A lawyer walks into a bar

By way of Prettier Than Napoleon and The Volokh Conspiracy comes this news flash: There is a documentary about the bar exam. The moviemakers' MySpace page contains this preview of A Lawyer Walks into a Bar:

The MoneyLaw point, however, doesn't lie so much in the movie as it does in Ilya Somin's commentary on The Volokh Conspiracy:

I think many law school graduates get overly stressed out and obsessed about taking the bar, and spend too much time studying. Most bar exams are primarily just tests of memorization. They're not much of an intellectual challenge, and require far less thinking than most law school exams.

Most important, all you have to do is pass. Unlike on the SAT or the LSAT, there is no need to maximize your score. As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

Sorry, Ilya. Though I'm often sympathetic to your views on the market economy, this simply is not good advice. Many law school graduates do get "stressed out and obsessed about taking the bar," but that's because many law school graduates flunk the bar. Yes, it's also true that "all you have to do is pass." Actual bar passage numbers show that this is more readily said than done. Every year, a not insubstantial number of recent law school graduates stride up to the bar and fail. These failures matter for a reason that is as important as it is simple: law school graduates who don't pass the bar can't practice law.

The vast majority of law school graduates lead lives and face realities that are not the lot assigned to their teachers. An academic appointment is an immense privilege in a world of finite resources and constrained opportunities, and those of us lucky enough to hold a winning ticket should refrain from treating our life circumstances as realistic benchmarks for the legal profession as a whole. Students attend law school in order ultimately to work. That is the market that counts, and the bar exam, for better or for worse, represents a very real and economically crucial first step.

Summer wages

In honor of Deven Desai's post, Summer reading, which in turn lauds Patrick O'Donnell's fantastic bibliographies, which we may and should contemplate even as "the years are gambled and lost / like summer wages," I offer this rendition of Ian Tyson's classic cowboy tune:

Photo credit: ymirbc.com — Ymir, British Columbia; Charla Beaulieu

Never hit seventeen
When you play against the dealer
You know that the odds
Won't ride with you
And never leave your woman alone
With your friends around to steal her
She'll he gambled and gone
Like summer wages

Other versions:

1. Emmylou Harris joins Ian and Sylvia Tyson in a 1986 performance of Summer Wages (1986) (YouTube video — embedding disabled by request)


2. Nanci Griffith, 1998 cover, on Other Voices, Too (A Trip Back to Bountiful)

And we'll keep rolling on
Till we get to Vancouver
And the woman that I love
She's living there
It's been six long months
And more since I've seen her
Years have gambled and gone
Like summer wages

Chorus:
In all the beer parlors
All down along Main Street
The dreams of the seasons
Get all spilled down on the floor
All the big stands of timber
Just waiting for the falling
And the hookers standing watchfully
Waiting by the door

So I'll work on the towboats
With my slippery city shoes
Which Lord I swore I would never do again
Through the gray fog-bound straits
Where the cedars stand watching
I'll be far off and gone
Like summer wages

[Repeat chorus]

Never hit seventeen
When you play against the dealer
You know that the odds
Won't ride with you
And never leave your woman alone
With your friends around to steal her
She'll be gambled and gone
Like summer wages

And the years are gambled and lost
Like summer wages

Rating Law Schools

As some of you know from reading classbias, I have had a wonderful experience teaching in Rio for the past month. Today I was chatting with some Brazilian law professors who know about the ratings madness in the U.S. What one told me was particularly interesting since I have always felt that the best law school is the one that takes a group of students and moves them along in terms of knowledge, skill and analytical ability more than other schools. Thus, the best law school may be USN&WR number 125.

In Brazil, as in most other countries I know about, law school is a five year program starting after law school. There is a process here where students are tested in the areas of general knowledge and law when they enter law school. Students in the fifth year are also tested in those areas. The process is designed to determine if the school makes a difference and how much relative to others. This is not done every year for every school nor do I know if there is a national ranking that results but it does occur to me that this is a measure of performance unknown to those who rank US law schools. Maybe the distinction is this. You can rank a law school on the basis of LSAT, GPA, etc but that does not tell much about actual performance. Or you can rank schools on the basis what actually happens during the three years. If performance counts, the before and after approach makes sense.

As a side note, the School at which I have taught is a private school. Admission is based on an entrance exam. Numbers only. (This has changed some as the public colleges have quotas for those from public schools or who are of African-Brazilian descent and there are incentives for private schools to open up admissions more. More on this over on classbias.) The top 180 are accepted. I asked what would happen if that meant all while men. The answer was that it would not matter. I asked what the reality was. Over 50% of the admissions are women.

Mentally gifted, emotionally stunted

Michelangelo Merisi da Caravaggio, Narciso (ca. 1598)

Two tales of the mentally gifted but emotionally stunted, from different corners of a law school:

1. From the admissions office:
   
   Our heavily recruited 1L is exceptionally gifted, scored 178 on the LSAT, and sports a 4.03 undergraduate GPA, but she has always been so difficult.
   
   While many other students are thoughtful, kind, and mannerly, this student often acts like a 2-year-old. She wants the best of everything, wants it first, bawls like a baby if she doesn't get her way, and is maddeningly stubborn.
   
   She also has little self-control, is extremely impulsive, and does things right in front of law school faculty and administration even when she knows they are absolutely wrong. This behavior shows up in the way she acts with fellow students, in the way she confronts her instructors, and on those occasions when she represents the school at outside events, although she apparently acts better at home.


2. From the faculty lounge:
   
   Our highly vaunted faculty member is exceptionally gifted, landed one of his earliest articles in the Yale Law Journal, and is very proud of his 2,000 SSRN downloads, but he has always been so difficult.
   
