$10,000 Reward for Anyone who "Built it Alone"

I am pretty upset with Obama and his "you did not built it" comment. Sure, people are taking it out of context and making a big deal but uttering that sound bite was like fumbling the ball at the worst time. And, it was not a fumble after a vicicous hit. No he was just running in the open field and lost his concentration and dropped the ball. Whether it will be run back for the game winning touchdown remains to be seen but, if it is, he alone is the goat.

Just to test those who are offended because they "build their business on their own" I am offering a  "blow hard" reward to anyone who can demonstrate that the Obama statement does not apply to them. I guess this is an offer to small business owners but it could be to anyone who thinks they earned what ever they have without assistance. A non exhaustive list of the things you would have to prove are:

1. You did not attend a public school or recieve any scholarships.
2. You have not purchased for your business any items that were produced by a firm that employed people who attended public schools.
3. You have not employed people who attended public schools or whose parents did.
4. You have not used, for money earning purposes, public roads, sidewalks, libraries nor  have any of your employees or the people from whom you have made purchases.
5. Your parents did not pay for your education.
6. No one ever told you something you did not already know without being paid the full value of that information by you.
7. You have not purchased any items the quality of which is assured by any kind of goverment regulation. This includes engaging the services of anyone who the state has deemed qualified as a result of passing one type of exam or another.
8. No worker you hired was ever paid less than the revenue to which their efforts gave rise.

Yale Tries to Lock Up Law Professor Market With Yet Another Brand

It has long been known that one way to buy your way into law teaching, other than receiving a JD from a elite school,  is to buy a  LLM or a SJD from a comparable school. In fact, the highly ranked law schools offering those programs aggressively promote their graduates as potential law teachers. But now Yale is prepared to go one better. Yes, a Ph.D. for those who want to be law professors. OK, so what happened to the LLM and the SJD?  My guess is that this is just a move to differentiate the product and the substance will not be that much different.

On the other hand, it could be very different. There are some things a law professor might be able to learn in a program specifically designed to prepare him or her for law teaching that might be left out of another program. Here are some courses that are likely to be offered:

LAW 200: Conserving and Promoting the Brand

At the end of this process, you will possess the Yale brand. Protect your investment. This course concentrates on preserving the Yale image. For example, should you have a vanity license tag? How about a sweat shirt?  How can you mention you went to Yale and make it seem natural? How to ensure your children are admitted to Yale. How to make sure Yale grads are at the top of the list of people your future school will hire.

LAW: 300 Networking

The successful law professor networks. This means forming connections to people you do not know but who may be of use to you. Topics include: how to only network with those who can help you, how not to network with people who would like help,  compliments to offer when approaching a potential network partner, remember what people look like, remembering names, name dropping, etc.

LAW 400 Confercating

A successful law professor never pays for a vacation. Instead they go to conferences. This course stresses how to create a conference, how to get invited to a conference, how to classify expenses to ensure reimbursement. A significant part of the course is field work in which conference venues around the world will be visited.

LAW 500 Ingratiating Behavior

This is cross listed as Butt-Kissing. Whose butt should you kiss? And when? This is a skills course. You must learn to stroke the egos of those who can help you but not in a manner that is obvious. In addition to class there is a 2 hour lab.

LAW 600 Planning Your Teaching Schedule

Your research demands long stretches of time unencumbered by pesky students. All classes should meet from 11-12 AM on Wednesday.  Teaching on Friday interferes with Confercationing. Monday classes are not held at all at any reputable law school but if they are held you are entitled to  claim it was a plot to impede your productivity.

LAW 700 Testing and Grading

One word here:  Don't worry. In this course you will learn about delegating the entire process to others. Key areas are: How to download multiple choice exams from other sources, how to give the exam to your secretary to grade, and how to avoid students who have questions about the exam.

LAW 800 Getting What You Want

It is always better to get what you want in any manner other than by asking. Subject matter includes: Waiting to see if you can free ride on the requests of others, making pleas based  in what is fair, claiming that not doing it your way is punishment, volunteering to do what you want to do instead of asking. For example, "I volunteer to travel to Rome."

The Season of Confercationing

I have not read anyone who captures the conniving by academics to vacation on someone else's dime better than David Lodge.  I do not recall the book title but in one he has a character doing the grand tour of Europe by linking conferences together. That is probably not uncommon. I think some academics only vacation when its paid for by their school or, at the very least, they can write it off. Let's call it Confercationing.

Sometimes the Conferences are held by actual organizations. I have been to both Geneva and Amsterdam in connection with one such organization but I do not want to be too hard on that organization since it was international and strives to rotate the meetings.

Some Conferences are just people who decide, "Hey lets have a conference." I was casting around for an example of the "Let's have conference so we can have out trips paid for" and I found a humdinger. I am not going to name names because I'll bet this is representative of hundreds of others.

To have a really good Confercation you need to have an organization with members in foreign lands so you can go there or, if there is no organization, it needs to about international something or other. This is especially true if all those Confercationing are from one school. But if they are all from one School it is, by necessity, small but has a big title. For example, the Conference on International Judicial Systems which I made up but, if it exists, would mean that 10 or 15 people from a school and their buds could go to a difference country each year -- not including any of the "Stans" or anywhere too hot, too cold,  too far from a fancy hotel, beach, or mountains or too inexpensive. You really have to watch that last one. Too inexpensive means no one will show up.

The conference I actually found was thousands and thousand of miles from the school hosting it and it was necessary for 13 members of the same faculty or some pals to go along. It was of the international variety although some participants seemed to have no connection with international anything except subsidized travel.

When you are confercationing you do not want waste too much time on the actual conference and you sure do not want anyone to prepare anything very scholarly to present. So, a day and half will do it and, lets see, sessions on "directions," "prospects," and "considerations" are all important as is an opening and closing session. Six people per hour and a half means not having to say much especially if the audience gets to ask questions. And, no need to schedule any time between sessions as that would mean they might actually go the full hour an a half and require each person from thousands and thousand of miles away to speak for a full 15 minutes.

