and even fewer people give a rat's ass about what they write or say.

And now a personal note. I really want a comment on this post. And this comment must say this: "Jeff, you've been duped. This was all Performance Art." I really want to believe this because if it is not true, Mr. Scam-man has only scratched the surface and everyone in on this kerfuffle, including me, needs to be spanked just enough to get the priss out.

Should Law School Grads Teach Law?

In theory they should. After all, they studied it for 3 years and hopefully beyond. So, they have the right information but do they deliver it in a way that can be called teaching? This question occurred to me when I heard that someone had told a beginning professor that "law school scholarship including empirical work is the means to the end of advancing your point of view or opinion."

The problem here is pretty obvious. Law students are schooled on the importance of representing a client as completely as ethically possible. In fact, they are professionals at this. It is, after all, an adversarial system. Can they drop the adversarial/representational mindset when they become scholars and teachers? Many cannot.

When one adopts his or her own point of view or opinion as a client, then the idea of being a teacher hits a wall. The same is true when you are inclined only to hire or tenure people who agree with you. You are not teaching; the exception being if you fess up and say, "my personal politics are too far to the left/right/liberal to personally feel comfortable with that argument." I doubt this happens much because many law profs do not want to engage on meaningful issues. True engagement means the other person may have something to say that is relevant and that cannot be true when you know you are right, no matter what.

So, law grads have the information. That is the good news.

Some more good news. They may have practiced law and may know how.

The bad news is that, although they have a boatload of war stories and talk as though it was yesterday, most have either not practiced at all or only so long ago that there was no internet.

The other bad news is the really bad news. They are also taught to not to be open minded, tolerant, or humble when it comes to what they believe and many, not all, cannot stop representing their personal beliefs. This also means they cannot teach.

Law School Scam and Prissiness

I am sure most readers have seen the law school scam blog or read references to it. I agree with much of Mr. Mystery's observations (yes this is way too hush-hush not to be anonymous) except I don't believe law profs are as work averse as he or she suggests. Don't get me wrong; it is a world of little accountability but some do have a conscience.

One of my friends predicts this will become the new bandwagon for law professors resulting in much hand wringing about "what we have done to the students." Maybe my friend is right but, if so, it goes down as just another well ....bandwagon. By that I mean no one was on board on the basis of principle but only became interested when they were sure the wind was blowing the right way. What can I say? Just another example of individual gutlessness.

There are lots of others. I could count on one hand the number of law professors who have raised the issue of exploitation and its racial bias when it comes to college athletes. I guess that bandwagon is stalled.

Another one is the deep concern about diversity. Yes, faculty will argue and spends gallons of stomach acid on how much diversity counts and who to hire for a full time tenure track position. On the other hand, literally thousands of adjuncts, lecturers, and other teachers are hired without even a nod to publicizing the position in order to attract diverse candidates. That bandwagon is also stuck in a rut. The same goes for the salaries of staff people.

As I have written many times before, the best argument against tenure for law professors is that they waste it. Of all the groups I have observed, law profs, men and women, must have the highest level of average prissiness per person.(APPP).

Priming the Law Review Pump.

Over on PrawfsBlawg there is an interesting essay by Jeff Lipshaw about law review placement in the summer. I think he has it right. It's risky because you may have a hard time bargaining up. Plus, from my own experience the information on Expresso about which law reviews are open for business is terribly inaccurate. But if you are satisficer, you may get just what you need.

But his story he has this: "Two weeks after the submission, I received a publication offer from a top 60 law review. This was a law review as to which I did not try to prime the pump - meaning that, in a couple cases, when I saw the receipt notice on ExpressO, I dropped a note to a friend on that faculty asking him or her to put in a plug for me."

