Wednesday, November 29, 2006

Is There Hope for Ideological Diversity?

A number of readers assume that my posts are always about my home School here in Gatorland. Yes, much of the time I am inspired by Gatorland events, (and David Lodge) but judging by what people at other schools tell me, their schools have the same basic anti-MoneyLaw tendencies. Based on statistics I have seen, one way my School clearly is not different is in the lack of interest in hiring to promote ideological diversity. The resulting lack diversity is hard on old fashion lefties like me and the smattering of conservatives who are on a faculty. (Here, I think, we have 1 conservative and no libertarians, but maybe some are in hiding.) Who are we supposed to argue with and how do we test our ideas? It makes for a very uninspiring environment. Writing for and talking to the choir is as boring as talking to a rabid pro-lifer about what constitutes a person – there is only one acceptable answer. I do not understand why this is tolerable to so many. The thrill of intellectual adventure seems lost.

I am not sure how we (I mean so many schools that have also dug this hole) got here. It’s way too easy to attribute it entirely to selective appointments committees. I just have not seen a concerted effort to exclude those with a different point of view. Then again, I have seen no effort to seek these people out nor any evidence of widespread believe that ideological diversity is a good thing.

I do not know the answer, but here are some possibilities:

1. Choir people are found in the AALS sheets in higher numbers than lefties, conservatives and libertarians.

2. There is some conscious and unconscious filtering of intellectuals with ideas that are contrary to those in control. These people are threatening.

3. Many areas of specialization only attract choir people. For example, is anyone with the view (not one I have) that a few zillion species are extinct and we have not noticed the difference likely to be attracted to environmental law? (On this read Julian Barnes’ The History of the World in Ten and a Half Chapters, where we learn what many of us had expected all along: that there were two Arks and one was lost in the flood and, for the most part, no one has given it a second thought.)

Maybe you disagree with my premise. That’s fine. This is one case where I want to be wrong. But if you agree, what is your explanation? What accounts of a lack of interest in ideological diversity? I think MoneyLaw rules require this type of diversity.

Tuesday, November 28, 2006

Miss Gray's fourth grade class at Peeple Street Elementary, 1974-75

Jeff Harrison asks, "Is there a MoneyLaw approach to grading?" I propose what is at least an indirect answer to this question.

Brown Middle SchoolI was a member of Miss Gray's fourth grade class at Atlanta's Peeple Street Elementary School during the 1974-75 school year. I did not then and do not now know Miss Gray's first name; like most other elementary school teachers, she was destined to be remembered, if at all, as "Miss," "Mrs.," or "Mr." At Peeple Street Elementary, though, we learned never, ever to take those titles for granted. As a certain Mr. King reminded us, "Mrs." is a very respected title. Peeple Street Elementary itself is no more. The closest image I could find is that of Joseph Emerson Brown Middle School (named for a curious historical figure who managed somehow both to lead Georgia into secession and to be a fierce advocate for public education). Brown dominated the neighborhood; I would have attended it eventually had my family not moved to Clarkston during the summer of 1975.

But I digress. I am here to remember Miss Gray. She stood exceptionally tall -- okay, all adults did when I was in fourth grade, and perhaps she just seemed tall because she was so thin. I do remember thinking that she was beautiful. I never appreciated how beautiful she really was. Since this is MoneyLaw, by the way, I feel compelled to say this much regarding her own educational background. I cannot imagine Miss Gray, in her youth, having attended the University of Georgia or Georgia Tech. Spelman, perhaps, or Fort Valley State.

The most important thing about Miss Gray, and we all knew it, was how much she loved us. Having spent a lifetime in schools of one sort or another, I can honestly say that I have rarely met another person more beautiful in spirit.

Miss Gray brooked no careless work. She reminded us that the people who ran the world had little inclination to value us, her students, and that we were destined in all likelihood to work twice as hard for half as much, if that, as certain of our counterparts would enjoy. But the task she set before us was never to complain, simply to work harder. Though she surely appreciated Black English Vernacular and its rich oral tradition -- for the love of God, she wrapped us in it -- Miss Gray took singular exception to the pronunciation of ask as though it were spelled ax, each instance of which gave her an occasion to remind us about those inconvenient 2:1 and 1:2 ratios. Our one and only chance, she repeatedly stressed, lay in learning our lessons and doing our homework.

Matthew HensonMiss Gray's personal heroes included Booker T. Washington, George Washington Carver, and Matthew Henson. I'm sure she was the reason I would come to know that there were two Morrill Acts. All the time I have spent in countries such as Sweden and Iceland stems in good measure, I have no doubt, from the way Miss Gray admired Matthew Henson and told us so.

I trace to Miss Gray my own awareness of American politics and to the possibility that I might have something meaningful to contribute to government (or at least that I might teach and write about it). She took pains to give me a story about a boy who had come to America from China and was treated to a fireworks display on the Fourth of July. Miss Gray might as well have been Annie Sullivan holding my hand under a water pump in Tuscumbia, Alabama.

The day I'll remember most vividly, though, was the day Miss Gray told us that one of our classmates would not be coming back. "Joe" -- I remember his head, as thoroughly shaved as it was perfectly round, but not his name -- had been caught stealing. Miss Gray openly wept as she told us the story. Now that I reflect on what probably lay ahead for Joe, I too am weeping.

For all this and more, Miss Gray figured most prominently among the teachers and classmates to whom I dedicated Mayteenth. That gesture and this post are woefully inadequate, but I have no other way of expressing gratitude to a woman whom I have no realistic way of finding, assuming that she is even alive.

So what does all this have to do with MoneyLaw in general and Jeff Harrison's question in particular? There are many questions I'd have for Miss Gray, and her views on grade inflation would probably never qualify as a topic of conversation. But I have no doubt what her answer would be. The teaching mission is that of imparting knowledge and building character, not conferring credentials. What was good enough for the public school classroom over which Miss Gray presided will serve me for life. It should be good enough for classrooms at institutions that should aspire to do as much good as Peeple Street Elementary did for me.

Grading and MoneyLaw: Is There a Connection?

A few days ago, without much success, I asked readers if there were different MoneyLaw rules for public and private schools. Now I have a different question for which I also do not have an answer: Is there a MoneyLaw approach to grading?

Grades are signals. First to students on how they did and, second, to employers on how the School evaluated the students. The problem of articulating a MoneyLaw approach is illustrated by two conversations I had recently.