Damn! I gotta go. My plane leaves shortly for the Greek Islands where the Comparative Contract Law Conference, which I organized, will be held. To economize I only invited myself but I promise to present my paper "Comparative Implied Obligations to Street Entertainers" to someone. I'll have plenty of time on the plane to scribble down my remarks which will last 10 minutes, max.

The Law Professor's GPS

I finally have a car with a talking GPS.I have many complaints about it.  Mostly it is culturally insensitive. For example, the speaker might say, "turn left in 400 yards." Suppose, though, I were a country boy. Wouldn't it be better for her to say, "Bubba, when you get on down the road aways, hang a left." Or, if I had the low self-esteem model I want to hear after a turn, "Excellent" or "you are such a good driver." In fact, just periodically she could say, "I am still here and you are doing fine." There are so many variations. If Valley Girls is still relevant concept how about, "like really! how about making a right turn." For the hippie, "Duuuuude, if you want to a right turn in 400 yards would be like groovy. I'm just sayin."

 The biggest problem is that law professors cannot possible understand what she means. I want something a bit more Socratic:"Which direction do you think you should turn" and then, "Ok, but suppose your destination is on other side of town?" And then, "But why would you want to go there in the first place.And, then, "so what is the answer? turn left or right?

 Or she could do what many law professor do when a student gives exactly the wrong answer in class, "Yes, that is wonderful and thoughtful turn but think about the possibility that we could improve that analysis by considering two right turns." Or for the law professor who is even more sensitive it would be "Please consider making a right turn but first 'how does that make you feel?'"

 If you are law prof with a strong sense of entitlement her lack of indirection and sensitivity to status must be quite upsetting.  For example, what is this with "prepare to make a right turn in 400 yards" or "make a right turn now." Does she know to whom she is speaking? Does she even know that "to whom" is used correctly in the previous sentence. Frankly, I think apologies may be in order. The one I dislike the most is "make a U-turn." The implication is that I have made a mistake. That, we know, is not possible. Why doesn't she say, "I am pretty sure you are going the right way but just to placate my anal propensities would you consider turning around?" Or better yet, "Professor, you have made an excellent turn but I have some concerns about reconciling that turn with the destination you entered."  Or even better than that, "You are right, I am wrong, St. Augustine is west of Gainesville. Please forgive me."

Anthropological Notes 5: Michigan Law Review Cite Count Project (Is this serious)

As some readers know Michigan Law Review has published an article on the most cited law reviews articles. Before I go on to the frightful possibility that anyone takes it seriously, I need to make a few points. First, I'd be happy to be on the list. Second, the authors on the list are certainly not responsible for creating the list. Finally the  assessment of SSRN is the best I have seen and the Michigan authors' discussion of why their numbers could be off is first rate.

 But, ultimately there are many anthropological observations to make based on the list and its existence.  Let's start with one of the last and perhaps most nonsensical passage in the work: "In the end, regardless of the publication venue, all involved in publishing legal scholarship should be striving for an environment in which authorship, affiliation, and editorial responsibility are clearly marked so that readers can fully evaluate the credibility of what they are reading."  So in the end, the authors suggest, the credibility of what is written can be determined by who authored the work, their affiliation and where published. To quote a former famous tennis player "YOU CANNOT BE SERIOUS."  My goodness not only do we hire on the bases of institutional authority but now we assess the credibility of what is written by the same standards. Here are a few points.

1. Authority

This type of thinking leads to something I found when recently reviewing a piece for a colleague. He wrote something like this: "It is well known that poor people have less access to dental care."  I do not doubt that this true. His citation was to a Supreme Court Justice who had said just that, without any analysis what so ever. When did a Supreme Court Justice became an authority on income and dental care? I suppose when you join the institution of the Supreme Court you are deemed to be an authority on everything. Of course that is hogwash just as is the suggestion that credibility should be assessed on who said it (not their support) and where is was published (as determined by a third year law student) and where the author teaches (as determined by a system so rigged it would make professional wrestling look legit.)

2. Why are Some Cite Counts High

A friend once told me that he found a really good article in the Buffalo Law Review but he was looking for the same general statement somewhere in the Harvard Law Review. I asked why and he said "So the editors will be impressed." The Michigan article notes that articles published  in elite journals and  written by people at elite schools are cited far more often. Thankfully, except for the quoted passage they do not otherwise say those are the best or most influential articles with respect to anything that matters. That would be like saying "We have found the 100 best articles and, oh, what a coincidence, they just happen to be in elite journals and written by people at elite schools." This would overlook the reason they are are cited. They are in the top  one-hundred in large part because of where they are published and who wrote them. Their inclusion in another article is a bit of advertising. --  the implicit message of the author doing the citing is sending is "What I am writing must be good because look where what I cited was published and by whom." In short, another word for "cited" is "used" and it means used as a means to an end and the ends is publication, regardless of quality.

3. Guess what.

 The authors do think since we are talking about law review articles it might be good idea to see how they have affected actual law.  This, however, is way too hard  especially when we can so easily count articles citing articles. The authors evidently make a stab at it with the results appearing in Table XI. I am sure this is my mistake but the pdf available from the law review web cite does not have a Table  XI that I can find. Nevertheless,  I agree that assessing impact by looking at case citations is difficult (Coase, by the way, the leading article, has 47 in 52 years according to ALLCASES in WESTLAW. That's less than one a year and if you toss out the 7th circuit opinions the total shrinks) but what they conclude is that the legal citations to the most cited articles in law reviews is "respectable." "Respectable" is not defined but I suppose that includes the whopping 4 citations in 49 years for number 15 on the list. And the 10 for number 33. And 10 more for number 19. There are 18 for number 8 on the list.  I did see some that were relatively high but I am no more sure what "relatively high" means here than the authors are of what "respectable" means. Perhaps on Table XI the numbers are higher but what does that tell us much without knowing how often other articles -- including those not in the top 100 -- were cited.   Hey, I am beginning to wonder if someone will cite the Michigan article for the proposition that the courts cite the 100 hundred at "respectable" levels. After all, it did appear in Michigan so it must be true.