   While most other members of our faculty are thoughtful, kind, and mannerly, this professor often acts like a 2-year-old. He wants the best of everything, wants it first, bawls like a baby if he doesn't get his way, and is maddeningly stubborn.
   
   He also has little self-control, is extremely impulsive, and does things right in front of his colleagues and his students even when he knows they are absolutely wrong. This behavior shows up in the way he ignores his students, in the way he abuses law school staff, and in his egotistical disdain of his colleagues, although he apparently acts better at home.

Click on the flowering narcissus to crack this conundrum

Both tales, of course, are nothing but lightly modified versions of a classic advice column letter to The Washington Post. The original subject of these laments was the writer's "beautiful 9-year-old daughter." It is more regrettable than it is remarkable that those sentiments can so readily describe law school stars — the tuition-paying variety as well as the tuition-collecting sort. Legal academia could do worse than embracing the advice that The Post gave to that exasperated mother: "Firstborns often think they deserve more than their younger siblings, but your eldest is taking her sense of entitlement way too far." Substitute prime donne for firstborns . . . . . You get the idea.

The admissions office version of the story is more readily understood but less readily remedied. The rankings-driven game of law school admissions drives admissions directors and committees everywhere to prize exactly one trait — apparent achievement in fields demanding raw analytical power — above all others and to the frequent detriment of other traits that law schools, the legal profession, and society at large should all prize. But the admissions offices of law schools everywhere are trapped in the beggar-thy-neighbor game that rankings fuel, and no easy cure lies in sight.

Faculty hiring should be different, but often it isn't. Some and perhaps all law school faculties suffer from a marginal propensity for hiring odiously selfish colleagues, perhaps even an Arschloch so extreme as to be the worst law professor in America. One might imagine that slavish dedication to the rankings might propel this sort of mistake, but the situations seem awfully dissimilar. It's one thing to admit a grotesquely selfish student, or even to unleash her on the profession, but it is an altogether horrifying prospect for a faculty to entrench a relatively young Arschloch among its ranks. You have to share breathing space with this jerk! Imagine how much worse matters can be if you overpay Professor Arschloch, grant him tenure, and hire his superficially charming, insidiously destructive spouse. That power couple has the potential to suck your law school dry for four decades for $1 million to $1.5 million during every three-year cycle typically needed to confer the degree of juris doctor.

Here is a somewhat different way of quantifying the damage from hiring (and tenuring) even one mentally gifted, emotionally stunted faculty member. Conservatively speaking, a law school would commit the cash flow from an endowment valued between $2.5 million and $3.5 million for four decades in order to pay salary and benefits to an imprudently appointed Arschloch. Four decades' payouts come close to exhausting the entire value of the endowment. It's easy to double or triple the damage: hire the spouse, grant either or both an otherwise unfunded "center of excellence," agree to finance boondoggles foreign and domestic. A total bill of $8 million in wasted endowment value doesn't seem unreasonable.

That, at any rate, is the price tag attached to awful hiring. You might think — and I fervently hope — that the legal academy has ample incentive to solve this problem. On the other hand, it may simply be our fate as lawyers, or at least as law professors, to be drawn like bees to the bloom to mentally gifted, emotionally stunted individuals. After all, that description fits far too many of us, both in the broader legal profession and in the little corner we call legal academia.

Some recent developments in legal education

For Northwestern Law's new two-year JD curriculum, see here, here, here, here, and here (among others).

For Thomas Sowell's take on the rankings, see my post here.  

So you want to be a law clerk?

Behold So You Want to Be a Law Clerk?, which touts itself as "[a] place to find the latest federal law clerk openings, advice about the application and interview process, and, in general, how to land that coveted offer."

As an example of this site's content, consider this poll currently on its front page:

If presented with two offers, which would you accept, a clerkship with a federal district judge in the S.D.N.Y. or a clerkship with a federal appellate judge on the 10th Circuit?
S.D.N.Y 10th Cir.

Hat tip: A discussion board on the "best schools for clerkships/academia" at Top Law Schools.

At the pit of hell lives a Blue Devil

In addition to its immense wealth, Duke University enjoys a rich sports tradition. There's the basketball program, to be sure, but don't forget Bull Durham and the 1942 Rose Bowl. Despite all that, Duke has the gall to argue — with factual but not legal accuracy — that its football team is so bad that Duke University owes the University of Louisville no damages for breaching a contract to pit the Blue Devils against the Cardinals.

Boo, hiss. This is yet another reason for all Kentuckians — indeed, all decent Americans — to despise Duke. Further details in The Cardinal Lawyer and Danzig U.S.A.

Hat tip: Red Lion Reports.

You're no good: An ongoing MoneyLaw series

You're no good
Linda Ronstadt, You're No Good, Heart Like a Wheel (1974): Feeling better now that we're through Feeling better 'cause I'm over you I learned my lesson, it left a scar Now I see how you really are

Many things in academic life are simply no good. The task of identifying these things falls happily to MoneyLaw.

This ongoing series will highlight aspects of academic life that seem as inevitable as they are entrenched, but in reality deserve to be scrutinized. MoneyLaw undertakes this project in the belief that no academic practice is so sacrosanct that it cannot be questioned. Indeed, it should be an academic leader's calling to expose, perchance ultimately to reform or even to overthrow, those practices that are corrosive of academic values and the interests of higher education's true constituents. To get things started, I'll give this forum's readership a hint: Among the three T's most familiar in higher education and its finance — tuition, taxes, and tenure — only two are familiar to the system's true constituents.