Conversation one was by email. The registrar wrote to ask whether a student who had missed a month of contracts due to illness could return to class. My answer was: 1) I had no limit on excused absences, 2) Because of our curve (3.2) the student would likely get a passing grade and 3) I could not promise the student would know much about contracts.

Conversation two was with a first year student who said she was anxious to get her grades to find out how she was doing. My response was to tell her that even after grades she would likely not know. With a 3.2 curve the pattern in a 110 person call is about 15 A’s, 10 C’s and all the rest are B’s or B+. In short she was likely to find she had the same grade as 40 others.

Apart from my view that current grading is a result the disastrous decisions of the 60s generation in which I fully participated. (At one time I consciously practiced affirmative action in giving grades and tutoring. Something I would not do now even if it were necessary, which it most certainly is not at my School.) It is also a response to the implicit bargain between professors and students that entails given high grades and then being viewed as fair or “a good guy” which then may show up as higher enrollments and teaching evaluations. Curves take out of play the “grade bribe” but do not take out of play the “less rigor bribe.” By the way, I do not think a great percentage of law professors fall prey to either of these but it only takes few to create the externalities to which others react.

So, do grading policies fall within MoneyLaw concerns?

Are Scholars Better Bloggers?

Ssrn_185I have posted Are Scholars Better Bloggers?, 84 Wash. U. L. Rev. ___ (2007), my Introduction to the Symposium on Bloggership: How Blogs Are Transforming Legal Scholarship held at Harvard Law School on April 28, 2006, on SSRN Here is the abstract:

These are the opening remarks I delivered at the Symposium on Bloggership: How Blogs Are Transforming Legal Scholarship at Harvard Law School on April 28, 2006. Part One describes how my work on TaxProf Blog and the Law Professor Blog Network led me to organize this Symposium. Part Two takes inspiration from Jim Lindgren's work, Are Scholars Better Teachers?, to ask, using our twenty-three panelists as guinea pigs, Are Scholars Better Bloggers? The data indicate that our participants include some of the most heavily-cited and heavily-downloaded legal scholars who edit many of the most heavily-trafficked law blogs. Although the data do not do not conclusively answer the question raised, they demonstrate that we have assembled an impressive array of scholar-bloggers in the first conference on the impact of blogs on legal scholarship.

Part Three provides an overview of the symposium papers and commentary, organized around four themes: (1) Law Blogs as Legal Scholarship (papers by Doug Berman, Orin Kerr, Kate Litvak, and Larry Solum; commentary by Jim Lindgren and Ellen Podgor); (2) The Role of the Law Professor Blogger (papers by Gail Heriot, Gordon Smith, and Eugene Volokh; commentary by Randy Barnett and Michael Froomkin); (3) Blogs, First Amendment Law, and Co-Blogging Law (papers by Glenn Reynolds and Eric Goldman; commentary by Dan Solove and Betsy Malloy); and (4) The Many Faces of Law Professor Blogs (papers by Ann Althouse, Christine Hurt & Tung Yin, and Larry Ribstein; commentary by Howard Bashman and Paul Butler). Paul Butler perhaps best captured the spirit of the Symposium with this clarion call: “Blogs are walking up to legal scholarship and slapping it in the face. Blogs say to legal scholarship: ‘How dare you! Evolve or Die!' . . . I feel like I am part of a movement that could change the world.”

An end-of-semester benediction

Wondering what to say to your students after the last class of the semester? With apologies to Jewel, try this benediction:
If I could tell the class just one thing
JewelIt would be that you're all okay
And not to worry because worry is wasteful
and useless in times like these
You will not be made useless
Don't be idled with despair
You should gather yourself around your mind
for light does the darkness most fear
The original tune is truly lovely. Watch the video:
This item has been posted simultaneously at Jurisdynamics and at MoneyLaw.

Monday, November 27, 2006

Volunteers, botanical and scholarly

First, a quick primer on botanical volunteers:
Volunteer oxalis
The good garden accepts volunteers such as Oxalis. Should law schools follow suit?
In gardening and botanical terminology, a volunteer is a plant that grows on its own, rather than being deliberately planted by a human farmer or gardener. Volunteers often grow from seeds that float in on the wind, are dropped by birds, or are inadvertently mixed into compost before it is used.

Unlike weeds, which are unwanted plants, a volunteer may be encouraged once it appears, being watered, fertilized, or otherwise cared for.

Volunteers that grow from the seeds of specific cultivars do not reliably "come true", and often differ significantly from the parent. Such open pollinated plants, if they show desirable characteristics, may be selected to become new cultivars.
All of which raises the question: Why not switch to all-volunteer law reviews?

This is a proposal made six months ago by Paul Horwitz. In an effort to mediate MoneyLaw's ongoing debate between Jeff Harrison and Orin Kerr, Anthony Ciolli of First Movers implicitly endorses Paul Horwitz's proposal. In the commentary on Anthony's post, fellow First Mover N.J.L.S. demurs:
Membership in a selective journal -- as opposed to an open membership journal -- signals to employers the applicant is a motivated self starter, with an eye to improving critical skill sets. The application process also signals to employers that the member's written product garners the respect of peers. Both are efficient indicators that employers can and should consider in extending offers to interview.
Hands in the airAs much as I admire N.J.L.S., whose Urban Law Journal is one of the most thoughtful blogs on law (without regard to professional or student-written status), my instinct is to side with Paul Horwitz on this issue. Paul's analysis is extensive, and any effort to summarize it here will not do it justice. But this one quote from Paul's proposal captures its spirit, given how true the sentiment rings across the entire range of issues that MoneyLaw endeavors to address:
The legal academy . . . is ostensibly reformist in orientation but actually highly conservative, especially when it comes to maintaining those status markers that have served them so well.
Ye gods, Paul. I wish I'd written that.

For the Love of the GameUltimately, this is a debate that can be settled at relatively little cost. If I had, say, a spare $12,000 or $15,000 in an annual budget, plus the power to grant a law school's institutional imprimatur, I'd set up something called the Volunteer Law Review. True to its name, the VLR would grant membership to any upper-level law student who wants it and is willing to work to keep it. Its open-admission status would guarantee that the VLR lacked the prestige of its selective-membership counterparts among student-edited law journals. On the other hand, the lack of prestige guarantees that the students who show up are doing so strictly for the love of the game. Who knows what this corner of the garden might generate? Perhaps nothing. But for roughly a tenth of a tenured law professor's salary, I sure would like to find out.