4. Impact

The authors tell us they are measuring impact. Let's think about that. There is "impact" and there is "impact." If  you write something for a fancy law review and someone cites it because of who you are and where it is  published in hopes that their own article will be cited, I suppose that is impact.  But it is impact within a group that largely write for each other and have no impact outside their society. Think of 20 films directors. The make movies they exchange. Very few others see them. Periodically they rank their movies based on how often the movies are paid homage in other movies. Is that impact? And is counting the number times this happens scholarship?

Revisiting Anthropological Notes 3

What follows is a comment on Anthropological Notes 3. I am posting it because I think it is a very insightful  and partially correct criticism of the original "Anthropological Notes 3" and I wish I had thought of some of it.  I'd comment further myself but I have forgotten what irked me as much as it did. I think the commentator is right when he or she mentions "the context."  In fact, I was mocking the context because of its standards for what was to be regarded as noble and what was regarded as an appropriate reaction.  In a way, I guess that supports the thesis found in this little series of "notes." The context is an unusual and bizarre society. As an aside please do write any comments complimenting me on admitting my original blog might have been off a bit. Admissions like that are what normal people do.

Hi Jeffrey,

I am a fan of your blog, but I think you've got it wrong on this one. I was one of the law professors who complimented Rod Hills on his post and I did so precisely because he did something that you have repeatedly noted elites are almost constitutionally incapable of doing: demonstrate the self-awareness and sense of shame that are necessary to combat the sense of entitlement that you regularly rail against. 

I think you are correct when you write that Hills was not fishing for the kind of praise he received. Interestingly, this very fact seems to make the compliments paid to him--the very compliments you mock—even more warranted; in fact I am surprised you did not join in the complimenting. Others, many of whom think like you do, saw the genuineness of his humility and self reflection and thanked him for it. It's important to do this in a culture (that is, legal culture generally) wherein it seems the default response is to see such humility as a sign of weakness rather than to praise it as intellectually and personally brave and of great utility for systemic change. 

So I agree that Hills' post was not the Gettysburg Address but that actually helps make the point. It merely highlights the very premise driving Hills' apology and post. Given the insular nature of law professors' existence, such manifest shame is so unusual that the self-awareness he demonstrated becomes almost profound in context. Everything is relative. The commentators realized this and were thus inspired to give Hills a shout out. And I don't think the specific wording they chose to use was as inflated as you seem to think—again, given the context. The commentators were perhaps a bit more sensitive to the key considerations than you are being, which is, to your credit, not necessarily the norm. 

Anthropological Studies 4

Over on facebook I sometimes field letters addressed to the Law School Ethicist. It's a take off on the New Times Sunday Magazine column. I don't attempt to answer the questions sent to the "ethicist."  I am not qualified. I also do not make up all the questions asked. Almost all of them are based on actual incidents or are submitted to me. Recently I received this from a  close law school friend. His question in many ways captures something of the strange world of law professordom. 

Dear Jeff: Could you pass this on to the ethicist? What is the intention of the hiring process, exactly? I know that there are more than two views, but let me try to limit my question to two, since these two seem to me in tension. The first is a transparently meritocratic intention that acknowldeges a glittery resume indicating the potential for success in an academic post (success meaning advancement of various types for the new hire, the school, and its students). If the potential is realized, then so be it; if not, then it seems either the new hire squandered an opportunity or was overestimated by the hiring powers. Time for both to move on. The second is an opaquely nurturing intention where the hiring powers accept responsibility for the new hire as though the act of hiring was something they have done to (as opposed to for) the new hire. If he or she tanks, it is the fault of the hiring powers, not of the new hire. Accordingly, the promotion process is influenced by feelings of compassion manifested in utterances like "we need to bring Johnny up to speed before his next review. Let's get him some mentors!" Under the nurturing approach, the decision to hire carries an obligation to promote the new hire if at all plausible. Does the Ethicist prefer one approach to the other? Please advise.

My answer is that I personally prefer to first approach albeit administered in a helpful way. In the real world of law school hiring the second may be attractive but quickly morphs into a process that is really designed to avoid change and reinforce the power of incumbents. Nurturing has a nice sound but the goal of "nurturing" is to avoid having to admit a mistake. And nurturing, in the world of law professors, soon becomes creating an illusion about the new faculty member. Lousy scholarship is phrased and mentors scramble to make sure it is placed and then that it is positively reviewed. Someone who is slow in producing becomes "brilliant." Someone who has trouble in the classroom will have the classroom visited and the report will invariable be that he or she is a well organized and caring teacher who is actually too good for the students.  

Hiring someone does carry with it the obligation -- to the institution -- to do what is reasonable to help them succeed. But remember, they are typically adult graduates of elite law schools. What is reasonable stops well short of the hand-holding which is what typically goes on -- teaching loads are reduced, summer grants are granted,  and multiple mentors are appointed. In a very real sense it should be insulting to the new hire. What is reasonable also stops when those hiring begin to act like success or failure reflects on their own judgment and grease the skids. When they do that all they do is tenure someone and donate to them for life a position maybe a person who actually would be productive would hold. But such is this strange culture. 

Anthropological Notes 3

I have spent some time lately reading other blogs. I like Above the Law and find The Faculty Lounge interesting. There is another blog, however, that makes my efforts at exposing the bizarre word of  privileged professors look feeble, at best. On that blog one can easily find commentary over days and numbering close to triple digits on what to do if someone does not keep an appointment or if an email is quoted. There are issues like just how oppressive it is to grade exams.  Just go there and forget about this blog. Entire dissertations could be written about the characteristics of the culture you will find.

