Why Are Law Professors So Unhappy? -- Part Three

My post last Friday on Why Are Law Professors So Unhappy? -- Part Two has attracted a lot of commentary in the law prof blogosphere:

• Stephen Bainbridge (UCLA), Are Law Professors Unhappy? And, If So, Why? (Business Associations Blog)
• Peter Black (Queensland), Are Legal Academics Miserable? (Peter Black's Freedom to Differ)
• Eric Fink (Elon), Taking Stock, and Finding a Bull Market (Debris)
• Dave Hoffman (Temple), Bainbridge on Law Professor Well-Being (Concurring Opinions)
• Brian Leiter (Texas): Are Law Professors Unhappy? (Leiter's Law School Reports)
• Glenn Reynolds (Tennessee), Are Law Professors Unhappy? Not This One! (InstaPundit)
• Tom Smith (San Diego), Why Are Law Professors (and Everybody Else) Unhappy? (The Right Coast)
• Ilya Somin (George Mason), Are Law Professors Miserable, and If So Why? (The Volokh Conspiracy)
• Ilya Somin (George Mason), Some Evidence on Law Professors' Relative Job Satisfaction (The Volokh Conspiracy)

Much of the commentary argues that law professors have a great job and that most are happy with their jobs. I agree with both points -- my modest question is that, given how great this job is, why are some law professors so unhappy?

One possibility is that some may expect too much out of their jobs. Just as we can make idols out of our spouses, children, friends, fitness, houses, investment and retirement accounts, etc., pinning our happiness on our jobs is doomed to fail. My men's group recently read this great book on the proper place of work in our lives.

Another possibility is that this commenter is right:

Law professors blogging about their misery. Even your mother thinks you are a whiny little baby. Face it. Nobody cares. Suck it up. Life is tough. Wear a cup, and STFU.

Update:

• Kent's Imperative: The Miserable Professoriat
  
• Ilya Somin (George Mason), The Volokh Conspiracy: Law Professor Misery Roundup
  
• Jeff Yates (Georgia), Voir Dire: Caron's Roundup on Why Professors Are So Unhappy
  

Cross-posted on TaxProf Blog.

Why Are Law Professors So Unhappy? -- Part Two

I previously blogged Tax Prof Michael Livingston's answer to the question Why Are Law Professors So Edgy?:

A friend of mine has come up with a novel explanation as to why law professors, who would seem to have a pretty privileged life, are so persistently uneasy. ... [T]he professoriate ... is one of the few activities that is (a) very competitive, (b) primarily personal (that is, noncooperative) in nature, and (c) almost entirely devoid of objective standards that might be used to measure success or failure.

A new book by Patrick Lencioni, The Three Signs of a Miserable Job (2007), supports this analysis:

The first sign of a miserable job is anonymity, which is the feeling that employees get when they realize that their manager has little interest in them a human being and that they know little about their lives, their aspirations and their interests.

The second sign is irrelevance, which takes root when employees cannot see how their job makes a difference in the lives of others. Every employee needs to know that the work they do impacts someone’s life--a customer, a co-worker, even a supervisor--in one way or another.

The third sign is something I call "immeasurement," which is the inability of employees to assess for themselves their contribution or success. Employees who have no means of measuring how well they are doing on a given day or in a given week, must rely on the subjective opinions of others, usually their managers’, to gauge their progress or contribution.

Cross-posted on TaxProf Blog.

A Scandal Explained

Over at Slate.com Adam Perer and Chris Wilson have created the Mitchell Report Social Network, a visual depiction of the connections revealed by last week's steroid report. I think Tufte would approve. (Also, is it just me or does Edward Tufte, king of the beautiful graphic, have a pretty ugly web page?)

Happy holidays, all. Hope to see many of you in New York after the New Year.

Stagnation in the Law Prof Blogosphere?

See the commentary by Scott Greenfield, Brian Leiter, Glenn Reynolds, and Dan Solove sparked by Orin Kerr's post. For some traffic stats, see my post at TaxProf Blog.

It's A Wonderful Life

I love It's A Wonderful Life (Frank Capra, 1946). It's a gorgeous film and a moving story of conflict and redemption. And it's utterly free. Just click here to start the credits rolling in black and white on your laptop. The film was not particularly successful when it opened in theaters. It became a classic years later when it fell into the public domain and TV stations began playing it over and over during the lead up to Christmas.

I love It's a Wonderful Life because it's the greatest financial services movie ever made. Sure, Jimmy Stewart is unforgettable as George Bailey. And Donna Reed as Mary Bailey has permanently blown the curve in the annual competition for ultimate Christmas wife and mom. For me, though, the unsung star of the film is the Bailey Building and Loan.

At the beginning of the 19th century, there was no banking as we know it. Rich people needed safekeeping services to store gold or other forms of wealth, and banks provided secure vaults. The first depositary savings bank is thought to be the Philadelphia Savings Fund Society, established in December of 1816. It launched an industry that profoundly changed the American economy.

Savings and loans emerged as small businesses that accepted cash deposits from customers and made loans to borrowers in the community. During the nineteenth century, as urbanization and wage income grew, savings and loans encouraged wage earners to save. They replaced extended family as a source of capital. And all in the nick of time to finance the rapidly growing consumer sector. A wage earner needed finance to acquire the "American Dream" consisting of big ticket items like a home and a car. The connection between savings and loans and the emerging consumer middle class was more than skin deep. As a regulatory matter, savings and loans were "of the people" in a way that banks were not. Depositors controlled the investment strategy deployed by savings and loan management. In contrast, equity investors, usually with no connection to the deposit community (e.g., Mr. Potter), controlled the management of banks.

The course of George Bailey's wonderful life, to his great frustration, tracks the fate of the Bailey Building and Loan. Throughout the film, George is the archetypal investor. He saves. He reinvests dividends. He takes the long view while the others around him mock him and snap up short term gains. He puts his core values first and his short term pleasure second. He feels shortchanged and foolish. He longs to escape Bedford Falls and engage in a conspicuous consumption trip around the world. But his father dies unexpectedly. George cancels the trip and instead takes his late father's staff as the shepherd of Bailey Building and Loan.

Just when George seems about ready to reap a return on his investment, life deals him another blow. State regulation prohibited savings and loans from maintaining their own deposit accounts (an odd feature of savings and loan law that persisted through the S&L debacle in the late 20th century). Uncle Billy, who plainly is not cut out for the demands of the financial services industry, walks the Building and Loan's daily deposit envelope across Main Street to the Big Bank which Mr. Potter controls. (I've used this scene many times to explain to clients why they should invest in electronic payment processing). Potter seizes Uncle Billy's mistake as an opening to destroy the Building and Loan.

Coincidentally, the savings and loan examiner is in the house. George feels the double-whammy crush of Potter's political and economic power. He worries he will face criminal prosecution for embezzlement, humiliate his family, and appear as a betrayer to his flock. (All criminal defense lawyers dream of the chance to defend a George Bailey). He considers his most liquid asset, a life insurance policy, with a paltry cash value. He contemplates suicide.

