Friday, November 24, 2006

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.


Blogger Orin said...

Thanks very much for the response, Jeff. I guess it isn't clear to me how some of these things are privilege-protecting and against the interests of students.

For example:

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

If students want these programs, as measured by their full enrollment -- certainly the case with GW's program in Munich, where I taught last summer -- why should professors oppose it?

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

Again, why not let student demand run the show, if they are the customers we are trying to serve? If students want an IP review to help their reusmes and help their IP careers, why should tenured professors stop them? I guess I'm just not sure why it's "privilege protecting" to help students help themselves.

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

Why? Well, maybe students want to do this. If your concern is countering elitism, I would think your answer would be that we tenured professors shouldn't get in the way of student-initiated efforts on the ground that they offend our elitist sensibilites.

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).

So the privileged people already in the club should "swat" people trying to join the club if the outsiders complain about the unfairness of the process? Why is such swatting supposed to be a way of fighting privilege and ending entitlement? Maybe you have an experience in mind that cuts differently, but it's not clear to me why this point cuts the way you suggest.

11/24/2006 2:13 PM  
Blogger Jeff Harrison said...

Let me guess --- You were educated at private schools and are teaching at one now. Granted I have painted with broad strokes and I am far more concerned with public schools where those “buying” the product are, for the most part, not students. Still, even private schools would seem to care about their customers enough not to just take their money and give them what they “demand.” As with physicians, we have a role on the supply and demand sides of the market. Student demand is largely determined by what we “say” as suggested by what we advertise – i.e., foreign programs. Quite often we what we tell them they should demand is what we feel like doing.

3. If your, or any (even public school), program fully covers all – not just marginal – costs my concerns are fewer. Hell, if there is student demand why not teach naked? Or sell t-shirts and law school yachts? More seriously, my view is that western Europe has become Disneyworld for adults and that the programs are often initiated by professors wanting to travel there. It makes them feel cosmopolitan. These programs are largely for the privileged – both faculty and students. They detract from domestic summer programs – if a school has one -- where the poor folk are. Typically, they are taught by American professors who do not even speak the local language and mainly teach American law. The standards with respect to attendance and performance are low. Now if your program covers all costs, has high standards (usually not in high demand), involves foreign professors, stresses foreign law that can only be understood by being in the host country and requires a working knowledge of the local language by the professors, it sounds good.

Still, it strikes me that most of these programs sell the students 4 or 6 credit hours in exchange for an all expense paid trip for faculty. And where to most faculty prefer to go for 6 weeks? – western Europe.

5 & 6. Is the demand for lines on a resume or for learning and writing about IP? If it is the former, like I said, you can sell whatever you like. Vanity presses already exist and you can create your own if there is enough demand. If it is for the latter, just teach the courses and offer seminars. My sense is that there is plenty of room in existing reviews for anything anyone has to say new about IP. So nothing really needs to be published. The demand that is more often served is that of a faculty member or two who think they need an IP center which means reduced teaching loads and less emphasis on scholarship.

More importantly, in a public school setting, professors should respond to student needs and the needs of stakeholders. Another review of any kind should be assessed in terms of the benefits to stakeholders. Faculty, in order to make their lives more comfortable, prefer to give in to students at the expense of stakeholders. This keeps a lid on things and the stakeholder have no say in the matter.

9. All we need is another crop of people with a sense of entitlement and already want to game the system. I'd prefer to tenure the non complainers. Plus, I have no qualms about the privileged swatting the privileged. I’d pay to watch that!

11/24/2006 7:15 PM  
Blogger Orin said...


Just a few quick repsonses.

Re (3), you write: "These programs are largely for the privileged – both faculty and students. They detract from domestic summer programs – if a school has one -- where the poor folk are." Do you have evidence for this? It doesn't seem at all accurate to me.

Re (5) and (6), my sense is that students want to be able to show employers that they are serious about IP, and thus get jobs in the IP field. It is true that that there are other ways to do this. But this is a pretty good way, and I'm not sure why faculty are guilty of "embezzlement" if they encourage students in this way to help their employment prospects. In terms of the taxpayer for public schools, if a journal is self-supporting or not very expensive, how does the taxpayer lose?

Re (9), your hypothetical is so loaded that it's kind of hard to respond on the merits.

11/24/2006 7:45 PM  
Blogger Jeff Harrison said...

