Would We Really Downsize?

I understand this is something people disagree about but increasingly the exploitation of athletes by colleges is unacceptable to many. Football is the worst. In basketball and baseball, the athletes can, if qualified, sell their labor to the higher bidder. In football because of the wink and a nod relationship between the NCAA, the NFL and the NFLPA football players are at the mercy of colleges. These colleges pay their coaches millions while the labor they use to generate those salaries do not actually receive scholarships that pay the full cost of their time in school. I love college football but am uncomfortable with my complicity, as a fan, in the cycle.

It’s a stretch but I see similarities to some law students and their future clients. What is the connection? It has been reported that many law schools have experienced decreased enrollments. In the case of Florida I think it is over 9%. (I use Florida only as an example here because the data indicate there are many similarly situated law schools.) Yet this year Florida admitted 450 students which was close to a record. What worries me is the possibility that even huge declines in application wou have little or no impact on admissions because of the funding each student represents

The problem is that we treat as fixed by the number the seats and size of the faculty. This seems backwards. Shouldn't the number admitted be a function of the number of qualified applicants and their willingness to pay back, in terms of public service or some positive externality, the huge investment taxpayers are required to make? Instead, law schools need to fill seats (in our case to justify a $20 million classroom building that is empty much of Thursday and Friday) to generate funding. Maintaining enrollments becomes the end and students, like the players, become the means.

Many college football players do not graduate and some leave the game battered. In law school it is a bit different. The grading curves most law schools have and the reluctance of faculty to be candid mean that, unlike 25 years ago, nearly all graduate. (In fact, at my school the concept of “academic probation” is practically obsolete.) In both cases, after being used to generate funding for the three years the students are sent off. I do not know what becomes of the football players after two or three years of college. I do know what becomes of the law students and luckily their plight is usually a better one. Most become attorneys, a large percentage (20% in our case) after initially failing the bar exam. Some, even if they earn a living, though, become attorneys to whom their professors, if they are candid, would not refer a member of his or her family or a distant friend. In the interest of maintaining enrollments and funding, however, they do refer the rest of the world to these very same attorneys. Both students and future clients become means to the end of maintaining the status quo.

In response to an earlier draft of this post, Anthony Ciolli suggested reading “In his own defense Series: THE $40 LAWYER.” It’s a terrific piece of journalism.

Accepted, the first MoneyLaw cult classic movie?

I just finished watching Accepted, a movie about Bartleby Gaines, a high school senior who gets rejected from every university to which he applies. Bartleby decides to create a fake university to appease his disappointed parents. (That's not the MoneyLaw part of it.)

Instead of creating a typical university (a typical fake university?), Bartleby creates a place where the students design their own curricula based on their interests. He calls the university the South Harmon Institute of Technology, in part to distinguish it from (the accredited) Harmon University. Bartleby uses an abandoned mental hospital as the site, borrows his best friend's uncle (a disgruntled former academic, played by Lewis Black) to play South Harmon's dean (OK, it's not that accurate--no mention of presidents), and engages his friends in various administrative tasks.

Harmon University is headed by Dean Van Horne. (In a nice twist, Anthony Heald, the shrink in The Silence of the Lambs, plays Van Horne.) Van Horne explains the ratings game:

Dean Van Horne: Rejection.
That's what makes a college great. The exclusivity of any university is
judged primarily by the amount of students it rejects.

Van Horne wants to buy property near Harmon in order to put up a grand entrance, which he wants to name after himself. Of course, South Harmon is on one of those properties. We know that Bartleby is going to get caught, that he's going to have to find a way to avoid prison, and that eventually things will turn out fine.

The MoneyLaw part of the movie involves, among other things, the scene with Ohio's accreditation board. Bartleby contrasts the learning that goes on at Harmon (with its 100 years of tradition and boring classes) with the learning that goes on at South Harmon (with its student-directed initiatives).

This isn't a perfect movie (unlike Dodgeball, Galaxy Quest, and Office Space). I don't believe that students know best about what they should study. I do, however, believe that students should see that learning is exciting and self-driven. Overall, a nice flick to associate with MoneyLaw.