Sunday, November 26, 2006

MoneyLaw awards a Mazeroski Medal of Merit to Cassandra King

Mazeroski rounds thirdThe Mazeroski, or "The Maz" for short, is MoneyLaw's medal of merit. Named for Pittsburgh Pirates second baseman Bill Mazeroski, the Maz honors "individuals whose contributions to the advance of legal academia are as considerable as they are quiet." The idea is simple. Law professors and educational administrators (from deans on up to university presidents) are fully capable of marketing themselves. Indeed, the most cynical among us might argue that these individuals excel at nothing as well as self-promotion. The Maz is for everyone else.

Widener University School of LawMoneyLaw is pleased to confer a Mazeroski Medal of Merit on Cassandra King, webmaster for the Widener University School of Law. Cass has been pivotal in setting up Blogs @ Widener, a portal page for faculty blogs from Widener's Delaware and Pennsylvania campuses. (It goes without saying that a law school spanning more than a single physical location stands to gain a great deal from having superlative electronic infrastructure.) Thanks to Cass, legal academia at large, at Widener and beyond, have easy access to Benjamin Barros's posts at PropertyProf , Richard Hermann's LawTech blog, and the burgeoning online presence that is Robert Justin Lipkin. Yes, Bobby Lipkin's contributions to Essentially Contested America and Ratio Juris (a MoneyLaw affiliate within the Jurisdynamics Network) were what brought Cass King's excellent work to my attention, but the fact remains that Cass has performed a fanatastic serviced on behalf of her law school. She deserves a Maz.

Please join MoneyLaw in congratulating Cassandra King, the latest recipient of the Mazeroski Medal of Merit.

Public and Private: Do MoneyLaw Rules Differ?

My discussion with Orin Kerr leads to an issue that I think MoneyLawyers need to address: Are there different MoneyLaw rules for public and private law schools? Put differently, should there be different rules depending on whether students are paying full cost tuition or are enjoying taxpayer subsidization. If there are, the argument would be that the identity of the principal shifts and with it the programs, courses and opportunities a school might offer. In baseball terms, one could see it as whether the fans should vote on who is invited to the All-Star game. That decision – allowing the fans to vote – can be linked to a simple private sector desire to increase profit, not to a duty to present the highest quality play. Maybe private law schools should operate in a parallel fashion. Perhaps they already do. I concede that I have not done a comparison of public and private school offerings.

An argument that the rules should be the same and that student demand should not play a different role can be made by comparing law professors to any other professionals who are paid for their assessment of what is in the best interest of the client. Most physicians, do not just dispense whatever medication the patients think they need. One the other hand, could it be that private law schools should operate more like cosmetic surgeons and do more of what make students feel good? Is it even possible that the students know best?

I have already put my two-cent’s worth on this by saying that I do not see the rationale for public schools to offer a Tax LLM. I would add to the Tax LLM any relatively non public service oriented LLM unless the idea is to charge above cost tuition in order to cross-subsidize other programs. In fact, ideally, I would like all public law schools to vary tuition depending on a post graduation requirement of some form of public service. Yes, this means private law schools would have a better shot at relatively affluent students and that seems fine to me. This suggestion is impractical and not likely to happen but it illustrates the complexity of what it means to have fiduciary obligations in the context of public and private suppliers.

Notes from underground

MoneyLaw has been blessed of late with excellent below-the-line commentary. Be sure to take a look at these items that lurk beneath this forum's front page:
  1. Notes from UndergroundIn a comment on Proxy battles, an anonymous commenter observes:

    [T]he appropriateness of VAP programs for moneylaw purposes depends, I think, on how one obtains a VAP position. If many of the traditional pitfalls of valuing pedigree over performance are reflected in VAP hiring, then it is certainly in violation of moneylaw principles. On the other hand, if VAP hiring is based on performance, rather than pedigree, then it promotes moneylaw principles.

    While I don't have much empirical evidence on this point, my guess is that it tends to violate moneylaw principles. Perhaps this empirical question is a good project for the moneylaw website.

    This indeed would make a good project. The suggestion is duly noted . . . and appreciated.

  2. Allodoxaphobia and doxophobia is drawing commentary from anonymous law professors who once worked in practice. Suffice it to say that they are no longer impressed by the academy. One of these commenters makes a particularly keen observation: "One of the most effective methods [of committed Arschlöcher] is the concern troll approach, where the merits of a progressive idea are admitted, even praised, but all of the supposed concerns (usually of a process nature) lead to its slow death." Amen.

  3. Prize fightThe prize fight between Jeff Harrison and Orin Kerr in the commentary on Personally annoying should not be missed. Both sides have landed good blows, but Orin got in one particularly sharp jab: "I would rather have students choosing how to spend their summer than professors choosing for them." I'm sure both Jeff and Orin would agree that MoneyLaw should try to document instances in which payers of tuition outperform holders of tenure.

Saturday, November 25, 2006

Allodoxaphobia and doxophobia

Fear Factor
Scenes from the reality series, Fear Factor. Clockwise from top left: Stripping for food, skydiving, bobbing for rats
I had just learned the meaning of the word allodoxophobia from one of my new favorite sites, the Wikipedia Knowledge Dump, when I stumbled upon MaryAn Batchellor's fantastically succinct definition:

Don't look it up. Allodoxaphobia is the fear of [receiving] opinions, as opposed to doxophobia, the fear of expressing one.
This pair of phobias, a mere drop in the ocean that is PhobiaList.Com, would find safe haven throughout academia. Part of the fascinating exchange between Jeff Harrison and Orin Kerr over Personally annoying goes to the question of allodoxaphobia, the fear of receiving opinions. Jeff and Orin have hit upon a serious issue of law school management, that of the seemingly hypersensitive tenure-track faculty member. Though this topic can and will receive more air time on MoneyLaw, for now I am content to express some sympathy for Jeff's view that excessive complaining by a junior colleague undergoing the tenure review process can be a sign of future trouble. I also think that this forum should devote more time to the question of allodoxaphobic leadership by deans, associate deans, and pivotal committee chairs.

By contrast, it is allodoxaphobia's mate -- doxophobia, or the fear of expressing opinions -- that has commanded the lion's share of MoneyLaw's attention to date. And with good reason. As I hinted in Academia's loneliest hour is High Noon, and as Jeff Harrison stated more explicitly in Making nice, knowing better, doing nothing, it takes but a relatively small band of dedicated Arschlöcher to wreck a law school.

