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.