Sadly, Obama

Clearly, whether ingrained or affected, Obama is an elitist. To be sure he is the candidate of the elitists. This has been no secret but the Times article (July 30) about his time as a law professor reveals things that perhaps only a law professor can appreciate. For example,"He was also an enigmatic one, often leaving fellow faculty members guessing about his precise views." Or this quote from Richard Epstein, "“His entire life, as best I can tell, is one in which he’s always been a thoughtful listener and questioner, but he’s never stepped up to the plate and taken full swings.”

Another excerpt, "Nor could his views be gleaned from scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling to put his name to anything that could haunt him politically, as Ms. Guinier’s writings had hurt her."

Sound familiar? Yes clearly Obama knew how to play the game. He was careful not to extend himself or to offend anyone even if it means passing on chances to do some good. What the Times did not say is that Obama was, in fact, the model of the type of person most sought by law school hiring committees.

There is one important distinction between Obama and elitist law professors. Even if he was totally calculating he at least had an important goal in mind. For the day to day careful law professor who is similarly careful the ends are hardly as lofty.

I will vote for Obama - don't even know who is on Socialist Workers' Party ticket -- but I don't like it.

The No Shame Zone and Shambotomies

The role shame plays in the lives of some people and not in the lives of others hit me like a love bug hits an interstate windshield. I am sure that shame is the right word. Consider the dictionary definition, "the painful feeling arising from the consciousness of something dishonorable, ridiculous, done by oneself or anothers." It's that feeling from a twinge to a deep hollowness that is you telling yourself that you or someone else has been unfair.

So a hardworking guy where you work gets canned 5 years short of cashing on his retirement and some feel shame and others do not. A secretary makes 25K a year while a law professor makes 200K a year. Some feel shame and others to not. A person "volunteers" for a nice teaching assignment while not even disclosing its availability to others. No sense of shame what-so-ever. I cannot say if all institutions governed by elites are no shame zones because I know some elites who are capable of feeling shame and do feel shame. I also know some who are capable of feeling it and fight against it with with their infinite capacity to rationalize. But, I have to admit, if there is anything that seems pervasive when elites are around it is an absence of shame.

Are All Elites Company Men?

One thing that has always seemed odd to me is the quickness with which people begin to identify with "the man" Go to a department store where the clerk is making $10 and hour and say anything critical about the store and most of the time the clerk will take it personally. It's like they own stock in the store. Is it a power thing? An insecurity thing? I do not know but in the case of working class people who have little power and may be living hand to mouth, it may make sense

But what about your basic tenured law professor who no doubt regards him or herself as "oh so avant garde" or at least an independent thinker. Why are so many sycophants? A dean tells them to do something and they snap to it. Or more often, the dean does something and they look away. Sometimes I think a dean could fire a productive person desperately in need of a job and they would look away. Or the dean could say, "Don't comment on that matter." or "let's make up a story for how we came to have so much money" and they would clamor to join in. Not that many deans are as bad as that but so many law professors are simply looking for an order to follow. Why among elites is there such a powerful tendency not to piss off "the man." And what is weird is that "the man" is not "the man" at all. He or she cannot fire them or really affect their lives in any significant way. Is there something in the genes of the elites that renders them gutless?

Reminds of an old riddle (right now about 8 seconds old).

Q: What do you call a person who gets in a foxhole with an elite?
A. Stupid

More on White People

No doubt most people reading this will be familiar with the Stuff White People Like blog by Christian Lander. It's quite funny and now that the books is out it is getting more national press in the form of reviews. If you've read the blog you know it was not really about white people but, according to the author, "The Stuff is more about class than race." But, it is not just class, it is about "law professors." Actually, no, he did not say that. According to the L.A. times reviewer, "It's monied Caucasian liberals saturated with irony and bedecked in ostentatious authenticity and hard-earned nonchalance. It's not about wealth per se because, as Lander puts it "Wealth was always taken care of in this group of people"

Entitlement and Teaching Schedules

At most schools (and perhaps other places) teaching loads are, in large part, allocated -- except with respect to the instances in which student needs are observed -- on the bases of sense of entitlement, level of moral development, and opportunity costs associated with time spent badgering.