I am trying not to overstate my case. I truly believe that the vast majority of us know the difference between right and wrong. It would be hard, if not impossible, for any decent person to work in this profession if it were otherwise. Nor does faculty governance usually deal with matters of life and death. The opposite is true -- if anything, the pettiness of what divides us is precisely what makes disagreement so bitter. The typical issue that comes to a faculty vote, generally speaking, allows ample room for disagreement. But the ferocity with which a select minority will assert what it perceives as its divinely given prerogatives can quickly reduce the range of politically permissible outcomes to one. Allow even one faculty meeting to proceed on this basis, and you are well on the road to academic kakistocracy.

KakistocracyThink this one through for just one minute. It is yet another instance of the clash between principals and principles. Deans who view themselves as "agents" of their faculties (as opposed to their law schools' broader constituencies) rarely if ever serve all colleagues equally. They cater to a select few in a self-defensive strategy in which avoidance of (decanal) job-threatening strife supersedes all other interests. And who in academia -- a not-for-profit community dedicated to the furtherance of science and social good through the collective pursuit of truth -- would raise hell in order to secure personal prerogative over communal well-being? Only an Arschloch.

Rule by Arschloch, you see, is every bit as democratic as every other form of academic governance. The Arschlöcher among us are exceedingly few, and few if any of them would win the title of Mr. or Ms. Congeniality in a secret election. That's inherent in the nature of Arschlochkeit (German for the state of being an Arschloch). But put even a small number of committed Arschlöcher together at a law school, add a whiff of the doxophobia that mysteriously but routinely grips this population of professionals with (of all things) lifetime job security, and the Arschloch ticket will ride high and rule long. After all, if you've remained silent in the face of outlandishly selfish professorial conduct, you've been voting for the Arschloch party. The silence of the decent majority is all it takes.

Friday, November 24, 2006

What is Chicken, and Is Law Teaching the Practice of Law?

That's what we consider (in a not-so-in-depth empirical study of state licensing requirements) over at Legal Profession Blog. And some advice for what to do when you get the call: "Professor, this actually doesn't have anything to do with class. Um, it's a personal problem. I sure hope you can help. . . .")

Personally Annoying

Orin writes in response to my turkey awards:

"Jeff, is "privilege protecting" some kind of MoneyLaw code-word for things that you find personally annoying?"

Not exactly, Orin. Just to stress the difference, here are things that I find "personally" annoying but have not included in the list of Top Turkeys:

1. Faculty and students talking on cell phones outside my office door.
2. Faculty who leave the board in the room I am going to teach in covered with their notes.
3. People who gossip carelessly without any thought to the damage caused.
4. Really awful art in law school public places.
5. People who take up two spots in the parking lot.

See, Orin, these are annoying things but they do not seem to me to have all that much impact on the capacity of a law school to give stakeholders a fair deal.

My theory is that being a law professor is a privilege largely enjoyed by children of privilege who have developed a sense of entitlement. This sense of entitlement results in a massive network of norms that have far more to do with protecting their privileged existences -- many of which are in my top ten list to which you responded-- than observing their fiduciary obligations to students, contributors, and the community.

"Annoying" does not quite capture how I feel about those things. It is more like wondering what the distinction is, morally that is, between those privileged faculty and folks doing time for embezzlement.

There is an important qualifier. Even at failing law schools there are many, maybe a majority, of faculty who are not part of the problem in a direct sense. But the informally, but well organized, block sets the norms.

I hope that clears things up for you and others who have not followed the thread.

Proxy battles

In commentary on my recent post, Juniority, Orin Kerr writes:

From the anime series, Ergo Proxy (エルゴプラクシー)
I'm confused.

The widespread use of VAPs is all about MoneyBall, right? Schools are no longer relying exclusively on law school credentials, and instead want actual proof of writing ability. The more, the better. It's hard to write at a law firm, though, so candidates do VAPs in order to get a chance to write and prove they can and will write.

I would think you would applaud this; it seems to me that it's all about actually proving scholarly merit rather than relying on proxy credentials. In other words, it's all about the spread of MoneyLaw.
Yes, Orin, a clarification is warranted. So here goes.

I do applaud the rise of the visiting assistant professorship. Anything that favors performance over credentials is good. To the extent that VAP programs help worthy candidates prove their scholarly mettle, they deserve to be praised and promoted. I'm proud of my contributions to a VAP program that has produced the likes of Susan Franck, Kirsten Matoy Carlson, and Mary Pat Byrn, all of whom were able to establish scholarly beachheads as VAPs. Susan is flourishing at Nebraska; Kirsten and Mary Pat, I can confidently predict, will soon be attending AALS events as members rather than supplicants.

Other recent MoneyLaw commenters, however, have put their fingers on two caveats:
  1. Suzanna Sherry exhorts us not to overlook teaching candidates who "didn't know they wanted to be a law professor from the age of 10 and/or have been working too hard at a 'real law' job instead of going into some VAP, LLM or other program." Suzanna astutely notes that "the ability to do the latter can be severely constrained for some people, especially those with family obligations." Well said. As matters stand, this business raises very steep barriers to entry by people of ordinary means. If the VAP becomes a de facto prerequisite to a tenure-track job, it will raise those barriers even higher.

  2. The ubiquitous A. Nonny Mouse delivers the point even more sharply than Suzanna (if such a thing were possible!): "the new 'helping hands' for junior professors serve mostly to make entry to tenure track slots later, more costly, more laborious, more credentialist." Mr./Ms. Mouse adds: "It's similar to adding a 2-3 year layer of non-equity partnership at law firms; both are ways not to completely pull up the gangplank but rahter to make the gangplank longer and longer."
Ergo Proxy, againJuniority addressed one of these concerns -- namely, that the lengthening of the path into the professoriate might inadvertently reduce the sharpness and the speed with which new ideas pierce the consciousness of incumbent law professors. What Suzanna Sherry and A. Nonny Mouse identify is a related but distinct concern: the risk that the VAP concept, intended originally as a pro-MoneyLaw tool, might itself metastasize into a proxy credential in its own right.

As with so much else, there is no substitute for hard work and anti-elitist vigilance on the part of evaluators of academic talent. Visiting assistant professorships can indeed enable people with empty or modest writing portfolios to put pen to paper in a way that private practice cannot. But already we are observing the rise of an insidious pecking order among VAP placements. With big names come big prestige; Bigelow and Climenko are analogous to IBM and Microsoft. This is not to say that these programs do a poor job in selecting their participants. I've had the privilege of encountering three Climenko fellows in the past few months, and all of them have impressed me immensely. The key is to keep one's eyes focused on each candidate's actual scholarly record, plus other indicators of as-yet unrealized scholarly promise, without being bedazzled by the prestige attached with that candidate's VAP program.

