A new blog: Commercial Law

The Jurisdynamics Network is pleased to announce a new member of its family of weblogs, Commercial Law. The law of sales, leases, payments, finance, and lending has manifested some of the most dramatic responses by the law to social, economic, and technological change. From lex mercatoria to the Convention on the International Sale of Goods, from the Negotiable Instruments Law to the rapidly evolving field of electronic payments law, commercial law has been and continues to be a fascinating field in which to observe the interaction of law and business. And the venerable Uniform Commercial Code remains fertile ground for the quintessentially jurisdynamic enterprise of statutory interpretation.

We hope you will visit Commercial Law often at http://UCCLaw.blogspot.com.

The Ensemble Factor

Apropos of Jim's post on rookie legal academic talent, an underexplored aspect of talent assessment might be called the ensemble factor. A new hire, even a "best athlete," inescapably fits into an existing faculty ensemble. Some candidates present interesting possibilities to change the ensemble for the better. For example, a rookie might be a catalyst, sparking intellectual curiosity (and elevated performance) of veterans. Or, a rookie might serve as a bridge linking the work of two or more veterans who have become isolated from each other and each other's ideas over the years. Hiring the right rookies together can be a boon to the ensemble. When rookies not only like each other but can pool scholarly expertise for their mutual benefit, they quickly and deeply invest in the team. Their connection to each other lowers the risk of attrition and increases the expected value of the team's investment in them. The ensemble factor is sometimes blurred with "curricular fit," wrongly in my view. Curricular fit is but one narrow aspect of the contribution a new hire can make to the ensemble.

The potential for positive ensemble factor is far more complicated to assess than the negative. A jerk is a jerk — no matter how fast or strong he or she might be.

There's a new sheriff in town--thanks, Green Bag!

Thanks to the Green Bag, there's going to be a new rankings system to compete with the USNWR rankings. Various blogs (including mine, here) have mentioned Green Bag's new Deadwood Report: see Inside Higher Education and Brian Leiter, along with the original article in the Green Bag.

Here's what the Deadwood Report can do: it can focus on what law schools are doing now, rather than on some halo effect from what they did years ago; it can link claims of what schools say that they're doing with proof of what they are actually doing; it can force schools to acknowledge that they're basing claims of excellence on a few top performers rather than on a deep bench of strong players; and it can get us away from the damnable opinion-based rankings to a more transparent system based on verifiable data.

Are there going to be bugs in the system? Sure there are. But, as Dave Van Zandt has said for years, the reason that USNWR is so popular is that consumers crave any data at all. Now there's a competing system, and it's one that may have some teeth behind it. Bravo, Green Bag!

Legal academia's rookie combine

First the Super Bowl, then the NFL combine. Mike Madison imagines how legal academia might emulate the drills by which National Football League scouts evaluate rookie talent:

Passionate followers of professional football know that the National Football League is just now concluding its annual “combine,” the camp where would-be draftees get timed, tested, and measured by pro scouts in anticipation of draft day. There are speed tests, jumping tests, “position specific events,” measurements, and the famous or infamous Wonderlic intelligence test. . . .

Brady at the combine

One of the goals of the NFL combine is to identify diamonds in the rough, fabulous athletes whose professional potential was obscured by a mediocre college team. Law school faculties, it is well-known, sometimes engage in the related practice of “best athlete” hiring. Schools that undertake “best athlete” searches aren’t looking for fill specific substantive needs, but are instead bound — if at all — only by the mandate that they hire raw talent.

In the spirit of this older post about a Fantasy Law School League, what would a law faculty combine look like? I mean the question both in its obvious semi-serious sense, but also in a MoneyLaw sense. . . . [W]hat tests should “best athlete” faculty candidates be made to run, who should run them, and where and when should they take place?

This is a fun parlor game, and there are at least two ways to play. The first is to run drills that emulate law school teaching and legal scholarship. The second is to imagine the types of skills that lead to superlative academic performance (however you choose to define that) and then to imagine tests that would test those skills.

Read the rest of this post . . . .Mike Madison's original post hints at ways to run industry-specific skills. In commentary to Mike's post, fellow Madisonian blogger Frank Pasquale, despite his "dislike [of] anything that makes the enterprise more “game-like,” offered these suggestions:

• Construct a syllabus incorporating a new pedagogical technique. (note–interviewers could learn a lot from this, too!)


• From Bowie to Thomas Kuhn: Assess whether your field is in a state of “normal science,” or needs to undergo a “paradigm shift.” If the former, how do your projects contribute to answering the key questions. If the latter, what new questions need to be asked?


• Write a blog post about some news item from the past thirty days that shows how your work illuminates the issues raised in the news item.

I agree with Frank that "the Kuhn question is the key one because it highlights how different academia is from a game" and with Jeff Lipshaw that "much of life consists not in playing a particular game well, but figuring out what game you’re playing."

Frank Pasquale's suggestions drive at the core of what it means to evaluate rookie talent in legal academia. We need people who can organize classes for the benefit of students, identify and perhaps even challenge conventional wisdom, and communicate in a variety of contexts. I confess, though, that my immediate reaction to Mike's original post contemplated an altogether different format for legal academia's rookie combine. I contemplated tests of pure, raw intelligence.

This is where my knowledge of football got in the way. The NFL combine consists of fourteen distinct drills:

1. 40 yard dash
2. Bench press
3. Vertical jump
4. Broad jump
5. 3 cone drill
6. 20 yard shuttle
7. 60 yard shuttle
8. Position specific drills
9. Physical measurements
10. NFL team interviews
11. Wonderlic test (intelligence)
12. Cybex test (flexibility)
13. Injury evaluation
14. Urine test

Relative to baseball's infamous 270-foot dash (yes, the one Billy Beane won the year he entered Major League Baseball's rookie draft), the NFL combine's drills come closer to measuring the skills that matter in that sport. Tests of speed, agility, strength, and intelligence dominate the combine.

Long ago I speculated about ways in which legal academia might assess the multiple intelligences of would-be rookie professors. I had in mind the work of Howard Gardner, author of Frames of Mind (1983) and Intelligence Reframed (1999). Gardner's theory of multiple intelligences identifies eight distinct dimensions of intelligence:

• Linguistic
• Logical-mathematical
• Musical
• Bodily-kinesthetic
• Spatial
• Interpersonal
• Intrapersonal
• Naturalist

At one level, Frank Pasquale's more logical interpretation of legal academia's rookie combine makes more sense. Identify the complex tasks we need to perform — akin, perhaps, to cut-blocking, bull-rushing, or route-running — and design tests that tests the full complex of skills. But Jeff Harrison has lamented, in ways I appreciate, that the usual tests of aptitude seem to yield a large number of legal academics who are neither intellectually interesting (as a static matter) nor intellectually curious enough (as a dynamic matter) to make better teachers and smarter colleagues of themselves.