True to MoneyLaw's belief in the wisdom of crowds, I invite readers to nominate practices, customs, and expectations that — in Linda Ronstadt's simple and persuasive way of expressing the point — are no good. Fire away in the comments to this post. As Linda would say, it's so easy.

Silver threads, golden needles, and ClassBias

As homage to Class Bias in Higher Education and the proletarian rage that Jeff Harrison so eloquently expresses, I offer one of the many versions of Silver Threads and Golden Needles now playing at Danzig U.S.A.:

I grew up in faded gingham where love is a sacred thing You grew up in silk and satin where love's the passing game I know now you never loved me, and I know I was a fool To think your pride would let you live by the golden rule

How The University Works

All MoneyLaw readers should be reading Prof. Marc Bousquet (media studies, Santa Clara), editor of How The University Works (and currently guesting at The Valve, a literary studies blog).

Of particular interest might be his suggested Academic Labor Bookshelf, and the posts Teach the University! and High Noon for Academic Freedom.

The Quiet Desperation of Academic Women

That's the title to this article in Inside Higher Ed, on a new study by Kristen Monroe (who happens to be a former professor of mine when I was a political science major at UCI). Here's the abstract of the paper (full article available with academic subscription).

From the article (I am probably excerpting too generously, but it's a 20 page article):

Employment patterns in the academy reflect the pattern in the larger professional world; positions with higher status, power, and remuneration are generally dominated by males. While graduate enrollment in degree-granting institutions (figure 1) has been over 50 percent female for more than a decade (moving from 56 percent in 1996 to 58 percent in 2001), women accounted for only 44–45 percent of the recent Ph.D.s awarded, only 38 percent of the fulltime faculty in all institutions of higher education, and slightly more than 15 percent of the tenured and tenure-track faculty in “top” departments.7 In general, tenured professors are four times more likely to be male (80 percent of tenured faculty in 2001 were male), while tenure-track (65 percent male) and nontenure- track (61 percent) employment move somewhat closer to the average.

The aggregate statistical data thus suggest academia as a whole fares no better than the general workforce at large in terms of gender equity. Women are still underrepresented in almost all disciplines, and men are more likely than women to hold tenure track positions, be promoted to tenure, achieve full professorships, and be paid more than women of equal rank.

Statistics provide one view of the situation for women; anecdotal data and biographies offer further insight.The more detailed qualitative work on women in academia suggests a dismal picture: a rigid system of rewards that makes scant allowance for deviation from the traditional male model, high levels of isolation, stress and fatigue among female faculty, continuing unconscious and deepseated discrimination and stereotyping by male colleagues, and a remarkably unbreakable glass ceiling.

One common solution to discrimination is to increase the number of power holders who are members of the discriminated group. Our interviews suggest a more complex relationship of women to power, status, and office holding. Just holding office is not always enough to ensure change.

Women were delighted about the increase in female chairs, deans, or central administrators; some considered that these increases signaled genuine improvement. Too often, however, a woman’s holding of this position would devalue or minimize it somewhat, casting it into the service mode, not the power mode. We heard this comment so frequently across all disciplines that we finally named it gender devaluation. Gender devaluation refers to the subtle process by which administrative positions lose their aura of status, power, and authority when held by women. These positions often become treated as service or support roles until they are reoccupied by men. So, for example, being a department chair could be viewed as a position of power or one of service. When a man is department chair, the position confers status, respect, and power. When a woman becomes department chair, the power and status seem diminished, and the service dimension becomes stressed.

Other women told how their accomplishments—being elected to a scholarly academy, an office in the professional association or international society, even receiving outside job offers—were routinely written off by their male colleagues as simply reflections of affirmative action, not the woman’s own accomplishments.

Service differentials often resulted from subtle forms of discrimination. Some instances centered on different expectations of men and women and differences in the way the same behavior was evaluated, depending on the gender of the person performing the act. Women take on these service tasks, despite knowing the disadvantages of spending their time on duties for which they will not be rewarded, because they also recognize that such positions enabled them to open things up for other women.

How effective are existing legal mechanisms in protecting women? If women use these mechanisms, are they stigmatized for doing so? Our speakers suggest that the benefit of legal mechanisms is unclear but the costs associated with pursuing legal remedies are real and high.

Our speakers were extremely adept at detecting the Academy’s cultural cues. Most feared backlash and retribution if they agitated openly for change, so they rejected overt collective activism in favor of more subtle, nonthreatening collective actions. Whereas overt activism tries to directly change power and institutional structures, collective action—as we conceptualize it—refers to organized efforts to improve women’s conditions in the university through more proactive interpersonal processes. The most uniform and enthusiastic recommendation of this type was to expand and reconceptualize mentoring programs. Women especially valued mentoring from women, which provide both role modeling and concrete illustrations of alternative life choices to the traditional male model.

Finding that women reject legal and administrative mechanisms in favor of the subtler collective action proposals noted here reflects other findings in the literature. A more surprising result is the extent to which UCI faculty women fell back on a model of individual responsibility for their situation. Ironically, if not surprisingly, several of our women noted one important and insidious aspect of discrimination; they felt they had to do more to succeed than their male counterparts. While many lamented this, few seemed angered. This was closely related to the fact that these women demonstrated acute understanding of the authority of the university in considerations of family obligation and therefore adapted their experience of inequality to an individual model of responsibility. In this way, most did not relate their own experience with discrimination in broader political terms so much as they deemed it an individual problem they had to address on their own. They held themselves to high standards and interpreted their failures less to gender discrimination and more to their own shortcomings.

