Germany? 1930s?

It is sinister. Dark skies and a stormy ocean. An announcer warning against a nation in hard times turning to (or is that overtaken by) an unknown leader who has experienced a "quick rise to power." "Rise to power" -- what a frightening and evocative phrase. It makes one think of dictators and kings. What are you thinking about? Germany? 1930s?

Wrong, it is the latest McCain ad. "Rise to Power" must be in honor of Halloween. It reminds me of the TV ad for I do not know what product that has the baby who made enough money to hire his own clown. He says he had underestimated the creepiness. I have always regarded clowns as creepy. On the other hand, I did not realize that a political ad could be creepy. Not, at least since the hydrogen bomb was shown just behind fair-haired Sue in 1964.

To me, Rise to Power goes right to the top or bottom along with both the anti Goldwater ad of the sixties and Willie Horton.

Support for the Sarah Voters

Today I voted in Florida. The act of voting here increases the probability that your vote will count

But to the topic of this post:

No I do not support her. I have already stated that to me Sarah Palin is like 10,000 finger nails scraping along a black board or 1000 cars with mega basses tuned up to brain damage level surrounding me at a stop light. And, I still think her selection is one of the all time most cynical political acts I have witnessed. Really, it is like John "I am so Mad" McCain has told the American voters what he thinks of them and it isn't a good thing and they have taken it as a compliment. (But is it cynical if he is right?)

But the Sarah voters have earned your respect if they vote for her just because they like her. Does that put personal comfort ahead of the welfare of the country? Yes but who cares? Or more specifically don't complain if it is what you do. I have witnessed many many faculty votes and discussions about hiring, tenure, promotion, and salary in which the likability factor dominated. Questionable teaching, borderline scholarship, and concerns about law school stakeholders are ignored or explained away if the candidate is likable enough.

If this were a Budweiser radio commercial I can hear the "real men of genius" theme playing and the salute to those who vote for friends beginning. Right there along with "rolling cooler roller man" and "scoreboard marriage proposal man."

And now the best news of all. Many law professors have something else in common not just with the Sarah voters but with Sarah herself. Yes, it appears her family vacations are timed when she is on "state business" and, guess what, the whole family goes on the state's tab. Does this reflect a sharing of principles that could finally convince some law professors to move over to the Sarah column?

Is the Dachshund a Working Class Dog?

I always thought so. I mean how could any self respecting elitist own a dachshund when he or she could have a golden retriever. Or maybe the working class dog is really a tiny poodle.

Now I have to rethink the dachshund after reading this Don Burness Poem from Brutal as All Olympics Are.

The Meaning of Life

The painter Bonnard knew
Picasso and Andy Warhol knew
Henry James knew
Dorothy Parker knew
P.G. Wodehouse knew
E.B. White knew
Queen Victoria surely knew
And I know
and I taught my students
that the meaning of life
is
the dachshund!

Bitter Hearts: Stephen Crane and Donald Burness

One of my favorite poems is by Stephen Crane:

The Heart by Stephen Crane

In the desert
I saw a creature, naked, bestial,
Who, squatting upon the ground,
Held his heart in his hands,
And ate of it.

I said, “Is it good, friend?”
“It is bitter - bitter,” he answered;
“But I like it
Because it is bitter,
And because it is my heart.

Somehow when a friend who always prefers not to be mentioned by name referred me to this poem about academics, I thought of the Crane poem. This one is by Donald Burness and can be found in his collection, Brutal Like All Olympics Are.

MY ENEMIES

gnathonic toads infesting fleas
this is the tribe of my enemies
joyless drones self-righteous frauds
they honor each other with false applause
jealous knaves consumed by hate
ever eager to extirpate
dull lifeless they cannot soar
on winds of dancing metaphors
what a paltry pathetic thing
to honor Mediocrity as your king
and when the king lets out a fart
they love the smell with all their heart
I wish them scrofulous days ahead
and may they rightly be remembered
as zeros when they're dead

Burness is angry about the people he dealt with in academia. I do not feel nearly as strongly in part because to be that bitter you have to take them seriously. And, for my taste his brush is too broad. Still, for anyone in the college teaching business, things like "false applause," "joyless drones," "Self-righteous frauds," and "mediocrity as your king," must ring some bells.