So, Orin, we have traveled a long way in pursuit of some clarity. Let's see if we can find it. The presence of a VAP post on a teaching candidate's CV may explain how she or he found the time to write. But we should not be so bedazzled by the prestige of the school at which the candidate held the post that we neglect to read and evaluate the actual portfolio. And perhaps even more important, it behooves us not to treat a VAP stint as this generation's obligatory rite of academic passage, in the sense that law review membership and a clerkship have historically represented compulsory stops on the road to becoming a law professor.

Thursday, November 23, 2006


Yes, Turkey Day means turkeys and there are many to go around. So, the ten worse privilege protecting decisions, people, or programs for 2006:

1. The Sloan Foundation Grant Program designed to increase job flexibility for university professors. (Not kidding. It's like growth hormones for Yao Ming.) The is easily number 1.

2. Appointment Committees that pass on candidates who graduated in the top ten from non elite schools in favor of "honors" grads of elite law schools.

3. Initiating a summer program in a western European country. (The supply already exceeds any possible measure of demand by students.)

4. Publishing yet another symposium issue composed of members of one choir or another preaching to each other.

5. Initiating (or electing not to discontinue) an IP program or Review. That bandwagon is completely full.

6. Initiating another specialty journal that is not refereed. Why would you do this???

7. Any Dean who views him or herself as an "agent for the faculty."

8. Allowing anyone to teach a 9 hour or lower teaching load who is not publishing the equivalent of a major (and new, not recycled) article a year.

9. Allowing paranoid tenure candidates to influence or complain about the selection of their reviewers without being swatted. This does not mean that they should not be permitted to reply to unfair reviews (if any actually exist).

10. You, if you let personal gain or social considerations (positive or negative) influence your vote on anything taken up in a faculty meeting.

11. Tax and other non public interest LLM programs charging less than full cost tuition.

12. Choosing Dante over Drew. Ok, so there are 12 and this has nothing to do with legal education. Get used to it. In the "Law Professor and Law Dean Actual Code of Professional Conduct" it actually says: "Professors and Deans are entitled to 100 Truth Mulligans per year or as many as necessary which ever is higher." That's section 203.11 (or so).



Thomas KuhnAlmost always the [individuals] who achieve these fundamental inventions of a new paradigm have been either very young or very new to the field whose paradigm they change. . . . [B]eing little commited by prior practice to the traditional rules of normal science, [these individuals] are particularily likely to see that those rules no longer define a playable game and to conceive another set that can replace them.

To make a difference in science, so it seems, you have to start very young, or else reinvent yourself utterly. This is why Geoff Rapp's inaugural PrawfsBlawg post, Are Young Scholars Too Old?, should be required reading for anyone interested in starting a revolution in legal academia.

Just when does "juniority" end and seniority begin? At the most practical level, Geoff is simply asking about the appropriate cutoff date for the Young Scholars Law Abstracts, the Yale-Stanford Junior Faculty Forum, the AALS Paper Contest, and other things seeking to foster relatively recent entrants into legal academia. The obvious choices are either an arbitrary number of years (usually seven, sometimes five) or a professional threshold such as tenure or promotion to full professor.

But the rapid emergence of the visiting assistant professorship as the de facto gateway to a tenure-track position raises a different question. I am less concerned with the definition of juniority than with its transformative value. The creeping insistence on an ever larger set of credentials -- clerkships, degrees beyond the J.D., VAPs -- necessarily delays the physical age at which law professors begin their careers in earnest. Indeed, if Thomas Kuhn's observation about scientific revolutions holds true in law, we may be wasting some of the most potentially transformative years of individual careers by delaying would-be upstarts' full-fledged arrival within the academy.

Bluto BlutarskyDo the math. Phenoms aside, Americans begin college no earlier than 18. And then there's college itself. Remember the scene in Animal House in which John Belushi's character (Bluto Blutarsky) laments, "Seven years of college for nothing"? That used to be funny. If we hope to keep the academy open to members of the lower and lower-middle classes -- individuals known to this forum as "Hardy boys" and their sisters in spirit -- some professors will indeed have spent six, seven, eight years on the path between high school and the bachelor's degree. Add as many as four years for the J.D. (completed part time, of course), one or two years clerking, at least two years on another advanced degree, and one year as a VAP. God forbid that an aspiring law professor might also . . . practice law. We have taken our hypothetical aspiring academic well past her or his 30th birthday. The fictional Roy Hobbs would be downright young in a gathering of rookie law professors.

There is a world of difference between one's 20s and one's 30s:
Nanci GriffithOnce I had a love from the
Georgia pines
Who only cared for me
I wanna find that love of twenty-two
Here at thirty-three
Nanci Griffith, "I Wish It Would Rain,"  on Little Love Affairs (1988). When the diamonds fall, darlin', they burn like tears. If only once in a very blue moon, the legal academy might consider hiring a rookie slightly before her time.
Jurisdynamics Network media specialClick on the embedded media player below to listen to Nanci Griffith, "I Wish It Would Rain":
Nanci Griffith, Little Love Affairs

Wednesday, November 22, 2006

Addressing Heteronomy and Autonomy in the Business Law Curriculum

The USA Today delivered to my hotel room on November 20 had a special Money section devoted to the topic of small business. The cover story is about Aaron Wolfson, who took five years to open The Savvy Gourmet, a cooking school, catering house, and kitchenware store in New Orleans, just in time to see it washed away by Hurricane Katrina. And yet he came back with "a newHack business plan to suit the needs of a largely abandoned city." (For more on the subject of urban entrepreneurship in New Orleans, visit Idea Village's website. Or buy a CD from street artist and jazz musician, Hack Bartholomew, right, after sipping your cafe au lait and nibbling on your beignet at the Cafe du Monde.)

My students would accuse me here of being "emo," but I can't help but wax philosophic about it. If heteronomy is the philosophical term for the world of physical cause-and-effect, of the inexorable tide of economic, demographic, and social forces, then autonomy, at least in small business, is the spirit of the entrepreneur, who decides, as a autonomous agent, to intervene, as a matter of free will, in the face of those forces.

Over at Legal Profession Blog, I make the argument that neither the profession nor the academy has yet figured out how lawyers best assist this unusual creature. Indeed, like Jim Chen (left, or is that Gil Grantmore?) in an earlier post, I am a trumpeter of Schumpeter.