As you can imagine, a fair amount of discussion follows. Let's face it, there are many things worrisome about priming the pump -- the old boy system, appeals to authority -- all of which come down to whether the review by law review editors is actually based on the merits of the piece. Guess which law professors are most likely to have friends at other law schools who can help them out. It's those who graduated from the handful of schools that supply the vast majority of law professors. It's strikes me as rigging no more or less than law schools and USN&WR. I do not mean to pick on Jeff. In fact, based on his thoughtful writings, I have great respect for him. He just happened to put in black and white what I assume is commonplace.

Jeff's response to some of the criticism along the lines found here is: "Can I defend the practice? No more than I can defend all the other proxies that student editors use to select articles. A professor says to the editor, "I know so and so, and she is well respected and this seems to be a pretty good piece." Is that any worse than looking at the author's CV as a proxy for the quality of the piece?" This is the part that does surprise me. What does it mean? I think what it means is that law profs do this because they assume everyone else is doing it and, to stay competitive they do it as well. Sounds like the same arguments law schools make when the try to rig the ratings game -- we don't want to do this but we have to. It's a version of the prisoner's dilemma. If everyone would stop -- schools and professors -- the system would be better off. But neither the schools or the professors can take the risk of deviating from a narrow self-interest perspective unless, in the case of professors, they must because they are not part of the elite fraternity.

There You Go Again: NYTimes Letter

What follows in quotations is part of a letter to the NYTimes from Rick Matasar. The bracketed parts are my own comments. You may recall that Rick was more or less the target of an article in the Times last week. I am not picking on Rick because any dean I have known could have written this. And, for the record, after weeks of pounding on law schools it's clear that someone at the Times has a son or daughter who cannot get a job or into law school. Still the inability of Law Schools and their representatives to stop selling their stories continues.

" In my 11 years at New York Law School, which was highlighted in the article, the first-time bar exam passage rate improved to as high as 93 percent." [As high as 93 percent? What does this mean? Most likely that one time it reached 93%. As soon as I see "as high as" I know I am reading something that is biased or intended to make me believe something other than what is most relevant. For example "as high as 30 miles a gallon" or "as high as 50% off"]

"We have built an acclaimed student-centered facility and have instituted a practice-based curriculum, specialized research centers and an intensive first-year skills program." [I am sure that most other deans would claim to be in the process of doing the same. So does that mean the employment rate is higher?]

"Of 10 private metro New York City law schools, our tuition is lower than all but four." We have a flat-rate tuition and guarantee that the price won’t go up while a student is enrolled. [O.K. If my math is right, if there are ten and 4 four are less expensive, this puts you pretty much in the middle. Why say "all but" 4?

"In its rankings of law schools, U.S. News and World Report publishes median salaries for graduates, but those figures are nearly two years old. We give our students current, detailed job and salary information." [This one puzzles me. Students apply in the fall or early spring of the year they are admitted. Are they provided the data from the class that graduated 5 months earlier? Maybe, but why not say that. By the time the applicants begin school, the only statistics the schools themselves could have are a year old. But here he says the USNews numbers are "nearly two years old." What is nearly? I think that means less than 2 years old. How different can that be from the USNews data?

Some weeks ago on this blog, I wrote about the "not technically a lie" culture that exists at law schools. The idea is to tell the truth technically but to lead the reader to believe something that is not quite right. Rick's comments are so mild that I am not sure they fit into the "not technically a lie" examples I discussed in that post but they are representative of a culture and, to some extent, a profession, that has earned the distrust of most people.

Again, as I said before, I think Rick was a pretty good dean. (Since I wrote that some of my colleagues have let me know they disagree.) These comments are, in fact, just standard fare. On the other hand, wouldn't you love to take the deposition of one of these people? Makes me want to shove someone.

Economics negative 101

Over on facebook, I ran across this comment on a post about the economics of legal education:

"Legal education in the U.S. could be tweaked, sure. But the biggest problems I see are the absurd increases in number of law schools, class size, and tuition."

The writer is not a "friend" and I do not otherwise know him. I am not picking on him but I think his thoughts may be similar to that of others. That worries me because it seems so off course.