Two points are striking, as we listen to the sense of quiet desperation in the choices faced by these women. First, uniformly the UCI women believed the tension between career and family/children is a fact of life for all professional women. It is not unique to UCI, or to academia. Second, we heard a surprising lack of anger. Few women asked for institutional intervention toward a more just reconciliation between the commitment to family and the commitment to career. From the standpoint of institutional reform, then, these are not efficacious voices. These are voices of struggle, denial, and helplessness, ultimately lacking the empowering strategies to handle or change their seemingly intractable circumstances. They are not voices that see the personal as political. This process of internalizing responsibility also occurred in descriptions of both the subtle forms of discrimination and descriptions of overt ones. Stories of both types of discrimination, however, were closely linked to an institutional climate more concerned with bureaucracy and what several speakers called “window dressing” than with ethics. This linkage suggested the lack of political demands may represent a shrewd and knowing calculus on the part of policy savvy women who realize such politicization is doomed to fail in eliciting a positive institutional response.

Here, our interviews suggested specific findings relevant for reform and pointed to several strategies useful in dealing with gender inequity in society at large, not just academia. First, having more women and minorities in positions of power helps sometimes but is not enough. As a general reform, the concept of professional success needs to be redefined so it allows for alternative models, not simply the traditional, linear male model in which the professional is full time and focused on a career, with few family duties. An important aspect of this issue concerns the extent to which the male model also traps men into stereotypes, making it difficult for individual men to break out of traditional roles, if they so desire.We find the human dimension of this issue largely ignored in the feminist literature and believe a new model, which displaces both the traditional male model and the exploited female model, would be greatly welcomed.

Second, as part of this general reform, specific policies can help. Institute longer tracks to tenure and allow for maternity and family leave time. Ensure that legal mechanisms are in place and that they actually work since our interviews suggested such policies that do exist are in place but unobserved in reality. Third, as part of this general re-shifting in the professional model, recognize that women who are professional frequently have husbands who also are professionals, and institute career partner-hiring policies. Finally, institute a comprehensive andreconceptualized mentoring program, so that all faculty—not just women—are automatically entered into it. This will help remove the stigma of participating in formal mentoring. Mentoring also should be extended beyond tenure. Doing so would recognize that the requirements for professional growth are on-going and existing career models make it difficult to conceptualize one’s way out of situations often held irreconcilable, such as the tension between children and career. Such reforms recognize the difficulties of progressing up the academic ladder and respond to the need for continuing institutional efforts to help crack what remains a glass ceiling for women in academia.

Read the rest of this post . . . .And from IHE:

Asked for a reaction to the study, Irvine released a statement criticizing it. “Professor Monroe’s article draws attention to the persistence and toll of sex discrimination on women faculty. Unfortunately, the article cannot to be said to offer original insight into the promise and challenge of gender equity in higher education. The formulation of the problem overlooks research in a host of related issues, such as gender schemas, work-life balance, and leadership development among others,” the statement said.

The Irvine statement went on to cite progress for women on a number of fronts, noting that women on the campus hold such positions as vice chancellor of research and deans of the graduate division and of undergraduate education. Women account for 43 percent of assistant professors, 37 percent of associate professors, and 22 percent of full professors. Those figures are going up in science and technology fields too, Irvine noted, and women now are 37 percent of assistant professors, 31 percent of associate professors and 18 percent of full professors in those disciplines.

The statement added that “Professor Monroe does not appear to be informed about campus and university engagement with gender equity or for that matter family-friendly accommodation policies and procedures.”

In an interview (prior to when Irvine released its statement), Monroe said that she would be interested to see how the university responded and that she hoped it would be positive. She noted — as the reported noted — that many of the concerns expressed in the study didn’t have to do with official policies or programs, but with more subtle questions.

In her career she was helped by good advice she received early on from mentors. She was urged to agree to serve on one universitywide committee and one departmental committee and never more. She was also urged to work from home in the mornings, so she couldn’t be drafted into other meetings, and would always have focused time for research. Monroe said that as a political scientist, she had that option in a way that a lab scientist would not. While Monroe said she was able to have a family while succeeding in academe (in part because of choices her husband made), she said that talking to women about their choices was in many cases “heartbreaking.”

I am lucky enough to have an advisor (who of course also does work/family law) who gives me the same advice: be savvy about negotiating at which Step I begin my position, consider the faculty development budget I'm allowed, try to limit participation in service committees, negotiate my initial teaching load, and pay this forward by giving similar candid mentoring advice to my students. And I too, may be able to have a baby pre-tenure. This is wonderfully candid, savvy advice, and much less depressing than hearing "just don't have a baby, ever" or "it's impossible to advance far in the legal academy if you want work/life balance." I am not suggesting I want to be pampered with a 1-1 teaching load, no service/committee requirements, or plan to have a baby as soon as I'm hired. But I am suggesting that we, as an academy, have to recognize the increasing diversity of the academic ranks--our student bodies have almost equal numbers of women and men--should not our faculty ranks also reflect this? We, as an academy, might decry the "mommy track" of law firms, as some of our best and brightest students are pushed to the sidelines as their work is valued less than their male colleagues. We should also decry the deleterious gender disparity that our own system often engages in: sidelining women faculty into lower status, non-tenure track positions, unrewarded service commitments, and failing to provide institutional resources for those faculty (male or female) who must balance work and family demands.

The defensiveness of UCI's response highlights the institutional recalcitrance to both legal and non-legal reforms. It is one thing to change policies. It is quite another to change culture, and institutions are reluctant to admit that their professional culture and structure produce an environment that is contradictory to their egalitarian ethos and cultural values. Academia shuttles back and forth between its elitist nature and its egalitarian (Dewey-esque Democracy as Education) project: I am not saying that we must lower standards in the academy for tenure, service, and teaching. I am saying that we, as an academy, must reevaluate our supposed "meritocracy" to ensure that good scholarship is rewarded, and not merely good institutional citizenship. Silence and complacence should not be rewarded, as if those suffering from overt and subtle discrimination must just accept their position in the white-male dominated legal academy. Rather, the academy itself must feel responsibility to change its structure and culture to accommodate the changing face of the academy--a changing face it says it wants, but for the lack of qualified, meritorious candidates. Make the conditions ripe for merit, and it will show itself.