The mismeasure of merit

Fielding error
From Moneyball to The Blind Side:

The educational gospel according to Michael Lewis

A MoneyLaw series
The long-awaited release of the 2006 updates to John Doyle's law review citation database, including a comprehensive methodological overhaul, has sparked a flurry of commentary within the Jurisdynamics Network and the larger world of law-related blogging. On this forum and at Tax Law Prof, Paul Caron offers a comprehensive assessment of the Doyle database's new "combined" measure (which blends impact factor and raw citations). Paul also ponders the discrepancies between Doyle's rankings and the U.S. News rankings. Dan Markel of PrawfsBlawg takes aim at journals not addressed by Paul, especially Harvard's high-impact "secondary" journals. Even First Movers, this forum's student-written affiliate, has addressed the issue, albeit more skeptically.

John Doyle's magnificent database, already the subject of much admiration at MoneyLaw, represents a matter of fascination for this forum's contributors. The new combined measure pays homage to the work of MoneyLaw contributor Ronen Perry. MoneyLaw's own Al Brophy is perhaps the greatest proponent of the idea that law review rankings can and should serve as a measure of law school quality.

For my part, John Doyle's new numbers will require me to revise the raw data underlying my paper, Modeling Law Review Impact Factors as an Exponential Distribution. The basic mathematical properties of law review impact factors, however, remain intact -- and seductively beautiful. I exhort you to download my paper: you will rarely see such tight goodness-of-fit results, let alone anything as stunning as the Gini coefficient of the distribution model for law review impact factors.

John SmoltzAlthough Paul, Ronen, Al, and I will undoubtly revisit this issue in greater depth in future posts, the release of the Doyle database's new numbers provides an apt occasion for pondering precisely why law review citation statistics matter to MoneyLaw and the search for ways to win this unfair academic game. Baseball, not surprisingly, provides a basis for comparison and perhaps even the inspiration for a new set of measurements of academic merit.

Existing measures of academic rank are notoriously subjective. In its purest, most extreme manifestation, MoneyLaw rejects any "academic ratings system [that] depends in whole or in part on a subjective survey of academic reputation." Likewise, baseball is saddled with any number of misleading statistics. But none may be more misleading than the fielding error.

Official scoring based on errors is doubly destructive. First, it fails to assess errors for obvious mental mistakes, such as the failure to cover a base. Second, the very act of assigning an error punishes the fielder who has done half or more of his work. Only a nimble and alert player can come close enough to the ball in order to be assigned an error.

Voros McCrackenBaseball not only fails to measure errors properly; it has no official way of filtering out superlative pitching from mediocre fielding. Sabermetrician Voros McCracken has discovered that Major League pitchers have almost no control over the rate of hits against them on balls hit into play. Except when batted balls become home runs (which themselves must be considered in light of park-specific differences), whether a ball hit into play becomes a hit or an out depends on fielding rather than pitching prowess.

Thus arose McCracken's signature contribution to sabermetrics: defense independent pitching statistics. These so-called DIPS measure a pitcher's effectiveness based strictly on plays that do not involve fielders: home runs, strikeouts, walks, and hit batters. DIPS are powerful; smart general managers in baseball know to place more trust in DIPS than in conventional, fielding-influenced measures such as earned run average.

The quest, therefore, is to find the academic equivalent of DIPS. Surely there exists some combination of statistics that can measure differences in actual performance among law schools, while minimizing the baneful and distorting effects of subjective judgments regarding merit. It may be premature, but I like the idea of Reputation Independent Performance Statistics, or RIPS. Law review impact factors and citation counts, to be sure, operate under the heavy influence of academic reputation. But unlike the U.S. News and Leiter rankings, law review impact factors and citation counts do not depend on some sort of survey. They are incredibly hard to influence, let alone to "fake," absent an extraordinary (and therefore laudable) scholarly effort by a faculty. Those who object to treating these measures as "reputation independent" might be willing to accept a less ambitious description, such as "minimally subjective," or "minsub" for short. These are strictly questions of nomenclature. The bottom line remains the same. Until someone persuades me to the contrary, I am prepared to declare that some metric based on law review impact factors and/or citation counts should be included in any effort to compute RIPS, or Reputation Independent Performance Statistics, in legal academia.

Tuesday, November 21, 2006

Counter-Preferential Choice: Deans and Other Administrators

This is the final installment of my series on the potential failures of law faculties to observe their fiduciary obligations to law school stakeholders – tuition payers, contributors, and the community. I say potential because I have only taught at two law schools long enough to have standing with respect to what goes on. Still, as I noted previously, the conditions are probably riper for widespread shirking in legal education than in any other context – academic or otherwise.

The last critical piece of the puzzle is the lack of any effective sanctions for shirking. When I have observed sanctions directed at fellow faculty members it has rarely centered on duties to students and those outside the school. Instead, it is usually about not adhering to group shirking norms.

The last possible source of sanctioning would come from oversight. That brings up the issue of law school deans. I cannot think of any circumstance in which a law school dean could “turn around” a failing law school without losing his or her job. I have elaborated on this before. The problems are both the near impossibility of the task and the generalized fear of deans to be involved in any controversy no matter how important the cause is. I have observed it repeatedly: deans arrive at a new law school with good instincts. Then they get a whiff of how the faculty will react and, all of a suddenly, they find they really prefer the money raising aspect of the job. In fact, they are so risk averse that they often pass on easy decisions that would not raise an eyebrow. But that begs the issue, doesn’t it? Should they be expected to do any of this? In virtually everyway they are ill-equipped to make a real difference at a law school that is in trouble.

But what if a dean with the right ideas were provided some backbone by a university president or provost? Maybe it happens. As I have said, my sample is small. But I have observed two things. First, a university president who has not had a legal background would prefer not to tangle with a law faculty. They are arrogance folks across campus who are simply tolerated. And, if they do not detract from the University, leave well-enough (no matter how bad) alone. Second, as one President recently told me: “The dean of the Law School is empowered to do what ever is best for the College.” It is hard to imagine a bigger misconception of how law schools work. Law school deans do what they are told by the faculty. Unless the dean is fortunate enough to have a faculty (and I think there are some) that acknowledges its obligation to shareholders, what is best for the College means what is best for the faculty. After all, some deans describe their jobs as “serving the faculty.” The outcome will be far cry from what is best for those the College and the University are obligated to serve.

So the question is whether faculty have internalized the values of stakeholders or are at least capable of counter-preferential choices. I have seen law faculty who do one or the other. I have seen many more that know what is right but are gutless. And, even more who have such a powerful sense of entitlement that they cannot help but equate what is in their personal interest with what is “right.”

You cannot play MoneyLaw without MoneyLaw players.

Happy Thanksgiving!

