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.