Are One Chance Students the Victims of Unlimited Chance Professors?

In the last two posts I presented excerpts from The Disadvantages of An Elite Education by William Deresiewicz.

Perhaps the most powerful observation from that article follows:

" . . . [T]he way students are treated in college trains them for the social position they will occupy once they get out. At schools like Cleveland State, they’re being trained for positions somewhere in the middle of the class system, in the depths of one bureaucracy or another. They’re being conditioned for lives with few second chances, no extensions, little support, narrow opportunity—lives of subordination, supervision, and control, lives of deadlines, not guidelines. At places like Yale, of course, it’s the reverse. The elite like to think of themselves as belonging to a meritocracy, but that’s true only up to a point. Getting through the gate is very difficult, but once you’re in, there’s almost nothing you can do to get kicked out. Not the most abject academic failure, not the most heinous act of plagiarism, not even threatening a fellow student with bodily harm—I’ve heard of all three—will get you expelled. The feeling is that, by gosh, it just wouldn’t be fair—in other words, the self-protectiveness of the old-boy network, even if it now includes girls. Elite schools nurture excellence, but they also nurture what a former Yale graduate student I know calls “entitled mediocrity.” A is the mark of excellence; A- is the mark of entitled mediocrity. It’s another one of those metaphors, not so much a grade as a promise. It means, don’t worry, we’ll take care of you. You may not be all that good, but you’re good enough."

What happens when unlimited chance people teach one chance people? They are likely setting them up for failure. Unfortunately, when law schools hire they salivate over elite, unlimited chance people who are likely to treat their one chance students as though they too have unlimited chances. As I have described over on Moneylaw, the effect is to create disabilities. When teachers have no deadlines, give out only high grades, and have low classroom expectations, they lead students to believe there are no consequences for being a slacker. That is true if mommy and daddy supply a life long safety net. But for students who are not similarly situated it can be a trap.

Does an Elite Education Produce Anti Intellectuals

In my previous post I quoted the initial two paragraphs of The Disadvantages of an Elite Education by William Deresiewicz. Maybe the most important passage of that article for those in legal education comes near the end.

"But if you’re afraid to fail, you’re afraid to take risks, which begins to explain the final and most damning disadvantage of an elite education: that it is profoundly anti-intellectual. This will seem counterintuitive. Aren’t kids at elite schools the smartest ones around, at least in the narrow academic sense? Don’t they work harder than anyone else—indeed, harder than any previous generation? They are. They do. But being an intellectual is not the same as being smart. Being an intellectual means more than doing your homework."

Deresiewicz follows this paragraph with a description of elite school students as roughly the equivalent of grade grubbing drones. My sense is that this is a relatively recent thing. At some point in time, attending an elite school could contribute to the development of real intellectual curiosity and a love for ideas. I am sure that still holds for many graduates of elite schools but that is more a testament to their resistance to the elite education than anything else. From my perspective, and it is an admittedly narrow one, I am surprised at how anti intellectual newer elite grads are, especially the double elites. In fact, in many instances they seem to have little or no knowledge of history, philosophy, art, etc. Nor do they find much that is interesting outside of their personal niche.

The Disadvantages of the Elite

The following two paragraphs are taken from The Disadvantages of An Elite Education by William Deresiewicz. It is from the Summer 08 issue of American Scholar.

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. Visit any elite campus in our great nation and you can thrill to the heartwarming spectacle of the children of white businesspeople and professionals studying and playing alongside the children of black, Asian, and Latino businesspeople and professionals. At the same time, because these schools tend to cultivate liberal attitudes, they leave their students in the paradoxical position of wanting to advocate on behalf of the working class while being unable to hold a simple conversation with anyone in it. Witness the last two Democratic presidential nominees, Al Gore and John Kerry: one each from Harvard and Yale, both earnest, decent, intelligent men, both utterly incapable of communicating with the larger electorate.

But it isn’t just a matter of class. My education taught me to believe that people who didn’t go to an Ivy League or equivalent school weren’t worth talking to, regardless of their class. I was given the unmistakable message that such people were beneath me. We were “the best and the brightest,” as these places love to say, and everyone else was, well, something else: less good, less bright. 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.

