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.

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.

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.

Ethical Guidelines for Law Professors

As far as I can tell, this is the most recent iteration of ethical standards for Law Professors. For the most part the standards are fairly general. My cynical side says this is what one expects from a committee and from a elitist-heavy profession. As I have noted before, elitist do not like rules because rules decrease the important of informal influence and institutional authority. Still, some of the standards are pretty interesting. Here are a few:

1. They should recognize their responsibility to serve others and not be limited to pursuit of self interest. (If you have ever observed a faculty deciding whether to start a new program or keep an old one or a faculty member angling for the ideal teaching schedule, you know this one is routinely ignored.)

2.Law professors’ responsibilities extend beyond the classroom to include out of class associations with students and other professional activities. (Is getting smashed with the students included in this?)

3. Classes should be met as scheduled or, when this is impracticable, classes should be rescheduled at a time reasonably convenient for students, or alternative means of instruction should be provided. (Is class impractical when one wants to attend a conference, teach in a foreign program or consult?)

4.Law professors have an obligation to treat students with civility and respect and to foster a stimulating and productive learning environment in which the pros and cons of debatable issues are fairly acknowledged. (Opps, this could rule out indoctrination.)

5.An evaluation made of any colleague for purposes of promotion or tenure should be based exclusively upon appropriate academic and service criteria fairly weighted in accordance with standards understood by the faculty and communicated to the subject of the evaluation. (Elites and administrators who abhor transparency don't like this one. It gets in the way of ranking people based on politics or who you're mad at.)

6.Law professors should comply with institutional rules or policies requiring confidentiality concerning oral or written communications. (I guess this only applies to some.)

7.The scholar’s commitment to truth requires intellectual honesty and open-mindedness. (At most this can only be seen as aspirational.)

CORE VALUES

A year or two ago I blogged quite a bit about collegiality and invoking collegiality as a way of silencing others. For example, if you do not like what someone was said and have no reasoned response, you play the collegiality card. I also attempted to draw a parallel between the tragedy of the commons and faculty collegiality and describe why the commons are destroyed by shifting standards and rules as well as gossip exaggeration and lies.

After a recent experience at my School, I am now wondering if law faculties are afflicted by a different problem in that there are so few core values. I am aware that what may be shared is that there are no core values when one wants something enough. In other words the one core value is that the ends justify the means.

The internalization of three core values could help faculties.

1. Tell the truth.

That is pretty easy, you would think but I am not sure. It may be that people are so driven by what they want to be true that the cannot see the difference between what is true and what is false. I've seen appointments meetings in which input given by faculty has been "misstated" -- the collegial way of saying what it actually is. People in meetings say they had no idea of a fact when they had been told. And then there is the usual B.S. -- this program meets many needs, this candidate is famous, etc. Finally, there are the weasels slipping from office to office with innuendo and lies. When zealots are so blinded that the they lose track of what is true, it's pretty much the end for faculty cohesion. A dean can remove people from key committees but he or she cannot bar them from their office to office rounds to serve up their little bit of poison.

2. Cause no welfare loss.

This one draws from economics and requires understanding the difference between a redistribution and a welfare loss. Sometimes decisions are made that mean a person or persons are worse off and someone else on the faculty or the students are better off. This could mean that a redistribution has occurred. On the other hand, some activities have no upside except perhaps the pleasure derive from harming others. For example, at recent tenure and promotion meeting, faculty at my school discussed candidates. Many positive things were said and a few negative ones. The Dean cautioned the faculty not to talk about the substance of the meeting. Within a few minutes of the end of the meeting it appears people had talked and named names. So think about it. The candidates may be tenured and become life time "colleagues" of the people who had reservations. The substance of the negativity could be communicated without revealing names. What was the upside of naming name? If you lack core values there could be two. The enjoyment of seeing people become enemies. The pleasure of chilling future discussion. It's a pure loss unless one views these as legitimate goals.

