Elite trappings

“Over the last 20 years, every president has been a graduate of Yale.” — Elizabeth Bumiller, The snare of privilege

The race for the 2008 Democratic presidential nomination has been as bizarre as it has been long. The battle between Hillary Clinton and Barack Obama, perhaps because it has stressed symbol and style over substance, has shed powerful light on one MoneyLaw point: the political and practical impotence of elite educational credentials.

Click here to read all about it.

Consider this column by the New York Times' Elizabeth Bumiller:

Elizabeth Bumiller, The snare of privilege

Top: Hillary swills a beer. Middle: Barack bowls a 37. Bottom: Who needs Sweeney Among the Nightingales when you have McCain Among the Shotguns?

Hillary Rodham Clinton, Wellesley ’69, Yale Law ’73 and the first lady of the land for eight years, is suddenly a working-class heroine of guns and whiskey shots. Barack Obama, Columbia ’83 and Harvard Law ’91, visits bowling alleys and beer halls and talks about his single mother who lived on food stamps.

John S. McCain III, United States Naval Academy ’58, the son and grandson of admirals and the husband of one of the richer women in Arizona, chases after the conservative, anti-elite religious base of the Republican Party, and prefers to talk about the “cabin” at his Sedona weekend retreat rather than the Phoenix home lushly featured in the pages of Architectural Digest in 2005.

In an increasingly populist country, it’s not surprising that all three presidential contenders have been sprinting away from the elitist label for much of this primary season. But do they really expect to get away with it?

More to the point, should they? Don’t voters want the best and brightest, and best-credentialed, rising to the top?

Not exactly. Americans have been ambivalent about elites since the nation was founded by revolutionaries who were also, in many cases, landed gentry. And status and wealth still play an outsize role in our supposedly classless society.

Our presidential history is a case in point. Although there has long been an anti-aristocratic bent to American politics, voters have put some famous aristocrats (including two Roosevelts, one Kennedy, all Harvard men) into the White House, and have all but idolized them as well. Over the last 20 years, every president has been a graduate of Yale. In 2004, two members of the university’s rarefied secret society, Skull and Bones, ran against each other, and the more elite candidate, George W. Bush (Andover, Yale, Harvard Business School, son of a president), won. . . .

This year, [traditional disdain for the elite] remains in place. Republicans sneer at Democrats for being cultural elitists, and Democrats deride Republicans as economic elitists. But the old labels have been turned inside out.

Editorial sidebar: Let me get this straight. The two Democratic presidential contenders are struggling to establish their working-class credentials (to the point of pushing beer and bowling beyond their proletarian breaking points), while the Republican admits that he knows almost nothing about economics. For the first time since Corwallis surrendered at Yorktown, strike up The World Turned Upside Down. Who stole my country, and will she or he please give it back?

Mrs. Clinton and Mr. McCain have both derided Mr. Obama as “elitist” for his remarks about bitter rural voters who “cling” to guns and religion, even as Mr. Obama, in a counterpunch, mocked her courtship of gun owners, depicting her as a kind of ersatz Annie Oakley “packing a six-shooter” in a duck blind. And Mr. McCain, throwing a haymaker of his own, pointed out in a recent speech to members of the National Rifle Association that “someone should tell Senator Obama that ducks are usually hunted with shotguns.”

Amid all this, some have noted that we have reached a curious moment in American history: an African-American candidate, born seven years after the Supreme Court repudiated segregation in public schools and four years before the Voting Rights Act was passed, finds himself struggling to overcome an aura of privilege.

“It really is a delicious irony that the first serious black candidate for president should suddenly be described as elite,” said Tom Wolfe, the author of Bonfire of the Vanities and a longtime chronicler of the nation’s fixation on status.

One reason is that Mr. Obama holds two Ivy League degrees at a time when not all Americans accept the notion of an Ivy League education as a triumph of American opportunity. As elite campuses have become more culturally diverse, but not necessarily more accessible to many in the middle class, the perception persists that high-powered connections still matter.

“Most people in America just don’t buy into the idea of a meritocracy as defined by Ivy League meritocrats,” said Nicholas Lemann, the dean of Columbia University’s Graduate School of Journalism and the author of The Big Test, a history of the SAT and the rise of the American meritocracy. “That’s one reason why the average American buys the person who doesn’t have fancy college credentials but who built a business from scratch, like the guy who owns a Toyota dealership in Marietta, Ga., and who grew up poor.”

In a nation without a titled aristocracy, an elite education may well be the most important membership card. “American elites have a problem that the Europeans don’t, which is how to assure that their children and their children’s children retain their elevated social position,” said Jason Kaufman, a Harvard sociologist who has written on elites and American culture. “Americans do this through cultural institutions and exclusion — art museums, classical music and tremendously elitist universities.”

There may be another reason Americans are skeptical about the idea that the best rise to the top: those at the top haven’t performed too well lately. Christopher Buckley, Yale ’75, the novelist and humorist, notes that recent Iraq books contain echoes of The Best and the Brightest, David Halberstam’s classic account of the huge failures of the Ivy League brain trust in the Kennedy White House who propelled the nation into Vietnam. “If you loved Vietnam, brought to you by Harvard and Yale, you’ll love Iraq,” Mr. Buckley said. . . .

Mr. Buckley recalled a famous line uttered by his father, William F. Buckley Jr., Yale ’50, who observed in the 1960s that he’d rather “be governed by the first 2,000 names in the Boston telephone book than by the 2,000 members of the Harvard faculty.”

Ivy League credentials aside, what matters in the end to most voters, when it comes to choosing a president, is not academic pedigree, but rather the candidates’ ability to make an emotional connection and to win trust and confidence. The most famous aristocrat-presidents of the 20th century, John F. Kennedy and Theodore and Franklin Delano Roosevelt, all had that gift, and it outweighed the advantages — and drawbacks — of education, wealth and privilege.