It is somewhat like a faculty meeting -- a great deal of aggressive self-interested behavior carefully disguised so as to appear like civil discussion.  It's amazing the number of ways people can tell others they are idiots but maintain their deniability. And, some of the butt kissing is embarrassing. When you like someone's post or comment there are congratulatory platitudes that will make you want to look away. "Thank you for doing this, and for contributing to thoughtful discussion on the internet." says one. Another goes with, "An extraordinarily gracious and knowing post." And how about,  "This post is a remarkable act of introspection and self-interpretation." And what are these comments referring to: The Gettysburg Address? Letter From a Birmingham Jail? Meta World Peace's after game commentary?

Not exactly. These comments are for an admittedly privileged and sheltered law professor who wondered "out loud" on a blog what one might do to overcome the handicap of privilege. Yes, in a sense he was wallowing in the self pity induced by knowing he has it made. No, I am not kidding and I want to quickly add that I do not think the writer of the original piece was fishing for this level of gushing.

In subjective competitions it is said that judges keep the scores of the first competitors low in order to save something up if another competitor blows them away. What have these commentator held back? What do they say if they read a spectacular article or a moving poem. Maybe "Your analysis of Citizens United made me weep." "I knew from the first line that I was not worthy of your genius."

Remember, this was for someone -- one of their own -- who basically asked "Is there a way for me to be less of a jerk."

Anthropological Notes 2

In visiting the tribe over an extended period of time one thing that stuck me was the emphasis on a game that when I was a child we called "make believe."  In those days we might pretend we were doctors or police men. The "make believe" I have observed can only be called "I am important."  The truth is that almost no members of the tribe are important except in the context of the game.

For example, thinking I was part of the tribe a book publisher called me. He asked me to collect articles from members of the tribe on a particular subject and, if I did, he would publish them in a book. My name would go on the book as editor. But then he added,  "you really do not have to do anything. Just tell us which articles you want to include and we will get them for you." I was puzzled.  I would have my name on a book -- something highly valued by the tribe- but I actually  would not do anything useful.

This pretending to be important ritual can be observed at annual meetings.  Members of the tribe from all over gather. They give speeches to each other which no one remembers. They seem to take turns giving these speeches. After each one, they clap and then they are viewed as having done something important.But they are only important in their own minds. The game, as best I can tell is that I will act like you are important if you will return the favor. This reciprocity does not carry over to financial matters. For example, there is usually a contest to see who knows the best restaurants in the cities where  these meetings are held. When the bill comes, the members can spend hours calculating who ordered what and what each person should pay.

One prominent example of the "I am important" ritual actually occurs at these dinners when the waiter-person comes to ask what each person would like to eat. Each person has very special needs. Like "water, no ice," no nuts," "dressing on the side," "please substitute peas for the Lima beans," "is the chef unionized," "please place my order in the original Cantonese," "was this plate washed at the appropriate temperature," and so on.  And that is only for the appetizer. The wine ordering ritual is far longer.

The "I am important game" is far more extensive than this. Each member of the tribe does some work teaching and writing but far more work publicizing his or her work. Announcements are made about meaningless efforts, lists are created. Often they measure their importance by the number of article they have published but that are very rarely read.  So, instead of being noted for what was said of importance, the publicity may be "Professor Tom has published 56 articles." This is regarded as better than 35 articles regardless of what the 35 said. Often the articles are based on the talks they gave to each other in return for listening to the talks of others. In fact, these talks and articles are frequently all about one thing but have different titles in order to create the image of importance and higher number. One thing is clear. The tribe has great tolerance for repetition.

I cannot figure out how one knows for sure if he has won the game.

Anthropological Notes

Most of my blogging is devoted to observing a culture that I did not know existed until I jumped a class or two and wound up as a Law Professor. It is as strange to me as it is to anyone observing a society that he or she did not know existed. Some things are small like why everyone is on a first name basis but sometimes in faculty meetings they shift to "professor" this and that. Why is there laughter at the dumbest wise cracks. Why to people say  things "are not personal" when ten minutes earlier they were referring to the same person as someone not to be trusted.

There are more serious practices that also seem odd. Why do they value facial collegiality so much when privately they complain about each other. In fact, the most uncollegial thing one can do at times is to tell the truth.  And, it is far more important and acceptable to create history as opposed to saying "Yes, I may have screwed up."

In a field study a few days ago I think I observed the "not technically a lie" norm used again. It evidently is so ingrained in the culture that it not viewed as a negative. For example, a committee comes to the faculty for approval to hire one of 4 candidates on a slate. The committee does not reveal that there is one person of the  4 who is related to a faculty member and will be the choice if the 4 are approved. That one is made an offer and when it is suggested the committee (which in theory works for the faculty) should have indicated what the vote was really about the answer is "we said there was a slate of 4 candidates and there were 4 on the slate." How odd that this is acceptable.   But this is a very simple example of the norm which is pervasive -- not a lie but avoidance of transparency.

But this only leads to the second oddity. It seems like for a majority of those in this culture, allowing line cutting is fine. They would not like it if it happened in a line for movie tickets (a small matter) but when it comes to a friend or relative looking for a job, it's evidently understood that line jumping is normal behavior. So, for example, you might search for someone to fill a position and actually interview or consider 80 people and almost invariable the the "best candidate" is someone you already know or are related to.

Another odd characteristic of this tribe, as I have written before, is the desire to never appear to want anything too much. For example, people are forever volunteering to do what they want to do as opposed to "getting" what they wany. That is, they want to appear that they were asked and are only doing whatever because they were talked into it. They volunteer to be on committees they want to be on, to take trips they want to take and to be the director of departments or "centers" that they want manage. The idea, as best I can tell is a view that all of life is a negotiation and to appear to want something just reduces bargaining power.