Law Review Rankings v. Law School Rankings

Washington & Lee has updated and expanded its law review rankings, which are based on citations to articles published in the past eight years (1999-2006):

We previously have blogged Al Brophy's interesting work on the relationship between law review citations and law school rankings. Here is a quick comparison of the Top 25 general-interest student-edited law reviews in the updated W&L rankings and their schools' U.S. News ranking:

See TaxProf Blog for charts on:

  • Law reviews ranked 26-55 by W&L (and their schools' U.S. News rankings)
  • Law reviews with the biggest discrepancies from their schools' U.S. News rankings

Belle Lettre’s Instant Gravitas Kit, or “Learning By Doing” When You Don’t Know What You’re Doing


No, I’m not trying to win the “worst co-blogger” award here at the Jurisdynamics Network, or be the Anti-Jurisdynamic Idol. I wish I could explain the extreme paucity (as in, nothing for over a month) of blogging either at my blog or MoneyLaw with “I’ve been busy.” But given the audience of lawyers, professors, and aspiring lawyers and professors, who isn’t busy? And it just gets busier.

I guess what I mean to say is, I’ve been busy, and I’m new at all this and so it’s easier to be overwhelmed. Blogging, and heck, eating and sleeping have been pushed to the side. It's to the point where I get pleas to call, to blog, and to come home for Thanksgiving. Is this something one should admit, particularly if one is an Aspiring Law Prof? Shouldn’t I, as a MoneyLawyer, be so good at the game, so good at gaming the system, and so much a heavy hitter and major league player (enough baseball metaphors for the Moneyballers out there?) that it should all be “easy” for me?

Not if you’re new to the game. So let me be, as I am often called, “characteristically frank.” I am the neophyte, the newbie, the rookie, the greenhorn, the new kid on the block. There is always a learning curve to any profession, and I’m at the first tail of the curve, so much at the beginning that the apex of the parabola isn’t even in sight. When you’re new at things, it’s easy to just think you should give up this juggling hobby for a while when you have too many balls in the air.

So what have I been busy with? Trying to learn how to work like, act like, and be like a law professor when I’m still basically a student in a “glorified JD program.” I have been working on my my heavily doctrinal LLM thesis for my Preeminent Federalism Scholar advisor. I have been writing a second, more "cutting edge" article using a sociological approach to the employment discrimination law. I don't think I am admitting something shameful when I say that writing two articles in the same 4 month period is quite difficult. In addition to all that, I have been doing course work for my LLM degree, and am beginning preparations for finals, which I am growing to resent (the grumble that an LLM is a glorified JD for American-trained laywers has some traction). I have been, against all expectation (if you take the standard past habit --> future behavior approach) having a life outside of law school. And it's all taken a toll on this blogging thing (and eating/sleeping thing).

Recently, and I won't say when or where or about what, I attended my first law professor conference. No, I'm not a law professor yet. So it was painfully obvious to others exactly my status since it was listed on the program and I was quite upfront about it--no sense pretending that you belong when you've crashed the party. Pretty much, every time I introduced myself I had to say: "yes, I'm a lawyer; no I'm not a law professor yet; yes, I'm quite young, aren't I; yes, being one of the few American LLMs at Liberal College Law is great!; no, I'm not going on the market yet, but thanks for the encouragement; and yes, attending a law professor conference when you're not a law professor is a bit intimidating, now that you mention it."

Gearing up for the conference, I was freaking out. I freaked out about my article and it's "work in progress" state; I freaked out about my Power Point presentation and whether the slides coherently communicted my paper; and I freaked out about being discovered as a total fraud and poseur who really, really should have gone to English literature grad school. So in addition to working without sleep or food for a month, I assembled an Instant Gravitas Kit: Power Suit, Power Heels, Power Point, and the final touch, glasses for extra gravitas. I think they make me look a bit older. When you are under 30 years old and are a petite 5'2" woman with a deplorably "cute" aura, you actually want to look a little older. And I do work in employment discrimination, so I don't take it for granted that I will be taken seriously. Having a stress-related sore throat lowered and deepened my voice a tiny bit, so even if my voice wasn't stentorian it was at least less like an evil possessed child from a Stephen King movie. If my paper turned out to be a complete failure and my presentation a complete joke, then at least I would have the appearance of gravitas. I would be like Stephen Colbert: all sound and fury, signifying nothing, but at least capable of winning a gravitas-off with the grave, stentorian, soundly named Stone Phillips. Glasses = Instant Gravitas.

Turns out, the freakouts were all for naught. The conference went very smoothly--I made lots of contacts, and impressed my fellow attendees with my comments and breadth and depth of legal knowledge, and most importantly my moxie for inviting myself to the conference in the first place (I am a MoneyLawyer). So while I was sort of the neophyte novelty at the conference, I was at least obviously serious about becoming an academic. And despite the fact that my USB key broke right as I was uploading my slides, my presentation went well (and ironically, real emergencies don't make you freak out, they just make you act very quickly). I made a few self-effacing remarks in acknowledgement of my status and chutzpah, made a joke that went over well, and had some slide effects that looked pretty cool. But more importantly, my paper went over very well--with scholars who write in the same area and who know far more than I do about the entire field. I was able to answer all the questions, and nothing surprised me--to my surprise. I was prepared, I had a sound paper idea, and my presentation went great. I had people coming up to me offering help with the meat market when I go in a few years, encouraging me to go on the market right now, and telling me that they were excited by and impressed by my work. One mentor prof in particular urged me to go on the market rather than pursue a SJD, reasoning that I could do a lot of the research and packaging and tool-kit building on the job, rather than through an advanced law degree. "Learn by doing," is what he seemed to be saying.

And so I am wondering. Why don't I feel ready? (Other than the fact that I'm not, at least not without at least 3 publications under my belt). Why is it that despite the success of my first "learn by doing" experience, I feel like I don't know what I'm doing? I fully admit that it is hard for a newbie aspiring academic to feel comfortable, at least in the beginning. Even if it's work you love and want to do for the rest of your life, it's feels hard doing it when you are just starting to assemble the skills and assurance necessary to make it go easier. It's not that I doubt that I can do it, I just wish doing it went more efficiently, quickly, and smoothly. It seems so hard when you're beginning: to come up with that novel, useful, interesting argument; to research it well and write about it cogently; to present it clearly; to feel like you have the requisite seriousness and do not need to affect gravitas. Even if it works out in the end, the process feels so riddled with doubt and difficulty. What neophytes lack most is probably confidence, which is why rookie MoneyLawyers feel like they are out of their league--they are with the Majors, and just a few months ago they were playing for the Minors.