This year’s focus on the crucial swing states, and their large working-class populations, has made inspiring those voters and playing down elitist credentials a political necessity. At the very least, Mrs. Clinton’s lopsided primary victories in West Virginia and Kentucky show how much more work Mr. Obama, the likely Democratic nominee, must do with this critical slice of the electorate. . . .

I am absorbing all of this in a way that Michelle Obama, savvy political spouse that she is, should appreciate. This moment in political history reinforces my lifelong pride in being an American. By pushing Hillary Clinton, Barack Obama, and John McCain through an elaborate exercise in nonelite bona fides, the American electorate has been expressing three beliefs about elite education that are as deeply true as they are intensely felt:

1. Elite education isn't really meritocratic. Expressions of noblesse oblige by the educational elite speak less eloquently than elite institutions' actions and policies. Look at the way they admit students and price tuition: a talented student from a lower-income family has no greater chance of being admitted to an elite college, let alone affording it, than a mediocre student from a wealthier family.


2. Elite education teaches its wards some fairly goofy things. World enough and time wouldn't accommodate a full discussion of this topic. Let's just focus on what elite institutions' leaders often forget — not in spite of but rather because of the socially rarified settings in which they have spent their lives: Students go to school in order to better themselves economically, and the schools in turn must be accountable to their students and their graduates in material terms. These are insights that come along as a natural incident of a working-class upbringing, but today's elite institutions neither seek nor yield classes — let alone faculties — that reflect that source of cultural wealth.


3. Elite education doesn't do that much for you anyway, relative to less elite and more affordable alternatives. Who needs the Ivy League? Or, for that matter, public schools that have forsaken their land-grant missions in quixotic quests for impressionistic prestige, schools that have abandoned Das Volk in favor of a Drang nach Hochmütigkeit? Having been spared the task of retiring debt incurred to take classes from professors who are overrated almost precisely to the degree that they are overpaid may be the best thing that ever happens to graduates of nonelite institutions.

In the end, as with Lux et Veritas, these are the things that matter: The signaling function of education, elite or otherwise, falls far short of things that the best students learn for themselves and teach each other, no matter where they go to school. Neither elite credentials nor even native talent counts as much as hard work, persistence, and fundamental decency. The candidate who best reflects these values will be getting my vote in November, and with any luck a large number of other voters — at the real ballot box and in the sham poll called the U.S. News & World Report survey — will choose in like fashion.

The instruction of youth and the welfare of the state

	The University of Minnesota Northrop Auditorium, 1929
Founded in the Faith that Men are Ennobled by Understanding Dedicated to the Advancement of Learning and the Search for Truth Devoted to the Instruction of Youth and the Welfare of the State

Let's read that again: Devoted to the Instruction of Youth and the Welfare of the State. So concludes the lofty and inspiring inscription on Northrop Auditorium, the architectural center of gravity on the Twin Cities campus of the University of Minnesota.

Northrop's inscription echoes the Morrill Land-Grant College Act of 1862, Act of July 2, 1862, ch.130, 12 Stat. 503 (codified as amended at 7 U.S.C. § 304), the legislative foundation of a network that now spans more than 100 colleges and universities in the United States and its territories. The original Morrill Act committed each state to establishing

at least one college where the leading object shall be, without excluding other scientific and classical studies and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes on the several pursuits and professions in life.

Amendments in 1890 and 1994 extended the land grant system to historically black colleges and universities and to Native American institutions. Collectively, land grant colleges represent access to higher education for an enormous number of working-class and nontraditional students. As I often say of my own school, the University of Louisville (which is not a land grant college but does serve a comparable mission in a metropolitan setting), these are the universities that serve first generations and provide second chances.

One of the keystones of the land grant system is affordability. For decades the cost of higher education has been increasing at a rate far outpacing that of middle class wages. The cost of elite education has risen even more rapidly. As Marie Reilly has explained in this forum, there is strong reason to suspect that universities have plowed the revenues from those tuition hikes into prestige-enhancing measures that deliver little if any value to students who are borrowing heavily for ever-decreasing returns on their educational investments. This is especially true at elite institutions. The contribution of land grant colleges and other public schools to educational access has never been greater, or more important.

All this is prologue to an important post by Bill Gleason, a faculty member in the University of Minnesota's department of laboratory medicine and pathology and the author of The Periodic Table. In Affordability at The University of Minnesota: Priorities for the Short and Long Term, Bill questions his university's commitment to access and affordability — the bedrock of the land grant system — as Minnesota's central administration continues its quixotic pursuit of its stated "aspiration to be one of the top three public research universities in the world." Herewith the remarks Bill made at a May 21, 2008, budget forum sponsored by the University of Minnesota's Board of Regents:

Mark Yudof was the 14th President of the University of Minnesota. He has recently been chosen to head the best public higher education system in the country. This is what he said in his U of M inaugural address:

Minnesotans expect us to be fair in providing access to the University for their sons and daughters.

If we do not provide reasonable access — including access for those who are underprepared and historically underrepresented in higher education and in the upper levels of our socioeconomic life, the taxpayers and state government of Minnesota will turn their backs on our graduate, research, and outreach functions.

Simply stated, it is imperative that we continue to embrace our land-grant roots if we are to thrive.

My first point is that currently student debt is crushing and that the highest priority should be put on addressing this problem.

The claim that scholarships can offset fees and tuition is an empty one. The focus needs to shift to student debt.

According to Kiplinger, we have the highest average student loan debt of any (public) school in the Big Ten — $25,000.

And this is just an average. Undergraduates working in my lab have debts greater than this — people who were born in Vietnam, Poland, and the Ukraine. To give but one real example: both parents of one of my Vietnamese students work in an Austin meat-packing plant. She should be going to medical school, but informed me recently that she would have to seek employment immediately after graduation in order to pay off her debts.

Our Big Ten-leading student debt is simply unacceptable and taking steps to correct it should be of highest priority.

My second point is the hubris exhibited by our administration's continual parroting of the phrase: "ambitious aspiration to be one of the top three public research universities in the world."