There is also an unusual division between management and workers when it comes to committees. Committees are made up of faculty who, in theory, represent and report to the faculty on matters ranging from hiring to what courses will be offered. The committees are, however, appointed by management. Plus, some individuals really want to be on specific committees -- it makes them feel important. So, rather than represent workers (faculty --  and, yes, I use the term loosely) they do what they are told by management. And, if this is questioned, they are appointed to examine themselves to determine if they are doing everything right. In short, there is no accountability to those they purportedly serve.

More reports to come.

The Law School Titanic

Almost 100 years ago the Titanic went down in about three hours. If you cut through the details it was about hubris, greed, disorganization, carelessness and uncertainty. The Titanic "administrators" consistently ignored warnings of icebergs and sped at nearly top speed through the ice fields of the North Atlantic. No doubt that decision was made by those in charge in part because there was tremendous emphasis on being on time. The externalities of hubris and a focus on a singular goal was the lives of hundreds.

Are there signs you are aboard the law school Titanic? Of course. Here are a few:

1. On an ordinary school day you are called by an administrator calls and asks if you are holding class that day. You ask why and the answer is "Because so many others have canceled class."

2. Your dean sends out regular emails congratulating people for their accomplishments. Accomplishments include include being contacted by a newspaper but not being cited by a court or another scholar.

3. You have an externship program under which you charge students for credit hours but do not teach them and, as far as you know, no one else does either.

4. You approve a battery of courses about "Feelings." Not the song, that would be better.

5. Every peer evaluation of the teaching of every untenured faculty is extremely positive.

6. You fudge, lie or massage employment data.

7. Being a "good father" or a "good mother" or a friend or a spouse become relevant in tenuring and hiring decisions.

8. Procedure is created to achieve the desired ends of a few.

9. Warnings of trouble go unheeded until they become incidents worthy of investigation.

10. As the ship sinks (employment rates decline) you take aboard more passengers who are even less likely to know how to swim.

11. When things get nasty, the captain and his crew have a private lifeboat.

Law Schools Discover the Real Market; Something for Nothing

This post reflects two things. One is that having been in law teaching, in fact university teaching, most of my life, I have witnessed the gradual privitization of what once was public higher education. The other is the market working. The problem is that education markets often have an odd characteristic. Students pay for something and many -- not all -- want the least amount possible for their money. It would be like going to the Steak and Shake for a shake, paying your $4.00 (assuming you are not there during half price hours) and then saying, 'hold the shake, just give me the cup."

What is means is that light assignments are often preferred to heavy ones. Missed classes, to a limit, are applauded and dismissing class a few minutes early is highly desirable. If I compared the number of times a student asked "Do we need to know that" with the number of times one said "Could you give me some extra reading" I do not need to tell you the winner. The shorter the length of a required paper, the better. Of course, please no class on the eve of a holiday break. And a higher curve is the icing on the cake as well as unlimited pass/fail options.

How would one draw this demand curve? I am not sure and maybe it is different at schools where tuition is massive. Then again, the cost of going to the library and reading and learning virtually anything is close to zero. Among students, the quantity demanded at that price is tiny. Let's put this way; at every price, many students would prefer less rather than more of what they are paying for.

Now the financial squeeze has forced the hand of law schools. On the cost side there is greater reliance on adjuncts who will often teach for free in order to be called "professor." Teaching responsibilities are increasingly handed off to non tenure track professors whose jobs do not reflect a legitimate search process for the best candidates.

The demand side in more interesting. Law schools are finally getting around to giving many students what they want -- less of everything except nothing (there is plenty of that). On great example is externships which amount to Law schools pimping out the students. The law students work for nothing, the law school collects hefty tuition and engages in what too often is nominal supervision. Some schools have gone as far as offering finder's fees to faculty who "supervise" externships.

Another example is selling credits. For example, suppose you are a foreign student looking for an LLM program. You'd like to transfer some credits to lower your tuition. How does a school make money by decreasing the credits required to be taken on campus. It's easy. Say a one year program consisting of 26 hours of credit costs $26,000. It draws 4 students. Instead give the students 9 hours of credit and charge $17,000. Now you draw 10 students. $170,000K is more that $104,000 and marginal cost does not budge. In fact, credit transfer competition may just be heating up.

I know where this is going and I am ahead of the game. Mail your $1000 to me and you will receive your diploma (please indicate if you want a J.D. or and LLM) within a month.

Refining My Teaching Schedule

Dear Dean Associate:

Thank you for sending me my teaching schedule of the 2012-13 academic year. I see I will be teaching 9 hours. In the first semester it will be 4 hours of contract law. In the second semester, it will be 3 hours of copyright and 2 hours of law and economics. My teaching slots are all on Monday-Thursday between 10 AM and 3 PM. This is a wonderful schedule and I am quite happy except for some very minor adjustments as described as follows:

1. I love teaching contracts but feel I most effective teaching it to students for whom Portuguese is a first language. So, could be put a small requirement that all students registering must be fluent in English and Portuguese. I only ask this to enhance the quality of the students' (or should that be student's) experience.

2. Also, could you schedule contracts for two two hour blocks instead of four one hour blocks. To ensure the best possible use of the teaching facilities, please schedule those two two hour blocks to run concurrently so that actual demand on classroom space is 2 hours per week.

3. I love teaching copyright but have discovered that I am more effective teaching for 3 hours on Friday afternoon. The starting time will have to be flexible and will depend on the start time of the newest film arriving in town. Oh, and please schedule the class to meet in theater 6 at the Regal Multiplex.

4. In the interest of teaching economy I have already videotaped the entire law and economic course. Fourteen 2 hour tapes have been left with your secretary. Please have him upload the tapes so they will be available for the students when they find it convenient to view them.

5. If you would now schedule the two concurrent sections of contracts for Friday morning, that is the last thing I would ask. I will have office hours also on Friday. I am not sure which Friday at this point.

Thank you so much for my schedule. If you need to reach me on Saturday - Thursday, I can be found at by beach house in Amelia Island.

Best, Tristan

Hey Colleague, "Eat My Externality."

