Saturday, January 29, 2011

The Not Technically A Lie Culture

A few years ago a student wrote an angry letter to me. According to her I had upset a French exchange student so much that she ran to the Assistant Dean in tears asking to drop the course. Not wanting to cause an international incident I searched my roll for a French student and could not find one. So I found the letter writer and asked for details. She informed me that what she had written had not actually happened but "could have." I believe she felt it was not a lie because under the correct circumstances all of that could have happened. In a way it was, technically, not a lie.

Some of the same mentality affects the "not technically a lie" culture of elites and many deans. For example, "I do not remember saying that" means I do not recall using exactly those words. And, "The meeting was not held for that reason" means, "That was not the only thing we discussed at the meeting." The most recent example is the one in the last post just below: "Bill cannot go" which means, "I paid Bill not to go and he isn't going."

I am not sure how elites come to know of the "not technically a lie" norm and why exactly they rise to it so quickly. (I do understand why so many deans rely on the rule.) The rule is a cousin of "Don't write anything down that you would not want in the NYTimes" rule that a colleague once announced, having actually completely turned the actual rule on its head. (The actual rule, as a moneylaw contributor told me when I discussed this over on that site is "Don't DO anything you would not want reported in the NYTimes.)

But here is the catch: Almost all of them know the rule and follow it. This means, for the most part they know not believe anything someone tells them who is also an elite. And, in turn, they know others are unlikely to believe them. In a way, this is not distrust because it is all within the rules. There was no trust in the first place.

If you are not an elite (or a dean), you may not know the rule. It's a bit like playing basketball at a different gym and not knowing that in that neighborhood a hand check is perfectly OK. The difference is that you figure out the hand check rule quickly. The not technically a lie rule takes much longer to figure out and in the process you may take the completely inappropriate step of pointing out that someone has . . . . well, not been forthcoming. Learning the rules of the elites is not for sissies.

Wednesday, January 26, 2011


[See great comment below]

Some time ago I wrote about elites wanting to appear to volunteer for things because asking was a sign of weakness. So you get things like:

1. I told the dean I would agree to go on the around the world trip to research foreign summer school opportunities.
2. I told the dean that I would volunteer to teach one of the small sections.
3. I told the dean that I thought I could fit in spending an extra $5000 on office furniture.
4. Yes, I did volunteer to take the year off.
5. I volunteered to cap my class at 5 students so I could give the students the best possible instruction.

The volunteer gambit means you never asked for anything but did the other person a favor by doing whatever it was that you wanted. Basically it's a flip those doing it are "flippers." You got what you wanted but try to seem like you did something someone else wanted. I've seen it on law faculties over and over. It's because for so many life is a ongoing negotiation.

Now I have discovered a new version of it. In a different context, it works like this:

You, say the director of a program, appoint someone -- Phil -- to travel to Kansas to search for a school that will have an exchange program with yours. Meanwhile you have appointed yourself to tour Europe on a first class ticket to find ideal locations for multiple summer programs. Later you cannot do your tour so you ask Phil to take over the European tour. Then you write to your faculty:

"Phil can not go to Kansas to search for exchange possibilities. Would someone else like to do it."

You do not write: "I appointed myself to go on a European tour. I cannot make it so I asked Phil if he would like to do it and he jumped at the chance. That means we need someone to go to Kansas. "

Other than the close-to-vest style I have no specific reason to cite for why this one seems dishonest but it grates on me and I think it is related to the volunteer problem. You do not want to say "I appointed myself." My goodness, you could never own that! It sounds self serving. And, if you say "I volunteered," the case is so extreme people would laugh. So you leave out that you rewarded yourself. Remember, never admit you got something you wanted -- it shows weakness.

Then there is the "Phil cannot go" part. I mean, can you really get away with saying "Phil cannot go" when you asked Phil not to go and dangled a big plum in his face? Why try this? Maybe because it makes Phil look a like a victim (sacrificing like a volunteer) . In actuality, Phil himself may not care but elites think it is important to appear not to care (caring is weakness) and they attribute that desire to others.

Maybe all I am looking for here is the word disingenuous but I like the idea of "flippers."

[This comment is so dead on I am bringing it up to the post: "This reminded me of the time an individual on our law review sent an email to the law review listserve informing everyone that donuts were in the office. But the emailer failed to mention that the donuts were placed there by someone else."

To me this is part of a mentality that says "If it is not technically a lie it is OK even if it is misleading." This must be a law thing because, in a way, it is what is taught.]

