Wednesday, September 29, 2010

Do All Taxpayers Agree?

This was the questioned asked to me by a reader. The implication I think is that single-view subsidized law professor political speach has to be Ok because taxpayers do not agree on many if any things. That sounds a little odd but it is the only interpretation I could come up with.

I think I have not made my point clearly or it has been misunderstood. It is not that law professors must hush up because taxpayers do not agree. Instead it is that other voices should similarly be subsidized. (Or hiring committees could make an ideological balance a goal.)

I would contrast an institution that encourages the expression of different views with. say, a government that only assists one particular point of view. I can think of a few.

Basically, though, it just gets down to how boring, unimaginative and anti intellectual it is to hear the choir of law professors sing the same tune.

Follow up On Rent Boys and Adoption

What follows is a good report by the Gainesville Sun's on the kerfluffle at the Law School. I have a couple of comments to begin with that may make more sense after the article is read.


1. Any suggestion that since there is state money on one side it is OK for the Law School to weigh in makes no sense as a logical matter. What is the connection? In any case, the States' lawyers do what they are told -- they fight the battle even when they personally disagree. Law professors only weigh in when they agree. In short it's not based on righting wrongs (although it had that effect here) it's based on personal preference.

2. The UF policy of finacial support for a cause based on faculty prerogative strikes me as a policy that one would never adopt under a Rawlsian veil of ignorance. It is one that says whoever controls the school get to use its resources to promote his or her idea. I am confident that throughtout history the same policy has be used to oppress people. Why follow a policy that has that potential?

Gay adoption case sparks debate over UF's involvement
A UF law professor filed a brief in support of overturning the ban.
By Nathan Crabbe

Staff writer

Published: Tuesday, September 28, 2010 at 7:48 p.m.
Last Modified: Tuesday, September 28, 2010 at 7:48 p.m.
It all started innocently enough: An e-mail congratulating a University of Florida law professor for a brief in support of overturning the state's gay adoption ban.

But a systems administrator's criticism has spurred a heated debate among UF faculty on the role of law professors, how the college decides to lend its name to legal briefs and whether taxpayer money should be used to help overturn laws passed by elected officials.

Last week, the 3rd District Court of Appeal overturned Florida's ban on adoptions by gay people. The UF Levin College of Law's Center on Children and Families joined similar centers at other law schools in the state in filing a friend of the court brief, which are filed by entities not directly involved in the case.

The brief cited legal decisions that showed the ban violates a child's right to a secure and stable family relationship. Law professor Nancy Dowd, director of the UF center, said the brief fit within its mission to promote quality research on issues important to children and their families.

"One of the things that people at the university do is share their expertise," she said.

Dowd sent a message to several law school e-mail lists congratulating legal skills professor Joe Jackson, the main author of the brief, and others with the center for their involvement.

Micah Johnson, a systems administrator with the college, responded with a short e-mail saying the decision was at odds with his beliefs.

"Your elation stands in stark contrast to my disappointment on this decision," he wrote.

Law professor Steve Willis then sent an e-mail in support of Johnson, who is on vacation and couldn't be reached for comment. Willis said this week that he's one of the only registered Republicans on the law school faculty and believes the college only allows involvement in liberal causes.

"It's all political and unfair," he said. "I'll probably regret saying that, but that's what I believe."

College Dean Robert Jerry said academic freedom allows all faculty members to take positions or file briefs in a case in their personal capacity. For a UF center to be officially involved or university resources used, he said, the brief has to not just be a personal opinion but based on scholarly research.

He compared the situation to suggesting that a faculty member's opinion that global warming is not real should get the same support as research showing it is.

"If we buy into that, God save us," he said.

But law professor Jeffrey Harrison questioned whether a public university should be taking a position that might be at odds with public opinion in a court case. While he said he was happy with the decision, he said he was unhappy with the use of public money to promote positions that some taxpayers oppose.

"Our speech is essentially subsidized by the state, and other people don't have that privilege," he said.

But law professor Danaya Wright said that taxpayer money is also being used to support a law that violates the rights of gay citizens. It's the role of law professors to be as neutral as possible in researching such issues, she said, and then providing that information to judges who make the ultimate decisions.

"If we didn't weigh in, I would say we're shirking our duty," she said.