3. Transparency

This has more to do with committees and administrators than it does with individual faculty. Nevertheless, faculty are administrators and committee members and are tempted to keep things secret. Secrecy leads to uncertainty. Uncertainty caused by an information vacuum sucks in substitute information that may or may not be accurate. In effect, those who keep secret what they know that could reassure people -- that rules are accurately stated and consistently enforced, that their concerns have been heard, that there are no favorites, etc,-- are generally 1) not sure they can defend what they are doing or 2) feel they can but do not have the courage to deal with the fallout. In either case, it means a willingness to allow others to suffer. Of course, if it were for an honorable end, they could say that -- "I do not think it is in the best interest of the Law School to comment further."

I have seen these standards observed by different committees and administrators. What strikes me is how quickly they come to be trusted and how the stress level is instantly lowered. It is refreshing.

But the problem is this: it only takes a few who lack core values to screw it up for the community. I cannot help but wonder what their parents taught them.

MY FACULTY

No, I do not mean the faculty I am on which I assume is about like all others. What I mean by my faculty is the faculty I would choose or at least how I would choose it. First, I am starting from the proposition that there are oodles of people who can do the type of research and teaching law professors do. We pretend otherwise but, come on!

So, having satisfied those baseline standards there are two decision points I regard as critical for joining my faculty permanently. The first comes at hiring and would require answering a list of interview questions I have posted over on Moneylaw: Here they are:

1. What was your favorite book at age 15.
2. What were the last 10 books you read that had nothing to do with law.
3. Name your favorite opera, aria, sonata, symphony or any non pop, folk, alt music. (I mean one that gets you in the gut.)
4. What non law book is on the top of the stack on your night stand.
5a. What is your "car book" -- the one you keep in the car for waiting in lines or waiting rooms.
5b. What is your favorite pasta? (Opps, this question slipped in from the Italian cooking blog but it could still be important.)
6. Who was your favorite teacher before law school and why?
7. How would a Rawlsian design the faculty recruitment process?

There are no right or wrong answers to these questions. The only wrong answer would be not being able to answer and have an interesting discussion.

The next critical point comes at tenure time and, assuming there was an actual review process which the candidate passed. That's a big IF -- the part about having a real review process, I mean, as opposed to having enough buds on the faculty to get the candidate through.

I'd like to know the following:

1. How many times have you complained about your teaching assignment?

2. How many times have you insisted to a secretary that your work gets done?

3. Do you tend to go over your travel budget and then tell the Dean how you have to have more because of all your obligations?

4. How many days on average do you cancel class in order to consult?

5. How many nights (after 7) a semester are you out drinking or hanging out with the students?

6. How many times did you visit the dean's office or email the dean to complain about someone else without first talking to that person?

7. How many times per year did you, on your own initiative, visit the dean's office for any reason?

Wrong answers are as follows:

1. More than 0.

2. More than 0.

3. More than 0.

4. More than 0.

5. More than 1.

6. More than 0

7. More than 1.

So, my faculty would be full of interesting people and who require no special handling

Last to Know About Class

I am the last to know about last September 24th issue of the Chronicle of Higher Education much of which was devoted to class on campus. There are several interesting tidbits in the lead article by Peter Schmidt. As he notes, unlike other minority groups, low socioeconomic class people tend to try to "fit in." No serious statistics are kept but it is estimated that 36 percent of students in post high school programs are children of parents who did not attend college. They tend to be concentrated in lesser colleges, two year colleges and technical programs.

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Schmidt and his sources say that socioeconomic class is no longer dismissed and is now"permissibly" to talk about. The idea that is Ok now to talk about class reminds of a conversation I had with a colleague several years ago. I asked him, "why not have a retreat and talk about class." His response, "Can't do that. It's too important." He captured it all right there. It was more important than all the other diversity concerns because it was the only one that could be accommodated without affecting the the elitist death grip on higher education.

Whatever hopeful signs the Chronicle reports to not appear to be found at law schools. The student body is already someone socioeconomically diverse, at least based on the students I know with crushing debts. Faculties, however, have not even begun to consider socioeconomic class diversity as anything to be taken seriously. Or maybe I have this wrong. Maybe as my friend suggested the reason it is ignored is because hiring committees and faculties do understand it's importance and it frightens them.