For you movie lovers, Accepted stars Justin Long, of Dodgeball: A True Underdog Story ("If you can dodge a wrench, you can dodge a ball") and Galaxy Quest ("Never give up, never surrender") fame. And, in case anyone's keeping track, Justin Long has a Bacon Number of 3: from Vince Vaughn in Dodgeball to Vincent D'Onofrio in The Break-Up to Kevin Bacon in JFK. You can't get much more MoneyLaw than that.

One blog to rule them all

Three Blogs for the Law Reviews under the sky,
Seven for the Law Profs in their halls of stone,
Nine for Students doomed to die,
One for the Dark Dean on his dark throne
In the World of Law Blogs where the Shadows lie.
One Blog to rule them all, One Blog to find them,
One Blog to bring them all and in the darkness bind them
In the World of Law Blogs where the Shadows lie.

Visit Law Blog Central, home of the Law Blog Central Orbiter  .

Ranking Secondary Law Journals

I have a brief paper up on ssrn that relies on John Doyle's outstanding law review citation database to rank secondary law journals: "Law [Review]'s Empire: The Assessment of Law Reviews and Trends in Legal Scholarship." It follows up on "The Relationship Between Law Review Citations and Law School Rankings" and is part of an issue of the Connecticut Law Review, which features Ronen Perry's important work. I suspect the paper's primary utility comes in ranking the top 100 secondary journals, though I'm again in interested in what having well-cited secondary journals says about a school.

Of the top 100 student-edited secondary journals, 58 are produced by students at just 15 schools. You might find this list interesting.

Law School	Number of Secondary Journals In Top 100
Harvard	8
Columbia	6
Georgetown	5
California	4
Yale	4
UVA	4
Boston College	3
Fordham	3
Hastings	3
Michigan	3
Pennsylvania	3
American	3
NYU	3
Texas	3
William and Mary	3

Two princes tackle PrivilegeLaw

Jeff Harrison has called my attention to PrivilegeLaw, a bastion of the complacent elite in legal education. This classic Spin Doctors song says everything I want to say to Chadsworth Osborne Junior III:

Spin Doctors, "Two Princes," on Pocket Full of Kryptonite (1993)

Marry him or marry me,
I'm the one that loves you baby can't you see?
Ain't got no future or a family tree,
But I know what a prince and lover ought to be,
I know what a prince and lover ought to be . . . .

Stroke Play

In a prior post I suggested that the quest to determine what makes for a MoneyLaw law school was, using a tennis analogy, too focused on the final score and not enough on hitting each stroke perfectly. If the strokes are right the score will follow. If they are not, there is not much you can do.

Strokes in the case of a law schools means what happens on day to day basis within the life of the school. So here are some different strokes that I think make for a Moneylaw school. Please answer with respect to your school with the number of the correct answer and add them up. Higher numbers are better. (I know there are other questions but let’s start here.) Please fill in the poll with your school’s score at the bottom.

1. What percentage of the faculty are in their offices at 10:00 AM Monday morning?

5. 80% or higher
4. 60% to 80%
3. 40 % to 60%
2. 20% to 40%
1. under 20%

(Higher is better if only because presence has an impact on norms and makes a law school feel more alive.)

2. What percentage of the faculty are in their offices at 10:00 AM Friday morning.

5. 80% or higher
4- 60% to 80%
3- 40 % to 60%
2- 20% to 40%
1– under 20%

(Higher is better for the same reasons in number 1. In addition, it is indicative of faculty who really enjoy their work and their work environment.)

3. What is the difference between the answers in 1 and 2?

5- 0%
4 – 20% - 40%
3 – 40% - 60 %
2 - 60-80 %
1 – over 80%

-(Lower is better)

4. How many hours per week does the average faculty member spend on scholarship independent of class preparation?

5. 40 hours or more
4. 30- 40 hours
3. 20 -30 hours
2. 10 – 20 hours
1. Under 10 hours

( Higher is better)

5. When there is a guest speaker, what is the percentage attendance?

5. 80% or more
4. 60 -80%
3. 40- 60%
2. 20 -40 %
1. Under 20%

(Higher is better)

6. Are guest speakers told that they may send a paper in advance but they should not assume it has been read.

5. Never
4. Rarely
3. About half the time
2. Most of the time
1. Always

-(The answer to this should be never.)