So, I continue to wonder. When we evaluate rookie talent, should we do so on the basis of the applicants' ability to perform complex tasks approximating what veteran academics are expected to do? Or should we take aim at raw intelligence? In an ideal world, where neither football teams nor their scouts nor workers in less physically exhilarating enterprises are ever "on the clock," I suspect that we'd measure both.

The equalizer

Does the word equalizer (semi)automatically conjure images of the Colt .45? Or does The Equalizer mean Edward Woodward playing Robert McCall, hero of the mean streets? Scott Greenfield makes a strong case that blogging is the real equalizer:

They say the Colt .45 was the Great Equalizer, but it doesn't hold a candle to the blawgosphere. We have lawyers and law professors, from the youngest to the oldest, the rookie to the very experienced, the person at the top of the food chain and the new-hire, all in the same space. . . .

Online, we all look the same. No one is black or white. No one is male or female. No one has a beautifully-made bespoke suit to dazzle all comers when contrasted with the pajama-clad home officer lawyer. Before the blawgosphere existed, there was little chance that a solo criminal defense lawyer would cross paths with the general counsel of Sun Micro. Other than having tables near each other at Bouley, we existed in different spheres. Today, we're cyberneighbors, and I can knock on his door anytime I please. He can ignore me, but at least I know where he lives. . . .

[T]his is a world where people spend far more effort getting along, learning from each other, engaging in communication, rather than trying to be a "show off" in a new venue. Who knows if the woman who just commented that she liked your post is the managing partner of some Biglaw firm, or general counsel of some major corporation. Online, we all look the same. The only thing that distinguished one from another is the content of our message.

Doing what comes naturally: Learning university administration on the job

The University of Colorado has named Bruce Benson as its president, and Stanley Fish's observations on this appointment are right on the money. A university "which dismissed controversial professor Ward Churchill because of doubts about his academic qualifications, has appointed a president who doesn’t have any."

Benson is an accomplished oilman and an active Republican. But "his highest degree is a B.A., and he has never been a member of a faculty or engaged in research or published papers in a learned journal." This avowed nonacademic is poised to take the helm of "a state university ranked 11th among public universities and 34th among universities overall."

Fish correctly observes that "the political and financial profile of an administrative candidate are . . . relevant because what you want him or her to do is not produce scholarship or teach inspiring classes . . . but interact successfully with a number of external constituencies including regents, legislators, governors, the press and donors." Academic administration isn't purely academic, and searches to fill presidencies and deanships shouldn't be purely academic.

Read the rest of this post . . . .Fish is right to criticize those who would stress either academia or administration to the exclusion of the other. Those who emphasize only teaching and scholarship "forget[] that executive leadership requires skills most faculty members neither possess nor appreciate."

By the same token, "those who dismiss the importance of academic skills" mistakenly assume that managerial acumen is freely transferable from business to academia, that "[s]omeone who can manage an oil company will be able to manage the enterprise of a university." As Fish observes, "in the academy there is no product except knowledge," and concepts such as market share, efficiency, and inventory yield in favor of "endless deliberations, explorations that may go nowhere, problems that only five people in the world even understand, lifetime employment that is not taken away even when nothing is achieved, expensively labor-intensive practices and no bottom line."

Nonacademic law school deans are hardly an anomaly. I work at a school that was led, not that long ago and for nearly a decade, by a judge with no prior academic experience, and a law firm partner to whom I once answered currently sits as dean of another law school. I wonder whether it's easier for a judge, a law firm partner, or a prosecutor to learn the arcane ways of academia or, by contrast, for a professor to set aside academic tools and norms for the dark art of management. Others can speak about the transition from the bench or the corner office to the dean's suite. I do know that it is challenging but exhilarating to infuse managerial and (most of all) entrepreneurial responsibilities into the strictly academic calling of a law school professor. There is a portmanteau expression for this blend of management, law, and the intellectual life: MoneyLaw.

All that is fodder for future posts. In the meanwhile, let's complete our brief examination of Bruce Benson's designation as president of the University of Colorado. Michael Carrigan, one of the three CU regents who voted against Benson, squarely identified the greatest weakness in Colorado's choice: “I can’t believe that there are no candidates out there with both business acumen and academic credentials.” Fish's endorsement of Carrigan's observation rings true: "Those candidates were out there and they still are. Perhaps the next university tempted to go this route will take the trouble to look for them."

Advice for New Assistant Professors

This may come from a sociology academic blog (Scatterplot), but I think the tips offered by "Olderwoman" are very instructive for new professors of any discipline. I am excerpting the ledes from the first five tips, but do go to the link above for the entire post--and the very good comments:

1) Don’t take anything personally, especially not at first. People will probably treat you as insignificant, not because they think ill of you, but because they are socially inept.

2) Help integrate yourself. Even if you are normally more productive writing at home, work in the office a lot during the first year. Make a point of loitering in the hall when it is near lunch time, so people will notice you and think of asking you along to lunch.

3) Your best friends are likely to be the other assistant professors, but do not avoid the senior people. Treat them with friendly respect.

4) Do NOT attempt to reform ANYTHING for at least a year, preferably two. No matter how stupid the curriculum or other things seem, leave them alone until you have been there long enough to know why they are there and whose interests are at stake. Similarly, try to avoid being drawn into factional disputes.

5) Make sure you understand as soon as possible what kind of institution you are at and what it takes to get tenure. At a research university, remember that it is publishing that will get you tenure.

Faust's midlife crisis

Eugène Delacroix, Méphistophélès apparaissant à Faust (1827)

Feeling all four or five or six of your decades? Ready to sell your soul, or at least to hear the terms you might be offered? Gut! Die Seelenmarkt ist Tag und Nacht geöffnet und wartet geduldig auf Dich. Aus Faust: Der Tragödie, Erster Teil, mit englischer Übersetzung durch den Hauptverfasser dieser Webseite:

In jedem Kleide werd ich wohl die Pein Des engen Erdelebens fühlen. Ich bin zu alt, um nur zu spielen, Zu jung, um ohne Wunsch zu sein. Was kann die Welt mir wohl gewähren? Entbehren sollst du! sollst entbehren! Das ist der ewige Gesang, Der jedem an die Ohren klingt, Den, unser ganzes Leben lang, Uns heiser jede Stunde singt.

No cloak I wear will mask the pain As rules and walls constrict my life. I'm way too old to play all day, Too young to wash dreams down the drain. What in this world is worth the strife? "Renounce, I say, renounce away!" This is the song, the grim refrain Each passing day drums in my ears And stultifying memory sears Upon my bruised and beaten brain.

Sometimes They Make Your Point For You

Previously I posted a MoneyLaw approach to brief writing that my firm uses with success. Scott Greenfield took issue with my position and wrote a Conanesque response. Lacking authority or a Moneylaw thesis, Greenfield went with hyperbole: he claims never to have practiced in a world with smart, unbiased judges, and maintains that the judge will laugh at you if you submit an understated, even-keeled brief. Stripping the hyperbole from his post, it seems that Mr. Greenfield's only substantive statement is the last sentence of his post: "In my world, you figure out what will be persuasive to your particular judge and then make it happen."