The famous part of the movie involves Clarence the Angel, the bridge, and a film noir look at Bedford Falls and its inhabitants as a kind of 1940's Breezewood, Pa. The Bailey Building and Loan doesn't figure prominently in George's redemption journey. But, in the end, George's twin investment strategies-- short term sacrifice for long term gain, self-sacrifice for the good of the community-- are vindicated. He sees the value of his strategy, and his own worth, as the inevitable and invaluable return on his investment.

The entire script of the film is here.

I've posted here my favorite scene. It takes place in the modest lobby of the Bailey Building and Loan. An economic panic has just swept through Bedford Falls. Depositors are pounding on the door of the Building and Loan demanding cash. Potter is buying claims against the Building and Loan for the proverbial cents on the dollar.

(Camera pans with George as he vaults over the counter quickly, speaking to the people.)

GEORGE: Tom! Tom! Randall! Now wait... now listen... now listen to me. I beg of you not to do this thing. If Potter gets hold of this Building and Loan there'll never be another decent house built in this town. He's already got charge of the bank. He's got the bus line. He's got the department stores. And now he's after us. Why? Well, it's very simple. Because we're cutting in on his business, that's why. And because he wants to keep you living in his slums and paying the kind of rent he decides. (The people are still trying to get out, but some of them have stood still, listening to him. George has begun to make an impression on them.)

GEORGE: Joe, you lived in one of his houses, didn't you? Well, have you forgotten? Have you forgotten what he charged you for that broken-down shack? (to Ed) Here, Ed. You know, you remember last year when things weren't going so well, and you couldn't make your payments. You didn't lose your house, did you? Do you think Potter would have let you keep it? (turns to address the room again) Can't you understand what's happening here? Don't you see what's happening? Potter isn't selling. Potter's buying! And why? Because we're panicky and he's not. That's why. He's picking up some bargains.

Now, we can get through this thing all right. We've got to stick together, though. We've got to have faith in each other.

MRS. THOMPSON: But my husband hasn't worked in over a year, and I need money. WOMAN: How am I going to live until the bank opens?
MAN: I got doctor bills to pay.
MAN: I need cash.
MAN: Can't feed my kids on faith.

(Now comes my absolutely positively most favorite part)

During this scene Mary has come up behind the counter. Suddenly, as the people once more start moving toward the door, she holds up a roll of bills and calls out:

How much do you need?

George and Mary, through their steadfast adherence to good, their commitment to each other, and to the value of sacrifice for the good of others, are a literary beacon of hope. The Bailey Building and Loan survives as a stalwart against Mr. Potter's power and greed because George and Mary and all the depositors of Bailey's Building and Loan stick together. We can't feed our kids on faith. We can invest and diversify to smooth out the bumps of life for ourselves and each other. As for Mr. Potter, he'll always be around with a higher salary, a swankier office, and a cigar. Mr. Potter is everywhere. His seductive power is especially compelling when the chips are down, and doubt overtakes our confidence in the long term investment strategy. Here's a response to tuck away in your briefcase for when you meet your own Mr. Potter. "In the . . . in the whole vast configuration of things, I'd say you were nothing but a scurvy little spider." You may have money and the power that goes with it. But you are no match for George Bailey and the Bailey Building and Loan.

Multimedia bonus: It's a Wonderful Life

More on Law School Competition

In a previous post I questioned whether competition among law schools increases the quality of legal education and the Moneylaw/Moneyball analogy. In reality, I only question one version of the analogy. The version that I think is misguided is the one that focuses on building or advancing a law school in order to “win” in a competition with other law schools. The other version involves adopting Moneyball strategies to have the best law school possible. There is a difference.

Although I favor the second approach, I think the first has found its way into this blog and other blogs more frequently. In particular, there seem to be far more posts ranking law schools by USN&WR, SSRN downloads and Leiter-type rankings than those focusing on how to make law schools and their faculties more effective. (By the way, what does citing each other and ourselves mean in the absence of consideration of judicial citations?) The concern with relative appearance is consistent with massive mail outs listing new hires and faculty publications that are as glossy and useful and sometimes as embarassing as beer commercials.

The disconnect between law school competition and law school quality can be understood by thinking of the markets in which law schools compete. In the input market, they compete for professors and students. In both cases, schools seem driven by what others will think of the inputs more than by actual productivity. In hiring, those ranking law schools for national publications are far more likely to be impressed by hiring 5 Ivy League graduates that 5 highly ranked graduates of non elite schools and most law schools fall into line. If you want to use the Moneyball analogy, it’s as though Billy Beane decided in advance that any player coming up through the Pirate’s farm system would always be ranked after one coming up through the Boston's system regardless of any other information. In effect, hiring is driven by splash, not substance.

With students, schools compete for the highest LSAT/GPA. This is not that far off; it makes good sense to admit students who are likely to succeed in and after law school. On the other hand, the quality of the educational experience can also be enhanced by having diverse students. Here, competition is exclusively for minority students, particularly those with high LSATs and GPAs -- often the least diverse diversity. Just how much schools are willing to sacrifice LSAT and GPA for a more diverse student body is not clear. And, the willingness to look beyond race as a source of diversity is nonexistent. Diversity-talk is in large measure just talk.

In output markets, schools do appear to be moderately concerned about bar passage although it is a statistical after thought in the USN&WR rankings. Luckily, alums get upset when the rates are low and deans wanting to keep their jobs are motivated to address the issue. But look back at Moneylaw posts. Compare the number relating to publications, citations, and downloads with the number addressing bar passage or any possible measure of teaching success. Not that bar passage is a good measure of teaching effectiveness. Bar passage divided by entry level LSAT scores would be far better.

The consideration of service as a measure of law school success? Well . . ., enough on that.

In the output market, by far the most important factor is scholarship. I am not sure when it happened but it seems like it was the late 1980s when schools and professors became counters as opposed to quality assessors when to comes to scholarship. This is also about the time of hyper self-promotion and the proliferation of symposia articles with authors chosen on the basis of who they are as opposed to whether they have anything new to say. My guess is that if one plotted articles by year we would have an upward sloping curve that increased at an increasing pace. It is equally likely that the quality curve is flat, at best.

In short, (too late now, I know) competition among law schools only increases the quality of legal education if you believe that 1) the credentials of faculty applicants are predictors of careful teaching and important research, 2)bar passage alone is a measure of effective teaching, 3) LSAT and GPA plus race alone make for an intellectually interesting and diverse student body, and 4) numbers of articles or downloads is the same as meaningful scholarship.

Those are the factors on which law schools compete. The connection between those and excellence in legal education is not obvious. In my view, MoneyLaw would be better served by more suggestions on how to make law schools better.

Multiple choice? Let it snow!

Jeff Harrison questions the motivations behind multiple-choice, machine-graded exams. Dr. Lionel Gift, the economics professor in Jane Smiley's classic novel about academic life, Moo, provides a complete answer:

Dr. Lionel Gift was all set. His summer-weight suits were packed, as were his Egyptian cotton dress shirts, undershorts, and socks. he had a spare pair of glasses, a swimming costume, a silk robe, a hat with a wide brim. He had his laptop, his modem, his internal communications program. He had his tickets and his money.