7. What percentage of the faculty regularly ask more that 2 or 3 others to read drafts of articles.

5. Most.
4. About 75%.
3. About half.
2. It’s rare.
1. Never

-(Higher is better because it indicates comfort with asking more than close friends)

8. What is the average time between when the request is made and the comments are returned?

5. A week or less.
4. 10 days
3. Two weeks
2. Three weeks
1. A month

(Lower is better. Not doing it for a month is like not doing it at all.)

9. Is your dean or associate dean interested in “ideas” and actively involved in discussions about scholarship?

5. Attends most talks and faculty presentations and asks questions
4. Attends some talks and faculty presentations and asks questions
3. Attends some talks and faculty presentations but rarely says anything.
2. Rarely involved
1. Invisible

(Deans lead in a variety of ways when they choose to and this is one way that counts especially at mid or lower level schools.)

10. What percentage of your faculty attend meetings and conventions at which they are not delivering a paper.

5. Very few
4. About 75%
3. About 50%
2. About 25%
1. Under 25%

(Lower is better. Its fine not to present a paper but if very few ever do, it’s hard to believe they are all there for the right reasons.)

11. Are there some topics that people are afraid to raise in faculty discussions?

5. Talk about controversial issues is valued.
4. No, as long as one is reasonable
3. You can talk about these issues in small groups
2. It can be a minefield
1. Talk about these issues has been effectively silenced.

(No is the better answer here. If your faculty can talk openly about race, gender, and class issues calmly you are in a special place in terms of faculty trust.)

12. How many hours per week, on average, are faculty available to students.

5. 30 hours or more
4. 20 -30 hours
3. 10- 20 hours
4. 5-10 hours
5. Rarely

(This is an average. Not all teacher have the same demands for their time.)

13. How often to you perceive that other faculty ask the administration for special treatment – reduced teaching; special teaching schedules, i.e. two days a week; extra travel money – that may make them fall into the category of “high maintenance.”

5. There are strong norms against this behavior.
4. Once in a while
3. There are a handful of repeaters
2. Several do this on a regular basis
1. It’s a free for all.

(A few high maintenance people can lower the quality of life for everyone.)

14. How often to faculty ask secretaries and librarians to do things that seem like they should be part of the professor’s job.

5. There are strong norms against this.
4. On occasion.
3. There are a handful of faculty who do this.
2. Several do this on a regular basis
1. Staff people do everything short of grading papers,

(Highly subjective but lower is better.)

15. If a legitimate request for materials is make the library or to someone in charge of internet data bases, how fast is the response?

5. No more than a day.
4 No more that 3 days
3. A week on average
2. More than a week.
1. What response.

(Lower is better.)

Ok, there are 75 total point possible. Rank your perception of your school and fill out the following poll.

My school's score is:
	60-75
	45-59
	30-44
	15-29
	1-15
Free polls from Pollhost.com

Diagnosis:

60-75: MoneyLaw ribbon. Getting the most out of what you have. Sounds like your school is hitting on all cylinders.
45-59: Not bad but short of a MoneyLaw award. Maybe a little adjustment or a trade could put you in the first division.
30-44: Sounds like a pretty crazy place where the sum of the parts is way less than the whole.
15-29: It’s a vicious cycle isn’t it. People are uninvolved for a reason but their lack of involvement helps produce a fairly miserable place to work.
0-14: I am just wondering --- what is it that people do at your school?

Satisfaction

Nancy Rapoport reports this item from The Chronicle of Higher Education:

Survey of Junior Professors Shows Best Places to Work in Academe

Junior faculty members, generally, are a satisfied lot, according to the Collaborative on Academic Careers in Higher Education. But those at Brown University, Davidson College, Kenyon College, Stanford University, the University of Illinois at Urbana-Champaign, and the University of Virginia seem downright ecstatic about their jobs.

The junior faculty members at those institutions ranked among the most satisfied, according to a survey of 5,000 faculty members at 42 colleges and universities. The survey, which was conducted in 2005 and released on Tuesday, asked faculty members to rate their job satisfaction on a five-point scale on concerns such as the clarity of the tenure process, compensation, and work and family balance.