As Orin Kerr showed (12/11/07 at 4:35 p.m.), Mr. Greenfield tends to cap his rhetoric by self-declaring reality and fantasy worlds. As Professor Kerr pointed out, that's a dangerous road to be on.

My post cautioned against writing where you demand an emotional investment from the judge. I refer to this type of writing as the Conan brief; Bryan Garner calls it being a Rambo Writer; Steven D. Stark calls it the Bobby Knight-Stone Cold Steve Austin School of Written Advocacy. Whatever you call it, in my experience this style of writing is not nearly as persuasive as it is fun to write. You know my view; let's examine what the authorities say about such tactics as "yelling bad words at the other side, especially the lying, scheming rats who lie and scheme":

Read the rest of this post . . . .Why to Avoid the Tools of the Conan Brief

Stark warns about the effect hyperbole has on your reader: "the only conclusion most readers draw is that these writers are as egomaniacal as they seem." Writing to Win at 39. "Able litigators make clear arguments quietly, in contrast to the typical litigator, who screams out an analysis in a way likely to be ignored." Id. at 124.

In The Winning Brief, Garner offers a number of helpful quotes:

"When you overstate, the reader will be instantly on guard, and everything that has preceded your overstatement as well as everything that follows it will be suspect in his mind because he has lost confidence in your judgment or your pose." The Elements of Style.

"Understatement will serve you far better [than hyperbole]. If you establish a reputation for understatement, judges will consider your contentions carefully even if they appear erroneous on first blush." Harold G. Christensen

"The seasoned advocate accordingly reins in any emotions, so that he or she can concentrate on the factual, legal and equitable issues. The advocate knows that an argument in court is not an occasion for anger, like a squabble among bad-tempered relatives." Girvan Peck

"I like, to the point of being unduly swayed by, a brief that contains not one pejorative adjective or innuendo concerning one's opponent or the trial judge." The Honorable Frank M. Coffin

"But you don't want to be the street corner huckster, you want to be the guide your reader can trust. So be careful about every sentence you write. Understate rather than overstate. Better yet, don't evaluate at all. Let your reader do it for you." James McElhaney

Or you may prefer the Litigation Manual Pretrial, edited by The Honorable John G. Koeltl and John S. Kiernan, which states: "In fact, the judge's usual reaction to such 'jury argument' is to be professionally offended." Id. at 110. "If the judge has the idea you are asking for an emotional response, he may conclude that you are admitting that you cannot persuade him intellectually." Id.

Jennifer S. Carroll argues against making emotional jury arguments to judges in an article on appellate advocacy. She quotes former Florida Supreme Court Justice Leander Shaw. He describes emotional argument as "very unimpressive" and "the advocate loses credibility immediately."

Basically, if you stick with the Conan brief, your reader will most often have this reaction, which does not help your client:



A smarmy response might be "these are just the opinions of some pointy-headed academics." But keep Orin's words in mind, "it shows the dangers of characterizing disagreement as a contest between 'reality' and an ivory-tower 'fantasy world'; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right." Besides, these are legal writing experts citing respected litigants and judges.

My thesis — and the reason I chose "MoneyLawyer" as a moniker (not merely as a catchy name, Mr. Greenfield) is that I think we can analyze law practice like Billy Beane analyzed baseball. I suspect there are lawyers, and types of law practice, that are systematically undervalued by the market. I also suspect that professionalism is systematically undervalued. (More on why this might be so, and how one might start gathering the stats needed to validate or invalidate this hypothesis, are for future posts.)

Maybe one can't escape Conan in criminal practice. That is one difference between me and Mr. Greenfield; I am a civil litigator. (I would suspect, however, that non-Conan criminal lawyers might be some of the ones systematically undervalued by the market.) From what I have seen, Conan tactics come from an entrenched subjective belief of advocacy. Loud, obnoxious lawyers with megaphones believe they become more convincing the louder and more emotional they yell. That is the whole point of my MoneyLaw thesis — I am not interested in others' entrenched subjective views of advocacy. I am interested in identifying the tools that will most help me persuade the judge.

At any rate, I think Mr. Greenfield's ham-handed broadside actually proves my point. I know I wasn't convinced.

[Full disclosure: I have nothing against Conan the Cimmerian; the once and future King of Aquilonia is one of my heroes. I would also agree with Mr. Greenfield that it is fun to crush your enemies and to see them driven before you. I just think my way works better.]

Naked I came into the world

At the intersection of two posts, Julius Caesar was wrong and The lawful responsibility of time, lies the opening to the fictional journal of Cass Mastern, the spiritual gravity of center in Robert Penn Warren, All the King's Men (1946):

I was born in a log cabin in north Georgia, in circumstances of poverty, and if in later years I have lain soft and supped from silver, may the Lord not let die in my heart the knowledge of frost and of coarse diet. for all men come naked into the world, and in prosperity "man is prone to evil as the sparks fly upward." Photo: Creek near Ellijay, Georgia

Punditry In A Perfect World

One of the things that blawgers (myself excepted, of course) like to do is give broad advice to others about how to be the best lawyer you can be. Yes, it can be a bit pedantic, but if you can't be pedantic on a blawg, where can you be?

Since I want to be the best lawyer possible too, I paid close attention to the newest addition to the MoneyLaw crew, who likes to call himself "MoneyLawyer." I know, catchy name, right?

Full disclosure: After begging and pleading with Jim Chen, he's agreed to let me sneak in every once in a while to post something over at MoneyLaw just to add some comic relief, plus bring in the low-brow crowd that would otherwise be out drinking beer and munching on hard-boiled eggs.

Now I wish I had some more info to share about MoneyLawyer, because I really want to know where he practices. Clearly, it's nowhere I've ever been, because he posts about how to win with judges who are smart, unbiased and interested.

Many lawyers mistakenly structure their arguments so that they demand an emotional investment from judges. Their arguments ask the judge to cheer for them, to grant the relief because the judge wants to grant it. Their prose is emotionally charged, laced with opinions about the facts and attacks on the other side's reasoning. It conjures images of Conan smiting his enemies with a broad sword. This is a bad way to convince a judge who is charged to remain impartial. Many judges interpret this type of writing as overcompensation for a weak legal position. I have read a lot of Conan briefs, but I have yet to see one obtain the relief it requested.

How he got an old picture of me is anyone's guess.

MoneyLawyer explains that while judges view the "Conan Brief" as a loser, an epistle of weakness and clarion call of vapidity, clients love them. I can't disagree with that point. My clients derive great pleasure from yelling bad words at the other side, especially the lying, scheming rats who lie and scheme. But if we can't go for the emotional investment, whats left?

The client is best served with an understated approach, which takes more skill and intelligence than writing a Conan brief. Understated does not mean boring; it means giving the judge what she needs to make her decision without making an emotional investment. If written properly, this style of writing is much more interesting for the judge because she does not have to waste time filtering out the Conan elements.