As the faculty senate research committee put it last September:

Is this a time to be talking about getting into the top three? When units cannot maintain their research capacity, how can they get to the top three? There is little to suggest that the University is on an upward trajectory.

In response to perceived criticism, President Bruininks has said:

I've heard some of the 'doubters' say things like, I'd settle for best in the Big Ten. Students don't choose the University of Minnesota for (a) mediocre future.

We'd be extremely fortunate to be one of the best schools in the Big Ten. Continuing on with this Orwellian third best public research university in the world business, in light of reality, is an embarrassment and only serves to make us look naive and foolish.

To conclude, again with the words of Mark Yudof:

Some would urge the University to pull back on its land-grant responsibilities.

But at what cost? To save so little and destroy so much? Any short-term gain to research or graduate and professional programs occasioned by cutbacks to the core will be self-defeating. The result will be a decreased level of public support for the entire University enterprise. The University is built on its undergraduate program. If the foundation cracks, the whole edifice is in jeopardy.

Law's double helix

“Beauty is truth, truth beauty,” ─ that is all Ye know on earth, and all ye need to know. John Keats Ode on a Grecian Urn (1819)

The concluding couplet in John Keats's Ode on a Grecian Urn (1819) — “Beauty is truth, truth beauty,” — that is all / Ye know on earth, and all ye need to know. — is arguably the most famous pair of lines in Keats's body of work, perhaps in all of English poetry in the Romantic tradition. The suggestion that truth and beauty might be one has proved so seductive that mathematicians and physicists often rely on unproven links between truth, beauty, and symmetry to frame their hypotheses.

Keats may have stated the unity of truth and beauty in memorable literary terms, but mathematics may be the discipline that relies most heavily on it. Often enough, though not invariably, the unity of truth and beauty holds. What is beautiful is true, and what is true in turn is beautiful. Exceptions do arise — the computer-assisted proof of the four-color theorem and Andrew Wiles's proof of Fermat's last theorem are salient examples of mathematical proofs that look more like rambling narratives or even telephone directories than odes.

Nevertheless, philosophers, poets, and physicists wax rhapsodic in lauding the points in intellectual space where truth achieves what Bertrand Russell called "a beauty cold and austere." Edna St. Vincent Millay echoed this sentiment when she wrote, "Euclid alone has looked on Beauty bare." According to the physicist Hermann Weyl, the best scientific work has “always tried to unite the true with the beautiful.” But when he “had to choose one or the other,” Weyl “usually chose the beautiful.”

How firmly does Keats's unity — the unity of truth and beauty — hold in law?

Read the rest of this post . . .True to the serendipitous way in which law itself arises, I stumbled unto what I believe to be the law's best description of Keats's unity in — of all things — a memoir described as a uniquely powerful first-personal account of science in action. In the opening pages of The Double Helix: A Personal Account of the Discovery of the Structure of DNA (1st ed. 1969; reprint 2001), James D. Watson explained how the quest for beauty and the quirks of human culture both bent the trajectory of the quest for the double helix:

[S]cience seldom proceeds in the straightforward logical manner imagined by outsiders. Instead, its steps forward (and sometimes backward) are often very human events in which personalities and cultural traditions play major roles. To this end I have attempted to re-create my first impressions of the relevant events and personalities rather than present an assessment which takes into account the many facts I have learned since the structure was found. Although the latter approach might be more objective, it would fail to convey the spirit of an adventure characterized both by youthful arrogance and by the belief that the truth, once found, would be simple as well as pretty. Thus many of the comments may seem one-sided and unfair, but this is often the case in the incomplete and hurried way in which human beings frequently decide to like or dislike a new idea or acquaintance.

Law proceeds on terms somewhere between the extremes of Euclid's airtight Elements and the comprehensive computer-aided proof of the four-color theorem. As Francis Crick and James Watson discovered when they sought to unlock the structure of DNA, the quest for the social truth that law embodies may begin in "the belief that the truth, once found, would be simple as well as pretty." That gesture of "youthful arrogance," however, rarely if ever yields the truth on its own. No less than their scientific counterparts, lawyers follow an "incomplete and hurried" protocol by which they "frequently decide to like or dislike a new idea or acquaintance."

Like other outsiders, law students often envision the formation, interpretation, and enforcement of law as a straightforward, even logical process. They soon learn, as Oliver Wendell Holmes observed in the opening lines of The Common Law, that "[t]he life of the law has not been logic: it has been experience." Even as Watson acknowledged how science lurched "forward (and sometimes backward)" in response to "very human events in which personalities and cultural traditions play major roles," Holmes recognized that law does not so much observe syllogisms as reflect "[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow" citizens.

Two intertwined strands run through all law. One strand represents the cold mathematical logic that the LSAT purports to measure, the austere beauty of legal reason deduced without regard to the social circumstances in which law must be made, enforced, and lived. The other strand speaks in historical, even literary or lyrical terms. That manifestation of truth in law, as Holmes explained, "embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." That is all you know in law, and all you need to know.

Innovative Thinking: From the ABA to the "G-Man"

[My apologies for the delay in posts, but I have a good excuse. We added a new baby to the family, which required some time off.]

Innovative thinking often comes from unlikely sources. With March Madness behind us and the excitement of the NBA playoffs hitting its peak, it is time to pay tribute to the ABA. The ABA was a freewheeling league that featured big afros, the infamous red-white-and-blue ball, and focused on a flashy, fast style of play. In a purely economic sense, the ABA was a failure. It hemorrhaged cash and was eventually absorbed by the NBA. For most of its existence it could not secure a television deal, so much of what we know about the ABA comes from word-of-mouth sources or online compilations like Remember the ABA. The ABA was beloved by fans (Jim, I'm sure you have heard more than your fill about the Kentucky Colonels). One of my favorites is Artis Gilmore, who stood 7'6'' if you counted the afro:

Underneath the party atmosphere, the ABA was a haven of innovative thinking that revolutionized the game of basketball. The ABA implemented the three-point shot, slam dunk, and the fast pace of the up-tempo modern game. Now the new wave of innovation is hitting basketball — the Moneyball approach. The Houston Rockets have hired Daryl Morey, the NBA's first Moneyball general manager. Aside from being tall, Morey does not look the part. He has not played basketball since high school, and he has never been a coach or scout. What Morey does have is a commitment to statistical analysis and an owner who has invested millions to help him pursue it. He made a series of crucial additions to the Rockets roster in a string of Billy Beane-like moves. Although the Rockets lost in the first round of the playoffs, they reeled off a 22-game winning streak during the regular season, the second longest in NBA history. Morey may not have the flare and style of the ABA, but he may be just as influential.