And be sure to play this item's soundtrack as you read the article:

Random responses: A MoneyLaw triptych

Herewith three short items in response to recent posts and comments by others on MoneyLaw:

1. Hey, Jeff. I like you, too. And it isn't just because I agree with you or because your writing entertains me. But the answer is simple: No, I'm not done being dean yet. Not even close. I like this job. At my previous job, it took me nearly a dozen years -- between July 4, 1993, and December 17, 2004, if you want precise temporal coordinates -- to realize how intensely I hated the Mets. My first half dozen days in the new office have restored my faith in baseball. As a dear friend who now lives in San Diego would agree, life sure is nice when you don't have to watch the Twins in the Metrodome.
   
   Here's something else I've learned, Jeff. You're right. More than any of the quantitative gauges we've discussed here at MoneyLaw, "the measure of a good law school is what takes place on a day to day basis." I still believe in my bibliometric manifesto, of course. But consider this, dear readers. Where would you rather work?
   
   
   • A law school whose "numbers" are stellar but where rule by Arschloch prevails because the faculty has abjured the first rule of academic governance, that virtue must be rewarded at least as much as vice?
   
   
   • Or a law school with putatively inferior numbers whose dean and faculty treat each other with mutual respect in pursuit of a simple goal: to seek justice, to love mercy, and to walk humbly with the law?
   
   I'd like to think that this is an easy question. Perhaps our readers disagree. Make my day: let 'er rip in the comments.


2. Hey again, Jeff. I've got another answer for you. You ask how we should evaluate noninstructional law school programs. Notwithstanding my embrace of intangible measures of quality, I'll propose a simple mathematical test: At your law school center, what is the ratio of pages published to dollars spent? Fiscal responsibility might counsel flipping the numerator and the denominator in that ratio, but the list would then be studded by mathematically indefinite results. Division by zero, in case you hadn't noticed, makes everyone's spreadsheet run over.


3. Finally, a word or two for Red Lion, the commenter who is disturbed by the musical presence of Hilary Duff. Ease up, dude. I'm neither an artist nor a madman, and certainly not a creature of infinite melancholy who patrols the boundaries -- the mirrory beaches and rosy rocks -- of the enchanted island called academia. But I understand your musical pain. Out of boredom I watched a video of Hilary and Haylie Duff covering a Belinda Carlisle tune. Don't ask which one; my lips are sealed. For my perfidy, I paid a steep tax in brain cells. You're right, Red Lion. It served me right.
   
   As recompense, I offer something more musically and lyrically sophisticated. Here are The Shins, performing "Gone for Good," on Chutes Too Narrow (2003):
   
   
   

   You want to jump and dance
   But you sat on your hands
   And lost your only chance
   
   Go back to your hometown
   Get your feet on the ground
   And stop floating around
   
   I find a fatal flaw
   In the logic of [law]
   And go out of my head

Is He Done Being Dean Yet?

I miss Jim and not just because I agree with him most of the time. Even when I don't, I enjoy his writing. Do you think he has decided the deaning thing is not for him yet? I mean it has been several days already.

I especially looked forward to Jim’s statement on what a Moneylaw school looks like and how a school gets there. I am not sure on either of these. In fact, I am not even sure what it means in baseball. It’s one thing to say a baseball team wants to win the World Series at the lowest cost. But the owners might just want to maximize profit or win as many games as possible working within a predetermined budget. All those possibilities exist in a context in which success is supposed to be quantifiable. This seems simple when compared to law schools.

In several months of Moneylaw, contributors and commentators have come up with a list of measures which, at least on their own, are not indicative of success:

1. USNWR ratings.
2. SSRN uploads or downloads.
3. Bar passage rate.
4. Bar passage rate as a function of entering glass GPA and LSAT score.
5. Scholarship citation and impact measures.

Presumably, even if there were a way to combine these, much would still be left out. Most obvious is cost. All of these measures, like a building a better (if not best) baseball team, can be influenced by “player” acquisitions. Somewhere in the analysis credit should be given to schools that do a great job with limited budgets. Another thing that is missing is the impact of graduates on the well-being of others. In the case of state schools, the whole idea is that subsidization leads to a “public good.” We are unlikely to come up with any measure of the raison d'etre for public law schools.