Hat Tip: Feminist Law Profs.

Almost purgatory

Ending a tenure as brief as it was tumultuous, West Virginia University president Michael Garrison will resign, effective September 1. After six weeks of shielding Garrison from outraged faculty, students, and alumni, WVU's Board of Governors swiftly accepted Garrison's resignation on June 6.

The full story in brief: Garrison was appointed WVU's president in April 2007 over the strenuous objections of that university's faculty, which cast a vote of no confidence even before he had been chosen. To his office, Garrison brought an impressive arsenal of political connections, but no academic experience. He has spent roughly half his tenure battling a scandal that arose because neither he nor his subordinates could answer a straightforward question: Did Heather Bresch, chief operating officer of the pharmaceutical firm Mylan, Inc., earn an executive MBA from WVU? The answer, as an investigation by WVU ultimately concluded, was no . But WVU initially answered "yes" and granted an MBA it later rescinded. Bresch is the daughter of West Virginia's governor, Joe Manchin III, and Mylan was one of Garrison's most prominent lobbying clients. And though Garrison did not attend the fateful meeting at which WVU decided to award the contested eMBA degree to Heather Bresch, his chief of staff appeared to have presided.

The body count so far: West Virginia University has lost its president, its provost, and the dean of its business school. Adhering to the instinct that the most straightforward version of a story probably lies closest to the truth, I regard the whole episode as a painful but ultimately triumphant vindication of academic virtue over the politics of corruption and the culture of complacency.

That said, given this forum's explicit embrace of youth in academic administration — Michael Garrison will have been appointed to and ousted from the presidency of his alma mater before the age of 40 — and this forum's willingness to contemplate university administrators whose greatest accomplishments lie outside the academic realm, the Garrison fiasco warrants a brief moment of contemplation.

Click on Dante to read the rest of this post . . . .

Yes, I have extolled the "challenging but exhilarating" adventure that "infuse[s] managerial and (most of all) entrepreneurial responsibilities into the strictly academic calling of a [university] professor," going so far as to laud the "portmanteau expression for this blend of management, law, and the intellectual life: MoneyLaw." But it behooves the academy, at the end of the grim season that West Virginia University has endured, to remember that there truly are candidates for university administration who combine business acumen with academic accomplishment. Perhaps M. Duane Nellis, provost at Kansas State and an accomplished academic geographer, was such a candidate. Provost Nellis undoubtedly has been the subject of much thought and discussion in Morgantown, where he once served as dean of WVU's college of arts and sciences and was passed over in favor of Michael Garrison as president of WVU. Those of us who love the state of West Virginia can only hope that its flagship university will right its course soon and regroup in the aftermath of the Bresch-Garrison scandal.

The larger lesson is this: The list of qualities needed in academic administration includes not only talent — whether that talent is defined in academic or in entrepreneurial terms — but also character. Now abide these three: academic achievement, business acumen, and character. And the greatest of these is character.

West Virginia, so the balladeer tells us, is almost heaven. West Virginia University, in recent memory, has felt at best as though it were almost purgatory. A reading from W.S. Merwin's translation of Dante's Purgatorio seems in order:

W.S. Merwin reads the first two stanzas of Purgatorio	Merwin's entire 25-minute reading from his translation of Purgatorio
Per correr miglior acque alza le vele omai la navicella del mio ingegno, che lascia dietro a sé mar sì crudele; e canterò di quel secondo regno dove l'umano spirito si purga e di salire al ciel diventa degno.	To course on better waters the little boat of my wit, that leaves behind her so cruel a sea, now raises her sails, and I will sing of that second kingdom in which the human spirit is made clean and becomes worthy to ascend to Heaven.

MoneyLaw: The art of winning an unfair academic game

»  Cross-posted from The Cardinal Lawyer  «

I presented MoneyLaw: The art of winning an unfair academic game on June 14, 2008, at the University of Louisvlle's Weekend College event in Los Angeles. The presentation summarizes many of the things I have articulated in this forum.

And now for a MoneyLaw multimedia bonus — what could be more appropriate than Sheryl Crow's signature anthem on good times in Los Angeles?

What Homo academicus can learn from Pan troglodytes

Homo academicus	Pan troglodytes

The December 2007 issue of Philosophy of Science contains a fascinating article with important implications for complex social organizations, including universities:

Game theory has played a critical role in elucidating the evolutionary origins of social behavior. Sober and Wilson (1999) [Elliott Sober & David Sloan Wilson, Unto Others: The Evolution and Psychology of Unselfish Behavior (1999)] model altruism as a prisoner’s dilemma and claim that this model indicates that altruism arose from group selection pressures. Sober and Wilson also suggest that the prisoner’s dilemma model can be used to characterize punishment; hence, punishment too originated from group selection pressures. However, empirical evidence suggests that a group selection model of the origins of altruistic punishment may be insufficient. I argue that examining dominance hierarchies and coalition formation in chimpanzee societies suggests that the origins of altruistic punishment may be best captured by individual selection models. I suggest that this shows the necessity of coupling of game-theoretic models with a conception of what our actual social structure may have been like to best model the origins of our own behavior.