On to my MoneyLaw point. Last month's issue of the American Bar Association Journal features a segment called Making the Case for Change. The segment contains several short articles from lawyers and judges arguing for changes in litigation in federal courts. Two articles in particular state that clients are best served when you make efforts to get along with opposing counsel and when you behave in a professional, civil manner toward opposing counsel. The authors of these articles are somewhat unlikely sources: Stephen Susman (the G-Man) and Barry Barnett of Susman Godfrey, and Michael Keating of Foley Hoag. These are BigLaw partners, the ones we would expect to espouse the virtues of hardball tactics to incessantly fight over every inch in litigation.

Read the rest of this post . . .In particular, Susman and Barnett observe that communication with opposing counsel can eliminate needless discovery fights and motion practice, which culminates in benefits for both the client and the court. I could not agree more. What bothers me is that civility and professionalism are viewed as innovative thinking in the modern era of legal practice. the not so distant past, these were the hallmarks of our profession. As former California Bar Association president Sheldon Sloan put it discussing a task force on civility, "The civility that used to exist has dissipated. A lot of lawyers don't know how to behave."

I think a significant part of the problem is that a growing number of lawyers subscribe to the notion that you can intimidate the opposition into a favorable result for the client. They feel you can intimidate with tactics such as refusing to agree on scheduling or deadlines, berating opposing counsel at every opportunity, filing needless motions and being disrespectful to witnesses. California Court of Appeals Justice Richard D. Fybel put it best in this article: "Intimidation is overrated as a litigation tool. It does not work in the widest range of my experience--from business cases to criminal pleas and trials."

Even if you disagree with Justice Fybel and put stock in intimidation tactics, the added benfits better exceed the additional costs imposed on the client. Every intimidation tactic adds unnecessary billable hours which, when compounded over the hundreds (or thousands) of tasks involved in litigation, adds up to an extraordinary expense with no real rate of return. The only intimidation that works is thorough knowledge of the case and skillful courtroom presentation.

Classroom Access and the "5 Whys"

(Cross-posted at Legal Profession Blog)

I considered giving this post an Onion-like title, something to the effect of "UNIVERSITY OF CHICAGO LAW SCHOOL PROPOSES LEAD DOME OVER HYDE PARK; DEAN LEVMORE DERIDES CITY-WIDE WIRELESS HOT SPOT AS 'ANTI-INTELLECTUAL.'"   But Legal Profession Blog is a serious blog (the ABA Journal's blog
regularly uses Mike Frisch's posts as source material!)  So I'll try a moderately serious response.

As has been noted in the blogosphere over the last day or so, Chicago has decided to shut off wireless internet access to its classrooms. Ian Ayres applauds this move; Calvin Massey is skeptical.  I tend to side with Calvin for the reasons he gives over at The Faculty Lounge, but I want to expand.

As Calvin notes, if the teaching is sub-par, students will find different ways of checking out.  I have done the New York Times crossword regularly going nigh on thirty years, and it all started in the back row of the classrooms at Stanford Law School, courtesy of the Stanford Daily's syndicated use of the puzzle.  I won't say which classes, but, trust me, there were some whose combination of turgid text and stultifying pedagogy earned my ennui many times over.

Insulating the classroom from the current iteration of technology is a piece of chewing gum in a crumbling dike.  It's only a matter of time until there is universally available city-wide wireless access (I think Boston has been talking about it.)  At which point, the construction of the lead dome will be necessary to avoid surfing unless the solution is indeed to start us on the road back to quill pens and inkwells by banning laptops in the classroom.

It seems to me that schools ought to be at least as forward-thinking as manufacturing companies in avoiding the quick fix in favor of getting at the root cause.  In modern Japanese-developed lean manufacturing (kai-zen or continuous improvement), one principle used in analyzing the cause of defects is the "five whys":  you don't truly get to the root cause of a problem unless you ask why, get an answer, and then ask why about the answer five times.  Using the five whys here would tell us, I think, that we haven't solved the surfing problem by constructing a technology shield.

Wait a minute.  Five whys.  Gosh, that sounds almost . . . Socratic!

Legal Education from the Demand Side

We law professors spend a great deal of time thinking about how to help our students graduate and pass the Bar—how to supply the market with lawyers, in other words. We spend far less time thinking about the demand side of the equation—whether our students will find jobs. That sort of specialization makes sense. Law profs focus on teaching whereas students, driven by self-interest and helped by their law schools' placement offices, focus on building their careers. Still, though, law profs might benefit from taking on occassional walk on the demand side of legal education.

I recently got that sort of opportunity thanks to Chapman Law School's "Employment Blitz," a special event where faculty and alums try to help graduating students find jobs. We brought our rolodexes, laptops, and cellphones to a large room filled with desks and phones, met one-on-one with resumé-toting students, and started making calls. The experience gave me a newfound—or perhaps I should say, "long forgotten"—appreciation of the perils and promises of trying to land an entry-level law job.

To their credit, the graduating students showed calm resolve, and all of the acquaintances and former students that I phoned seemed eager to help. I usually got little more then tentative leads and earnest well-wishing, granted, but even that helped to lift the students' spirits. And hearing somebody reply, "Send him down to my office! I've got some work for him!" definitely made the effort worthwhile.

[Crossposted at Agoraphilia, MoneyLaw, and College Life O.C..]