As usual, his exams would be given out by his graduate assistants and graded by the university computer. These grades would then be added to those already on the computer from the midterm, tallied according to a statistical curve, and reported to the students. By then, Dr. Lionel Gift would have been in Costa Rica for over a week. Let it snow let it snow let it snow: He would not be here to see it, and that suited him perfectly.

To name merely one especially egregious instance in which sloth motivated resort to multiple choice, I recall one law professor (since retired, to the great benefit of his law school and his students) who had not updated a multiple choice exam during my lifetime. And I'm as old as the Super Bowl!

The following table illustrates how life differs for Dr. Lionel Gift and those who take his exams:

Dr. Lionel Gift	His students

SSRN Enters Citation Count Game

As readers of this blog know, citation counts are one of the four methods used to rank law faculty scholarly performance (along with reputation surveys, publication counts, and SSRN download counts). (We discuss all four methodologies in our recent article, Ranking Law Schools: Using SSRN to Measure Scholarly Performance, 81 Ind. L.J. 83 (2006).)

Brian Leiter's citation count studies of individual professors by specialties and of law faculties dominate this field, although prior work by Ted Eisenberg and Martin Wells (Rankings and Explaining the Scholarly Impact of Law Schools, 27 J. Legal Stud. 373 (1998)), also is important. For a critique of using citation counts to measure scholarly performance of faculty, see here.

SSRN has now entered the citation count field with its new "References & Cites" feature. For more details, see TaxProf Blog.

None of the Above: Multiple Choice, Machine Graded

Grading 190 essay contracts exams gets me riled up about multiple-choice-machine-graded (MCMG)-test-giving law professors. I am not talking about a few MCMG questions to get the students warmed up. And, I am not talking about multiple choice with and explanation – essentially short essay questions. I am thinking about those who give and then defend the giving of MCMG as the primary evaluative tool.

When I wrote what is perhaps becoming my annual blog on the topic last year, I conducted a poll. I was happy to see that only a small percentage of those responding use MCMG as the exclusive method of evaluation. I suspect that understates reality. In addition, I did not include the choice “use MCMG for more than half but less than all of the exam.” Faculty using MCMG exams for a substantial portion of the exam are, to me, are dodging their obligations to fairly evaluate students. Essays are the only way that students can actually be heard. Essay questions allow a two way conversation in which the students have an opportunity express the reality that law is nuanced, fuzzy, and often inconsistent. Of course, maybe MCMG testers aren’t teaching that at all which raises a more fundamental question.

I have heard a couple of defenses of this practice. One is that the outcome in terms of grades is the same as an essay test. I do not know anyone who has asserted this who has actually tested it. Aside from that, the more important point is that as soon as the students know that MCMG is the principal testing tool, you are teaching a different course than people who are not using MCMG. The entire focus of the students’ changes. And, to the extent you fancy yourself teaching critical thinking and analysis, forget it.

One defense is that people have different ways of learning. Huh? It’s not that I doubt that people learn in different ways; it’s that I do not see the connection between that and testing. MCMG exams and fact-intensive complex essays test different things, no matter how they are learned. I doubt any attorney is going to advertise that he or she is not so good at the analysis of complex fact patterns but hell on wheels when it comes to multiple choice.

Maybe, just maybe, if law professors giving MCMG had some experience or training in testing theory and exam writing I could be swayed. But I doubt it and I have yet to see a multiple choice law exam that required analysis.

Basically, in law school, if the exam can be graded with a machine, the course could have been taught by a machine. I could be wrong but I have yet to hear an argument for MCMG exams that makes sense other than a rationalization for not grading.

Moneylaw, Macro-Style

I cannot help but think once in awhile about the 72,000 law review articles that have been published in the last ten years. This does not count, of course, books by law professors (many of which should not count since they are recycled old articles) chapters, submissions to books of readings, casebooks, encyclopedia entries and so on. Practitioners also do a fair amount of writing so not all of this is done by law professors. Still, what do you think? 90,000 to 100,000 published works by law professors in ten years?

When I do think about this I also think of my favorite passage from Lucky Jim: “. . . along the knife-edge dividing the conceivably-just-about-relevant from the irreducibly, immitigably, irrelevant.” In fact, I use the quote, I think appropriately, as the introductory page to my Law and Economics casebook. Not that you would have seen it as the book is still striving to hit triple digits in sales. Not a money maker, that one.

One hundred thousand offerings by law professors. Tons and tons of law review pages, ink, and now, of course, down-loaded pages just in case the article may come in handy. If you down-load as casually as I do, these are send to recycling about a year later often after not much more than a skim.

Somehow – yes I am procrastinating about grading – rather than think about Moneylaw in terms of law schools like one thinks of Moneyball in terms of baseball teams, shouldn’t the focus be on a Moneylaw approach to legal education more generally. In fact, the main disconnect between Moneyball and Moneylaw (other than the lack of methods to assess who wins) is that baseball’s product is competition and strategies to get an edge are part of that process. Competition makes the product better.

Does competition among law schools make legal education better? It can, but to some extent it is responsible for 100,000 articles when 50,000 might be better thereby eliminating some of the "irreducibly, immitigably, irrelevant." Fifty fewer law schools might make the system better as well. What would the most efficient system of legal education look like? Can Moneylaw principles be applied to a macro view of legal education.

Why I'll be cheering for three Southern land grant schools, and so should you

This year's bowl season includes Mississippi State against South Florida in the Liberty Bowl and a fantastic Peach Bowl matchup, Clemson versus Auburn. I will cheer for Mississippi State, Clemson, and Auburn (though at least one of them must lose). In MoneyLaw terms, here's why:

Michael Lewis explains the sociology of Southern college football in The Blind Side: Evolution of a Game 243-44 (2006):

A football game between Ole Miss and Mississippi State [is] more than just a football game — but then that was thought to be true of many Ole Miss football games. . . . "It's kind of like the situation in the Middle East," [says Ole Miss's dean of students]. "Fans of one grow up hating the other and really don't know why." The twist to the Mississippi State rivalry was that the fans knew exactly why they hated each other. The game served as a proxy for the hoary Mississippi class struggle, between the white folks who wore shirts with collars on them and the white folks who did not. The desperate contempt Ole Miss football fans felt for Mississippi State was echoed in the feelings of fans of the University of Texas for Texas A&M and fans of the University of Oklahoma for Oklahoma State — formerly known as Oklahoma A&M. These schools were not rivals; they were subordinates. Theirs was not a football team to be beaten but an insurrection to be put down. This notion was most vivid in the Ole Miss imagination: that the state of Mississippi, with the sole exception of the town of Oxford, was once a Great Lake of Rednecks. In recent decades the earth had warmed, and the shores of Great Lake Redneck had receded, so that, strictly speaking, perhaps it should not be described as a lake. But still, the residue was a very large puddle. And the one place in the puddle deep enough to ruin a shiny new pair of tassel loafers was Starkville, Mississippi.