Orin: I am enjoying the discussion. Going last to first. It's based on 30 years of watching them come and go and whine. On balance the whiniest are the elite school privileged ones. It is all driven by relative deprivation. The privileged feel screwed if not treated with kid gloves. It's funny you call it "loaded." I am not sure what that means but, like many terms used in civility-speak, it is a way to avoid the issue. If you are interested and have time, you might want to look at my three part series on moneylaw or classbias to understand my perspective on class and higher education. You'll disagree, as do most law professors, but it is background on this debate. Classbias would be easier to access because I am the only one writing and it will be a complete gift package of things for you to take issue with.
On the vanity press. To me, setting up a review primarily so it will look good on a resume seems unprofessional. If it fully pays the costs, it is less offensive but it still strikes me as blending higher education with advertising and self-promotion and it attributes very little sophistication to employers who I assume would eventually come to understand that the "Review" credential is just another way of saying the student studied IP. In any case, I assume based on your statements, that you are currently in the process of conducting an empirical study on all your reviews to determine their job placement impact and you plan to ask the faculty to discontinue those that show little or no impact.
And on the trip. Are you actually saying that the ability to pay for a summer in Europe as opposed to summer school here or getting a summer job is unrelated to student income? That's a little like asking me if I have evidence that the relatively well off live in bigger houses.

11/24/2006 8:31 PM  
Blogger Orin said...


In terms of the European trip, I only know about the students who did GW's program last year. Based on that sample, at least, your stereotype is false. A very large chunk were in GW Law's night program: they work during the day and are putting themselves through school at night, and they took two weeks of vacation time off of work to combine a trip with a few extra credits towards graudation. Other students had just finished their first year and had part-time jobs that allowed them to take time off, and others just took out an additional loan for the extra dough for the trip. (As one student put it to me, once you have hundreds of thousands of school debt, what's $5,000 more?) I didn't do a survey of all of the students, obviously, and it was just one summer in one program. At the same time, your stereotype seems very different from the reality I saw.

In terms of journals, you're right that journals are often about "advertising and self-promotion." I guess it's not clear to me why that's bad: If students feel they need to engage in a little self-promotion to get a good job, then all the more power to them. At the very least, it's not obvious to me how stopping them from promoting themselves helps fight The Man.

11/24/2006 11:49 PM  
Blogger Jeff Harrison said...

On multiple reviews: I guess it comes down to a disagreement on what higher education means. I suspect yours is the prevailing view on this -- at least at law schools these days. At my school we just raised the curve to make the students more competitive. Another way is to have the faculty actually write enough to raise the status of the law school itself. Vanity presses seem like a less efficient way to get there.
On foreign programs: I think it is hardly a "stereotype" to say that those with more money have more to spend on what are luxury goods. Nor am I quite sure that your stereotype of part time students holds up especially with respect to those who can take 6 weeks or so off in the summer for a European trip. But, you are correct that it is an an empirical question. I'd like to see the result of a more structured study. Mainly, though, I worry about the students who go into debt in response to glossy brochures hawking foreign programs. The glossy brochure helps creates the demand that we then supply. It is uncomfortably close to a physician prescribing the medicine that he or she supplies. Is a summer foreign program really what they should be advised to do by those who they hire to provide sound advice? I wonder how may law schools advised their students to study law abroad for the summer before they opened their own programs?
At bottom I have seen nothing to suggest a law school becomes better at being a law school by going into the vanity press and travel agency routes.

11/25/2006 8:07 AM  
Blogger Orin said...


GW raised its curve a few years ago, too. The problem wasn't faculty prodctivity: I tend to doubt that any significant connection exists between faculty productivity and student career prospects. (My recollection is that faculty writing only has a tiny impact on the US news faculty assessment, which would be the primary way that faculty scholarship impacts student career prospects.) Rather, other schools had raised their curve, and schools didn't realize that GW had one of the 2 or 3 lowest curves in the top 30. So we brought GW's curve up to the average of the curves in that group to make sure GW students weren't disadvantaged.

As for the foreign trips, I think students are much smarter than you given them credit for being. You seem to imagine that students are fools who are easily influenced by a glossy brochure or a professor's suggestion. In my experience, students are very savvy about their options - certainly much savvier than tenured professors are. I suppose I would rather have students choosing how to spend their summer than professors choosing for them.

11/25/2006 12:20 PM  
Blogger Jeff Harrison said...

Orin, as I understand it: The decision of tenured faculty not to operate a summer program in western Europe is tantamont to telling students what they must do in the summer. I am losing the connection, if there is one. You must know that there are tons of these programs for the students to choose from. Consequently, the decision to start yet another one can hardly reflect concern for the students. Instead, it reflects the needs and wants of privileged faculty who are used to getting their way.

Interestingly, we end up agreeing. We both distrust faculty decision making. I am just not as sure as you are that the students should rule the roost but that may be more of a public/private school matter.

11/26/2006 9:27 AM  
Blogger Orin said...

Jeff, very good point about how students can choose from different programs, so a particular school's students shouldn't benefit, at least in theory, from that school opening a program. I wonder, though, whether it ends up working that way in practice: my sense is that programs end up appealing mostly to students at the school hosting the program. For example, my class last summer had about 25 students, of which about 17 or 18 were J.D. students (the rest were LLMs studying in the Munich program); of those 17 or 18, I would estimate that about 12 or 13 were from GW.

As for the last point, I agree that we agree on a lot -- and I also agree that the private/public distinction is an important one.

11/26/2006 9:38 PM  

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