As I understand it the current pressing issue is that law school grads cannot find jobs. So, they invest thousands and end up with a great deal of debt and little or no return on that investment.

The question is whether the problem is more law schools, larger classes, and higher tuition. Unless the law schools are actively misleading investors, what is the connection between any of these and really bad decision making? In my town, there must be 50 people who have invested in selling pizza. If one of them folds, will the reason be that pizza making equipment was too expensive, or readily available? Makes no sense.

I cannot help but wonder if the recent "blaming" trend is the result of finally graduating an age group composed in large part of people who were always over affirmed, could never make mistakes and, thus, cannot handle the criticism the market is offering about their decision making.

Not Buying What You are Selling: Law School Economics

By now anyone reading this has probably read the piece in the Times on law school economics and featuring former UF law dean Rick Matasar. I though Rick was a good dean although deaning does seem to be a process that leads to a redefinition of what it means to be fair, honest, and ethical. I have not walked in those shoes and would like to think, but cannot know, if I too would "adjust." Probably I would as I have yet to discover any convincing evidence that I am sturdier morality-wise than the deans I have seen come and go.

I do not understand the expose-like nature of these articles when it comes to private schools. At this point anyone who does not know that law school does not mean a high paying job must be living in a bubble. And, at the tuition levels private schools often charge, I am sincerely puzzled. The same people would not pay $100,000 for a motor scooter; why do they become unstuck from reality when it comes to buying a legal education.

On the issue of public schools I feel differently. Supposedly public schools exist to provide something that would not be produced at sufficient levels in a market economy. They do this by forcing people other than the students to pay. There are two possibilities here:

1. More lawyers supposedly with the goal of forcing the cost of legal services down. If this is true, then the current rush to teach more skills makes sense. The problem with this goal, however, is that the market seems to be screaming "enough."

2. It could be that the "product" a more educated and analytic population. If this is the case, it seems like the skills courses, except for writing, should be deemphasized and law school should be more like graduate school with the whole operation greatly downsized. The problem here is that not too many people have the luxury of spending three years in school just to be more well rounded.

So, what is the current goal of public law schools? That actually is pretty easy. It is not about students or taxpayers. Right now it appears to be to preserve the institution, the jobs it provides for faculty, and the process of selling lottery tickets to students. If you think about it, many people still rode horses when they became obsolete. Many people refused to get a microwave oven. Unless public law schools figure out something to do, they may too be put out to pasture.

Tenure: The Club

Recently Stanley Fish had a interesting op ed piece in the NYTimes. It was about tenure because he was commenting on a book that was questioning the need for tenure. His view, as I understood, was that tenure would make more sense if professors actually did what they once did -- open-minded research that may or may not reveal some inconvenient information.

I have a different take on tenure. It's just a club. How so? In law schools faculty have about 5 years to prove they are tenure worthy. A decision is made in the sixth year and if they are told no they have a year to fine another job. Law schools hire people and, I am estimating, grant tenure to about 90% of the people they hire. What that means is that the initial hiring committee turns out to be right about 90% of the time. Evidently, though, they are right 90% of the time only for their own schools.

What do I mean by that? In my 30 plus years of law teaching I have see a small handful of tenure turndowns, early departures, etc. In that same time I have seen a grand total of 5 faculty take jobs at higher ranked schools. One was Liz Warren now at Harvard. One is at Virginia and another at Vanderbilt. I am saying 5 because I probably missed a couple. One way to interpret this is that most law schools hire people who are just good enough for the school hiring them -- no better (otherwise more would leave for better schools) and no worse (otherwise they would not be granted tenure).

Is it really possible that on the bases of a resume and an interview that this near perfect matching occurs? I doubt it and you should too. What happens too often is that the incumbent faculty member makes friends, knows better than to rock the boat, and, if he or she generates a fan club, the rest of the faculty agree on tenure in hopes of reciprocation when one of their favs comes along. It's not hard to get a fan club because in all likelihood the new hire was hired because he or she was already part of the elite school, class, or family connection club that the faculty hiring him or were already in. When you think if it, not getting tenure is only a little more difficult that having it taken away which is actually close to impossible.