Yasha Rohwer, Hierarchy Maintenance, Coalition Formation, and the Origins of Altruistic Punishment, 74 Philosophy of Science 802-12 (2007) (DOI: 10.1086/525628).

The upshot, as I shall explain, is straightforward. When chimp leaders inflict punishment — which invariably comes at some private cost to them as individuals — they do benefit the group as a whole by enforcing discipline. In imposing that social order, however, those chimp leaders reap substantial private gains. I add this gloss to Yasha Rohwer's work: Within certain human organizations, especially academia, altruistic behavior may need a stronger motivator than group competition. Some forms of altruistic behavior may depend on some mechanism for internalizing at least some measure of private benefit for those who incur the cost of enforcing collective norms.

Click the chimps to read all about it.

Altruistic behavior poses a problem for evolutionary psychology because it requires an individual — whether Pan troglodytes or Homo sapiens — to incur a personal cost in exchange for societal benefit. Sober and Wilson addressed punishment within the larger framework of their treatment of altruism as a prisoner's dilemma. As Rohwer explains:

Punishment is altruistic not toward the punished, but toward the other members of the group, since the undesirable action of the punished is curtailed. A punisher incurs a loss while other members of the group receive a payoff, presumably giving the group at large an advantage against other groups. Therefore, punishment, understood as a form of altruism, can be modeled as a prisoner’s dilemma as well. Since punishment is a form of altruism, and can be modeled by the same game, Sober and Wilson argue that it evolved by the same mechanism: group selection.

A brief digression on group selection (as understood by Sober and Wilson) is warranted.

Imagine that you are a member of a university faculty — indeed, a law school faculty. And imagine that someone, somewhere in legal academia, is unquestionably the worst law professor in America. Hey, someone has to hold that title. Most law professors have no trouble imagining that the person holding this awful distinction is a member of their own faculty.

What makes this hypothetical colleague so awful? At the risk of gross overgeneralization, let's describe her behavior as odiously selfish. To protect what she perceives as her prerogatives, she will stab any colleague in the back, or even in the face. Indeed, she plays so poorly with others that blame for an entire exodus of pleasant and productive colleagues can be laid at her feet.

Enter the avenger. In a market as competitive as legal academia, the presence of an odiously selfish oaf can cripple a law faculty's search for the best available talent. Punishing odious behavior benefits the faculty as a whole. Even though the effort needed to restore collegiality may cost the avenger, Sober and Wilson's model of altruism predicts that it will happen. Group selection — that is, competitive pressure at the level of schools rather than professors — supplies the needed impetus.

Academic experience suggests otherwise. With respect to free-riding, a milder form of selfish behavior that erodes the faculty's overall well-being in the brutal game of group selection, Jeff Harrison observes that the prevailing norm is one of making nice, knowing better, doing nothing. In its worst manifestations, making nice and doing nothing while knowing better will lead to academic kakistocracy, or rule by Arschloch, the very circumstance under which a law school comes to value the worst professor in the land over the former colleagues she has worked so hard to repel and expel. Collective inaction rather than heroic intervention seems to be the academic norm, for no reason more complicated than the fact that heroic intervention carries a price — a very stiff price. In a professional setting where personal reputation is both fragile and paramount, and where tenure guarantees many iterations of the reputational games we academics play, the cost of altruistic behavior often negates the countervailing power of group competition to spur selfless sacrifice.

Yasha Rohwer's evaluation of altruistic punishment among chimpanzees suggests one possible answer to this dilemma:

Sober and Wilson’s model of the origins of altruistic punishment is plausible, and they are correct to take seriously empirical research on the behavior. However, an analysis of the actual behavior of our closest relative, the chimpanzee, suggests an alternative model. . . . In chimpanzee societies, . . . most altruistic punishments can indeed be made to fit Sober and Wilson’s model. However, an analysis of the social structure suggests that altruistic punishment has the function of keeping the top ranking male, or coalition of males, on top, or preserving the troop-level macrocoalition that disproportionately serves the interests of those on top.

The job of enforcing chimpanzee society's "linear dominance hierarchy" brings substantial benefits. Rohwer quotes Christopher Boehm: “a dominant position leads to better access to food resources, and for the typically promiscuous males, high rank confers better mating opportunities.” According to Jane Goodall, alpha males have the power to “monopolize” a female during estrus. Frans De Waal observed that one alpha male, during his reign, “alone was responsible for about three-quarters of all matings”; excluding less contested episodes of “sexual intercourse with young females . . . his share was almost 100 percent.”

In contrast with strictly altruistic situations, doling out punishment among male chimpanzees delivers substantial rewards to the alpha male:

It is the alpha male who is performing the altruistic punishment, but it is also the alpha male who, in preserving the macrocoalition, benefits the most. It is the alpha male who gets first access to the food in the protected territory. And more importantly, because of his status he has the most mating opportunities with females on the protected territory.

Because the alpha male has the most mating opportunities it is likely that he has sired the majority of the troop’s offspring. So, in preserving the macrocoalition, the alpha male also benefits because his progeny are protected by the coalition from the dangers of the jungle.

Making the chimp-to-human connection: Jane Goodall and Jou Jou

Ultimately, what if anything can academia (and, for that matter, human society at large) learn from studies of altruistic behavior among humanity's next of kin? Rohwer's study does not explain the precise causal relationship between (1) the alpha males' private benefit from enforcing discipline within macrocoalitions of male chimpanzees and (2) their corresponding willingness to protect chimp society as a whole by policing the rules that govern those coalitions. That said, the great extent to which academia experiences selfish behavior, from mild sloth to utterly destructive odiousness, and yet sits idle, seemingly powerless to fight back, suggests that higher education has much to learn from Pan troglodytes.