Lewis rightfully analogizes Texas A&M and Oklahoma State to Mississippi State — and Texas and Oklahoma to Ole Miss. These days, with the emergence of Mike Leach's spread offense, Texas Tech represents another thorn in the Longhorns' side. My own cultural loyalties and proclivities run toward that portion of the South that scorches swine rather than cattle in barbecue pits. Looking eastward, then, I'd add Clemson and Auburn to Mississippi State's side of the ledger, while equating South Carolina and Alabama with Ole Miss.

These Southern land grant colleges have historically educated their states' (white) rejects. They award degrees that tell you in occupationally precise terms exactly what their graduates will be doing after graduation. They wage class war against the scions of "fine families" at Ole Miss, Alabama, South Carolina. (I defer for another time a discussion of historically black colleges and their part in the South's class wars.) In Southern-fried terms, schools such as Mississippi State, Auburn, and Clemson — and FAMU, Alabama State, and Fort Valley State — symbolize the upstart spirit that MoneyLaw embraces. This year, the football gods saw fit to smite South Carolina and Ole Miss — the Gamecocks honked five games in a row after securing bowl eligibility after seven games and reaching the top 10, while the Rebels lost every conference game — and to exile Alabama to the most expensive Independence Bowl bid in its history. Meanwhile, the gods took pleasure in sending Mississippi State, Auburn, and Clemson to fine bowls.

For all that, I give thanks. Go Bulldogs, go Tigers².

Law School Leadership Strategies From 15 Deans

Law School Leadership Strategies: Top Deans on Benchmarking Success, Incorporating Feedback from Faculty and Students, and Building the Endowment (Aspatore Books):

Law School Leadership Strategies is a smart and intriguing volume that outlines the role of today's educational leaders and discusses the current state and future shape of law school management. Featuring deans representing some of the most highly recognized legal education programs, this book provides a broad, yet comprehensive overview of the ins and outs of the industry and the strategic thinking behind operating a law school. Discussing the ever-changing role and responsibilities of the dean and the importance of building a successful administration team, authors provide valuable insights into the business and offer indispensable advice for success. Identifying the need to strike a balance between a center for intellectual growth and a profitable institution, as well as the process of distinguishing their instituition in the marketplace and measuring success, these leaders offer strategies for leading a center of legal education into the twenty-first century. From developing fundraising campaigns and generating revenue to utilizing technology and meeting students' needs, these authorities articulate the finer points around the business now, and what will hold true into the future. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great minds of today, as experts explore in detail what it takes to build and sustain the organizations that educate the future's great legal authorities.

1. Claudio Grossman (Dean, American), Building a Stronger Future
2. Donald J. Polden (Dean, Santa Clara), Key Strategies to Enhance a Dean's Effectiveness
3. Elizabeth Rindskopf Parker (Dean, McGeorge), The Life Cycle of a Dean
4. Glen Weissenberger (Dean, DePaul), Balancing the Challenges with the Rewards
5. James L. Huffman (Former Dean, Lewis & Clark), Satisfying a Variety of Constituencies
6. W. H. Knight Jr. (Former Dean, University of Washington), The Dean as Cultural Catalyst
7. John Costonis (Chancellor, LSU), One Size Does Not Fit All
8. Maureen A. O Rourke (Dean, Boston University), Being Yourself while Keeping Up with Everyone Else
9. Rebecca Hanner White (Dean, Georgia), Be Passionate, Appreciative, and Decisive
10. Robert H. Jerry II (Dean, Florida), Defining and Achieving Excellence
11. Samuel Marion Davis (Dean, Mississippi), There and Back Again: A Dean's Tale
12. Rex R. Perschbacher (Dean, UC-Davis), Keeping Pace with a Constantly-Evolving Role
13. Nancy B. Rapoport (Former Dean, Houston), Reflections of a Former Dean
14. Edward Rubin (Dean, Vanderbilt), Leadership and Literature
15. Kellye Y. Testy (Dean, Seattle), Leading for Mission

Cross-posted on TaxProf Blog. (Hat Tip: Law Librarian Blog.)

Innovation and fundraising

Several weeks ago, Mark Osler posted a short item on Law School Innovation that was as important as it was intriguing. Mark invited commentary, but none appeared at LSI. Though I've come late to the party, I thought I'd provide a response here at MoneyLaw.

Mark's post began with a reference to a Los Angeles Times article on the fundraising challenge that lies before Erwin Chemerinsky at UC-Irvine. Since the L.A. Times article now requires registration, I will excerpt some crucial passages:

Although the controversy over Chemerinsky's recent hiring, firing and rehiring has raised questions about the leadership of UC Irvine Chancellor Michael Drake, experts in philanthropy say it probably will have little or no effect on raising money. . . .

What will matter, experts say, is Chemerinsky's lack of fundraising experience and the fact that UC Irvine's law school has no alumni whose wallets it can tap. . . .

"A decade ago . . . you heard a lot of academics who said, 'I didn't get into this line of work to raise money,'" said Gene Tempel, executive director of the Center on Philanthropy at Indiana University. "Today, there isn't a dean or top administrator at a university who is hired without the expectation of fundraising on the table."

Driving the need for private money is the continued decline of state support for public higher education and the cost of luring and keeping star professors who will attract top students.

The L.A. Times quotes Brian Leiter for the related propositions that (1) top-rated faculty are the primary driver of reputation and prospective students' marginal propensity to enroll and (2) those premier professors are getting more expensive. Based on his comments to the Times, Erwin Chemerinsky certainly seems to agree: "Chemerinsky said he is laying the groundwork for his fundraising effort by recruiting high-profile faculty who will inspire donors."

Read the rest of this post . . . .UCI and its new dean are — to use a highly technical term from development science — loaded. Rather famously, UCI got a naming gift of $20 million from Donald Bren. The Joan Irvine Smith & Athalie R. Clarke Foundation and Mark P. Robinson Jr. have each pledged $1 million each. The L.A. Times also reported that eleven large law firms (presumably all in Orange County, or at least in greater southern California) have pledged $100,000 each. That is a war chest exceeding $23 million, and UCI hasn't yet staged a single class.

So much for the prologue. Intriguing as the prologue is in its own right — seriously, the Leiter-Chemerinsky hypothesis on the putative link between faculty reputation, student behavior, and fundraising would be worth a conference, or at least an extended discussion on MoneyLaw — Mark Osler's question on the relationship between innovation and fundraising also warrants very close attention:

Though I would hope that innovation would generally help fund-raising for a law school, I fear that in some instances it may work the other way.

It would seem that donors would be encouraged to give when they see their school fostering new forms of teaching and scholarship. It would show the donor that the school is intellectually active and growing. Perhaps just as importantly, the creation of new professorships, programs, classes, and physical space also creates things to be endowed and named for supportive donors. . . .

On the other hand, it would seem that many law school donors are graduates of the school, who often want to see their own experience replicated. They are attached to established professors and programs, and may be hostile to movements away from a focus on traditional methods. The danger here is obvious: That such donors will discourage a school from innovating, as it is no secret that big donors can and do influence many administrative decisions.