So, the debate about whether tenure is necessary strikes me as mostly theoretical. We do not need to worry about that until someone actually begins to grant tenure or not based on what is best for the school as opposed to the faculty. Don't hold your breath.

Who Pays for Nancy Grace

Went to my gym last night and got on the boring stair machine. It has a TV so I turned it on hoping for a distraction. The person before me was evidently watching Nancy Grace. I did not stay long on that channel but noticed that there is a clock on the screen counting down until the so-called Tot Mom is released. (It seems like that is supposed to be pegorative but I do not get it.)

I had a number of thoughts. Nancy Grace continues to wave a red flag in front of people already upset about the Casey Anthony verdict and she is making a bundle for herself and the network doing it. She may just push it hard enough that she gets someone killed. I am certain that she has already pushed it enough that there will be funds spent to keeping Casey safe. In short, Nancy is exploiting listeners for her own gain and you and I will pay the bill for the consequences. If you think about it, Nancy is asking me and you to subsidize her money-making efforts.

Why isn't Nancy like a polluting factory that is required to clean up or pay for the area it has polluted. I am all for Nancy speaking her mind and as long as she makes money doing it I am sure her shameless sponsors will be for it too. I'd just like Nancy to be around to clean up the mess when the dust settles.

Chancey, Michelle, and Sarah

Remember Chancey from the movie "Being There." Actually that was not his name. He got it when he introduced himself as Chance, . . . the gardener. He is not very smart and does not read or write. Through a series of mishaps he becomes media celeb and Presidential advisor. Here is the dialogue from a scene with the President:

"Bobby": Mr. Gardner, do you agree with Ben, or do you think that we can stimulate growth through temporary incentives?[Long pause]
the Gardener: As long as the roots are not severed, all is well. And all will be well in the garden.
"Bobby": In the garden.
the Gardener: Yes. In the garden, growth has it seasons. First comes spring and summer, but then we have fall and winter. And then we get spring and summer again.
"Bobby": Spring and summer.
the Gardener: Yes.
"Bobby: Then fall and winter
the Gardener: Yes.
Rand: I think what our insightful young friend is saying is that we welcome the inevitable seasons of nature, but we're upset by the seasons of our economy.
the Gardener: Yes! There will be growth in the spring!
Rand: Hmm!
the Gardener: Hmm!
"Bobby": Hm. Well, Mr. Gardner, I must admit that is one of the most refreshing and optimistic statements I've heard in a very, very long time.
Benjamin Rand applauds.
"Bobby": I admire your good, solid sense. That's precisely what we lack on Capitol Hill.

People assumed he was special. A terrific little book -- The Drunkard's Walk (math talk for randomness) -- discusses the way that through luck people who are no more talented thousands of others become stars. And once they have that luck the assumption of expertise follows.
So, since somehow he has achieved a reputation as a genius, everything he says is interpreted to reinforce those expections.

That was alll supposed to be absurd but now with a few of today's politicians, the absurd has become the new normal.

The Trial

I did not keep up with the trial like many others. I caught a bit of the closing arguments and about 20 minutes of testimony. Most of my reasons are based on hearsay and news reports.

1.In my short exposure, the lawyer I would most like to fire would be the smirking prosecutor. He was entrusted with millions of taxpayers' dollars and, if it had been close, his wise ass behavior could have lost it.

2. There should have been a directed verdict at the end of the prosecution's case. I say that because when they ended there was reasonable doubt and the fantasy world painted by the defense did not damages the prosecution's case -- it was weak from the outset.

3. I fear that the defense attorney will be viewed now as having done a great job. In fact, I think he gets a C at best. Or, put differently, the defendant won despite the defense her attorney put on.