I am sure everyone deals with the externalities of others. This is even true for law professors and, I assume, other academics. Take this example, recently a colleague proposed a new course that would be co-taught and capped at 16 students. What is the externality you might ask. At my school students must take 88 credit hours to graduate. Suppose your school has 1000 students. So over any 3 year people the school needs to generate 88000 student credit hours. If you have 60 faculty that means over a 3 year period each must generate about 1460 student credit hours or about 500 credit hours per year. If you teach 16 students a 3 credit course you generate 48. If it is cotaught you can view that as actually 24. Let's suppose you teach the capped course once a year. You teach another 3 credit course with 25 students and a 3 credit course with 50 students. That brings you up to less than half your share if the teaching task were allocated equally.

Now suppose your best bud 25 students is not the only one. Another professor teaches 9 hours with an average enrollment of 20 and another 9 hours with an enrollment of 15. The first generates 180 student credit hours and the other only 120. Remember, this is out of a fair share of 500 per year and the externality accumulates.

Do they think about it? I doubt it. Have you ever heard a law professor say "I just do not feel I am pulling my weight. I'd like to teach a bigger class."

I have framed this as choice but it may not always be. Evidently one of the ways to avoid to the fair share is to be awful in the classroom. So, you might be assigned to teach a potential large group of student but they do not enroll. Or, as happens in some schools, you assign the person to a large first year section, the students protest and the response is to reassign the teacher to something no one is required to take and very few do. It may not be a choice but it is an externality nonetheless.

Teaching is not the only place where professors are quick to let those they refer to a "colleagues" eat their dust. When do you want your classes to be? How about 10-11 MWF. Due to space and scheduling conflicts, not everyone can have that time and those days. Has a law professor every written to his or her dean "I've asked for and received the perfect schedule the last 5 years. I know that means others have not. Consequently, please determine my schedule after accommodating others." I did not think so.

There are many other examples of shifting costs to others. Here is another. Your school schedules class for the Wednesday before Thanksgiving. And each year students ask "Are you going to hold class on the day before Thanksgiving?" Odd question, you might think -- the schedule does not say it is a holiday. Eventually you learn that a fair number your colleagues cancel class that day and the pressure is on you to make it a clean sweep. Does the canceler ever think "Does this effect others?"

Then there are, of course, the make up artists. These are the folks who leave for a couple of weeks and then make up the classes (if they do at all) at semester's end. Here the externality is principally absorbed by the students but it is also not productive to try to teach students who have just had a marathon make up session. At my school we actually have a sanctioned program that requires people to miss class for two weeks. Yes, institutionalized externalities.

My hunch is that this goes on in most jobs but, in my view, law profs who talk about collegiality while producing externalities wouldn't know what collegiality meant if it bit them in the butt.

Kings and Queens of Transaction Costs

[Sorry about the photo but when I Googled "smarmy" this was what a got as an image.]

Granted, I have not had very many jobs but it is hard to believe that individuals in other jobs rely on transaction costs to promote their ends as much many law professors. It may be a minority of law professors but that is all it takes.

Transaction costs typically refers to the costs of, well, transactions, and law professors are rarely contracting with each other. It is probably more accurate to say law professors rely on raising information costs as a means of achieving their own ends. In any case, let's stick to transaction costs because so many people in the business regard life as one big zero sum negotiation . The cost raising is in the form or misrepresentations, half truths, withheld information or engaging in the "not technically a lie" process which, I now understand, is a way of achieveing "plausible deniability." In every exchange, when one person is not on the level it means raising the cost of others to discover the truth or take on the risk of making the wrong decision because of imperfect information. This list is hardly exhaustive. Indeed most self-promotion is overstatement meaning that to know the truth you have to incur costs yourself. Thing of law review submission cover letters, letter or recommendation, and so on.

So here is a small example. The issue was whether to give 9 hours credit toward an LLM to students who completed a night program we voluntarily teach elsewhere. The supporter of granting credit provides accurate information about the off site program that is designed to make granting transfer credit reasonable. The evidence is that there are standards for grading since there is no curve and the grades can be lower than the ones we give our students. What is not said is that there are language problems and we give very easy tests and are careful to pass almost everyone because if they learn anything it is better than nothing. The fact that the curve could be lower is irrelevant with respect to what actually happens. But to know that, you have to incur some costs. In fact, this a a good one in that the person in the best position cost-wise to describe the reality passes that responsibility to those for whom the cost will be higher.

How about one that affects the lives of people who have no idea what has happened to them. A school conducts a national search to fill three positions all currently held on a visiting basis by three people in the neighborhood. The search yields 80 applicants but guess who, out those 80, are deemed to be the best? Need I tell you? Yes, the three locals who are already friends are better than any of the other 80. Is that really possible? I'd say, it's very unlikely. Anyone who wants to challenge this obviously shaky outcome would have to absorb enormous transaction costs.

These are small things. Want to see bigger ones? Take a look at Texas and their "loan" issues. Do you think the availability of those loans was widely understood or did the professors who eventually exposed the scheme have to incur costs to do so? Do you think the recipients talked openly about the "loans" or kinda maybe did not really mention them? It looks like the system persisted because it was not widely know and it would have required some investment by someone to discover it. The Texas example is also good to illustrate why I am betting all the hoopla will not result in any reforms at all. Too many law professors are invested in playing the system and playing means keeping transactions costs high. They seem to believe they are better cost raisers than others.

Indeed, much of legal practice and our system of advocacy are based on raising transaction costs of opponents. If there is anything we know about law professors it is that their most important clients are themselves and they take that responsibility very seriously.

Making Some Real Dough in the Law School Business

In the last post I was able to present a course proposal from one of the more serious scholars and law professors I know. Now another colleague has presented a proposal for an LLM in Advanced Law. The proposal follows:

LLM in Advanced Law

A one year graduate level program.

Cost: $20,000 per student payable in advance.[This is a bargain compared to other LLM Programs.]