Is it much more interesting? That's hard to say, since you'd have to wait for the judge to stop laughing before you would get a straight answer.

It's not that I disagree with much of what MoneyLawyer suggests. Good legal writing is good legal writing, and persuasive is persuasive. But where I live, the idea that judges are above mere mortals is sheer fantasy. It's not that there aren't smart judges (there are) or fair judges (there are) or judges who wear a black cocktail dress and fish net stockings under their robes (I'm speculating on this one), but that all the judges I know are real people with typical foibles.

No doubt I'll get the standard handful of emails after this post telling me (again) that I'm despoiling the image of lawyers as dignified professionals by letting our little secrets out to an otherwise ignorant public, but who cares. If you're going to hold yourself out as having the answer, then the least you can do is have the right question. If you live in a world of perfect judges, then MoneyLaw's disdain for the Conan Brief is the perfect solution. In my world, you figure out what will be persuasive to your particular judge and then make it happen.

Editor's note: This piece is cross-posted at Simple Justice.

Work and Identity

No one is their job, you say. People are more than the sum of their professions. What a limited view of humanity. Blah blah blah. This is certainly true. But then why do people introduce themselves as their professional roles? "Hi, I'm a doctor." "I'm a lawyer." "I'm a teacher." Etc., etc.

I was thinking about this last night. While I can take a joke (kind of), there's an upper limit to how much can be joshed at before I get defensive and really wonder "is this what you think of what I do?" mainly because it translates to the next psycho question, "is this really what you think of me?"

Read the rest of this post . . . .It is not especial to my field. I can imagine saying "all of medicine is quackery, and doctors are merely snake oil merchants seeking to pad their wallets by tending to the imagined pains of the delicate bourgeoisie" and really offending doctors who see their mission as noble--in addition to remunerative, and what is wrong with that? Many lawyers get the brunt of the professional denigration, but many of them also see their role as more than merely being corruptible hired guns--they do fill a need in our system of adversarial adjudication, and many who work in the public sector and in public interest law see their calling as noble indeed.

So let us turn to my third example: the academic. I really do see the work in my field as important, even if I don't exaggerate the transformative effect it will have on policy (and often it does have an effect, even if my particular contribution might not). But my work interests me, and I think the ideas are important, even if they are just "ideas." Theory isn't totally empty. The distinction between sex and gender is one that is still discussed in so many a seminar because the boundaries are constantly being redrawn and fought over in law and policy: what is essential to the definition of each, is gender merely socially constructed, and when do biological differences translate approriately into different gender roles? Is a policy disallowing female fire fighters rational and legal if based on biological differences of strength and height, which correlates with gender? What is discrimination on the basis of sex if we cannot define what sex is--is sex biology, or is sex the social construction of gender? What are the boundaries of race, and to what extent can we use the law to define the contours of race in terms of anti-discrimination law? What is a disability? Etc. etc. The theories matter, because they affect policy and legislation. The social science work matters, because they demonstrate empirically what happens to these protected categories in the absence or presence of discrimination and regulation.

This is not a petulant, foot-stomping defense of myself--"My work is important! My existence is not meaningless!" I think that the impact of my work is whatever it will be--but it is a part of a larger corpus of work that does matter. There's a lot of interesting, theoretical and empirical scholarship out now on defining "work"--what counts as work for the purposes of AFDC, how many hours and dollars does being a homemaker translate to such that we no longer think of stay-at-home-parents (SAHP) as "not working" and value their contributions to their family and the economy. No matter what you do, your work is important to someone. At the very least yourself, and very definitely to your family and the people in your life. Your work helps you contribute to your family, and your work also takes you away from your family. Your work isn't the only thing that defines you, but it certainly defines your day and life.

SAHP work too, although their contributions are often undervalued, as if they spent all day doing "nothing." Academics, for however flexible their schedules may be, often pull 80 hour weeks, with all of the committee meetings, advising of grad students, review of other papers, teaching, prepping to teach (one hour of lecture takes up to 2-3 hours of prep, at least), grading, and then the actual grunt of being a scholar--research and writing. Even if I can take a break in the afternoon to run, grocery shop, or cook, I'm often working the rest of the day and most nights. I work weekends. I seem to be barely digging myself out of a hole, and the work I do on Tuesday could always be done on Wednesday or Sunday as it is ongoing work (unless there is a deadline, which there is only periodically), but it is still something in my calendar, and always in the back of my mind. And yes, I think it is noble work.

Work defines my day, and it defines my life. Plenty of other stuff does too--I am defined by my social relationships: daughter, sister, friend, student, teacher, partner. It is hard to imagine these other definitions being mocked in a way that would really bother me or reach to the core of my identity, mainly because it is not easy or funny to mock them. And we should all have a sense of humor about ourselves, and not take ourselves too seriously. But it's an odd thing: work is so serious, and it is the cumulation of so many years of acquring human capital and it took so much work to get to the work, that it is one of the last boundaries of identity. We are daughters and sisters long before we are whatever job we end up being. And sure, we were made fun of when we were little, for "acting like a girl" or "throwing like one," but when we have worked so hard to achieve some measure of professoinal success, such that we demand to be taken seriously, it is hard to have a sense of humor about statements that seem to diminish our efforts or chosen profession.

This is partly why I don't comment on others' jobs. There's some interesting sociological studies that show, contrary to whatever you might think in your faux-populist elitism, that mine workers take pride in their work, and work really hard at being good at their job. In the most back-breaking, menial work with the lowest pay, people work hard and take pride in their work, and define themselves partly by what they do and how well they do it. Whenever I meet a SAHP, I don't pull a Caitlin Flanagan and say "oh really, that's all you do?" Because that would be a terrible thing to say. Having worked in daycare and having taken care of children full time, I remark on what a difficult job that is, and congratulate him/her for that. Just like I don't do that "oh really" whenever I meet someone who does ______. Because that is a mean thing to do, and I cannot imagine a context in which that is appropriate, even if in jest. Too much of a person's identity is bound in their work, and yet not solely defined by it. I cannot imagine deriding or devaluing a person for their level of education, the institutions at which they received their education, or the job that they have chosen to define their days by. I don't even do this when I learn that people have worked for evil corporations--because while work might define some aspect of their identity, it does not necessarily remark on all aspects of their moral character. Work defines, but it is not the definition. Most people can handle being joshed at for their less defensible choices (say, consumerist habits or affected mannerisms), but their work is one that they actually want to defend.

I should really write a paper on theories of work and identity and how they are bound by gender, class, and race--and citizenship.

Hire no one

I am very flattered that Paul Horwitz thinks that I would have written Microcosmographia Academica if only I "traveled back in time and space to England in 1908." Thanks to Paul, the entire legal academy now knows that it can now read F.M. Cornford's satire, free of charge, at sites in Kent and in Kentucky. Already other commentators are making use of the Microcosmographia. So will I.