Could we be going about this all wrong? The measure of a good law school may not be susceptable to an end product approach at all. Maybe the measure of a good law school is what takes place on a day to day basis. For example, are most faculty around most of the time? Do most read papers beforehand when there is a guest speaker? Are most available to students at least several hours a week? Are they willing to read drafts of colleagues an comment promptly? Are untenured faculty comfortable asking senior people to read drafts? The list of the day to day activities is, of course, much longer. But my sense is that the focus has been too much on the "score" and not enough on hitting each stroke perfectly.

Come Clean (Let the Rain Fall Down)

It's been a while since I've been able to post regularly. And the posting hiatus may continue for some time yet. But here's a Hilary Duff video to keep you entertained. Yes, Hilary Duff. Why? Partly because I can, and partly because, oddly enough, the song seems appropriate for the beginning of a new job.

As Hilary says, sometimes you just want to feel the thunder, and sometimes you just need to scream.

Prediction Markets for Faculty Decision-Making?

What with posts here about faculty dynamics and "echo-chamber" scholarship (I'm too much of a namby-pamby wimp to offer a view on these subjects; I just lurk), I offer a Cass Sunstein article, recently posted on SSRN, on how the lessons from prediction markets may help in overcoming the failings of group deliberation, as to which I offer a critique over at Legal Profession Blog.

The mind boggles at the possibilities. . . .

Echo-Chamber Scholarship

A recent post on StephenBainbridge.com, entitled "Does What 'Elite Professors' Think Matter?," begins with the premise that: "University faculties tend to be highly self-selected and appointments tend to be dominated by network effects that produce a remarkable homogeneity of belief .... Outside their areas of expertise (and sometimes even inside it), their beliefs tend to be colored by their ideology and by the need to conform to the expectations of their colleagues." The post then goes on to endorse an assertion that, as a result, legal scholarship tends to be disproportionately liberal.

The premise is sound; the conclusion is not.

I've run into this problem twice recently in my own scholarship. Over the past two decades, a group of about a dozen very smart, very productive "elite professors" has engaged in a debate about the relative merits of income vs. consumption taxes. A recent article by a member of this group -- a scholar whose work I regard very highly -- begins: "Recently, a consensus seems to have emerged in favor of a consumption, or cash flow, tax."

A consensus? Really? Among whom? Members of Congress? The electorate? Members of the tax academy? No, to all of the above. The author in question was referring rather to an emerging consensus within the small group reading each other's articles on the issue. That "consensus," in turn, strongly influenced the recent recommendations of President Bush's Tax Reform Panel. Those recommendations, unfortunately, turned out to be completely out of sync with the electorate's views and were pronounced DOA.

In tax, the problem goes even deeper. For the past half century, opinion-shapers in the tax academy have viewed "ability to pay" as irrelevant to tax policy analysis. Congress, by contrast, views it as the starting place for almost all such analysis. See my grumpings on this issue at Seto & Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053 (2006). In consequence, a colorable argument can be made that elite tax scholarship has actually contributed to the mess that is now the Internal Revenue Code.

My point here is not that they're wrong and I'm right. My point is rather that echo-chamber scholarship does not necessarily lead to liberal conclusions, even if all or most of the participants are liberal. An income tax based on ability to pay is probably as liberal a tax policy conclusion as one might imagine. Both the income tax and ability to pay, however, are currently out of favor among the tax-scholarly in-crowd, almost all of whom are Democratic liberals in their civilian lives.

A similar effect can be observed in a very different context: theories of constitutional interpretation. In his recent extremely helpful posting on Originalism, Larry Solum writes: "These days one is more likely to hear pronouncements that 'we are all originalists, now.'" With respect, Larry, really? Among whom? Judges? Constitutional law professors? Or just constitutional law professors who write to each other about originalism? Again, I find myself wondering how to break into this particular echo chamber, see Seto, Originalism vs. Precedent: An Evolutionary Perspective, 38 Loyola L.A. L. Rev. 2001 (2005). Thus far, no success.