Admissions:

All admissions will be determined by ability to pay. If you can pay, you are in. If you can not, you are out.

Program of Study:

This innovative program involves two components.

A. The first is devoted to practical experience. Consequently the first semester is composed of an externship. All students will participate in a work experience off campus. It may be paid or unpaid. Some examples follow:

1. Practicing law. If you currently working for or at a law firm you have fulfilled the externship requirement.

2. If you are gainfully employed in any industry that is subject to government regulation -- fast food, table waiting, floor sweeping -- you have also fulfilled the externship requirement.

3. If you are unemployed and collecting benefits from a government source, you have completed the externship requirement.

4. If you are unemployed, not collecting benefits but living with someone who is, has been or will possible be employed some day you have completed the externship requirement.

B. The second component of study reflects the Law School's commitment to public service. All students are required to have completed 20 hours of study in a program that grants a degree or certificate of achievement or the equivalent. The Law School accepts these hours as transfer credits. Students will not be admitted who do not have 20 hours of study in a program somewhere in the world. This public service is required to complete the second portion of the program.

Degrees and Diplomas

Your diploma will be mailed at the completion of the above requirements. Those applicants who have already completed the requirements may enclose a stamped self-addressed envelope with the tuition payment. The diploma will arrive by return mail.

So You Wanna Be a Law Prof But Not Really?

All you really knew is that you did not want to be a lawyer. So you got into teaching and what did you find out? Law teaching meant teaching law or at least how to be a lawyer. That is not so hot either because actually law is not interesting to you. Do not fear, a whole generation of new courses for the law teacher who wants no part of law has evolved. Here is a recent proposal just received:

Dear Curriculum Committee:

I would like to propose a new course, Law and Life, to be taught by me. I have attached the proposed syllabus. The course will work best if capped at zero students. Because I feel it is important enough to make it available to others, I have decided to cap it at six.

Thank you Tristan

Syllabus

Law and Life

Professor Tristan & Professor Gold (Music Therapy Department)

Materials needed: 1)A Prune

2) My law review article in any of the seven forms I have published the same article.

3) Dancing slippers

4) A gender-neutral Teddy Bear

5) (Optional) Pancake syrup.

We meet every Tuesday evening from 6-8 unless there is a full moon.

Your grade will be based on the weekly assignments as described and a machine graded, multiple choice, take home, open book (if there were one) exam.

Week One: Birth

Prepare for presentation to the class a limerick that describes how you felt while being born. How is this like a new law? Or is it? Dr. Madelain. a recent graduate of our law school who also once read a book about birth will first present a lecture on "What it feels like to be Born and the Law." This class will not be graded. Instead, each student will be given a laminated photocopy of my Harvard degree. I have thousands so do not worry. This means if I forget to mention where I went to school (and I rarely do) you can refer to the card. It is wallet sized.

Week Two: Telling is Feeling and Client Confidentiality

In this class you must tell the rest of the students the one thing you would least like them to know about yourself. You also must tell something about your best friend that you believe would make your best friend mortified. The goal of this exercise is to allow you to experience how a client would feel if you violated his or her confidence. Students telling the most embarrassing things about themselves will receive an A. All others will receive another laminated copy of my diploma.

Week Three: You and the Prune

Please visit the restroom before class. In this class you will sit quietly and observe a prune for sixty minutes. The music in the background will be John Cages 4 minutes 33 seconds. While observing the prune you are required to adopt the perspective of a cat. What do you feel? Please purr if you are so inclined.

In the last hour of the class, you will share the feelings you experienced. This must be whispered. The lights will be dimmed to enhance the darkness. The best presenters will receive and A as well others in the class.

Week Four: Sex and Negotiation: First Experiences

Prepare a 30 minute detailed description of your first sexual encounter. You may use power point. Your first sexual experience, whether you realize it or not, was a negotiation. Think of the steps of that negotiation. Since there are six of you and only 120 minutes, two students will be picked at random not to participate. They will receive a grade of A. This class will be videotaped by a very small person.

Week Five: Self Defense and the Law

Steven Thog, a guy a met while walking my collie, Jung, around the park will present some really good moves to use on unruly clients. There will be role-playing with each of you taking the role of an abusive client and Steven will play the role of you or what you would be like if you were Steven. All students who do not tell the dean about this class will receive an A.

Week Six: Client Movement

You are required to wear dancing slippers. Each of you will have 10 minutes to display the feelings of a client through movement. You may not speak. Is she happy or sad, tall or short, skinny or large?

The second hour of class you must critique the interpretations of your classmates also through movement only. Important: no levitation is permitted during this class. Students who are more expressive or wear the most colorful costumes will receive an A. Students who would have their feelings hurt if given less than a A will also receive an A.

Week Seven: Attorney Movement

You are required to wear dancing slippers. Each of you will have 10 minutes to display the feelings of a attorney in a case involving a legal name change. You may not speak. Through movement you must exhibit your feelings about the client's new name without revealing those feelings to the client.

The second hour of class you must critique the interpretations of your classmates also through movement only. Important: no levitation is permitted during this class. Students who are the quietest dancers will receive an A. Students who would have their feelings hurt if given less than a A will also receive an A.

Week Eight: Review

This week will be devoted to a discussion of which of the prior classes you liked best. How did it make you feel.?How do you think I will feel if you did not love them all? Special guest lecturer is Bubba Henson author of the brilliant article, "Law: So What?" an unpublishable manuscript now in his file cabinet.

Week Nine: Waffles

Thema Henson, Bubba's mother and waitress at the 3rd street Waffle House will be our special guest lecturer. Special treat: She will bring strawberry waffles for all. Her lecture will cover the perils of late night attorney-client relationships. She is not a actual attorney but once waited on a table of 4. Two had BLTs and two had grilled cheese with onions. After the lecture we will think really really hard. The hardest thinkers will receive grades of A. Each of them may keep the A or give it to someone else in the class.