Consider what Cornford called The Principle of the Dangerous Precedent:

Tony Dickson, The Shunning (n.d.). Oil on canvas, 840mm x 710mm

[Y]ou should not now do an admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case, which, ex hypothesi, is essentially different, but superficially resembles the present one. Every public action which is not customary, either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.

For law faculties that seek, above all else, to protect the sanctity of the rules and norms by which their current members secured admission, so long ago, to the sacred and secret brotherhood, The Principle of the Dangerous Precedent has an important corollary: The Rule Against Hiring. This rule has two variations, both of which lead to the same conclusion — Hire No One:

1. Hire no one who makes any of us look bad: You should never hire an admittedly worthy colleague for fear that she or he might might outperform you, or your equally mediocre colleagues. Every new colleague has the potential to disgrace the old guard. The only eventual course of actions are these: either to deny tenure and thereby to invite negative gossip, or else to allow the upstart to embarrass us incumbents. It follows that this faculty should never hire anyone.


2. Why belong to a club that would have you as a member? To avoid hiring an admittedly worthy colleague, you need only ask whether other schools have extended her or him an offer. If other schools have, and they are deemed superior to your own, you may now persuade your colleagues that the extension of an offer effectively invites scorn, for surely the candidate will prefer to go elsewhere. If existing offers come from putatively inferior schools, that is a sign of the candidate's unworthiness, and you are now free to vote "no." And by no means be the first school to extend an offer of employment. If no else offers a job, you'll look desperate or stupid or both. To avoid any of these awful fates, this faculty should never extend an offer of tenured or tenure-track employment.

As you ponder Microcosmographia Academica and all blog posts making use of this century-old satire, remember: Microcosmographia Academica isn't real, and neither are rules based on a projection of academia as Cornford saw it in 1908 onto academia as we experience today. Surely no one, no one in legal academia would vote on appointments-related matters according to either of the variations on that simple theme, Hire no one.

Job opportunities at the University of Louisville

The University of Louisville School of Law anticipates hiring visiting professors, both entry-level and experienced, for the 2008-09 academic year. We also anticipate hiring one or more visiting professors of legal writing; again, entry-level and experienced professors are invited to apply. Finally, we invite applications for the Petrilli Distinguished Visiting Professorship for the 2008-09 academic year. Our curricular needs include (but are not limited to) civil procedure, legal writing, commercial law, intellectual property law, environmental law, and other subjects.

Inquiries and applications should be directed to:

Timothy S. Hall
Associate Dean for Academic Affairs
University of Louisville
Louis D. Brandeis School of Law
2301 South Third Street
Louisville, KY 40292

(502) 852-6361
hallt@louisville.edu

Word, ugh. What is it good for?

Betsy McKenzie has provided the world of legal blogging a fantastic service: she has compiled a definitive list of websites trashing Microsoft Word. Bill Gates's word processor probably delivers more anger in our verbally intense profession than any other computer application. Once upon a time I named the now-extinct Ms. Dewey "Microsoft's worst product ever." Check that. Ms. Dewey is dead; Word lingers on.

Practical tip: If you simply must write blog posts in Word, even though Blogger, TypePad, and WordPress all provide WYSIWYG composers, do your readers a huge favor by flushing your content through Notepad.exe. (1) Cut your entire post out of Word, (2) paste it in Notepad, (3) copy out of Notepad, (4) then paste in your blogging software. Complicated? Yes. That's why you should compose with your blogging software in the first place.

Google's advice? "[T]he most common cause of feed problems is the content that you post. A lot of folks like to use Microsoft Word . . . to write up their blog posts. When they do, sometimes these word processors can sneak in characters that are very difficult to render in XML." And more advice: "[U]sing word processing applications to compose blog posts can lead to unexpected results . . . . We recommend that you compose new posts in a text editor recommended or provided by your blog platform publisher only."

We bloggers have additional reason to hate Word. Blog posts or (God forbid) key snippets of HTML or Javascript used to enhance blog posts and templates, if composed or filtered through Microsoft Word, will acquire all sorts of deviant code. It looks vaguely like [o:p] — I dare not render it precisely, even by way of demonstration, because of this five-character string's potential to wreak technological havoc. If you're lucky, the Word-contaminated post won't render in your blogging platform's preview function, and you know better than to mash the "publish" button. If you're unlucky, it looks good enough on your screen, and your decision to publish then destroys a bunch of RSS feeds and XML scripts that power other people's blogs and websites.

XML, by the way, is to HTML as messenger RNA is to DNA. The engine beneath the beautiful world of Web 2.0, extensible markup language is our friend. Microsoft Word is not. Deviant coding turns Word into the Natasha Henstridge of software. Who is Natasha Henstridge? You can be forgiven for forgetting her appearance in the 1995 film, Species:

That's right. Microsoft Word looks pretty from a distance. When you get close to her, you find out that she carries alien-corrupted DNA. Too late! She's already drilling a hole in your skull with her tongue.

Now that I have subjected you to old science fiction cinema that is as gory as it is bad, I owe you a MoneyLaw payoff. Here it is:

Microsoft Word, for all its horrors, prevails throughout the world of computing solely by virtue of its ubiquity. We use it because everyone else does. And even though it's bad, we keep using it because it would cost us too much to switch to smarter software, both in terms of having to buy the new stuff and in terms of losing touch with the people who stuck with Word.

To make the same point in fancy jargon of the sort that makes law review editors swoon: Nearly universal adoption of Microsoft Word confers upon this admittedly defective product a powerful network externality. The marketplace recognizes the defect, but switching costs obstruct the triumph of consumer choice. As a result, a technological lock-in secures Word's dominant market share, and any power that Microsoft enjoys over the power for word processing software arguably should be vulnerable to attack under, say, section 2 of the Sherman Antitrust Act.

The world is filled with lock-ins of this sort. It isn't just technology. China clings to the horrifically misnamed Simplified Chinese writing system, and Japanese orthography still relies predominantly on kanji, even though both languages have homegrown phonetic writing systems. Some variant of the bopomofo phonetic alphabet can handle just about every Sino-Tibetan language; Hmong and Vietnamese got a little help from religiously inclined outsiders who adapted the Roman alphabet. Japanese has not one but two complete syllabaries: hiragana and katakana. At some point the Koreans overthrew the tyranny of Chinese-influenced ideograms once and for all, and as a result, to see a Korean word is to know instantly how to pronounce it.

Are there similar lock-ins in legal education? As Jeff Harrison has just discussed, perhaps teaching methods masquerading as "Socratic" number among them. Better yet, are there ways to defeat the truly debilitating lock-ins?

The example of Korean orthography is both instructive and inspiring. Lock-in is probably the way of the world; look at the number of people condemned for the foreseeable future to writing ideograms while perfectly workable phonetic alphabets and syllabaries are waiting in the wings. But the Hermit Kingdom did something truly transformative over the course of its linguistic history and adopted an ingenious, fully phonetic writing system not because of, but in spite of, the elite prestige that had accumulated in mastery of the old Chinese-influenced system of ideograms.