4. I believe there was reasonable doubt here and the jurors overcame personal feelings to get to the result. In the OJ case there may have been reasonable doubt but I do not think the jurors would have overcome their personal feelings to get a conviction if there had not been.

5. It was painful watch the State's Attorney on TV try to cover his butt after spending so much on so little.

6. Public reaction further convinces me that if it were not for the Bill of Rights we would live in a police state.

An Elite Education

This article by William Deresiewicz is so thorough and consistent with my own experience that to quote a couple of high points does not do it justice. Nevertheless, here are some blurbs:

"Elite schools pride themselves on their diversity, but that diversity is almost entirely a matter of ethnicity and race. With respect to class, these schools are largely—indeed increasingly—homogeneous."

"I learned to give that little nod of understanding, that slightly sympathetic “Oh,” when people told me they went to a less prestigious college. (If I’d gone to Harvard, I would have learned to say “in Boston” when I was asked where I went to school—the Cambridge version of noblesse oblige.) I never learned that there are smart people who don’t go to elite colleges, often precisely for reasons of class. I never learned that there are smart people who don’t go to college at all."

"I began comparing my experience, and even more, my students’ experience, with the experience of a friend of mine who went to Cleveland State. There are due dates and attendance requirements at places like Yale, but no one takes them very seriously."

And now the most perceptive. I've often wondered if I am the only one who noticed this.

"Being an intellectual begins with thinking your way outside of your assumptions and the system that enforces them. But students who get into elite schools are precisely the ones who have best learned to work within the system, so it’s almost impossible for them to see outside it, to see that it’s even there. Long before they got to college, they turned themselves into world-class hoop-jumpers and teacher-pleasers, getting A’s in every class no matter how boring they found the teacher or how pointless the subject, racking up eight or 10 extracurricular activities no matter what else they wanted to do with their time. "

This passage reminds of the opportunistic Tiger Mom (what ever happened to her?), the self-professed non thinker. I also reminds me of not all but so many people I see entering law teaching. Many are poorly educated in any sense that allows them to think or talk about ideas.

Desensitivity Training for Travelers to France

I am a sensitive guy and do my best not to stand out too much in other countries. To this end I am preparing a new training course for all us sensitive people. Like most American men I've been taught that, when it comes to women, "no" means no. In fact even yes can mean no. Never say anything like "Your legs look peachy in that dress." And flirting in the work place is completely off limits. This is a very easy one for me to observe since I am not sure what flirting means exactly.

But for sensitive academics traveling in France this is all wrong and so some desensitivity training is in order. Evidently, in France, it is perfectly acceptable to assume that no means yes. And, if you do not comment on those dreamy, peachy legs, you may be insulting your host and hostess. (I feel certain that in France the use of the ess is acceptable, if not required.) I am not sure I can get all of this down without some lectures by real French people who have lived with the American respect for women. I really need to feel their pain, understand just how they feel and, specifically, I need to know about the every day unconscious things I do that are hurtful to them.

When I am finished with that I will work on advancing the criminal law with the adoption of the affirmative defense to sex crimes -- But I am French.

New Yorker Book Review

A short excerpt from a recent New Yorker book review:

Few people are fully reliable reporters of time use. But if students are studying less it may be because the demands on them are fewer. Half the students in the study said that they had not taken a single course in the previous semester requiring more than twenty pages of writing. A third said that they had not taken a course requiring more than forty pages of reading a week. Arum and Roksa point out that professors have little incentive to make their courses more rigorous. Professors say that the only aspect of their teaching that matters professionally is student course evaluations, since these can figure in tenure and promotion decisions. It’s in professors’ interest, therefore, for their classes to be entertaining and their assignments not too onerous. They are not deluded: a study carried out back in the nineteen-nineties (by Alexander Astin, as it happens) found that faculty commitment to teaching is negatively correlated with compensation.