Contact Nathan Crabbe at 338-3176 or

Saturday, September 25, 2010

Rent Boy

In the letter posted two posts down, the colleague who wrote to lecture the faculty and myself on Constitutional issues and then engaged in some old fashion intorance via name calling made reference to a "rent boy."

A "rent boy" is, of course, a male prostitute. My favorite reference to a "rent boy" is actually not in the colleague's email even thought it is a close call, but in the John Wesley Harding song, "Get Back Down." Here is a verse:

You know if jesus was a rent boy
Then God was his pimp
The people in power they squeezed him
Until he went limp
If the new messiah called here
First, we'd put him on hold,
Get him a deal and a good-looking haircut
We'd make him look less old
Less good and less old
Tell him to get back down

It's a terrific song. John Wesley Harding is actually Wesley Stace, also a novelist.

What an Entitled Faculty Wants to Know

It is the time of year when invitations to interview in Washington are extended and for some, invitations to campus visits. The first stage is pretty much a beauty contest. Have the right credentials, dress conservatively and with good taste and sound eager and alert and you take a step forward toward your life-time sometimes- achievement-sometimes-no-so-much-achievement award of tenure. I've discussed the dos and don'ts before and, for many candidates, it's too late to do some of the critical dos -- go to a fancy school, get on a first name basis with some over hyped professor there etc.

You also have to be what today passes as liberal but is actually conservative and intolerant. That brings me to the most critical test. Tolerance. A deal killer is any signal, so matter how subtle or slight that you might not be totally tolerant of your potential colleagues' pervasive intolerance.

Friday, September 24, 2010

More on University Resources and Elitist Assumptions

What follows are two emails. The first is a generalized statement by a UF faculty member about the subject matter of my post from two days ago about the use of University resources. It also includes some good insights about the actual decision Florida was making. The second is my response. For people interested in class bias the first one, through its tone and content, may reveal some of the power the elites unequivocally claim for themselves.

First email:

Let me begin by apologizing for filling up a lot of mailboxes with more about
this issue for those who don't care about it. But I feel I cannot let the issue
drop with only silence from those who support this decision. So I reluctantly
will share some thoughts. First, for those who have personal opinions for or
against the adoption ban (whether based on religion, philosophy, or some other
grounds), I believe those personal beliefs are not, and should not be, the
foundation for legislation. If the legislature passes a law that targets a
particular group or treats an historically marginalized group in a
disadvantageous manner, especially in regard to a very important personal and
fundamental right, that law is properly scrutinized pursuant to appropriate
constitutional standards. And in this instance, there is simply no rational
basis for saying that every single adult in the State of Florida is entitled to
an individual judicial determination of fitness to adopt a child, except the gay
person for whom the courthouse door is barred and locked. This is especially
true when there are thousands of children out there waiting to be adopted.

Second, and flowing from the notion of legislative review by the courts, it is
precisely the role of the courts to protect the minority's individual rights
from the tyranny of the majority. Legislators, acting on personal beliefs or
political impulse, are generally prone to minimize, if not completely ignore,
the harmful impact their decisions have on the lives of others (especially if
they can get votes that way). I, for one, am glad that we have a tri-partite
system of government in which someone is watching out, albeit belatedly, for the
legal rights of the minority. Given the incredibly deferential standard of
rational basis review, this case is not an example of an activist judiciary
trampling the sound views of the majority - rather, it is the state unable to
make a defense for a law when the bar is so low that you can’t see light under

Third, the funding issue is a different concern, especially vis a vis the role
of public higher education. I should note that in this case the state used
taxpayer funds to defend this lawsuit. It used the state’s coffers to hire
"experts" who used religious and disproved junk “data” and tried to pass it off
as science to support what has now been held to be an irrational law, a law that
was passed in the aftermath of the Johns Committee’s witch hunts and the
shocking audacity of the Miami-Dade County Commission to pass a
non-discrimination policy to prohibit discrimination on the basis of sexual
orientation. These so-called experts (and there were only two despite a much
broader search) were not neutral analysts. Rather they were preachers of hate
and bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that
he hired a “rent boy” for his trips overseas, and when it was revealed he
claimed the “rent boy” was to carry his luggage. The specific facts of this
situation aside, it seems to me that the role of the University is to create
good scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency.