And that is why MoneyLaw, if it ever does decide to adopt an official east Asian language, will bypass Mandarin and Japanese in favor of Korean.

Is the Socratic Method Hiding in Your Closet?

Putting aside the overstatement of a title like “Best Practices for Legal Education,” this book is no doubt motivated by good intentions and includes many good, albeit often obvious, ideas. I was cruising along reading it and agreeing with most until I hit the chapter on “delivering instruction.” Even there I wholeheartedly agree that law schools undervalue instruction. At that point, however, the favorite strawman of many law profs – the Socratic method -- comes into play and I found myself not just disagreeing with the premise of this chapter but wondering if other chapters were as poorly anchored to reality.

Let’s start with this: “Although a teacher can harm students using any method of instruction; complaints about classroom abuse of students primarily involve the Socratic method and case analysis.” I am a bit thrown by the word “abuse” in world in which people really do suffer abuse and whether "complaints" necessarily mean ineffectiveness. But mainly I wonder where all the Socratic teachers are.

I went through 3 years of law school in the late 1970s. I had one teacher who could be called Socratic and if any one left that classed harmed it was because he or she came into the class with an open wound. Since then I have sat in on way too many classes to remember and did not witness one person using anything thing close to the Socratic method. I did see some people using a “fill in the blank” style of teaching and others who called for non volunteers once in awhile. I have also witnessed very short exchanges that were quickly ended if a student showed any sign of discomfort. For the most part, the teachers seemed far more afraid of hurting someone’s feelings than the students did that their feelings would be hurt. Come on! Can we give up this Socratic-method-as-the-root-of-all-teaching-evils nonsense? It may exist but it is extremely rare. In fact, later in Best Practices the authors suggest reducing the reliance on Socratic dialogue. Huh??? How do you give up what hardly exists? Moreover the studies the authors rely on to document the woes of the Socratic Method are thin and much of this section of the book seems to be based on the opinions of those who seem predisposed to dislike the Socratic method regardless of its effectiveness if, in fact, it were actually practiced.

This is not to say that I disagree with everything in this section of the book. If fact, quite the opposite. On the other hand, if anyone is serious about increasing the effectiveness of law teaching the least useful beginning point is to hammer, for the trillionth time, the Socratic Method. That beginning point just suggests laziness with respect to examining what actually goes on in law school classrooms. A far better starting point for Best Practices would have been a serious study of today's classrooms. Unfortunately, as is so often true in legal scholarship, the test of the truth and accuracy of a point seems to lie whether the assertion can be found in print somewhere.

In the classes I have been in and observed, the factor I have seen as most damaging to effective law teaching is low expectations by professors. Consistently I have heard them say “That’s good but could someone expand on that” to a completely wrong answer or an off the wall comment. And I have seem students get the most basic facts of a case wrong and the teacher fill it in for him or her. The clearest message is “sloppy work is OK.” When sloppy work is OK with the professor it is, in fact, a limitation the professor places on student development.

Julius Caesar was wrong: A two-act post

Let me have men about me that are fat;
Sleek-headed men and such as sleep o' nights:
Yond Cassius has a lean and hungry look;
He thinks too much: such men are dangerous.

— William Shakespeare, Julius Caesar, act I, sc. 2

Act I

The historic Julius Caesar was star-crossed; he died one week short of the vernal equinox and one civil war short of full-blown, de jure empire. Shakespeare's Julius Caesar, as the Spin Doctors recognized, was even unluckier: "they killed his ass in the second act."

And now that I have spent a decade and a half in the legal academy, I understand why Cassius, Brutus, and their fellow conspirators felt the urge. With his preference for fat, lazy colleagues, Caesar would have made a lousy dean or appointments committee chair. Like those who loved the Roman Republic, anyone who cares about the real purpose of law school — teaching students statutes and laws and showing them the way in which they must walk and the work that they must do — would also feel the rage. Fall, Caesar!

An academic appointment, in most circumstances, is a promise of lifetime employment. Get it wrong, and you will have an odious colleague for life. Though no evaluative process is perfect, MoneyLaw exhorts its readers to embrace better indicators of productivity and moral character. Past performance is no guarantee of future performance, but it is a better guarantee than anything else, and orders of magnitude better than pedigree.

All that is familiar ground to readers of this forum. I tread upon it again in order to spotlight what I believe is novel turf. As between two would-be colleagues, one who has sweated for pay and another who has always paid for the privilege of sweating, I will choose the veteran of the hourly paycheck. Ceteris paribus, I want colleagues who have had to lift, grind, wait, wash, stock, and/or salute for a living. A history of workplace-related repetitive stress injury is not necessary, but I will treat it as a bonus:

Let me have folks about me who are lean;
Hardworking folk and such as sweat all night:
Yond colleague has a fat and sated look;
He sits too much: such men are despicable.

Or to put it even more coarsely:

The fault, dear Julius, lies not in our stars
But in ourselves, that we are lardbottoms

Act II

My preference for colleagues who have experienced hard labor, in its most grueling sense, is just that: a preference. Taken to a higher level, however, the instinct underlying this preference informs a more finely tuned and sharply stated principle:

Understand how lucky you are to have this job, or I will kick your ass.

In a world where most people go to bed hungry and wake up uncertain that their children will survive them, in a country no longer able to lift its wage workers into the ranks of the bourgeoisie, such jobs as we hold in higher education are privileged beyond description. We are not worthy of such good fortune, but only say the word, and we shall be blessed. Conversely, none is as malignant, and none deserves as thoroughly the collective damnation that the rest of us and any sympathetic deity can muster, as a tenured professor who treats the academy as an entitlement, a personal expense account, a temple to his unearned, undeserved arrogance.

I now make this solemn vow. For all the days that I am privileged to work in legal academia, in whatever position I might hold at any time, I shall devote every fiber of my being to resisting, defeating, and ultimately destroying those who forget that the academy exists not to serve them, but those who pay the tuition and the taxes that sustain our temples of learning. So help me God.

Too cruel anywhere

To the Northern Illinois University community, in sympathy and shared grief.

Soul journey: A trip to an enigma at the heart of legal education

This is a very long and ambitious post. Because MoneyLaw enjoys the services of Gil Grantmore, the legal blogosphere's finest disembodied webmaster, it will contain extraordinary amounts of visual and audio information. I will proceed in three steps:

1. An introduction to Gillian Welch, one of my favorite musicians
2. A psuedo-synesthetic presentation of Wrecking Ball , the final cut on Gillian Welch's 2003 album, Soul Journey
3. A discussion of an enigma at the heart of contemporary legal education

I hope you enjoy it.