Monday, January 17, 2011

Elites and Gaming

I posted a piece over on moneylaw about a shameful law school ranking that is now posted on the internet. It's not shameful because its rankings may or may not be correct but because of the strategic voting revealed. Roughly it was a ranking of 57 law school. A huge number of the respondents ranked the school where they are teaching or the one from which they graduated number 1 and all the others tied for last. In short, they did the maximum possible to have the ranking show what they wanted it to show and not the reality. And, like someone who cheats on an exam and then boasts about it, they no doubt wave the ranking around as though it is gospel.

Should anyone be surprised? Of course not. Elite gaming of any system is the norm. Let's not count all the ways but clearly sending out articles to be reviewed by pals is one way. And, it includes legacy admissions to elite schools. The fact is with elites it's always about show more than go. A talk to the local Women's club becomes a "presentation" to be included on a resume. A two page book review becomes "My piece in Harvard." Not writing things down for fear of losing deniability is one of their favorites. And if you are a parent be sure to feed your kid a performance enhancing drug when they take the SAT.

Do non elites game the system? I suppose so but I honestly believe they do not display the same level of obsession.

Sunday, January 9, 2011

Response to NYT article on Law School Employment

Thanks Bob. [my dean circulated the article.] I think many of us and our students have seen this. While it lays bare law school complicity in something akin to the mortgage lending crisis, some parts of the article, or those quoted by it, are hard understand.

First, one suggestion near the end is that lower tier law schools should (but won’t) close. I take it by tiers the reference is the to USN&WR rankings. Seems to me that both criticizing the ranking system and then using it as a measure of which schools should close is illogical. Much of what goes into a lower ranking is subjective and has little to do with the quality students. The idea that limits would be put on law schools based on their tier as published by USN&WR and manipulated by schools and their graduates seems like more of a concession to the rankings than an effort to address the problem. Of course, if bottom tier schools are mainly 100% private, I do not understand why the market does not take care of the “problem.”

Second, what is the problem? Investors, like those investing in human capital, make bad decisions all the time. Why should we be more concerned about a law student losing his or her shirt than a franchisee who buys into a burger chain but cannot make a go of it? My answer to this is that it is a problem to the extent the sellers of the “product” know it will not work. In other words they are engaged in a misrepresentation. The issue is what does it mean to “work?” If by “work” if we mean earning enough to live comfortably and earn a fair return on the investment then clearly we should say nothing to encourage this impression. In fact, given that we are aware of a misimpression, I think we need to provide accurate information to our applicants about employment percentages and starting salaries. As far as competition in the State with respect to these figures, I doubt anyone would not think our numbers were not the most favorable.

Third, I am discouraged by the hypocrisy of our own alums. If my facts are correct, they explode if we fall in the rankings. I suppose because this affects their status or income. On the other hand, I wonder how many of them, after enjoying their heavily subsidized education are willing to dip into their own pocketbooks to hire a grad which would then help us with the ranking they put more stock in than we do. What about an example of wanting it all!

Finally and more broadly, we are not sure how to determine how much legal service is required. It is determined by market demand or need. If it is by need, then the quid pro quo for receiving a state subsidized education would seem to be a commitment to public service. None is required. I suppose the actual theory is that if we assist in increasing the supply or lawyers, their fees will fall and services will be available to a greater number of people. (By the way this has never been my theory for why public law schools were created. Instead I think it was a way for those with property and, therefore in need of legal services, to have the cost of the services they need spread across all taxpayers.) The employment numbers suggest this is not working. There are many reasons why it does not work but one is that the state investment in providing legal services is actually not sufficient. In any case, like health care, we seem to be caught between viewing legal services as a privilege or a right. If it is a right then there may not be a glut of lawyers at all, just an unwillingness of government to provide what is needed. Of course, we know where that funding would come from given current tax structures.

Wednesday, January 5, 2011

Can Law Professors Change the Past?

A few days ago I posted on facebook what I thought was a clever idea, "Things in the future are closer than they appear." I was thinking of all the obligations I make thinking they are far in the future and then they are upon me. The string of comments after the facebook post included one by a another law prof who jokingly said that he liked the certainty of the past. I agree about that. I doubt many of us feel stress about what might happen a month ago as opposed to what might happen in two weeks.

The past does not cause stress but who really knows what happened in the past. If you have ever read a newspaper article about something about which you had first hand knowledge, you know that is it rarely accurate or at least how you remembered it. And that is something that just happened. Things that happened 50 or 200 years ago are in the past, of course, but the truth is we have very little to go on with respect to what did happen.

A good demonstration of now "flexible" the past is law faculties. In twenty five years of being on the same faculty, I have seen one past come and replace another only to be reinterpreted to become a third past. People who fought tooth and nail to avoid hiring someone now take credit for the hire. People who favor a procedure because it gets them what they want claim it is "the procedure" when, in fact, there was no procedure. Over and over there is a new past so that it appears to support current largely self-interested goals.