Se7enth heaven

"GrumpyLaw"? Hardly. Unwarranted name-calling aside ☺ ☺ ☺ , Geoffrey Rapp deserves the highest praise for his Prawfsblawg post on the reasons that some tenured law professors give for not writing. As Lynn Baker once told me, joining issue is the highest form of intellectual flattery. So here goes. . . .

Geoffrey focuses much needed attention on the motivations of tenured law professors who do not write. Evidently treating a Jeff Harrison post on the in loco parentis theory of deaning as representative of all of us "folks at GrumpylawMoneylaw," Geoffrey rejects the view "that non-writers are thieves who could easily be brought into the scholarly fold by an aggressive dean or post-tenure review." Instead, Geoffrey identifies four rationalizations for not writing:

1. I have nothing to say that would reinvent my field.
2. No one will read it anyway.
3. I object to student-edited law reviews.
4. I get more satisfaction out of service and teaching.

Geoff persuasively refutes the first three rationalizations. The archaic insistence on "battleship" articles privileges purported paradigm-shifting and intellectual hedgehoggery in a discipline where normal science and multifaceted foxes enjoy plenty of room. Like Snow White, academic favor smiles on all types of scholars: Sleepy, Dopey, even Grumpy. So you're a dwarf. It doesn't matter — there are plenty of ideas to be mined. Off to work you go.


Besides, who knows where the next great idea will come from or even how long it will take for other scholars to recognize its significance? Mendel's work on genetics lay fallow for decades; string theory won no adherents when it was first expounded. And what exactly is wrong with normal science, the straightforward application of known principles in pursuit of real answers to significant problems? With a brief essay published (so far) solely in electronic forums, John Duffy is about to bring down a federal statute, no fewer than 46 federal judicial appointments, and millions of dollars in patent litigation. You don't need theoretical brilliance, a big audience, or student editors to have a great impact or, for that matter, a satisfying scholarly career.

As Paul Caron realized, Geoffrey's most aggressive claim consists of a complaint about the coarseness of student-edited law reviews (whose significance he paradoxically downplays):

[I]f the reason some don't write is because of how they feel they are treated by law reviews, maybe we as teachers and advisers of student law reviews need to do a better job of reminding them that the way they reject authors can have real effects. We should encourage them to process pieces in the way they would want the products of their own hard labor to be judged, and to treat authors — even those who submit pieces editors find lame — with respect.

I demur. The fault, dear Geoffrey, lies not in our students, but in ourselves, in what we want and how hard we're willing to work to get it. In the rest of this post, I will describe, to the best of my ability, why some professors don't write. I will then offer some thoughts on what, if anything, the legal academy as a whole should do in response.

Read the rest of this post . . . .

~ ~ ~ ~ ~

The commenters on Geoffrey's post, I think, offer complete and convincing explanations for the failure to write. David Fagundes is especially persuasive. One class of nonwriters is defined according to a generational difference in law school faculty hiring that presumably is fading away. Once upon a time, but arguably no longer, law schools hired at least some professors without expecting them to write scholarship. As one commenter observed, the academy's "shift in the direction of universal expectations of scholarship amounts to changing the rules mid-game." Professors hired without scholarly expectations simply aren't going to acquire, deep into their careers, a burning desire to write.

The same can be said, I think, of the supposedly "more puzzling" category of professors "who used to write and have now stopped." Indeed, as David Fagundes observes, it's a straightforward story:

You've got tenure, so you can't get fired for not writing. You don't get paid for your articles, so there's no financial incentive. You probably aren't going to have the influence and fame of Holmes or Posner, so the non-financial rewards in terms of fame are limited. So instead of spending the summer slaving over an article, why not be on a beach in Bimini? . . . [T]he intrinsic pleasure and satisfaction that legal writing brings many of us is not a reaction universally shared. And because the post-tenure incentives for writing are fairly attenuated, . . . someone who lacked that sense of intrinsic satisfaction in legal writing [can] rationally decide to focus on other professional and personal priorities.

To sum up: People don't write because they'd rather do other things. Even people hired on an expectation that they should write might prefer to work — or loaf — in other ways. And since we really don't make them write, people who would rather do other things besides writing . . . do other things.

~ ~ ~ ~ ~

Well, what if anything should academia do about professors who don't write? Short of embracing the impracticable, even politically suicidal, "GrumpyLaw" prescription of subjecting all nonwriters to post-tenure review as thieves and scoundrels, I can recognize at least four distinct but not mutually exclusive approaches:

1. Do nothing. At the very least, do nothing drastic. Ask nonwriters to focus on teaching, advising, outreach, and university-wide committees.

Again, I demur — well, at least in part. I am hardly staking out controversial turf: the entire academy insists on scholarly performance as a condition of tenure. Although the experiment with for-profit legal education still remains in its infancy, I suspect that even schools whose primary raison d'être is to usher students from bachelor's degree to bar exam with utmost efficiency will want their faculty members to write. It's well-nigh impossible to stay current without writing something.

That said, it is the better part of administrative wisdom to leverage the better instincts of human nature. If someone does have more time and energy for nonscholarly chores around the law school, because she or he has forsworn all scholarship, then by all means assign this colleague to productive work. Everyone likes feeling valued for something.

2. Issue nonwriters a free pass, to the extent they were hired without scholarly expectations.

This approach assigns maximum value to reliance interests and to settled expectations. It's an argument that I instinctively find unpersuasive even when applied to individual human beings and downright odious when applied to business organizations. Things change, and you always knew they could — and would. That was then; this is now. But reasonable minds do disagree, and in this instance the deeply rooted conservatism of the academy — ours after all is a profession comprised of people who eagerly sacrifice pay for lifelong job security and then, more often than not, act like intellectual cowards behind cover of tenure — would undoubtedly prevail over all contrary considerations.

Here's the upshot: Once upon a time we hired law professors without asking them to write. Of late we've stopped doing that. At moments like these, those of us on the winning side of a generational divide should draw solace (and inspiration) from then-Justice William Rehnquist's dissent in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). We're younger, and our time will eventually come, if only we can avoid getting fired or blowing a cardiac gasket in the meanwhile.