---

Read the rest of this post . . . .1. Gillian Welch

Readers of other Jurisdynamics Network blogs may have noticed my fondness for Gillian Welch, especially her masterful expressions of contemporary musical naturalism. Why do I love Welch's music? Because listening to it is quite literally a religious experience:

Without knowledge of Welch’s biography, we might mistake her for a child of Appalachia. Her music echoes that high lonesome sound: interwoven instrumentation braided around intertwining vocal harmonies. Her lyrics lean heavily on old time Appalachian themes: the grief of loss, the imprisonment of addiction, the degradation of labor, the violence of desire, the attraction of evil, the joy of redemption.

Some have criticized Welch upon learning she wasn’t born in the shadow of the Clinch Mountains of Virginia, but of the Empire State Building. Worse yet, she grew up in L.A., hanging out in the CBS studios where her parents wrote music for the Carol Burnett Show. How could a child of privilege presume to sing songs of deprivation and depression?

* * * * *

By drawing on events and images we all share, Welch not only invites listeners onto common ground, but she also avoids the charge that she is treading on the sacred territory of gospel music as a non-believer, nor on the hallowed grounds of Appalachian music as a flatlander. She rightfully claims all Americana as her religion.

(Bill Baue for Killing the Buddha.)


2. A psuedo-synesthetic presentation of Wrecking Ball 

Gillian Welch, Wrecking Ball

A little deadhead . . . playing bass under a pseudonym

Farmer in the Pogonip . . . colors I'd never seen

The Santa Cruz Garden Mall

Gillian Welch, Wrecking Ball

Well now boys, I'm a rollin' stone
That's what I was when I first left home
I took every secret that I'd ever known
And headed for the wall
Like a wrecking ball

Started down on the holy road of sin
Playin' bass under a pseudonym
The days were rough, and it's all quite dim
But my mind cuts through it all
Like a wrecking ball

Oh, just a little deadhead
Who's watching? who's watching?
I was just a little deadhead

A fallen daughter on a scholarship
Well, I got tired and let my average slip
Then I was a farmer in the Pogonip
Where the weed that I recall
Was like a wrecking ball

I met a lovesick daughter of the San Joaquin
She showed me colors I'd never seen
Drank the bottom out of my canteen
And left me in the fall
Like a wrecking ball

Standin' there, in the morning mist
A Jack & Coke at the end my wrist
Yes, I remember when first we kissed
Though it was nothing at all
Like a wrecking ball

Hey boys, a little deadhead
Who's watching? who's watching?
I was just a little deadhead

With too much trouble for me to shake
Oh, the weather and the blindin' ache
We was ridin' high until the '89 quake
Hit the Santa Cruz Garden Mall
Like a wrecking ball

Gillian Welch, Wrecking Ball , Soul Journey (2003)

3. An enigma at the heart of legal education

I chose this song for two reasons. The first is obvious: I like it. Its musical and lyrical complexity explains the second reason. Wrecking Ball is virtually impossible to understand on one hearing, or even four or five. Its rich lyrics are dense with references to central California — especially the San Joaquin Valley and Santa Cruz — and to cultural events spanning the Vietnam era to the 1989 San Francisco earthquake. As someone whose lifetime presence in California is most readily measured in days rather than weeks, months, or years, I had to work unusually hard to appreciate this song, and the presentation above translates my efforts into a montage of images, words, and sounds.

And even then, an ambiguity remains. The word pogonip invites two interpretations. In the ordinary sense, pogonip means either:

1. Dense fog of suspended ice particles; an Indian word for the formation of frost on trees but not on the ground; etymology, Shoshone pakenappeh . . . which means "white death" [or "cloud"].


2. Pogonip, or "ice fog", results in a phenomenon called "hoarfrost," which is a deposit of interlocking ice crystals on objects exposed to cold, foggy air. Dazzling winter scenes are revealed as tree limbs, leaves, fence wires are coated with the ice.

All this makes eminent sense, but for one small detail. The Santa Cruz area has a park named Pogonip. In the geographic context of the song, this is the probable interpretation. It took a lot of Googling, but I think I finally nailed it.

We finally reach our MoneyLaw payoff. The actual practice of law — which, at last notice, is the reason most students attend law school — is a profoundly local activity. Mastering it requires local knowledge several orders of magnitude more intense, and more important, than the deep meaning of a Gillian Welch song. Unsurprisingly, the student and alumni populations of most law schools have a distinctly local flavor. Where you go to school and where you will eventually practice correlate very strongly.

That geographic overlap is nowhere to be found on most law school faculties. Law school professors are drawn from a national, even international, pool. Moreover, no ambitious law professor today wants to be typecast as a "regional" player, let alone anchored to a single locality. In my experience, relatively few professors invest deep amounts of emotional capital in communities where, they imagine, they will live for only a few years before moving on. Personal preferences and family obligations do intervene, of course, but by and large our profession consists of uprooted individuals, ready and willing to become fugitives and vagabonds in the earth for the sake of some professional advantage, any advantage, at the margin.

Given what (I thought) we are supposed to accomplish, which is to teach our students and to prepare them for their lives in the law, the geographic mismatch between law students and their professors strikes me as an enigma. I must ask:

Why?

Don't Ask the Judge for an Emotional Investment

It may be hard to quantify, but we can easily define a lawyer's job in MoneyLaw terms: make best efforts to bring about a favorable outcome for the client. To accomplish this job, we spend much of our time writing to the judge in the form of pre-trial and post-trial motions. Teaching lawyers how to write for judges is currently in vogue. Most of the advice follows some variation of: "The judge is overworked, so keep your writing short, simple and clear." This advice is helpful; how we write for a judge is much different from how we write a law review article.

Another major component to consider is the role of emotional investment. In most other forms of persuasive writing, we ask the reader for an emotional investment. We can ask for it because our readers usually do not have a specific job dependent on our writing. They are free to believe in us or not without any real consequence. Judges are different because they have a specific job — to apply the current state of the law to the facts of this case. They must perform this job without making an emotional investment in one of the parties.

Many lawyers mistakenly structure their arguments so that they demand an emotional investment from judges. Their arguments ask the judge to cheer for them, to grant the relief because the judge wants to grant it. Their prose is emotionally charged, laced with opinions about the facts and attacks on the other side's reasoning. It conjures images of Conan smiting his enemies with a broad sword. This is a bad way to convince a judge who is charged to remain impartial. Many judges interpret this type of writing as overcompensation for a weak legal position. I have read a lot of Conan briefs, but I have yet to see one obtain the relief it requested.

So why do lawyers and clients love the Conan brief if it does not help generate a favorable outcome? Clients feel like they are destroying the other side. Lawyers know clients love it, and they justify using it under the guise of zealous representation. But zealous representation means making your best efforts to generate a favorable outcome. The Conan brief makes the judge uncomfortable by asking the judge to make an emotional investment that she has sworn not to do. It also makes the brief more difficult to read because the judge has to filter out the Conan aspects. All that time and money spent on developing the Conan aspects should have been spent mastering the applicable substantive and procedural law.