Rock, Paper, Scissors, Shoot

It's the ultimate alternative dispute resolution technique. Hands down.

Penn State Student, Derek Hines, knows it. He's won the right to represent Penn State University in the Rock Paper Scissors National Championship in Las Vegas, June 20-22. The winner will pick up $50,000 and will travel to Bejing for the inaugural International Rock Paper Scissors Federation Championship (IRPSF) to face Rock Paper Scissors champions from Canada, Guam, Hong Kong, Ireland and Malaysia. At stake is world Rock Paper Scissors domination.

If you thought Rock Paper Scissors was a game of chance, you just got snookered. Winning takes a calculating mind and a keen eye for cues about what your opponent will shoot. Players call it picking up on "tells"-- such as the way amateurs start to make the scissors shape a split second before the shoot, the premature tilt of the hand as a signal for paper, or the tell-tale wind up for rock. In an interview with Pennlive.com, Hines revealed that he likes to make use of the "double throw"-- using the same hand shape twice in a row. "This throws people off guard," he claims.

From a purely mathematical perspective, the optimal Rock Paper Scissors strategy is to play randomly. But this achieves equilibrium. Each player should win, lose, or draw an equal number of times. As litigators know, equilibrium is nothing like winning. It turns out that people stink at randomness, no matter how hard they try. Champion Rock Paper Scissors players (and good lawyers) know that people trying for randomness are actually quite predictable.

The trick to winning Rock Paper Scissors is to take one move away from your opponent. For example, if you can eliminate or reduce the possibility that your opponent will shoot rock you will play scissors. Scissors beats paper and stalemates scissors. The real game is in trying to manipulate your opponent to eliminate one of the moves, or successfully to predict which move your opponent will not make.

Rock, they say, is for rookies. Careful observers have noted that males, particularly slightly drunk ones, tend to lead with rock. Perhaps it has something to do with maleness. No matter. Play a rookie male with paper on the first throw and see how much you like winning. Of course if you are playing a non-rookie, you can be fairly sure he won't lead with rock (however much he might want to), because rock is for rookies. So, if you're squaring off with someone who knows the game, scissors is your move. Later in the game, try the double psych on a rookie. Tell your opponent what you are going to shoot. Your opponent will underestimate the odds that you will actually shoot what you said you would. He will not throw the move that beats the move you announced. You can eliminate that one and pick the winner/stalement throw against the other two options.

It all seems obvious after you think about it for a minute. But then, so does law.

The rise and fall of the American Jewish Ph.D.

Daniel Sokol recommends the following paper:

Barry R. Chiswick, The Rise and Fall of the American Jewish Ph.D..

Daniel Libeskind's Contemporary Jewish Museum in San Francisco.

This paper is concerned with trends over the post-WWII period in the employment of American Jews as College and University teachers and in their receipt of the PhD. The empirical analysis is for PhD production from 1950 to 2004 and Jews are identified by the Distinctive Jewish Name (DJN) technique. Descriptive statistics and multiple regression analyses are reported. Central roles are played in the regression analysis by variables for military conscription, the Korean and Vietnam Wars, and US government funding for research and development. Among the DJNs, the simple data show that male PhD graduates increased in number in the post-war period up to early 1970s, and declined thereafter. Among DJN women, however, annual PhD production increased throughout the period. The ratio of DJN to all PhDs declined throughout the period for both men and women. Other variables the same, male DJN PhD production increased to about 1967 and then declined, while for DJN females it increased throughout the period. The ratio of DJN to all PhDs started to decline among men in the 1950s and continued thereafter, while among women the DJN share increased until about 1979, and then declined. These data are consisted with the hypothesis that discrimination against Jews in salaried professional occupations declined in the post-WWII period earlier in College and University teaching than in other sectors of the economy that do not require a PhD degree for employment.

Sexism or Something Else?

As Hillary Clinton's presidential bid sinks into the horizon, pundits contemplate what went wrong. The Telegraph reported that as Clinton's campaign workers were leaving headquarters Tuesday night, a Japanese television camera crew offered them the chance to express their views as to what went wrong by placing a sticker on a board next to the reason of their choice. Most chose "She's a Woman." (Some chose: "Attacked Obama" and "Cried in Public." Nobody chose "Negative Personality.")

Reuters ran a story this morning pondering whether sexism in the media and among voters contributed to Clinton's failure. Sexism was surely an issue some say, citing incidents like the "Iron My Shirt" heckler at a January 7, 2008 campaign stop. After the sign-waving, shouting man carried on for a few moments, security workers escorted him from the area. Clinton sighed and said: "Ah, the remnants of sexism, alive and well. . . . I am running to break through the highest and hardest glass ceiling." Eleanor Smeal, president of the Feminist Majority Foundation sees Clinton's defeat as a call to arms: "One of the legacies of the Clinton campaign is that it's been a wake-up call, really, to the women's movement of how far we have to go," she said. "We have a lot of work to do. We are in much worse shape than we thought."

Others are angered by the suggestion that sexism brought Clinton down. Camille Paglia accused Clinton of hiding behind charges of sexism to avoid scrutiny: "Will every losing woman candidate now turn on the waterworks and claim to be maimed by male pride and prejudice?" Peggy Noonan advised Clinton to "be a guy and say thanks [for the votes she got]." Raising sexism as a factor in her loss "is blame-gaming, whining, a way of not taking responsibility, of not seeing your flaws and addressing them." Others note the irony in Clinton's claim of sexism, observing that she likely had the opportunity to seek the presidency in large part because she happens to be the wife of a president.