It's rare that a single post could give rise to not one but two discussion threads on MoneyLaw, but Mark Osler has accomplished this feat. The relationship between programmatic innovation and fundraising poses a profoundly important question for educational administration. In declining order of explicitness and increasing order of importance for me and my constituents, I'll be answering that question here, at The Cardinal Lawyer, and through my official actions.

For now, I'll make a few quick observations that, with any luck, will lay the table for future posts and commentary:

• UCI has no alumni. To the extent that the Osler hypothesis is valid (law school graduates are temperamentally conservative and will steer law school management accordingly through their donations), UCI's clean slate gives Erwin Chemerinsky a chance to avoid this pitfall.


• That, and the aforementioned opening war chest of $23.1 million dollars.


• Every "professorship[], program[], class[], and physical space . . . creates things to be endowed and named for supportive donors." Naming these things for anything else — historical figures, geographic features, former dignitaries at the law school or its host university — had better be accompanied with offsetting cash. Forgetting this fundamental truth is decanal malpractice. People say they are inspired by their heroes. And so they might well be. When it comes to naming things, though, people like to name things for themselves. And people who can afford to pay for this very privilege, given genuine reason to believe that the program or place or school would be worthy of the donor's name, often will pay.


• Mark Osler, you have great fundraising instincts, better than those bizarre "academics who [have] said, 'I didn't get into this line of work to raise money.'"

I'll close with what I have learned after nearly a year on the job. Yes, "many law school donors are graduates of the school." The happiest graduates are the likeliest to give, and happy graduates do "often want to see their own experience replicated." But this may be the lone respect in which Mark Osler has misspoken. Though alumni are often fond of "established professors and programs," the most generous alumni can afford to be generous because they are financially successful. No matter how much they enjoyed their law school years, the big winners in any alumni pool look forward because looking forward made them big winners. Though craven and hidebound forces abound in the academy, in courts and legislatures, and throughout the legal profession, there is plenty of room for the true American dream: phenomenal, family-changing financial success earned by dint of risk-taking, innovation, and hard work. Entrepreneurial alumni are the true champions of law school innovation, and any law school dean who wants to succeed through innovation will want friends like these.

Tenure and Promotion Time: False Positives and Negatives

“. . . and nobody, nobody knows what's going to happen to anyone besides the forlorn rags of growing old . . ..”
Jack Kerouac, On the Road

At many schools ‘tis the season for faculties to meet and make decisions about promotion and tenure. I do not know about other Schools but at mine the faculty decision and the Dean’s recommendation may or may not be approved by the University. They almost always are but, at least as it is told to me, there is a fair amount of grumbling. Having oversight of a captured faculty’s decision making is probably a good idea but part of the problem of tenure and promotion systems like this one is the fear of unfair oversight. This problem seems especially pressing to me because my School runs what I regard as a relatively clean tenure and promotion process and has recently made excellent decisions.

Here is the problem. No untenured or tenured person writes an article that could not be better and some write ones that fall quite short. A law faculty needs this information but social concerns and faculty needs to “make nice” dictate that internal reviews be soft. Anyone who has opposed someone who has then been granted tenure, as I have, knows the true meaning of “holding a grudge.” Outside letters by honest reviewers -- those who go further than the occasional "quibble" -- containing more than a smidgeon of negativity may keep an excellent faculty member from being promoted. For this reason and others I have written about, the market for “easy writers” emerges. Faculties go back to the “easy writer” well to protect untenured faculty in whom they are vested. Sometimes those are also deserving faculty and, unfortunately, sometimes they are not. In fact, one of the most unfortunate aspects of current system is that the effort to protect weak candidates from close scrutiny means diluting the praise for highly successful candidates.

How does the system of mutual distrust come to be. There is probably blame on each side. Sometimes the objective of a tenure and promotion committee is to “get the candidates through.” That pretty much means any candidate who fits in socially. For example, at my School, for over a decade there was only 1 “no” and even fewer people informally encouraged to move on. Every candidate had great inside and outside review letters. Unless hiring committees were infallible, this was nonsense. The credibility of the Law School’s system suffered. I do not think for a minute that my school’s history is worse than that of others. Still, even thought we have now had a very good run of junior faculty, I cannot be confident that the faculty will say no to someone who makes enough "nice" both socially and politically to overcome poor scholarship and teaching.

On the other hand, having served on University tenure and promotion committees and on a social science faculty I know how common it is to under-appreciate the effort and analysis that goes into a well done law review article. It may take a year or more of steady effort. A multi-coauthored 15 page article based on an econometric study seems easy by comparison.

This difference in perspective, along with justified distrust, and the cultural differences between law professors and professors in virtually every other discipline increases both the risk of false positives and negatives.

Coaching cost per win

Value in coaching? Evaluating college football coaches according to dollars per win is fun. Dennis Erickson (left) cost Arizona State $50,000 per win in 2007. Tim Brewster (right) cost Minnesota $1,000,000 per win. Yes, one million, as in 1 x 10⁶.

In response to a recent discussion of the relationship between big-time college football and law school administration, MoneyLaw correspondent and commentator Mr. Bonzo has supplied a fun suggestion:

The clever folks at USA Today have figured out the cost per football win for the last season &mdash in terms of coaches' salaries.

My beloved Gophers are at least number one in that aspect of football. Minnesota cost/win = $1,000,000

Mr. Bonzo is right. In this contest, if no other, the Golden Gophers have finished first. Indeed, if the Gophers hadn't defeated Miami of Ohio, 41-35 in triple overtime on September 8, Coach Tim Brewster's performance for the 2007 season, expressed mathematically as salary dollars per win, would have been priceless.

Here are the five most expensive coaches in Division I-A college football, as measured by dollars in salary per win:

School	Coach	Salary	Wins	Salary per win
Minnesota	Tim Brewster	$1,000,000	1	$1,000,000
Alabama	Nick Saban	$3,503,200	6	$583,867
Duke	Ted Roof	$544,286	1	$544,286
Syracuse	Greg Robinson	$1,054,172	2	$527,086
Southern Methodist	Phil Bennett	$517,857	1	$517,857

At the other end of the spectrum, which coaches provided the best value for their teams? The mirror image of Alabama's multimillionaire is Louisiana-Monroe's Charlie Weatherbie, who delivered 6 wins — exactly as many as Alabama — for the bargain-basement salary of $205,000. That salary is less than certain law school professors make (names withheld to protect the guilty, the shameless, and the overpaid), and Weatherbie's rate of $34,167 per win makes him the sixth most efficient college football coach in Division I-A. Oh, in case you were wondering, Weatherbie beat Saban head-to-head, in a shocking 21-14 win for Louisiana-Monroe over Alabama.

Another mid-major notable: Miami of Ohio's Shane Montgomery may have lost to Minnesota, but he got the RedHawks six wins for merely $144,225 ($24,038 per win). That's six times the victories for one-seventh the salary paid by Minnesota to Tim Brewster.