It's a terrific article.

The Clarence Palin Problem

One of the most discouraging things I have experienced in my profession was the realization that "diversity" did not really mean diversity. Several years ago a recruiting committee of which I was Chair made what is to my mind the most extreme effort ever made to hire diversity candidates. Of course, not everyone was on board. We were, however, able to find a candidate who was willing to interview with us who seemed to cover every base -- elite school, high class rank, minority. Who could oppose such a candidate especially after a fine job talk.? Actually, to my shock, those opposed were the most aggressive about diversity. It seems the candidate may have uttered a few words in an interview session that indicated he would not always toe the line when it came to political issues.

The idea that I had often heard that even "facial" diversity was important went out the window when he was revealed to have conservative views on some issues.

It really is amazing how calls for racial or gender diversity grow silent when the candidate fails a particular litmus test. As we know from the Clarence Thomas episode, it never really was about being an African American. Politics was more important than race. Having gone through that experience, what was John McCain thinking. Was his thought process really that Hillary voters were so wedded to gender as her main appeal that they would switch to Palin when Hillary was not nominated. Give me a break!

Race and gender may carry some weight with the choir but they are always second to ideology.

Is Sarah Palin Uppity?

"Uppity" is a word I have never heard used except in the context of discussions about the word "uppity." I see in the press that it is used from time to time to describe people who are asking for greater respect and deference than they somehow deserve. I think someone in Georgia was quoted as saying Barak Obama is uppity.

I looked in the dictionary for the word uppity and it was "affecting an attitude of inflated self-esteem; haughty, snobbish; rebelliously self-assertive; not inclined to be tractable of deferential." I would not have been surprised to see the same definition after the word "elitist."

Clearly this is not Barak Obama. In fact he is the opposite. He appear to be "affecting an attitude of a deflated self-esteem" so in can appeal to the rank and file.

In reality what uppity means (how can the dictionary get it so wrong?) is not knowing that one's place is below that of those calling you uppity. Thus, when applied by a white person to a black person because the person is black is it is unconditional racist.

I suspect, though, that if white upper class people ever used the word in the disparaging way is it is normally used they would be referring to Sarah Palin. In fact, most of the pot shots and eye rolling from elitist whites are clearly ways of communicating that she is uppity.

For me she is like a thousand finger nails scraping across the blackboard, two hundred cars next to me at a red light all playing the bass so loud that my fillings are rattling and a really large person next to me on a 8 hour flight but not uppity. Slap a Harvard degree on her and change nothing else and she would not be uppity to them either.

Sarah Palin and O.J. Simpson

I am not sure I have seen anything like the Sarah Palin phenomenon since O.J. Simpson. Most of you are old enough to recall that the evidence against OJ was overwhelming. Whether you though he "should" be found guilty as opposed to whether he was guilty seemed largely a function of race. (I have to exempt myself on this because I think it is possible that reasonable doubt did exist.) OJ became a symbol, so much so that he transcended guilt and innocence. Eye witnesses would have made no difference.

Now there is the O.J.'s opposite in Sarah Palin. No matter how utterly ill-prepared she is to be President or Vice President, it does not matter to her supporters. Like O.J. she is a big "screw you" from one group to another. The "evidence" is irrelevant. Well, not exactly. The more it is revealed how unsuited she is, the more she becomes an even better big screw you from one group to another and, thus, more popular. In fact, the delight in her nomination is directly related to how much angst she stirs up in those who oppose her.

Hopefully Palin supporters who could not fathom finding OJ not guilty can reflect a bit now and see that they are engaged in the same kind behavior. They can offer explanations just as OJ's apologists did but their "reasoning" will be just as shallow.

My only question is how long people like myself will be required to pay the price for so many admittedly ill-conceived initiatives in the 60s.

What to do about Levi Johnston?

When it was revealed that Sarah Palin's daughter was pregnant, I, like many parent did not jump to condemn mother or daughter but thought "there but for the grace of God . . . ." I don't have daughters but it's the same thing when you hear of a son who has been caught drinking underage or smoking dope or far worse things. Until you have teenage children, I am not sure you can understand how little control you actually have.