Sexism, or perhaps more accurately, woman hating, will always be a factor as long as women are easily discernable from men, and some men fear losing their relative advantage as the characteristic (maleness) on which it rests becomes insignificant. I experienced the pointy end of fear like this in law school in the early 1980's. After first semester grades came out, a crushed and exasperated male classmate lashed out at me. Women had beat him, perhaps for the first time, at a game he expected to win. "You don't really need this law degree," he muttered across the library table. "You'll always have a man to take care of you."

Sexism is far more subtle than the sign-wielder's crude insult to women who serve as homemaker and helpmate. Sexism is a symptom of fear and fear, like scarcity, will always be with us.

Anna Karenina and the art of academic management

Ivan Nikolaevich Kramskoi (Иван Николаевич Крамской), Portrait of an Unknown Woman (1883)

Все счастливые семьи похожи друг на друга, каждая несчастливая семья несчастлива по-своему.

— Лев Николаевич Толстой, Анна Каренина (1877)

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Happy families are all alike; every unhappy family is unhappy in its own way.

— Leo Tolstoy, Anna Karenina (1877)

Jared Diamond's masterpiece, Guns, Germs, and Steel: The Fates of Human Societies (1997), is required reading for anyone who wishes to understand human history on the only scale that matters, all of it. Among other fantastic insights, Guns, Germs, and Steel devotes its ninth chapter to what Diamond calls the Anna Karenina principle. That principle applies the famous first sentence of Tolstoy’s novel to a wide variety of settings besides marriage and family:

Tolstoy meant that, in order to be happy, a marriage must succeed in many different respects: sexual attraction, agreement about money, child discipline, religion, in-laws, and other vital issues. Failure in any one of those essential respects can doom a marriage even if it has all the other ingredients needed for happiness.

This principle can be extended to understanding much else about life besides marriage. We tend to seek easy, single-factor explanations of success. For most things, though, success actually requires avoiding many separate possible causes of failure.

As I will illustrate in the sidebar (if only for fans of Jurisdynamics, BioLaw, and Agricultural Law), Diamond originally applied the Anna Karenina principle to the problem of domesticating wild animals. For readers of MoneyLaw, the question is how the Anna Karenina principle applies to academic management — an enterprise that, upon further inspection, very closely resembles the problem of domesticating animals.

Click the zebras to read all about it.

Domesticate the zebra? Don't be an ass! Many have tried; all have failed.

Jared Diamond's application of the Anna Karenina principle to agriculture explains why so few wild animals have been successfully domesticated throughout history. A deficiency in any one of multiple factors can prevent the domestication of a species:

Diet — A species must be easy to feed. Finicky eaters make poor candidates. Non-finicky omnivores make the best candidates.

Growth rate — The animal must grow fast enough to make domestication economically feasible. An elephant farmer, for example, would wait 12 years for his herd to reach adulthood.

Captive breeding — The species must breed well in captivity. Species whose mating rituals (such as a need for privacy or protracted chases) inhibit breeding on a farm make poor candidates.

Nasty disposition — Some species are simply too mean. The farmer must not risk life or limb simply by entering the animal pen.

Tendency to panic — Species react to danger in different ways. A species that takes immediate flight is a poor candidate. A species that freezes, or mingles with the herd for cover, is a good candidate.

Social structure — Species comprised of lone, independent individuals make poor candidates. A species that has a strong, well defined social hierarchy is more likely to be domesticated. A species that can imprint on a human as the head of that hierarchy is best.

All happy law schools are alike; every unhappy law school is unhappy in its own way.

There are no fewer than seven distinct constituencies in most law schools. If any one of these constituencies behaves dysfunctionally, the entire school will reflect that dysfunction.

First, university administration must treat the law school as a vital part of the university as a whole. If it treats the law school as a cash cow or ignores it in favor of other initiatives — such as undergraduate education, other professional programs, or athletics — such favoritism will backfire. We're all on the same team, if not the same campus, and success breeds success.

Second, the dean must keep her or his eyes on the right prize: the well-being of the students and graduates of the law school. Acting as "the servant of the faculty" is a guaranteed formula for failure. So is managing from a position of diffidence, as if retaining the deanship took precedence over doing the right thing.

Third, the faculty must be committed to the right values. Law school teaching is the easiest, most rewarding, perhaps even the best job available to intellectually inclined people holding J.D. degrees. And the vast majority of people doing this job get to do it for life. So teach conscientiously, keep up with the law and allied fields through active scholarship, and above all do not treat a faculty appointment as either a sinecure or a personal expense account.

Fourth, staff should work as a cohesive, professional crew. Nonfaculty employees almost invariably do. But law school administration and faculty must take care to treat staff with respect, and there must be some sort of constructive mechanism for correcting instances when this aspiration is not fulfilled.

Fifth, students arguably have the easiest role in ensuring their law school's success. In most cases, doing what comes naturally consists simply of studying hard, playing fair, passing the bar, and getting jobs. But it does help if the students actually want to be at the school they're attending. Schools that are destinations of choice for their students tend to be happy. Schools that are fallback destinations tend to be less happy. Don't confuse this with rankings: a gaudy ranking is neither necessary nor sufficient for student satisfaction.

Sixth, alumnae and alumni should not treat their alma mater as though a law school education rested on some sort of fee-for-service contract. Ideally the relationship between a school and its graduates spans a lifetime. Too young and poor to give cash? We'll take in-kind contributions, even moral support. Even if your own experience was awful, smart leadership today will work with you to make tomorrow's graduates more appreciative of their degrees — and yours.

Finally, the local community must take a stake in the well-being of the law school. Members of the local bar, no matter where they got their degrees, benefit from a robust local law school. Public schools depend on enlightened state legislatures who understand that investments in education pay multiple dividends in the form of future economic development.