The client is best served with an understated approach, which takes more skill and intelligence than writing a Conan brief. Understated does not mean boring; it means giving the judge what she needs to make her decision without making an emotional investment. If written properly, this style of writing is much more interesting for the judge because she does not have to waste time filtering out the Conan elements. Give the judge the facts rather than opinions and exaggerations about the facts. Give the judge the substantive and procedural law that controls, without exaggerating the holdings. Then show how the law requires the result you are seeking.

The judge should grant your relief because she has to, not because she wants to. A brief written in this style requires no emotional investment by the judge and has a much better chance of becoming successful. Even if the brief loses, you will build up goodwill with the judge for future briefs. Let the other side waste their time and money with the Conan brief. Consider, finally, that the feeling of having made an impartial and fair decision is itself an emotional state--the emotional state of "I am a fair, dispassionate judge." From what I can tell, it is a state that judges love to be in.

We Have Met the Enemy . . .

I was sitting with a few colleagues recently and the issue of student performance was the topic. One on the people there produced a list of things the students cannot do: 1) read and follow directions, 2) carefully read fact patterns, 3) apply the law to the facts (this is a big one, they seem to not understand what legal analysis is or why the facts are important), 4) spot large issues. No one objected and most chimed in with their own versions of poor quality perfomance. It is important to note that although we spoke in generalities, if pressed ,I think all would say we were not describing 60 or 70% of our students. I think this discussion takes place in one form or another takes place at virtually every law school.

Although the group had not been convened to suggest solutions, one person indicated that repeated written assignments could improve performance. A recent article in the Journal Legal Education offers evidence that greater effort and intervention by professor can make a difference. That suggestion was ignored. In fact, as a group we seemed to see ourselves as physicians inspecting an injured person. That, of course, is an incorrect analogy. In fact, we are like nutritionists looking at one of our own clients who is suffering from malnutritian.

If the a large percentage of our students are not performing up to par, how can the problem be anywhere but in the classroom? By coincidence that same day a student came by to review his exam from the fall. He went the with common opening of "This was my lowest grade." I asked in what class he got his highest grade and he told me. I asked how was that test different from mine. The answer: "It was multiple choice and one sentence answers and if you had really good notes all you had to do was flip through and the answer was right there."

Is there a solution to the problem of faculty not seeing themselves as the cause of poor student performance? I doubt it. First, a concerted effort to increase the quality of performance almost certainly means more time spent teaching but these days, the teaching role is being minimized. If fact, at my school, it is not uncommon for 4 credit classes, at the professor's request, to teach in 2 two hour blocks. I asked some students about and they like it because "it's nice to get it over with." When pressed a little harder they also conceded that it was often impossible to prepare thoroughly enough to participate fully for 2 hours and that by the middle of the second hour they had lost focus.

Second, it is hard to see how one can increase the quality of performance without having higher expectations of the students and this means more rigor and this can mean lower evaluations. For the students it may be like being required to eat their spinach and how highly did you rate anyone who required that of you? If 10 faculty resolved to be more rigorous the free riders would quickly appear. Plus, although every faculty member I know scoffs at the evaluations, they are pulled up at tenure and promotion time, at yearly reveiws, and when an adjunct is considered for permanent position, gossiped about and taken seriously. It's like saying you do not believe in reading tea leaves but reading them nonetheless.

There may not be an acceptable solution but let's at least take responsibility.

The tyranny of the clock

[T]he monosyllable of the clock is Loss, loss, loss, unless you devote your heart to its opposition. — Tennessee Williams, The Catastrophe of Success

I had occasion of late to send two slim volumes of American literature. I sent a dear friend a set of short stories by Carson McCullers, including The Ballad of the Sad Café. These stories, among the most lyrical in the American canon, remind us that love persists not only despite longing, but almost certainly because of it. For "sorrow parallel[s] desire in the immense complexity of love."

I sent the other volume, Tennessee Williams's The Glass Menagerie, as a rebuke to its recipient, as a reminder that the Laura Wingfields in this world need not suffer visible lameness from pleurisy, nor appear destitute in material terms, to fall prey to the emotional recklessness or even opportunism of those who would trade a few moments of their own pleasure against another's lifetime of disappointment.

And then I rediscovered a single phrase among notes scribbled during a faculty meeting that took place a thousand days ago. This confluence of events confirmed a truth that Williams propounded in The Catastrophe of Success, an essay written in response to the enervating triumph of The Glass Menagerie: "the monosyllable of the clock is Loss, loss, loss, unless you devote your heart to its opposition."

Without doubt, the clock is an evil tyrant. But which clock?

Read the rest of this post . . . .The tyrannical clock that historically struck fear in the hearts of academics has been the tenure clock:

David Bowie, Five Years Five years, what a surprise Five years, stuck on my eyes Five years, my brain hurts a lot Five years, that's all we've got

But tenure denial is a relative rarity, and still rarer is the complete expulsion of a professor, strictly for want of academic merit, from the teaching ranks. Moreover, the forcible removal of one faculty member, even if mistaken on the merits, is rarely enough to doom an entire school.

No, the tenure clock is hardly tyrannical. An entire scholarly agenda can emerge — or disintegrate — in a thousand days. One thousand days are enough for a dedicated scholar to stake out intellectual turf and to defend it. Of course, a thousand days also exceed the time it takes for a comparably ambitious scholarly workplan to collapse altogether.

Rather, the truly tyrannical clock in academia is the long, slow timetable by which the forces of academic evil can afford to outlast more virtuous opponents. Negative and inappropriate opportunism, said the faculty meeting notes I had once so painstakingly committed to paper. Not once, not twice, but thrice the voices of sincere faculty members arose to praise their dean. Negative and inappropriate opportunism became the rallying cry of those who feared that odiously selfish, morally bankrupt faculty members might seize control of the university's review process to throttle a successful deanship — and with it, a once proud faculty where young, ambitious, and talented scholars did indeed claim and comprehend new intellectual ground.

In the academy's never-ending struggle between good and evil, evil holds the upper hand. In their pathbreaking article, Arms Races Between and Within Species, 205:1161 Proc. Royal Soc'y London: Series B, Biol. Scis. 489-511 (1979), Richard Dawkins and John R. Krebs observed that "a lineage under strong selection may out-evolve a weakly selected one." Dawkins and Krebs called this idea "the life-dinner principle," and it explains why prey animals often — and usually — elude their predators. What is merely dinner for the predator is life itself from the prey's perspective.

Academic's tyrannical clock, which is perpetually locked at high noon, is simply the life-dinner principle projected on a temporal rather than a spatial scale. The virtuous, diligent professor knows that she is no better than her latest idea, no more valuable than she is capable of delivering genuine pedagogical value to her students. Her job, metaphorically speaking, is dinner. By contrast, the odiously selfish professor treats her job as a sinecure, an entitlement worth defending by any means necessary. An academic appointment, metaphorically speaking, is life. As a result, unless the forces of academic virtue devote their collective heart to opposing this tyrannical clock, eventually there will be absolutely nothing to do in academia. The soul rots with boredom. You might as well go down to the highway and listen to the chain gang.