My response:

As I noted yesterday, I too favor the recent opinion. OR, in the alternative I
guess it would be OK to say that heterosexual men cannot be around daughters and
heterosexual women around sons. I mean, when you dig through all the crap, was't
the ban based at a gut level on the notion that homosexuals are of low
character and are potential child abusers. It made me ashamed of Florida.

In any case, Professor ------ has written such a wonderful paragraph I have
repeated it immediately below because it so richly illustrates the concerns I
voiced yesterday. The fourth sentence is what we give lip service to. The first
first three are how we often operate (and I do not exclude myself.) -- subtle
and not so subtle attacks, name calling, attribution of bad motives to those who
disagree. And the last sentence suggests we know the different between "justice
and truth" and whim. Justice and truth was once slavery and no voting by women.
It is anti semitism and female circumcision in other places. I get worried
about anyone who thinks he or she has a handle on truth and justice.

"These so-called experts (and there were only two despite a much broader
search) were not neutral analysts. Rather they were preachers of hate and
bigotry. Indeed, the most vocal has been unveiled as such a hypocrite that he
hired a “rent boy” for his trips overseas, and when it was revealed he claimed
the “rent boy” was to carry his luggage. The specific facts of this situation
aside, it seems to me that the role of the University is to create good
scientific studies that follow sound scientific methodologies so that the
legislature and the people of Florida can make reasonably sound decisions based
on the best information available. The role of the University is to lead in the
path of justice and truth, not follow the political whims of those who preach
intolerance or would sacrifice the lives of others for political expediency."

This search for truth reminds me of my first article as a law professor. I
wanted to say something like "the courts generally. . . ." But I knew I did not
KNOW that. I asked a more senior person and he said, "Don't you know about the
"See for example" cite." And then I realized that most of legal scholarship is
"see for example."

A few more points. I think it is irrelevant that the legislature used state
money to fund defense of the legislation. I guess the implication is that we
have been hired to act as counsel on the opposite side -- of everything or
just the things we disagree about? I have a feeling the state attorneys defend
the legislation regardless of their personal views and therein lies the difference
between them and us. We cherry pick the ones that affect us, often by a
self-referential standard.

The irony of some law professors bringing up intolerance floors me. I would say
when to comes to political views we are as intolerant as you can get. As far as
I know we have one "out" Republican and no libertarians. Why? Because very
rarely does any one who does not toe the line politically and culturally make it
to campus or to an interview. And when they do there are hallway rumblings about
the quality of their scholarship.

Finally, I thought someone would raise academic freedom in response to my email
yesterday. I am glad it was not raised for two reasons. First, the biggest
opponents of academic freedom are law professors in their hiring and tenure
decisions. Second, my note was not about academic freedom. Academic freedom is
what economists would call a "free good." Everyone can exercise it and it does
not interfere with the exercise of others. University resources are a different
matter. They are limited and if someone is using them to promote one thing, by
definition, something else is not getting done. As I said yesterday, I am not
sure who makes that resource allocation decision but at least one faculty member
has told me that the Administration has the discretion to fund or not fund (not
necessary prohibit) specific endeavours and has exercised that discretion.

It would nice to talk about all these issues but that would require a level of
intellectual fervor that we lack for good reason. In all our discussions --
courses, programs, hiring policies -- when one side feels it is losing, it
gets personal, if not inside the meeting then in the halls immediately after.

Poster Professor for Sense of Entitlement

My goodness, you poor baby:

Thursday, September 23, 2010

Letter to UF Law Faculty

When University funds are used to support a political position, who gets to decide which position the funds should be used to support? Would the Dean or someone step in if the family law department had decided to oppose gay adoption or CGR decided that development of the Everglades by condo builders was a great idea? (After writing this a colleague informed me that when he was asked to write in support of a position he was told he needed permission and he would have to pay the costs.)

While I am very happy with this decision since the connection between sexual preference and adoption is completely lost on me, I am less happy that we use taxpayer money to promote positions that may be disagreeable to many taxpayers. (Of course, in the spirit of how our decisions are usually made, I fully support a system that allows me to decide how the money should be spent.) Back when I knew something about the First Amendment implications of involuntary speech I would have said this is analogous to that. I'd probably be wrong but, as I said, I am not sure I understand the logic by which one side is supported as opposed to another. (And, Pleeeze don't say this is not a political issue but a case of finding the truth because that is non falsifiable.)