Week Ten: Princeton and Dreams

There will be no class this night. I will be attending the Princeton reunion. The class will be made up between 2 and 4 AM when you are required to dream a dream of your law professors dancing. A's will be awarded to all those reporting they had the required dream. A's are also available if you promise not to tell the dean we cancelled class and did not make it up.

Week Eleven: Multiple Choice Exams

I will mime a 30 minute lecture on why I use multiple choice machine graded exams. Over the next 90 minutes you will each write an essay on "Why Machine Graded Multiple Choice Exams are the Best Way to Evaluate Student Performance." You will mail your essays to the dean.

Weeks Twelve -Thirteen: Guest Lecturers

Yes, I am pretty much out of ideas and don't really like preparing for class so I am going to figure out who I can get to come and talk to you about whatever. It'll be great. Really! These classes are optional plus I will not be in attendance.

Week Fourteen: Aren't We Feeling Better

Tonight the entire two hours will be devoted to a class evaluation in which you will describe how you benefited from the class. Please emphasize how the class changed you for the better. Oh, not that it is relevant, but I have decided to give you all As and there is a plate of cookies at the front of class.

Is Diversity Dead?

Maybe the better title to this should be "Was Diversity Ever Alive." When people think about diversity it is usually racial. To me, that "effort" at diversity was always a curious one. Most faculty I have been around really wanted the least diverse diversity candidates possible. By that I mean African American who went to fancy law schools, had middle class or professional parents. etc. But, I've covered this before and to the extent racial diversity is a goal, I see no changes.

Now, though, I realize I have misusing the term "intellectual diversity." In the past I and others have used the term to mean ideological diversity. It is obvious to most that most law schools are not ideologically diverse. There are few conservatives, perhaps fewer libertarians, and almost no leftists. Instead we have the (not) liberals. Most have an agenda (like I do) that is self-referential. I think of them a psycho-capitalists. Not psycho as in crazy but people who are rational maximizers of whatever makes them feel good. And, what makes them feel good is to be around people like themselves. Call it narcsi-pyscho-captalitism.

There is little hope for ideological diversity.

Intellectual diversity is something different. I could mean different levels of intellectualism -- different levels of pure curiosity and a willingness to go with ideas where ever they may lead -- law schools are not diverse (and not not diverse at a high level)

On the other hand, if intellectual diversity means different interests, it is true that some people really get into antitrust and some love teaching contracts with all of its history and puzzles. The problem is that for most law professors, the breadth of intellectual diversity seems to extend to different facets of law. To put it a bit too bluntly, except for knowing about non law things at a Jeopardy level, they don't seem to know much. Ever heard the subjects of conversation at a law faculty party? I can assure you the range is teensy. Just ask the non lawyer spouses who refuse to go.

I'd add one more element to this. This lack of this version of intellectual diversity seems most evident among younger faculty. It's a given that that vast majority of law professors are graduates of a handful of schools. Yet somewhere along the line it seems like those schools stopped teaching or stopped recruiting people a broad range of interests.

In the olden days of law teaching ,when I began, there were characters and eccentrics and people from fancy schools who could talk knowledgably about all kinds of topics. Now those fancy schools seem to select their students from a very narrow range of intellectual potential and then suck whatever potential might have been there right out of them. Some, thankfully, survive going to those schools but many do not.

Get Those Numbers Out of Here or I will Call the Authorities

The other day I spoke to a colleague about the fact that my school has two grading curves depending on the size of the class. I wondered allowed if we could study whether the 2 curves influenced course selection, class rank, and GPA. The response was not argumentative at all but more or less "I'm not that interested in numbers."

That is, in fact, a common theme in legal education and represents how far legal educators are from the applying various principles and measures that would follow from good educational policy.

The example I have given is directly related to the issue of student choices. Do we want students to select courses that will best prepare them for the practice of law (or tending bar as the case increasingly seems to be) or do we want them to be tempted to game the system.

The two curve example reminds me of one of the worse testing strategies around: Please select and answer any 3 of the following 5 questions. Yes, it's a policy that says to pick the test you would like to take. The student who would get an B on three quesitons and a C on the other two gets the same grade as the student who would get a B on all 5. Like the different curves, the testing method itself intrudes on the process in a way that is disconnected from the goal. But there too we get into numbers.

Something that also falls in the area where law professors do not venture is the reliability and validity of exams. Reliability is really a question of consistency. For example, you turn the hot water tap on half way for your bath and the water is always 90 degrees. You can count on it. But, you also say 90 degrees is just right for making your aching muscles feel better. That is a question of validity.

Suppose every time you write and give an exam, there is a nice bell shaped curve. You might say your testing is reliable: every time you give an exam X happens. But, do you know anything about the connection between what you hope to be testing for and the outcome? This question of validity is a different matter. I am far from an expert but, let's say you give machine graded multiple choice exams. How do you know the questions are valid measures of what you want to measure. There could, after all, be 5 reasons to miss a question or get it right and only some are related to what you are testing for. I would guess that any multiple choice question that does not require a student to explain his or her answer would have to undergo testing itself and perhaps trial runs and debriefings of the students so see what they understood the question to be asking and how the different choices could be interpreted.

And then there is the matter of student evaluations. What do they tell us? I'd say they are very reliable and valid indicators of what the students wrote down on their forms. Other than that, I do not know. The problem is that no one else does. Wouldn't it be nice to know what the evaluations mean as far as actual student learning? I've seen studies that indicate no correlation between evaluations and learning and even some that indicate a negative correlation.

But then again, to actually attempt to determine what the numbers mean would mean dealing with numbers.

Finally suppose you offer three or four credit course you would like to teach in 2 days. There are all kinds of studies on the impact of different class lengths on concentration and learning. I wonder if any law professors have looked at these "numbers."

Sometimes it seems clear to me that numbers are discounted principally because they may tell us something we do not want to hear. The main thing we do not want to hear is anything that casts a shadow over whether we should get our way.