Consider the following: Each year or semester law faculty are asked about what they would like to teach the next term. consider two responses at the opposite ends of a continuum of possible responses.

1. "I will teach Advanced Restitution from the Perspective of the Elderly at 1o, Wednesday. Cap 12 students."

2. "I can teach any of the following 8 courses whenever they are needed the most."

Does the first statement reflect an actual need ( like a standing appointment for an appendectomy at 8 AM or six days of physical therapy a week)? Of course not. Just a preference.

Does the second statement actually reflect no preference? Just as unlikely.

Another difference between the ends of the continuum is the willingness of the person one or those over on that end of the continuum to spend time badgering, slipping down to the dean's office and quietly closing the door, or expecting something in return for being flexible, etc. They exact a "price" for not getting what they want.

So, the differences in these statements do not reflect a difference in need or a difference in strength of preference. There are at least two other possibilities. One is a difference in sense of entitlement. The entitled person expects the school to serve him or her. The other is a difference in moral development with the first person, ironically, fitting the economist's definition of being narrowly self-interested and the second person having a sense of community. Put differently, the second person is willing to subordinate individualized preferences for the good of the whole.

In fact, those willing to subordinate their individualized preferences simply end up giving deans the leeway they need to "serve" those with a sense of entitlement.

Is there a better example of "no good deed goes unpunished" than a law faculty?

Did the Elites Invent Tenure?

I do not know but it looks like it. Elites are very good at figuring out ways to redistribute income from those less affluent to themselves. Think about it. Tenure involves a pre commitment in which (for public schools) taxpayers through their agents (faculty) say "No matter what you do over the next 20-50 years, I want to keep employing you." It's not exactly like the many Venezuelans who voted (on the losing side) to have a permanent President but it's the same type of idea. In both cases, people give up options about the future and it is only rational to do that if there is an eventual payoff.

Here's how it works. Each year an already elitist dominated establishment of law professors examine those who apply for similar positions for a trial period. It's something like a debutantes' ball for aspiring law professors. They routinely select those who are mostly children of privilege. After a 6 or 7 year trial period they then, using the money of others -- students, taxpayers, donors -- grant to most of them lifetime membership. Sounds like a club, doesn't it? Let's think about it. Privileged people invite the children of privilege to join and then, after a probationary period, they invite those who "fit in" to stay forever.

Could they be expelled from the country club? Sure but the reasons are not things like poor teaching, inadequate research or not being willing to teach what is most needed when it is needed. Instead they would have to do something comparable to driving a bulldozer over the 9th green while drunk.

Is there any payoff at all for those who pay the club's bill? Is the teaching better because of tenure? Why would it be? Is the scholarship more meaningful? Remember the question is not whether it is meaningful, useful or influential. It is whether it is more meaningful, useful or influential because of tenure. It seems doubtful but this is not simply the fault of those writing. The truth is that, no matter what they write, not many seem to be listening.

So, who is served by tenure? Who do you think?

No Pain Economies

Many people do not realize that budget cuts in higher education to do not mean greater economies and care in how money is spent. All it means is that the state itself is not forking over the money. If you can get the money elsewhere there is little self-interest-based reason to cut spending or tighten your belt.

This is clearest when you consider one Law School's plan to deal with decreases in state funding -- eliminate students. How does that make sense? The funding is tied to number of students and all the State seems to care about is money spent, not the number educated or the quality of that education. It all works, depending on the elasticities of demand and raising tuition for the remaining students. In public utility terms this is simply passing on the costs. The managers of the utility (administration and faculty) don't feel a thing (except for decreased future pay raises) while the cost is shifted to admitted students and those who will not be admitted who otherwise would be.

As I have often written, publicly subsidized legal education -- especially in some specialized fields -- puzzles me. What is the public good rationale for asking taxpayers to pay for the legal education of others? (How about more special ed. teachers instead?) And, even of that subsidy does take place, why is it related to GPAs and LSAT scores as opposed to need. Given those doubts, this turn to privatization should please me.