My pick for the coach of the year? Sentiment favors Bill Lynch of Indiana, who delivered 7 wins, a bowl game, and a 13-game season to the Hoosiers for $293,297 ($41,900/win). Indiana football, I am sure, is happy to pass the dreaded title of "Eleventh in the Big Ten" to Minnesota's Golden Gophers.

But for efficiency and performance, no one outclassed Dennis Erickson. Sure, Arizona State paid him $500,000 this year. Though substantial, that half-million-dollar salary was half of Tim Brewster's pay and a seventh of Nick Saban's. The Sun Devils got a whopping 10 wins, and the short end of a tie for the Pac-10 title, for a cool $50,000 per win. Arizona State is going to the Holiday Bowl, which is as satisfying for the Sun Devil Nation as the Cotton Bowl is for Missouri, but that outcome must be laid at the feet of the craven and corrupt masters of the Bowl Championship Series.

The Forest For the Trees

Sometimes, it is so easy to get caught up in the research design and methodology, that you forget why you were originally interested in your project. I turned in a small pitch prospectus to my sociology department Organizations class a while back, and somehow, forgot to explain why my project may be important to begin with. She actually wrote in the margin: "why study employment discrimination law? why examine family and medical leave? this might be easy to answer, but you must answer it."

Ouch.

Did I get so bogged down in the research design and "operationalizing the variables" that I forgot why I'm doing this project in the first place? Why I chose the field of employment discrimination law? Why the particular lens of the sociology of law? Why have organizations be the unit of analysis? What is this a case of?

I've always been committed to anti-discrimination law and scholarship, particularly within the employment context, as that affects people's wages, livelihoods, opportunities, and identities. My interest in gender issues in the workplace, particularly wage inequality and the gendered construction of family care and leave, can be traced back to my feminist activism in college. The sociology of law is my preferred approach, because it incorporates organizational theory without under-socializing the way a Becker/Posner-esque economic analysis of law might. Organizations are my unit of analysis because they're the most capable of being affected by amending the legal mandates to effect the most change in wage inequality. My project is not purely normative, but the last part of it will try to offer some "best practices" proscriptions for organizational reforms and amendments for agency guidelines and federal statutes. It's a theory-generating empirical project, so we'll see what this is a case of.

Sometimes, with all the work that I do, I have to remind myself of why I'm doing it. I have to remember my normative and philosophical commitments. My motivations. My reasons for choosing this work rather than say, literary theory and criticism. That this isn't just what I do, but part of who I am. It is not all of who I am. But it's a significant part, because every choice we make, every job we decide to take, is a normative choice.

Science (and to a certain extent, though no one believes us, social science) purports to be "objective," "empirical," "descriptive"--code words for "non-normative." It's not the same as legal (or political) cause advocacy, I grant, which is inherently normative (sometimes stridently so). Nor is it entirely subjective, as some say literary studies are (I would counter that literary studies are interrgations of text within context, but no one believes me on that either). But even science and social science have normative implications and ethical concerns. The consideration of ethics isn't divorced from science: once you go beyond the secondary or undergraduate study of science, there is an implicit "cause" in every scientific project and inquiry. When we attempt to describe our world, we discover it, and any confrontation of ideas and paradigms (old vs. new) resulting in a choice, with implications for policy, regulation, etc. is de facto normative. Think of stem cell research, environmental science, evolutionary biology. Think also of most political science, sociology, and psychology. "Empirical" does not mean that you only describe the shape of the box and its four corners and sides. It is not only "this is how the law/society/world is." You are making the box relevant to others, and telling them why they should care about this box. It is "this is why the law/society/world" matters. And occasionally, you are trying to think outside of the box, or make changes to it, for a better, or more just law/society/world.

But a lot of how we "get there" can get bogged down in details: research design, testable hypotheses, operationalized variables, experiments, etc. It's like how a lot of legal work is really all the same: you follow the same rules of procedure, you file motions, you file counter motions, etc. etc. The rote, quotidean, mechanistic aspect of work can obscure its original purpose and underlying assumptions and motivations. But in the beginning, there was a purpose to your study: something you wanted to test and demonstrate, to prove something, either to contribute to the store of knowledge or to change the way we think about things. In the beginning, there was a purpose to your motion: on behalf of this client, cause, or maybe ideal.

I made the decision to go to law school and become a legal scholar. Sometimes I forget that it was a choice, and that I had my reasons. Work tends to become something we have to do, and something we do without thinking, really. Why do we work, and why do we work so hard? Why did we decide at whatever age (18, 22, etc.) to go into our line of work? We must have had our reasons. If indeed, you had the luxury of choice, and the talent and work ethic to serve your choice, it helps to remember it. That the quotidean aspect of work is part of the larger meta-narrative of the work, but there is a larger narrative. To remember the forest for the trees.

Other people's children

Holiday season approaches, and with it our cherished traditions return. One of my rituals will be watching, for the fifty-seventh time, It's a Wonderful Life.

I know what the detractors say. This movie is overplayed. It's "Capra-Corn," the prime instance of director Frank Capra's excessive sentimentality. Science fiction writer Connie Willis, in her story "Miracle," discards It's a Wonderful Life in favor of Miracle on 34th Street, which (unlike Wonderful Life) emphatically does not let an evil deed go unpunished. I don't care. It's my favorite Christmas movie, and I mean to watch it again.

One scene always has particular resonance for me. At his very nadir, George Bailey resorts to praying (something he admits to doing only rarely). A belligerent man seated nearby slugs George. Evidently, one Mr. Welch is upset with the way George has berated Mr. Welch's wife:

And the next time you talk to my wife like that you'll get worse. She cried for an hour. It isn't enough she slaves teaching your stupid kids how to read and write, and you have to bawl her out . . . .

Teaching other people's children to read and write. If we lay aside the premises of the argument between Mr. Welch and George Bailey — it isn't nice to trash people over the phone or, for that matter, to slug them in person — we'd see that this scene from It's a Wonderful Life defines an essential truth about education. Teachers at every level do their best, at often substantial personal sacrifice, to serve other people's children.

At first blush, altruism in any form seems to contradict Richard Dawkins's "selfish gene," the biological imperative of individuals to propagate and to channel their efforts on behalf of their own progeny. The willingness of human beings to help other people's children — this is after all the most succinct definition of altruism — is as bewildering, at a societal scale, as the peacock's tail was to Charles Darwin during the dawn of evolutionary theory.

But selfless sacrifice is a striking feature of human behavior. As I write this column, we Americans pause to observe Veterans' Day, mindful of the ultimate sacrifice made by so many on our behalf. Our challenge as lawyers is to find expressions of the altruistic instinct within our own profession. Even more important, we must find ways to foster altruism within a professional culture where time is the scarcest asset.

Willingness in law to serve other people's children extends far beyond teaching. Indeed, my corner of the profession rests on nothing more than an altruistic credo that is as crucial as it is modest: nothing we do — in teaching, scholarship, or service — matters except to the extent that it advances the higher training and useful education of other people's children and solves problems that afflict them.