The problem with addressing that issue is that it does not stop with things like this. Much of what we do is use University funds to advocate one position or another in our writing and in the class room. And, not coincidentally these are uniformly positions we personally hold whether based on faith, political inklings (very very small inks), having had a particular life experience from which we generalize or possibly because we did actual research on the issue. That may be fine for a private school but I am not as sure about a public schools. Not many law review articles are written by authors who start out with a clean intellectual slate and set out to find the answer to a question by use of the scientific method or any other version of intellectual neutrality. In other words, we seem to work in an environment in which anti intellectualism is accepted and possibly the norm. This is why the term "legal scholarship" has always struck me as odd. I think what we write should probably not be called scholarship but service because we are, in effect, often writing papers that advocate one side of an issue or another. In doing this service it may be important to note that the author is not expressing the views of the University or of those who pay the bills.

Tuesday, September 14, 2010

Kozinski On Elitism

Thanks to the keen eye of a former student, I have the pleasure of posting this recent excerpt fom a dissenting opinion by Judge Kozinski. I confess this is not something I thought I would do. In the quote, the Judge refers to the "unconsious cultural elitism" of member of the judiciary. In many respects his views are similar to those of William J. Stuntz in "The
Distribution of Fourth Amendment Privacy," 67 G. W. L. Rev. 1264.

I think I would modify that for most law professors to read "conscious cultural elitism." Ironically, for the most part, we are not actually culturally elite.

"The panel authorizes police to do not only what invited
strangers could, but also uninvited children—in this case
crawl under the car to retrieve a ball and tinker with the
undercarriage. But there’s no limit to what neighborhood kids
will do, given half a chance: They’ll jump the fence, crawl
under the porch, pick fruit from the trees, set fire to the cat
and micturate on the azaleas. To say that the police may do
on your property what urchins might do spells the end of
Fourth Amendment protections for most people’s curtilage.
The very rich will still be able to protect their privacy with
the aid of electric gates, tall fences, security booths, remote
cameras, motion sensors and roving patrols, but the vast
majority of the 60 million people living in the Ninth Circuit
will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but
there’s one kind of diversity that doesn’t exist: No truly poor
people are appointed as federal judges, or as state judges for
that matter. Judges, regardless of race, ethnicity or sex, are
selected from the class of people who don’t live in trailers or
urban ghettos. The everyday problems of people who live in
poverty are not close to our hearts and minds because that’s
not how we and our friends live. Yet poor people are entitled
to privacy, even if they can’t afford all the gadgets of the
wealthy for ensuring it. Whatever else one may say about
Pineda-Moreno, it’s perfectly clear that he did not expect—
and certainly did not consent—to have strangers prowl his
property in the middle of the night and attach electronic tracking
devices to the underside of his car. No one does.

When you glide your BMW into your underground garage
or behind an electric gate, you don’t need to worry that somebody
might attach a tracking device to it while you sleep. But
the Constitution doesn’t prefer the rich over the poor; the man
who parks his car next to his trailer is entitled to the same privacy
and peace of mind as the man whose urban fortress is
guarded by the Bel Air Patrol. The panel’s breezy opinion is
troubling on a number of grounds, not least among them its
unselfconscious cultural elitism.

Thursday, September 9, 2010

Elite Relief

If there is way to open doors for elites while closing them to others, law schools will find a way. And in the process they make some really questionable decisions from a economic perspective.

Take a recent policy adopted by UF. We now have a program of hiring people with "outstanding academic credentials" and with little or no scholarly record or teaching experience." (Yes it sounds like every other entry level hire.) They then work here with a reduced teaching load and summer grants for 1-4 semesters and, after our careful mentoring, go out to be recruited by other schools.

I'll give you one guess as to what outstanding academic credentials means to people who do law school hiring. It means people who have records like their own -- expensive and elite schools. (We stick closely to the Justice Scalia rule that silk purses are more readily made from elite grads than from your crummy old top of the class at say Wisconsin or Florida.) In this case, the candidates for relief are ones who had every conceivable advantage already and did not get a tenure track position by going through the meat market process. So what this appears to be is a relief program for elites who otherwise could not find a job.