On the other hand, I do not know a sensible parent who does have some feel for the values of the people their kids hang out with. It's impossible to police and you can call it helicoptering but it falls well short of real helicoptering -- like the mother who calls to complain about her son's grade.

So what to make of Levi that gun-toting, "I don't want kids (who thinks they do at 18), "Ya f - - - with me I'll kick [your] ass," I'm a f - - -in' redneck," maybe future son in law of the maybe future President? It is possible for a daughter to be close enough to someone so angry to be having sex and not have attentive parents notice? Or maybe Levi and the possible future first dude just hang together.

For me at least, executive experience starts at home and, if you try, some but not all things can be averted. Having your daughter hang with someone who definitely appears to be a bully and cannot find a condom suggests screwed up priorities or bad management.

What To Do About Sarah Palin

A colleague who is a regular reader came by my office today. "Jeff," he said, "I cannot believe some of the things people are saying about Sarah Palin. You and I both know that if she only had a degree from Harvard or Yale, most of that criticism would go away."

When I challenged that comment, the response and one that I found hard to answer was "All Bill Clinton needed to clean up his act in the eyes of elitists was a fancy degree. She is no more a "bubba" than he is. This is all about class."

I think he is right in one respect. And I am also sure that her selection for VP by McCain is the most cynical act I have seen recently by a politician because of what it assumes about the basic American voter. The one respect in which he is right is that the discussion is all about class. In fact, it has reached ridicule level.

I am not even remotely tempted to vote for her despite my Schadenfreudidan tendencies that rage when the analysis of the elitists go no further than where she went to school, her pregnant daughter, her snowmobiling husband, and all the other things that they find appalling. Wouldn't it be wonderful to see them sweat if she had all of that and her Yale degree.

I cannot vote for her because I disagree with almost everything that comes out of her mouth. From their discussions it seems that elitists will not vote for her, not because of her ideals, but because she should know better than to aspire to something outside her reach.

Teach Your Children Well

What do you teach your children to best equip them for the world? You might start with work hard, be honest, do not brag. Isn't it amazing what bad advice this can be. Take for example the world of legal education. There are many hard workers here, but in a "no good deed goes unpunished way," what their hard work becomes is a way for others to free ride. Have you ever been at the grocery store and had to pick which line to go through. Chances are you picked the line with the fastest cashier. At the end of the day that person's hard work will be rewarded by having to check out twice as many people as his or her slow moving, life-is-one-big-chat, neighbor. The same principle applies in legal education (the only world I know) and I expect everywhere else. In law school those do not work hard force those who have a work ethic to work even harder. Hard workers are often the servants of the goof offs.

Honesty can be a real disadvantage. The close-to-the-vest- do-not-disclose-anything- do-not-write-down-anything mentality prevails and works for those who use it. Very clearly it gives them a boost over your silly honest person. (Or to adapt a phrase from Amartya Sen, the "honest fools.") Somehow the theory that that type of behavior will be sanctioned and eventually eliminated just does not always work out. The prevailing climate is that it is all one poker game and you never disclose your cards. The problem is that the honest people are not playing the game. The concept of honesty as a principle is over. Instead, honesty is meted out in small portions to the extent it advances an individual's interests.

Do not brag. What bad advice that is and what better example than legal education. Self promotion -- whether individual or institutional -- is a way of life. Various entities actually facilitate it. Take SSRN which has so many categories of "top tens" that it is hard to write an article and not receive an email indicating your are in the top ten -- even if it is the top ten articles on elder law and restitution. Resumes are padded so much that could could sleep comfortably on most of them. One page introductions to someone else's article get as much billing as a 200 page effort. And have you noticed some email signatures -- associate this, associate director of that, Director of this or that. Somehow in all of this I think there is a Toby Keith song: "You talk about your degree, your article, your directorship, your summer conference in Rome, your quote in the Dade City Gazette."

Work hard, be honest, do not brag. Think twice before you give your kids this advice or you may be sentencing them to a very hard future.