In order to find the most striking instances of lawyerly virtue, we must look far beyond the most privileged corners of the academy. At the University of Louisville, our own students set the charitable pace. From the Samuel L. Greenebaum Public Service Program to the Student Bar Foundation and the impending opening of the University of Louisville Law Clinic, UofL law students begin shaping the charitable norms of their future profession from the very start. The Commonwealth's law schools will join our state's most dedicated public servants in seeking, once again, debt relief for lawyers who have elected to work on behalf of the public at salaries that are hardly commensurate with their service and sacrifice. Finally, although April 15 may be the cruelest day of the cruelest month, the winter holidays happily coincide with the tax calendar. There is no better season, for those of us who are better positioned to give money than to give time, to find some way to serve other people's children.

These are the ways that George Bailey, American cinema's favorite independent banker, teaches contemporary lawyers to serve and to give. I'll close this column by recasting the lesson that George learns from his youngest child in It's a Wonderful Life.

Of all the criticisms leveled at It's a Wonderful Life, the one I take most seriously is the allegation that it merely repackages A Christmas Carol in the setting of small-town, twentieth-century America. Actually, the charge is far more serious: whereas Charles Dickens's fable shows what ill fate befalls those who fail to heed the spirits of Christmas Past, Christmas Present, and Christmas Yet-to-Come, Frank Capra's holiday classic tempts the careless viewer to validate her or his life exactly as it has been lived. Unlike Dickens's Christmas spirits, Clarence the Angel looks only homeward and backward; his lone tool is the power to reveal what the world might have become had George never been born. What we must remember is that George's life has value to the extent that he has touched the lives of so many others, those of other people's children as well as those of his own.

Charity and sacrifice alone have the power to change a world where too often the bell tolls for me and for thee. Do our best for our fellow human beings, and the chime of clapper and ball on flawless metal will signify a more uplifting message: Every time a bell rings, some angel has given another person's child her wings.

Editor's note: This article first appeared in the December 2007 issue of the Louisville Bar Association's Bar Briefs and is cross-posted from The Cardinal Lawyer.

Football factories and decanal tenures

Gregg Easterbrook, brother of the Honorable Frank Easterbrook, is my favorite football analyst. His breakdown of this year's BCS debacle is a must-read for any serious football fan. This analysis offers many lessons for MoneyLaw; by and by, I hope to connect Easterbrook's evaluation of college football with law school administration and the sabermetric concept of value over replacement player.

For the time being, though, I wish to draw attention to a single paragraph in Gregg Easterbrook's latest missive:

[F]ootball-factory schools in Division I-A hold such incredible advantages in recruiting, in cupcake-opponent scheduling and in playing more games at home than on the road that an orangutan could coach a Division I-A school to bowl eligibility. Almost every football-factory season ends in a bowl bid, and thus the typical football season outcome at a big school is officially characterized as a success. Two-thirds of NFL teams do not qualify for the postseason, and thus the typical season outcome in the pros is failure. That's why there are far more long-term coaching dynasties in college than in the NFL. It is simply easier to win games at a football-factory college than in the pros, meaning more college coaches with career winning records and longtime tenures.

Here is a clear instance in which empirical research can answer questions that people care about. First, we need to measure the lengths of football coaches' tenures in three categories: (1) the National Football League, (2) college football factories (essentially, BCS conference schools plus Notre Dame, the delightfully pathetic performance of this season's Irish notwithstanding), and (3) other Division I-A college football programs. If Easterbrook is right, coaches in category 2 should experience less turnover than their counterparts in the NFL and the non-BCS corners of Division I-A college football.

Durable dean, durable coach

Now it gets interesting. There is a clear equivalent to Division I-A football among law schools: the twenty or twenty-five or forty schools that claim (with varying degrees of persuasiveness) to number among — or otherwise be equivalent to — the fifteen-odd schools that Brian Leiter identifies as truly "national." I'll name names. My current school, as much as I love it, is a mid-major among American law schools. Bluster won't change our status; money might. Minnesota, where I worked before coming to Louisville, is the law school equivalent of a BCS-conference football program. It's pointless (albeit arguably entertaining) to debate whether Minnesota in law school terms is better compared to Ohio State (a perennial Big 10 powerhouse) or Baylor (the Big 12's perennial doormat) in football terms. What matters, for current purposes, is this hypothesis:

Law schools that routinely appear in or near the top tenth of the U.S. News rankings enjoy significant managerial advantages relative to the rest of American legal academia.

One way to put that proposition to the test is to compare the longevity of deans at elite law schools with the tenures of their counterparts at other schools. You can control for "promotions," defined as decanal moves to higher-ranked schools. You can also control for industry-wide variations in decanal tenure over time; perhaps we are living in a period of quicker triggers across all institutions. When the chips are down, though, I suspect that the managerial advantages at wealthy, elite institutions are indeed considerable, and these advantages are in fact reflected in longer, more comfortable decanal terms in office.

Update

Two quick addenda:

1. A correspondent from Minnesota reminds me that the football Gophers went 1-11 this year, arguably because of and not in spite of the coach's Rose Bowl talk. The Gophers in the Rose Bowl, let alone champions of the Grandaddy of Them All! The Hebrew word that comes to mind is Yitzhak: one laughs. I finally got to see Navy beat Notre Dame. Watch the Gophers on New Year's Day in Pasadena? Ha! I should live so long.
   
   In other words, Minnesota football is much closer to Baylor than to Ohio State. The proper characterization of Minnesota's law school remains an exercise for the reader.


2. Chattering about Gopher football reminded me that I neglected to complete my thoughts on the main subject at hand . . . .
   
   Interim deanships should not be counted positively in any measure of decanal longevity. Indeed, the frequency and duration of interim deanships, I imagine, would correlate negatively with a law school's wealth and prestige. By my hypothesis, turnover is generally a symptom of second-tier status and resources.
   
   
   And to the extent that there is a positive correlation between institutional wealth and prestige on one hand and decanal longevity on the other, a BCS-class law school that changes deans more often than its counterparts might well be perceived as — and be — an underperformer within its cohort. The proper college football analogy here is Alabama, which has cycled coaches unceremoniously and often while waiting in vain for the Second Coming (I speak, of course, of Bear Bryant's much coveted return to this world). And for all the money Alabama has thrown at Nick Saban, the Crimson Tide got all of six wins this year. But being two states closer than South Carolina is to Shreveport did earn the Tide a trip to the Independence Bowl. Even though he has plenty of time on his hands this winter, Steve Spurrier probably won't be watching.

Visual bonus

MoneyLaw and its sister sites place a premium on visual impact. With that goal in mind, I present a comic strip that illustrates an ancient post with continuing currency — Jamming wireless networks (November 2006):



This Doonesbury strip came courtesy of Professor Nancy Marder, who presented a paper on November 12 as part of the University of Louisville's faculty workshop series. Nancy's presentation concerned the use of cameras in the courtroom; during the discussion of her paper, the related question of laptops in the classroom arose. And behold, Doonesbury was addressing the same subject.