Maybe I shouldn't feel so insecure. Maybe, as my mentor friends say, it does get easier with practice, and what I'm feeling now isn't a valid sense of incompetence, but just first jitters and natural newbie awkwardness. Even the best players in the Major leagues (if they are good academics) have to keep practicing, keep in shape (by sharpening their tools or expanding their tool kits), and go through Spring Training (say, in March and again in August) year after year. It doesn't get easier in terms of how much work it is or what you have to do to keep being a good academic. But it feels easier to those who do it for long enough and stick with it, and who risk failure for great reward and who take risks in order to stretch and grow. Those who reach have a better chance of obtaining their goal than those who never even extend their hand.

Maybe, maybe it gets easier. I hope so. It seemed so much easier at the conference than preparing for the conference: actually doing it felt easier than learning how to do it. So maybe I should learn by doing, even if I feel like I don't know what I'm doing.

Either way, I'm sticking with glasses, just for that extra little bit of gravitas.

Monday, November 20, 2006

Jamming wireless networks

WirelessOf all the technological innovations that have transformed law schools in the Internet age, none may be more useful than the wireless network. Knowing that broadband access is available anywhere, any time in a law school is a great source of comfort. The content itself isn't bad, either.

At the same time, no other technology is more despised. Law school technology crews are invariably asked to jam wireless networks in certain places at certain times. Let me be specific: Every faculty has at least one member who asks that the network be jammed during his or her classes.

But why? Consider the following:
  • FreecellYes, wireless networks facilitate Internet access. That means sports and gossip pages, personal e-mail, perhaps even online poker during class. All that is distracting, arguably in a way that crossword puzzles are not, since other students can see the offending screens. But a ban on wireless access simply restores the primacy of solitaire, hearts, Freecell, and Minesweeper.

  • Jamming the network for one professor's benefit runs the risk of creating dead spots. And forgetting to restore coverage is simply the latest variation on the theme of careless or even inconsiderate behavior among professors. It's bad enough that we forget to erase the chalkboard or to raise the projection screen.

  • The whole affair reeks of needless paternalism. Law students, with rare exceptions, are old enough to vote, to drink, and to enlist. They are also old enough to waste tuition and to receive (or deliver) informal social sanctions for engaging in poor, distracting uses of wireless technology during law school classes.
If it were up to me, I'd keep the wireless network running at all times. The fault lies not in our technology, but in us.

This item has been cross-posted at Law School Innovation.

Play it again

Hey, if Gordon Smith can write about college football, so can I.

Michigan versus Ohio StateBig 10 scheduling gave us something this year that the BCS system rarely if ever delivers: a game between teams that are indisputably the best in the country. And it was a very, very good game. If Michigan recovers the onside kick -- admittedly a low-percentage play under any conditions -- momentum carries the Wolverines past the Buckeyes. Give credit to the voters who kept Michigan #2 in the polls. Rarely does #2 keep its position after losing to #1, even though that is the expected outcome, and the team that is promoted to the second spot might have done nothing besides remaining idle. The voters kept Michael Vick's Virginia Tech squad at #2 after they lost a 42-29 thriller to Florida State in the 2000 Sugar Bowl, but that is the exception and not the rule.

We shouldn't be surprised. The rankings system in college football is frustrating because it combines subjective evaluation, path dependency, and saliency effects (as in: recent losses to good teams hurt worse than earlier losses to abysmal teams) and then throws it all into a BCS system that leaves no more than a single merit-based "at large" bowl bid in those years when Notre Dame has held court against its usual diet of Midwestern patsies and service academies.

I hate Notre DameSpeaking of Notre Dame, the most appalling outcome would be one in which an Irish victory over Southern California vaults Notre Dame into #2 in the BCS rankings. Why would this be appalling? Because Michigan destroyed Notre Dame earlier this season. There is no question which team would make a worthier opponent for Ohio State.

So let's do things right this year. Put Michigan and Ohio State on a neutral field, far away from the Great Lakes, and let #2 and #1 settle things properly.

Some other aspects of Gordon's analysis merit a response:
  1. Gordon dismisses the entire Big East as a bunch of "[p]retenders," on the evident ground that the top teams (West Virginia, Louisville, Rutgers) beat each other to a pulp. Gordon, from one Big 10 employee to another, let me say this: Isn't this exactly what Big 10 teams have done over the years? As the Southeastern Conference has shown, the presence of one-loss teams in a conference demonstrates collective strength, not weakness. Too bad the system can't detect this.

  2. More on Notre Dame: My second-favorite college football team is Notre Dame's opponents. This is true of so many fans that it is worth declaring as an Immutable Law of American Sports Fandom: "When in doubt, cheer against (pick one, more, or all) the Yankees / Notre Dame football / Duke basketball."

  3. We need to do something about the obsession with the undefeated season. As Gordon points out, this year's Wisconsin Badgers squad has coasted to a one-loss season against the likes of Buffalo and Western Illinois. It's all reminiscent of another team I'm sure Gordon remembers: the 1984 BYU Cougars. They won the national championship almost by default, with an uninspired 24-17 victory over a 6-5 Michigan squad in the 1984 Holiday Bowl. (Rest in peace, Bo Schembechler.) An unblemished record looks nice, but actual competition is better.
So. Back to my original point. The game plan going forward is simple. Let Notre Dame, Southern California, Florida, and others jockey for positions in the other BCS games. But the formula for the national championship is simple: Let Michigan and Ohio State play it again.

Update, 1:15 p.m. CSTAn anonymous commenter writes, "I'm confused. At a site devoted to the elimination of confusing emotional biases and to the use of cool econometrics, the post offers us a pure-emotion pitch for UM when knowledgable folks already realize that by winning out USC will pass UM on the metrics and get a shot at [Ohio State]."

No, Mr. or Ms. A. Nonny Mouse, this is not "an ironic post, designed to illustrate the persistent, invidious appeal of blind emotion over rational calculation." You assume that the BCS is rational. It is not. Its single biggest input is the blasted polls. There is a superior solution. It's called a tournament. (Or playoff, if you prefer football's nomenclature to basketball's.) This simply shifts the pressure to a different place -- namely, the tournament selection committee. But the NCAA has managed well enough with a tournament for men's and women's basketball, and an eight-team playoff system for football would make sense. Keep six automatic bids for conference champions if you must, but let everyone else -- and I would insist on equal footing for the likes of the WAC and Conference USA, right alongside Notre Dame -- slug it out for a place in the playoff.