3. Increase symbolic rewards for writing.

It bears remembering that academia is (mostly) a not-for-profit endeavor and that big-ticket payouts to individual faculty members — monster salaries, nominal teaching schedules, slush funds for centers and junkets — rarely if ever deliver real institutional value, at least relative to other things money can buy. (Aside: this is especially true when academic rock stars arrive at a university as matched pairs.) And nonwriters know, better than their writing counterparts often imagine, what they're missing: a rougher path to promotion, fewer trips to fun conferences and symposiums, lower levels of esteem among one's peers at home and afield. But there are ways to reward people for being intellectually curious and for acting on it. Not all of them will break your budget.

4. Work harder to avoid hiring (future) nonwriters in the first place.

This is simply the managerial equivalent of normal science: apply MoneyLaw principles on a day-to-day basis, taking care to remember that reviewing forms from the Faculty Appointments Register and scouting prospects at the AALS hiring conference are day-to-day chores. Hire no one who hasn't written something before entering the teaching market. Stress performance, not pedigree. And pay very, very close attention to candidates who seek precise numerical definitions of local thresholds for tenure. People who fret about the number of articles, pages, or words needed to clinch tenure, as if they were Democratic Party Convention delegates, tend to try to write precisely the number of articles, pages, or words they imagine to suffice for tenure. Those who succeed usually do secure tenure. And thenceforth they write like Poe's Raven: "Nevermore!"

~ ~ ~ ~ ~

Depictions of the seven deadly sins, from Hieronymus Bosch, The Seven Deadly Sins (ca. 1485), to Gilligan's Island and Se7en. Each image may be clicked for an explanation; the theme to Gilligan's Island is embedded as a multimedia bonus from the Jurisdynamics Network.

It should be clear by now that I endorse, with wildly variable levels of enthusiasm and significant misgivings, all four of the strategies I have outlined. I've expended great thought and effort on this whole exercise because I realized, perhaps only after I began formulating a response to Geoffrey Rapp, that the task of motivating senior faculty members to write goes to the moral heart of higher education.

Scholarship is a core responsibility held, even cherished, by most members of the academy. Indeed, the best among us do not view it as a duty, but as a privilege. If higher education were to identify its gravest sins, the complete failure to produce scholarship surely would rank among the top seven.

Here at MoneyLaw and elsewhere, I have enthusiastically endorsed Hanlon's razor, the folk aphorism that reminds us: Never attribute to malice that which can be adequately explained by stupidity. I am now prepared to embrace an even more expansive version of Hanlon's razor. Never attribute to active sin that which can be adequately explained by inertia.

Inertia, of course, bears a striking resemblance to sloth. And sloth — alongside pride, envy, greed, gluttony, lust, and wrath — has numbered among Christianity's seven deadly sins since the Middle Ages. The definition of sloth has varied over time, however. What we now call sloth was once regarded as despair, a condition of hopeless torpor now regarded as distinct from laziness for its own sake and regarded as worthy of designation as a separate deadly sin in its own right. (Go ahead and Google the search string, despair eighth deadly sin.)

The easiest of the deadly sins to commit, in law and in academia as in the rest of life, is sloth. It often consists solely of doing what comes naturally — which is to say, nothing. Among sins, sloth reigns supreme, because this may be the lone principle of Christian metaphysics backed by a fundamental law of classical physics. Moreover, if I have learned anything about the dark art of academic administration, it is the deep and unmovable hierarchy among the deadly sins of this enterprise. It does little good to fight sloth with wrath, because inertia almost always overcomes countervailing motion. In a field whose material rewards are comparatively modest, greed is a similarly weak motivator. And as exasperating as academic sloth can be, I would sooner have a colleague who is a well-intentioned scholarly nonentity than ever again work with someone so benighted as to deserve the title of the worst law professor in America.

Teaching Evaluations Again

I have written before about teaching evaluations but have not done an in depth study of what they tell us. As a economist many years ago all of us teaching the basic course did use a common exam and compared student evaluations with how the students did and found no correlation. Some studies, however, do show some correlation between evaluations and learning. Lately an article by Deborah Merritt on the topic is close to reading a great book in terms being a page turner. "BIAS, THE BRAIN, AND STUDENT EVALUATIONS OF TEACHING," 82 St, John's L. Rev. 235. It's 2008 but I think it has been out for a few months. Here is an excerpt.

Yet, the research on student evaluations is troubling. It confirms not some connection between a professor's style and student evaluations, but an overwhelming link between those two factors. Nonverbal behaviors appear to matter much more than anything else in student ratings. Enthusiastic gestures and vocal tones can mask gobbledygook, smiles count more than sample exam questions, and impressions formed in thirty seconds accurately foretell end-of-semester evaluations. The strong connection between mere nonverbal behaviors and student evaluations creates a very narrow definition of good teaching. By relying on the current student evaluation system, law schools implicitly endorse an inflexible, largely stylistic, and homogeneous description of good teaching. Rather than encouraging faculty to use nonverbal behaviors to complement excellent classroom content, organization, and explanations, the present evaluation system largely eliminates the "dog" of substance, leaving only the "tail" of style to designate good teaching. Neither law students nor faculty benefit from such a narrow definition of good teaching." (notes deleted).

This article is chuck full of summaries of experiments relating to teaching evals. My favorites are those that show a few seconds of a teacher on tape with the sound off. A group of students is then asked to evaluate the teacher on a number of measures. These evaluations -- again based on sound off seconds -- turn out to be remarkable close to the evaluations the same teachers receive at the end of a semester from their regular classes. In short, looks, movement, expressions, etc, may trump everything else. Later on in the article Professor Merritt reports on a study that seem to indicate that whatever the students are responding to has virtually nothing to do with objective measures of learning.

This leads to two questions. How would a Moneylaw school evaluate teaching? If tenure, promotions and salaries are based on student evaluations would be fair to view the process as arbitrary and capricious?