But something seems to be missing in the equation. Jim Chen's blog on Moneylaw made me realize what it is. Budget cuts can result in one of two reactions. One is belt tightening. In that sense those affected are part of the broad community of those affected by the economy. Or it can result in scrambling to avoid feeling the squeeze. In this is the path taken, at the very least a Law School planning to apply the same funding to far fewer students should have a plan to enrich the lives of those remaining. If this does not happen, ironically, the result of a budget cut is even greater waste.

The Entitlement Test

There a good test for which law faculty have a sense of entitlement and should be sent on their way and which one do not. I am not sure at all that the distinction fall along class lines but there are many reasons it could.

Suppose you are teaching international dance law (This is fictional with respect to my own school a sfar a I know) and you consistently draw 5 students. You teach another course and it draws a whopping 7 students. In fairness, when the school hired you it knew these were your areas.

What is your reaction? For some the reaction it "I am not pulling my weight. What else might I add to my repertoire of courses." For others the reaction is "This is what I teach and it's not my problem if the students to do not care." In short, it does not occur to this person that there is any obligation to take on equal responsibilities even though not technically required to. Why? Because he or she has sense of entitlement.

If I could rewrite tenure and promotion guidelines, "pulling one's weight" would be near the top of the requirements. Please do not misunderstand, some courses must be offered and will be small enrollment. There is no reason that people teaching those courses could not volunteer to teach a larger enrollment course.

I realize that "pulling one's weight" is not part of most tenure and promotion guidelines. But scholarship is and, for me at least, the people who insist on their entitlement to very little student contact better have massive amount of scholarship -- and I do not mean updating casebooks or treatises --or for me it is a NO vote.

No Working People Allowed in Law School

If you have not seen it, please read the post by Nancy Rapoport on the latest USN&WR fuss. Briefly here is the issue. If USN&WR includes the data (GPA & LSAT) of part time (often night) students in their rankings, will schools be more likely to eliminate or not institute these programs. The suggestion is that they will.

Although I have often derided the USN&WR rankings, now I praise them. While publishing a deeply flawed ranking system, they have inadvertently exposed the cravenness and hypocrisy of some law faculties, deans, and even alums. The magazine has now shown that when between the rock and the hard place of doing what is right and what is expedient, expediency wins.

In this latest possible change in the rankings, USN&WR appears to be reacting to schools that game the system. One way to do that is to admit fewer first year students and then admit transfers. The transfer student data is not included. Another way is to admit students as part time. These numbers too, at least right now, do not count. As USN&WR tries to plug the holes in the dike, Law School officials dream up new ones and none of this, as Professor Rapoport points out, has anything to do with improving legal education.

Now, however, we can see that the burden of gaming the system may fall on the backs of working people. Having taught at an urban school with a night program, I know these people. They often have full time jobs and families and then trudge off to law school at night. Their work ethic is unquestioned. Or they may be stay at home moms or dads who can only get away when their partner comes home. Very few would not be full time if they could afford it. I wonder if the specter of eliminating these programs would be a quickly raised if those relying on them were more privileged.

Graduate School Credit

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

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

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

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

b. Does height affect the rulings of courts?

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

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

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

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

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

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

Rio Lisboa and Law Faculties

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

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

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

Law Schools Should be Juice Bars

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

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

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

Law schools should operate more like juice bars.

Still Worried About Pedro

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

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

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

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

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

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

Worried About Pedro

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

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

Elitist "Trappings"

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

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

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

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

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

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

The Kozinski Fuss

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

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

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

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

The Favela Tour

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

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

Class in Cases

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

Watermelon

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

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

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

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

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

Sensitivity Training and Non Writers

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

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

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

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

Class and Evaluations

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

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

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

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

The Real Class Bias

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

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

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

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

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

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

Yale Recall

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

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

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

Do'in the Legal Scholarship Shuffle

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

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

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

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

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

Are You What You Teach?

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

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

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

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

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

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

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