A tale of two Carolinas

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

— Charles Dickens, A Tale of Two Cities

Courtesy once again of Not Very Bright, I've had the opportunity to encounter an extraordinary juxtaposition of letters to the editor in The Greenville (S.C.) News.

One of the letters exhorted other readers to "[h]onor accomplished South Carolinians":

For years South Carolina has had the unfortunate reputation of an inadequate school system. However, from this state came Charles Townes, Nobel Prize winner for the laser and one of America's greatest scientists, and Louis Wright, great scholar and historian, who headed the internationally famous Folger Shakespeare Library in Washington, D.C. for more than 20 years.

I beseech the wealthy of South Carolina, bring honor upon yourselves, endow the Charles H. Townes Chair at Columbia University, New York City, where he created the laser, and the Louis B. Wright Chair at Wofford College, Spartanburg. Show the world our reverence for intellectual excellence.

Charles Townes is a young 92 years old. Louis Wright is deceased, but his spirit lingers. He coupled world-class scholarship with masterful writing. Wright's autobiography, Barefoot in Arcadia, is an American classic. To the ancient Greeks, Arcadia was paradise, and Wright's childhood paradise was lower Greenwood County 100 years ago.

Wright's classic and Charles Townes's autobiography, How the Laser Happened, should be required reading of every college freshman in this state.

MoneyLaw heartily endorses the idea that financially fortunate people should honor heroes who are meaningful to them, by reason of geography and/or personal history. At The Cardinal Lawyer, my "institutional" blog, I've exhorted fans of Justice Louis D. Brandeis to honor him by supporting the law school named for him. For reasons I've explained in this forum, I am partial to Matthew Henson, a Maryland-born Arctic explorer who inspired my fourth-grade teacher and for that reason will always inspire me. I've made a pilgrimage to Annapolis to see Henson's statue in the Old State House and would contribute something toward an academic chair named in his memory.

And so we come to the Greenville News' other letter to the editor, which lamented how "[t]wo sets of rules govern our society":

It is comforting to see that the good old boys of South Carolina politics are still on their comfortable throne, dictating to the high and low, the policies of the land. It is comforting to know that their power and wisdom even extends to who should be admitted as lawyers. It is comforting to know that their communication system is honed with such fine precision that just a phone call or two from the right elected legislators or legislatively elected judges to the judicially appointed committeeman can correct test scores by other judicially appointed minions so that chosen legislators' and judges' children need not suffer the consequences of lesser mortals.

It is indeed comforting to see that divine destiny in South Carolina politics, continues to thrive — albeit under the cover of darkness and struggling to avoid the flashlight of media inquiry. It is very discomforting to know that the law and those who "practice" it are still getting it wrong and that it really still depends on who you know and whose side you are on.

I thought a basic premise was that members of the legal profession and members-to-be are bound to avoid the "appearance of impropriety." But then, I forgot, that there are a totally difference set of rules for judges, legislators and political good old boys and their families and friends. How silly of me.

There really are two South Carolinas. In one, good people urge their children to follow the example set by Charles Townes and Louis Wright, and even better people work and give so that other people's children can in fact fulfill their ambitions. In the other, bad people make clandestine phone calls to cover their children's failure on the bar exam, and even worse people pervert the institutions of state government into instruments of corruption. I know which South Carolina is worth living in, worth fighting for, worth defending with our lives and sacred honor.

I know, I know. I've spent more time and energy than I ever imagined I would in covering South Carolina's bar exam scandal. But South Carolina as archetype symbolizes the American South as a whole, and as that state goes, so goes the rest of this region. Whether South Carolina offers hope and promise or corruption and cronyism to its youth can be gauged by the handling of its bar exam scandal. That state stands on the verge of a possible shift in historic paradigms. It indeed is the best of times, it is the worst of times, it is the age of wisdom, it is the age of foolishness, it is the epoch of belief, it is the epoch of incredulity, it is the season of Light, it is the season of Darkness, it is the spring of hope, it is the winter of despair, we have everything before us, we have nothing before us, we are all going direct to heaven, we are all going direct the other way.

And if I or any other skeptic of the South Carolina Supreme Court's decision should ever fall victim to the skeins and schemes of our adversaries, I do offer these words of comfort: It is a far, far better thing that we do, than we have ever done; it is a far, far better rest that we go to, than we have ever known.

Foxes, hens, and pigs, oh my!

College football meltdown, December 1, 2007
Oklahoma crushes Missouri	Pitt burns WVU's backyard

As I write this, college football's championship system is melting down. The smart money expected Oklahoma to crush Missouri in the Big 12 championship, and OU's Sooners exceeded those expectations. For its part, West Virginia had simply to defend its home turf against a 28-point underdog in Pitt, and at worst the Mountaineers would have had a share of a national championship game against Ohio State — surely the dream matchup that everyone in Wheeling, W. Va., has always wanted. But no. Pitt smothered West Virginia's vaunted scoring machine; Pitt's punt unit made as many trips through its own end zone as did the Mountaineer offense.

As a result, all sports shows on Saturday night and Sunday morning are filled with the spectacle of analysts and, worse yet, coaches pleading the cause for one team or another. There is a consensus, albeit an unexamined one, that Ohio State deserves one of two berths in the BCS Championship Game by default. The case can — and has — been made for a flotilla of other teams, including Georgia, Louisiana State, Southern California, Kansas, Oklahoma, and even Hawaii.

The trouble with the coaches' involvement is simple. Their teams stand to benefit. The USA Today poll, a major component of the BCS standings, consists of a survey of "60 head coaches at Division I-A institutions," all of whom "are members of the American Football Coaches Association." This year's USA Today Board of Coaches includes the coaches at Georgia, LSU, and Oklahoma, but not Kansas, Southern California, or Hawaii. It's an obvious flaw in the system, and hitherto no one has pondered how college football is supposed to ensure the legitimacy of Division I-A championships when the henhouse has been entrusted (at least in part) to some, but not all, of the game's wiliest foxes.

Which brings us back to the South Carolina bar exam scandal. This morning's front page at The State announced that the South Carolina Supreme Court is not yet off the hook:

Calls are increasing for an outside investigation into the state Supreme Court’s decision last month to reverse the grades of 20 people who flunked the latest bar exam — including the children of two prominent officials.

But S.C. law doesn’t allow independent investigations of complaints against the state’s highest court — prompting House Speaker Bobby Harrell to say the time might be right to consider changing that.

In interviews last week with The State, three people — a 2007 Charleston School of Law graduate who flunked the July exam, a federal attorney with S.C. ties and a legal ethics professor at one of the nation’s top law schools [Deborah Rhode of Stanford] — called for an independent investigation into whether the Supreme Court engaged in any misconduct in connection with the exam.

For once, South Carolina might move faster and more rationally than the NCAA. If an investigation comes to pass, hell indeed will have frozen over, and a squadron of pigs, presumably escaping Carolina's barbecue pits, will fly in formation from Rock Hill to Hilton Head.

I promise I will salute.

Editorial note: Hat tip, once again, to Not Very Bright. At Feminist Law Professors, Ann Bartow also discusses The State's latest story.