Still, Arum and Roksa believe that some things do make a difference. First of all, students who are better prepared academically for college not only do better when they get to college; they improve more markedly while they’re there. And students who take courses requiring them to write more than twenty pages a semester and to read more than forty pages a week show greater improvement.

Read more http://www.newyorker.com/arts/critics/atlarge/2011/06/06/110606crat_atlarge_menand#ixzz1OnBeV0tA

The Matrix Revisited

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 "peer-reviewed” 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 faculty member goes all out to be appealing to the students. Assignments are modest, demands in class low and there is plenty of outside of class mingling. The professor's teaching evaluations are very high and he concludes that he is an "effective teacher."

3. A new course is proposed and the faculty considers whether it is a 3 or 4 credit course. One argument in favor of labeling it a 4 credit course is that it could then be regarded as a full assignment for the faculty member teaching it.

4. 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.

5. 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.

6. 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.

7. Your faculty teaches twelve credit hours per academic year. This translates into six sixty-minute teaching hours per week. A faculty committee proposes reducing the teaching load to nine credit hours per academic year and reducing the class period to fifty minutes. An acceptable basis for reducing the class period is "We would still comply with accreditation requirements. "

8.In the course of arguing for a candidate a faculty member who knows the candidate expresses pleasant surprise that the candidate has been considered by the appointments committee. "What a wonderful coincidence." In the file that has been distributed there is a long letter from the candidate to that faculty member discussing the faculty member’s extended efforts to convince the appointments committee to recruit the candidate.

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

Power Breakfast: Rerun

Here you go. To get you started in the morning.
Take one or two slices of bread. I personally like one thick slice.
Toast it or not, it's up to you.

Spread it with butter, margarine or one of the low cholesterol spreads.

Now sprinkle all over it dry roasted sunflower seed kernels. Lots of them! They stick nicely to the spread. I getting hungry just thinking about this.

Finally, jam, jelly, honey or what ever you like on top. If can skip the underlying spread and the jam and just use Nutella and put the sunflower seed kernels on top. Probably you should work your way up to this.

A wonderful breakfast that will supercharge you for the day.

Nutty and sweet -- just like my favorite people.

Fast Five

Can a film be cause for celebration? Most, including me, would say no. If so, I challenge them to rethink their position after seeing Fast Five. It aims exclusively at the sophisiticated viewer and dares him or her to think about what a medium that has lost its way can be. The film is moving, inspiring, and likely to cause some to drive really fast when leaving the theatre. Directed by Justin Lin of "Fast and Furious: Tokyo Drift" and written by veteran Chris Morgan, their effort is not simply award worthy, it is a life altering experience. Set in the dreary favelas of Rio de Janiero, the pulse of the film is provided by Sir Vin Diesel, fresh off his extened run as Macbeth the Old Vic; Mr. Dwayne Johnson, most recently of Westlemania 27; and Mr. Johnson's spectacularly aggressive biceps. It is good and evil with the prize the unborn niece or nephew of Dom, Sir Vin's character. The homage to Rosemary's Babe is touching and sincere. The chemistry between Sir Vin and Mr. Johnson might best be decribed as a testosterone bath culminating in the film's finest scene when Sir Vin has an opportunity to drive a monkey wrench into the skull of Mr. Johnson. This scene will immediately take viewers back to Citizen Kane or at least their film studies classes in which every instructor taught them if they did not worship Citizen Kane they better fake it or risk getting an F on the final exam.

A superb supporting cast includes Ludacris in the role of Ludacris and Joaquim de Almeida, reprizing the role he so-often played in "Miami Vice" opposite Crockett and Tubs. Sung Kang, however, steals the show with his understated performance as Han. Kang is the newest Belmondo and his performance is Belmondo at his best -- think Breathless, unless you have been under a rock.

Most of the audience will simply laugh, groan, moan, cry, eat milk duds and text message. The film is lost on them. They will not recognize the magic and the celebration of art in Fast Five. For the sophisticated viewer it is cavier and champagne.