I cannot comment on the relative productivity of our most recent hires who came from elite schools and seem to be doing well because we have no one here hired in the last six years, at least as I recall, who did not go the elite route and fit the profile even if it meant dipping pretty low in the class. As a general matter, however, at least, there is no correlation between elite credentials of any kind and productivity. In fact, it the may be inversely related.

So now we are taking it on ourselves to train elites who did not quite make the grade in the meat market. And then, after the investment is made and they are "all prettied up" out they out for someone else to hire. In other words we recoup none of the investment.

Wouldn't it make more sense to see if we can prepare potential law professors who did not have every opportunity to make the grade and fell short. Say someone ranked high from a decent state law school. Our "good deeds," as usual, extend only to those who look and think like us, no matter how conventional that may be.

I've been told we are doing this as part of a moral obligation to avoid free riding on other law schools. In the scheme of moral obligations that is an odd one. We are a State institution and have a duty to our stakeholders. Subsidizing the already privileged would not be ranked high, if ranked at all, among our moral obligations. Perhaps if we hired our own graduates it would make more sense but, although we pay others to hire them, we are apparently above that.

Maybe we plan to pay the relief candidates a significantly lower wage and this is a move to lower our teaching costs. In this way they "repay" us for our investment. This would not change any of the above but it would shift the silliness balance a bit to the other side. This, however was not part of the pitch.

Luck and Class

I've had some thoughtful responses to my last post about Nancy and the blight of children of working class families. It would be interesting to know the difference between working class kids who make it and those who don't -- other than working hard. Making it means having aspirations and aspirations mean have some examples or experiences that tell you what is possible and then having the self esteem to believe you can do it. If the working class family does not read, does not go to museums, and does not stress achievement then it comes down, I think, to teachers who inspire. Yes, the terribly underpaid elementary or middle school teachers may be key in determining what happens to working class kids. They can help the kids develop a "taste" for learning that they may not develop just from their parents.

This all gets to the point that I know of no working class person who status jumped (moved more than one rung up the socioeconomic ladder from his or her parents) without some luck. By the luck of the draw there is a inspirational teacher or second aunt -- someone who alerts the person to the possibilities. It could be a school counselor (as it was in my case) or just a school friend.

Wednesday, September 8, 2010

Nancy Died Yesterday

Not a Nancy that anyone reading this, except a few colleagues at UF, is likely to know. Nancy was in charge of the copy center hear at UF -- more specifically she was "the" copy center.

She was the one who had to deal with every irresponsible faculty member wanting 75 copies of a 5 page exam a hour before the exam was to be given. Or, everyone who could not understand why it might not be legal to photocopy a book or most of one.

The main thing about Nancy, though, is that she was reminder of the privileged status of others. I did not know her well, although we intereacted almost daily. You knew she was a person with no safety net, no middle class or rich mom or dad to help her out when her husband was out of work which was not uncommon. Her teeth were a mess owing to years of neglect resulting from being on the edge economically. So many other signs that she struggled physically and financially.

When I saw her I saw what could have been my mother had life's randomness not intervened. Working all day for not very much and seeing the rest of us all comfy in our nice houses and cars and working far less hard. She reminds me of every working class person from the State and their sons and daughters who will have very difficult time achieving what others achieve with far less effort.

When a working class person dies who seemed to always stuggle and had no real security and an inadequate amount of what law professors take for granted, I think of my favorite poem, The Village Blacksmith.

Wednesday, September 1, 2010

An Outside Look at the Inside

Today was one of those days in which you get to see your profession from the outside. I am on a committee that approves courses and the committee had to make a decision on one today. The proponent of the course, not active on the full faculty, was there. The course proposal came with a proposed cap of 24 students. When asked about the cap the first reason offered was it mean being exempt from the curve so the proponent would not be confronted by angry students. When that became awkward, the second reason was too many papers to grade. That did not carry much weight so the third rationale was that it was better for the students. Interesting that the course was on ethics.

But I have no reason to question the ethics of the proponent. In fact, quite the opposite. The insight relates to the proponent's perception of the faculty. The view evidently was that we thought not contending with "angry students" was a good solid reason to cap the course. And, if that failed, then surely too many papers to grade would appeal to the ethics of the faculty. In short, this relative outsider had the courage to tell us who he thought we were -- decisions were made for our convenience.

I found it uncomfortable. Maybe others did.