Class Difference: Part 3, Replay from 2006

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

The River, Springsteen

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

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

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

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

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

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

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

Class Differences: Part 2, Replay

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

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

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

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

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

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

Class Differences: Part 1; A Replay From Two Years Ago

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


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

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

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

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

Generosity and Counter-Preferential Choice

A couple of things came to my attention today from completely independent sources that appear to me to be connected. The first is a short article in the August16th issue of The Economist about experiments connecting physical contact in the form of massages with generosity. The second was a phone call from a friend telling me about an article. From seeing the abstract he concluded "your work should be cited prominently." It wasn't which seemed ironic since the article itself was promoting less self-dealing by law professors. This was annoying but has happened to every law professors and is probably easily off set by the number of times we are cited when our work or ideas are only remotely related to the subject or are a friend just does a favor.

What these two generosity incidents made me think of more generally is the number of times we claim or want to be one way but our actions demonstrate the opposite.

Generosity is good example. I have yet to find any correlation between those who teach in area that stress empathy, "win-win," outcomes and human relationships and personal generosity. In fact, at my School I suspect the most personally giving person in real life situations would be classified by many as "tough" and maybe even intolerant or unenlightened.

I do not want to overstate this. My faculty is brimming with kind people but I also expect that most faculties exhibit a great deal of facial generosity -- kindness that is expected to accrue to the benefit of the giver and make him or her at the very least "look good." This conditional generosity is really nothing more than a trade.

This opposite-of-what-you claim-to-be pattern is reflected in two other ways. One is that the first people to express outrage at supposedly bad conduct are also the first to exaggerate it and gossip about it. And, then there is the top not-being-who-you-claim-be-category -- professionalism. Read all you want on the AALS and AAUP websites about professionalism and ethics and then compare it to your faculty. Most of them will have high ideals but the ones who talk professionalism the most are often just the opposite.

This is actually all uplifting. What it means at one level is that people know better and if they could learn to exercise counter-preferential choices they could be the people they claim to be.

Behave for Success

It's not an official term but what I use to describe those with working class backgrounds who end up in the world of academics is "socioeconomic displacement." In other words, your parents did not go to college, you are the first in the family to do so and your natural career path might be middle management somewhere. Instead you end up is a strange world. The big advantage of the displacement is to observe the behavioral traits of those born to privilege and choose whether to imitate them. If you are willing to imitate, here are some sure fire tips some of which have appeared before in this blog.

1. Be careful not to overuse "please" and "thank you." These are words of weakness. They suggest you are asking for something to which you are not entitled or have received something that was not rightfully yours all along. So you write to a college and ask, "Could you explain the difference between Marx and Ted Koppel." When the careful answer comes back do not instantly write. "Thanks. That really helps!" No, say nothing or if you feel really pinned down when you see the person say "Thanks for your response." This does n0t mean that the response helped -- that would be too much to concede -- but gets you off the hook from expressing any sense of obligation.

2. If you do anything ever, no matter how greedy you were about it, remember to express it as "volunteering." You know. "I am volunteering to let you pick you the tab for lunch." Or, "I volunteered to fly to Paris for the law and fashion conference." Volunteering means someone owes you, not the other way around.

3. Never oppose the administration on behalf of someone other than yourself. A faithful employee gets fired, not your problem. The dean says he is giving his buddies a raise and asks you what you think. It looks good to you as long as you were not eligible for the same raise.

4. Take no position unless you have a great deal of company. This is important. There is no right, wrong, good or evil. It is all about protecting your options. Even if you teach professional responsibility, talk about ethics or attend church or temple. Lying, half-truths, nondisclosure are all permitting in service to yourself no matter how low the benefit to you or high the cost to someone else.

5. If you take a position, show that it does not matter that much. If you show passion or caring you show weakness.

6. Use information strategically. If you have information that someone else wants it is of value to you if only because someone else wants it. Even if it seems worthless to you, hang in there. Some one may ask you and instantly your importance increases.

7. If you are in a discussion and feel you are not convincing the other person, quickly pull out one of the old favorites -- incivility, bullying, offensive behavior. Forget the fact that overuse of these words minimizes real instances of cruelty and inequity.

You are on your way to being a true "professional."