Forget about Memorization

A recent article in Wired, Want to Remember Everything You'll Ever Learn? Surrender to This Algorithm, offers both a fascinating sketch of Piotr Wozniak's single-minded pursuit of memorization and all that you need to know if you want to match his incredible achievements. It boils down to this: Use Wozniak's program, SuperMemo, if you yearn to remember lots of data.

Alas for my students, however, SuperMemo probably won't help much with the study of law. As first-year students quickly discover—often to their evident chagrin—you cannot learn the law simply by memorizing it. SuperMemo might work for, say, drumming conjugations of French verbs into your head, but it won't help you figure out whether a promise to forego demanding payment of a debt constitutes illusory consideration. In that, the law resembles physics; learning the rules couts for far less than figuring out how to apply them to particular facts.

I don't know of any sure-fire way to package that sort of teaching. We law profs muddle along with a mixture of classroom demonstrations, abstract theorizing, rough rules-of-thumb, and hands-on practice. I'd love to offer my students something like a SuperMemo program for mastering the law, but I doubt that so complicated a task would squeeze into a neat algorithm.

[Crossposted at Agoraphilia, MoneyLaw, and College Life O.C..]

Writing, Talking, and Anonymity

The exchange on anonymous posts made me think of another small discussion on this blog about written and spoken messages. (I am not talking about the series on the (not) New York Times rule.) I took the position that a written message – even an argument – is sometimes preferable because it forces the other person to “listen” before responding. When I wrote that I had in mind conversations with colleagues and friends who, before a thought is complete, begin shaking their heads “no” and preparing a response to something they have yet to hear. Writing seems to me to be more like an approach I read about for how couples should argue. The approach required one partner to repeat back to the other person what they had said before responding so at least the response would be on point.

I think in that older discussion Marie made the point that – and she would have said it more gently than this I think but then again maybe not– if someone has got something to say to someone else they should have the guts to say it to his or her face.

That is where the connection is to the issue of anonymous postings. I will have to concede that writing as opposed to face to face, whatever I think its advantages may be, also gives the speaker just a shade of anonymity. The writer does not have to see the reaction of the other party and to some extent can be viewed as not fully accountable for the impact of what he or she says. That makes the writer seem like a coward. On the other hand, what if those visible cues given off by the person who is “listening” to something he or she does not want to hear are actually part of the way he or she argues, even a subtle form of bullying or at least a passive aggressive why of signaling disapproval? Why should the person simply delivering a message or stating a point of view accept subtextual punishment for doing so? If it has the impact of making full discussion less likely is it any different from raising one’s voice or slamming the door?

The brief exchange on writing as opposed to speaking moved me to the "it all depends position." On the other hand, if there ever was a door slammer it is the anonymous commentator. “So there!” he says as the door crashes shut. The problem with this generalization is that I can think of legitimate reasons why a commentator would like to remain unnamed. An untenured person (although I have yet to witness a case in which it would be necessary) may feel this way. Similarly, the member of any law firm or any terminable at will employee may for good reason want to remain anonymous. On the other hand, there are the anonymous commentators who are the blogging version of high school kids writing on the bathroom wall. They do not care to agree or disagree with the substance (disagreement is better from my point of view because it increases the chances of learning something). I've decided to delete those from now on. The psychology of these commentators is lost on me. How can saying something that you fight not to have attributed to you make you feel better? I have some hunches about these grown up bathroom wall markers but they are too cruel to write. I keep trying to remember that even anonymous is someone's son or daughter.

MoneyBall 101 for managers

During the InterACT San Francisco conference in May 2007, managerial consultant James Taylor nicely summarized the tenets of MoneyBall, as presented by Michael Lewis himself:

Michael [Lewis] said that writing about sports is a way to tackle broader issues. He particularly sees a value revolution in sports. The big problem is that athletes are paid huge sums yet the mechanism for assessing their value has not kept pace. . . .

What if these people were not athletes but regular employees? Despite all the data about the performance of these athletes they were still mis-valued. But who then could be mis-valued[?] Answer, anyone. People relying on subjective judgment:

• Don't differentiate between luck and skill
• Are often deceived by appearances
• Have "fame bias" — 80% of MLB players could be replaced by a minor league player without a negative impact!
• Have a number bias — as soon as you count something it becomes a fetish. For instance, creating a "save" as a statistic led to it becom[ing] a fetish and [Billy Beane's Oakland A's] would exploit this to drive up the value of a player
• [Find it] [h]ard to commit to value [they] cannot see

Mark Rittman of Rittman Mead Consulting lauds MoneyBall as a prime instance of "competing through analytics" and using smart arbitrage:

The trick . . . was to spot what the true signifying statistics were, and this is where techniques such as regression came in as hundreds of amateur statisticians ran the numbers and tried to establish just what player traits and actions were most likely to lead to either runs being scored, or hitters being caught out. . . . [I]t’s a classic case study of an organization gaining competitive advantage through an analytical approach to their business.

All this is standard fare for longstanding fans of MoneyBall and MoneyLaw. Still, any moment in the Major League season in which the New York Yankees are closer to the basement than the division lead is a joyous occasion, and I thought I'd celebrate just a little today.

My Best Teacher

Professors hear a great deal about good and bad teaching. Virtually every teacher I know has a group of students who think he or she is the greatest and virtually all of them have some students who feel just the opposite. In reality most of us know practically nothing about what goes on in the classrooms of colleagues. Sure, we have sat in on classes for evaluation purposes and we hear what we hear on the grapevine but the visit is a small sample and the grapevine, just beneath the surface, may equate good teaching with being funny, having great war stories, giving good notes, power point, handing out outlines, etc. And, as a recent survey I ran on moneylaw indicates, student evaluations are not verified as being correlated with actual learning. So, we know next to nothing.