Two Perspectives

Recently a perceptive reader wrote the following comment:

"Doesn't the assertion the law professors are always looking for an order to follow contradict the notion that they always look out for themselves? The posts preceding this one talk about Professors teaching only what they want and not what is needed. This seems the opposite of looking for orders to follow."

It's good question and one that suggests my class observations are not as nuanced as they should be. And they are also too broad. They do not apply to all people or even all people with elitist credentials. Plus, I find it especially bothersome that people immediate think my observations are based on my own school. Some are some are not but mostly they are designed to describe a culture.

In response to the question, I think I overstated things by saying the are looking for an order to follow. A far better way to express it is that they are very conservative people. I do not mean politically but in their behavior. They do not question authority. Many will talk big privately but disappear when it is time to take a risk.Questioning authority, except as a large group, is seen as too risky in terms of being in favor with the administration. Thus it is very rare for an elitist-thinking member to challenge the decision of an administrator as long as that decision affects others. The notion that there is right and wrong and fair and unfair in any sense that is not ultimately self-referential is just not there. I have used the example of a staff person who was fired. He identified faculty and ex administrators who he had worked with and who had been pleased with his work. None of those people expressed any concern about his dismissal except to say "I assume there was a good reason."

How can that roll-over-and-play-dead attitude be squared with a sense of entitlement when it comes to what and when to teach and various other matters? First note that at this point the issue is personal comfort, not principle, right or wrong, good or evil. In fact, to choose a teaching schedule because it would be better suited for the students or institution would be comparable to helping a stranger simply because it is the right thing to do. I have mentioned the example of a faculty member who claimed that a certain course should be 4 credits not because of the time or work involved but because it would mean that it could then be regarded as the equivalent of semester's teaching load.

This leads to two conclusions. One involves not going out on much of a limb. The unifying theme is narrow self interest. The other is one I am not sure of and it is the possibility of a quid pro quo between faculty and administrators. When faculty members stand up for a cause that is focused on students or taxpapers, by implication it is criticism of the administration. The informal exchange is that administrators appease faculty selfish needs and faculty look the other way on issues that affect others. I am out on a limb here and I mean it. I do not know for sure this occurs. From my albeit narrow perspective, however, I believe I have observed very starkly evidence that faculty who play ball with administrators -- even when it means abandoning students and tax payers -- are rewarded.

Communication and Class

I hope the handful of people who read this blog do so with a critical outlook. If I've got something wrong, I am interested in hearing why. It is true that if you send a mindless or insulting comment I will not "print" it but anything substantive and on point is welcome. I mention this now because I have a theory about class-based means of communication that could be dead wrong.

Over the last few months I have run into instances in which people said the prefer to talk about something "in person" and not in email. Putting aside those cases in which they are simply adhering to the greasy version of the New York Times rule -- "Do not write anything down that you would not want to see in the New York Times." (Real version, as a Moneylaw colleague pointed out to me -- "Do not do anything you would not want on the front of the New York Times.")

Putting that aside I assume people prefer the mode of communication that favors them. People who get away with interrupting, sending visual cues of disapproval, use different tones of voice to say something but in a way that they can claim is misunderstood prefer face to face. There are also probably good reasons for liking face to face but ultimately "like" equates to some version of self interest even if it is just personal confort. I prefer face to face in most informal communications but even when an argument arises with a friend I go for email. I think I do better at email. At least the listener cannot interrupt email. Plus, I am a sucker for disapproving looks, a raised eyebrow, etc.

My theory as a general matter is that elitists or so-called well bred people (not all of which are elitists) prefer face to face because they have learned that it favors them. Take this example:

Little Billy, 4 year old son of working class family begins to pout when he cannot get roll up gum at the checkout line. The response. "Billy, get that look off your face or you will be sitting in the car and you'll get a licking and I don't care who knows it." A visit to your local WalMart on Friday night may help if you are not following me.

Now compare this: Little Billy, while going through the checkout line at Whole Foods is told "no" when he asks for an organic, free trade candy bar. He pouts. Upon seeing this, Mom says, "Oh Billy, I bet that makes you really sad" and she in all likelihood buys a carton the organic, free trade candy bars or does something else to appease Billy.

Which little Billy will prefer face to face later in life?

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?