To some extent good teachers help students understand difficult concepts. This makes a great deal of sense in math or physics but less sense in law where there are fewer really difficult concepts (putting aside the Erie Doctrine). I do have the feeling that one way to be viewed as a good teacher is to seem to be making a difficulty concept understandable but sometimes that means first convincing the students that it is difficult. The parole evidence rule comes to mind here.

Thinking about the teaching “thing” made me realize two things. First, if I were a student I would want the smartest, best informed, and articulate person possible to be my teacher. If I have the casebook and access to a library, I think I would be able to figure out on my own what most teachers actually "teach" these days. The organization of the course (or outline) is usually the book. The back letter law is there too. I’d like class to start with the understanding that I know the case and I know the black letter rules. Then I’d like to be able to ask the teacher every question that occurs to me. Then I’d like the teacher to ask me the hardest possible questions, if I have not asked them already. Frankly, I’d prefer not to be treated like law school were a form of remedial education.

The second thing that occurred to me is that I am not sure why students do not want that to be what goes on. Why are students so passive? They do not “use” the teacher aggressively as an instrument. Instead, too many sit there and seem to say “tell me what I need to know (and only what I need to know) and make it funny. And for goodness sake, do not challenge me.” The aggressiveness that might be found in bargaining over a new car or seeing a physician about a persistent fever or headache, is just not there. The idea of being an advocate for oneself in the classroom in an effort to get every drop of help the teacher can provide is simple not part of the consciousness. It’s like saying to a doctor approaching with a giant syringe filled with a bubbling green liquid of unknown qualities,“In my arm or in my butt?”

I am just flirting with this idea for now but this passivity makes me wonder if all of the things I associate with half-baked teaching are really ultimately traced to low expectations by students.

The Law of Rock

By way of the Daily Californian, Jurisdynamics and MoneyLaw have learned a matter of earthshaking importance in legal education:

Josh Keesan, a law student at the University of California-Berkeley, has recorded The Law of Rock, Volume 1. To the best of my knowledge, this album represents the first, full-length, studio-recorded effort to express legal doctrines as works of rock 'n' roll. Simply awesome!

To hear samples of Josh Keesan's new album, you can visit the Daily Californian's podcast page or Josh's own album page. But why not stick around here and listen to the concert in the comfort of this blogspace? And if you're impressed, as I am, be sure to buy his album.

Josh Keesan rocks the law

Contributory Negligence  Promissory Estoppel  Mens Rea

Law, Finance, Accounting, and the J.D.-M.B.A.

(Cross Posted at Legal Profession Blog)

Over at PrawfsBlawg, Adam Levitin  (Georgetown, left) provoked a discussion on the value of the JD-MBA degree, as well as the general shortcomings of business law education.  Let me throw in my two cents' worth.

We need to distinguish between the value of the skills and the value of the degrees.  Whether the benefit justifies the cost is open to question, but it seems to me the M.B.A. skills have value to big deal - big firm lawyers, as well as to small business lawyers.  The whole panoply of M.B.A. skills - accounting, finance, organizational design, marketing - are particularly helpful to lawyers who practice in-house, and who aspire to management as well as law.  The M.B.A. skills are also helpful to lawyers who represent start-ups.  I'm not sure about the entire panoply, but I think a basic grounding in business, and certainly in accounting, would be helpful to someone who is going to hang out a shingle and start a business practice wherever located.

My experience in large corporations is that the J.D. skills are also valuable to people in non-legal positions, but this is a place that the J.D. degree might make a difference.  Moreover, I agree with one of the comments to the effect that we need to be careful about the elite school - elite firm bias.  I suspect the J.D.-M.B.A. degree IS an asset in a limited number of elite openings - investment banking and high level consulting of the Bain-McKinsey-Booz type.  I agree that the M.B.A. portion of the degree (qua degree) is not particularly valuable in the standard recruitment to big law.

I do think the J.D. degree is helpful to non-lawyers seeking to advance their careers in certain non-legal areas, but I recognize that's an empirical assertion founded on my experience, albeit anecdotal. Here's where we have to acknowledge the difference between those schools a huge percentage of whose graduates go on to big law or prestigious clerkships and those where that is not so.  Human resources executives, environmental executives, purchasing (or as we say now, supply chain) people, compliance departments all overlap significantly with regulation, and I think the legal sheepskin does indeed make a difference in one's ability (a) to do the job, and (b) to distinguish oneself from one's peers in doing so.  This may not be a critical consideration at Columbia, which apparently sent 75% of its grads to NLJ 250 firms, but it may be at a lot of other places.

Finally, accounting.  Yes, there are areas of the law that will never really require that you understand the rudiments of accounting.  But they do not include:  trusts and estates, divorce, business litigation, antitrust counseling and litigation, mergers and acquisitions, small town general practice, white collar criminal prosecution and defense, personal (much less business) tax, and much much more.  I used an otherwise fine (and well-regarded) casebook on sales in which the author, in his discussion of the lost profits measure of damages under UCC 2-708, confused the economic concept of fixed and variable costs with the accounting concept of direct and indirect costs.   They aren't the same, and the lawyer who doesn't understand that is apt to do a disservice to his or her client someday.

The Student Loan Bubble

Andrew Gillen of the Center for College Affordability and Productivity thinks the next US financial crisis will be the popping of the student loan bubble. In a recent report, Gillen draws parallels between the conditions leading up to the current housing crisis and those in the market for higher ed.

Here's his argument: To expand access to higher education, government has expanded students' access to financial aid, particularly through subsidized loans. Consumer subsidies expand demand. Profit maximizing suppliers normally expand production to respond to increased demand. In the case of higher ed, subsidies do not work that way.

Universities are not profit maximizers. Rather they maximize prestige. Expanding production and supply (adding more students) actually decreases prestige. Rather than add more students, universities hold enrollment constant, raise tuition, and use additional tuition revenue (care of federal subsidy) to build prestige. Consumers can benefit even if output does not increase if product quality increases. But, more prestige for a university is not necessarily coincident with a better education for students. Gillen asserts that universities are not using expanded revenue to improve the education they deliver to students. They can charge higher tuition without rendering a higher quality beca