My point again is not that originalism is wrong or, indeed, that I have anything interesting to say about it. But clearly, originalism is not typically associated with liberal modes of thought. The conclusion that echo-chamber effects in a legal academy dominated by Democrats inevitably lead to a liberal conventional wisdom is simply not supported by the facts.

Governance discussion at my blogspot--and yet another interesting blog....

Tony D'Amato and I have been debating the role of university presidents here and here. (You should check out the comments after both posts, too.) If you'd like to join in, why don't we see if we can expand the discussion a bit, perhaps here at MoneyLaw. (This discussion sure is helping me with my outline for Managing By Ambush.)

And my dad pointed out some interesting stuff at StephenBainbridge.com, including this post on Does What "Elite Professors" Think Matter?

Bainbridge's blog also pointed me to some classic other posts, including Daniel Solove's A Guide to Grading Exams, and Law Dean Bobbleheads (I obviously left "the deaning biz" way too soon--I wonder if mine would have been the same size as David Logan's, or if mine would have been proportionally shorter; and don't get me started on what my accessories would have been for the bobblehead....).

Law Prof Diversity, Hiring, and Tenure

Do women or non-Caucasian minorities have trouble winning tenure at U.S. law schools? Prof. Harrison worries that class biases might make the tenure review process especially difficult for such professors. As he observes, we for present lack very solid data on that front. But we have got pretty good data about how well women and non-Caucasian minorities do at winning academic jobs at law schools—a necessary prerequisite to winning tenure. That data suggests that, at least in terms of hiring, women and minorities enjoy significant advantages.

For the last fourteen hiring seasons, the American Association of Law Schools (AALS) has collected data about how well the candidates listed in its Faculty Appointments Register did at finding academic jobs with law schools. (Presumably, those candidates got hired, if they did, after being interviewed at the AALS's annual Faculty Recruitment Conference, colloquially known as the "Meat Market.") The AALS has published that data in table form in its Statistical Report on Law School Faculty and Candidates for Law Faculty Positions (2005-06). I here recreate select portions of that data graphically, so as to better illustrate the relative success of women and non-Caucasian minorities.

This chart, using data from Table 13B of the Statistical Report, shows how well women have fared relative to men at landing jobs via the AALS faculty recruitment process:



This chart, using data from Table 13C, shows how well minorities have fared relative to non-minorities:




For a summary of how various types of candidates have done, on average, over the last 14 hiring seasons, consider this data, from Table 13E of the Statistical Report:

Candidate Type	Success Rate (%)
Minority Women	18.5
Minority Men	17.5
Non-Minority Women	15.0
Non-Minority Men	11.3

I could say a lot more about this data, adding caveats and analyses. I've written about the topic several times before, though, and don't want to tax anyone's patience by repeating myself. For some more recent blogging about the American Bar Association's causal role in these observed hiring trends, see Gail Harriot's recent series of posts.

I'll just say this, for now: Having gone through the meat market process three times, and having served for many years on my school's Appointments Committee, I find the relative success of males and non-minorities in the mid-to-late-90s the only surprising thing in the above data. Perhaps we can explain that divergence from the normal hiring pattern as an effect of the relatively tight job market in that era. Note, after all, that the percentage of all candidates hired, regardless of their sex, race, or ethnicity, hit all time lows around that time.

[Crossposted to Agoraphilia.]

Perfect Product Development

In past postings I have said that I thought a Moneylaw school would probably not have as many ancillary products/programs as currently exist. On a couple of occasions commentators have taken issue with my position and, reflecting about it, I am not sure I have stated or, perhaps, even thought it out with sufficient care. Here I hope to do that.

When I say “programs” I mean everything outside the standard three year program. This would include student run publications, LLMs, certificate programs, centers, institutes, foreign programs, and probably some things I do know exist.

My objections are not to programs per se but to the lack of care taken in establishing them and, far, far more importantly, the virtual impossibility of discontinuing them.

In fact, consider this. Auto makers with massive market studies make mistakes with respect to their product lines. So do clothes designers, pharmaceutical manufactures, and restaurants. Yet law professors, to hear them tell it, get it right nearly every time they introduce a new product. There is a possible explanation. In conventional markets, demanders and suppliers occupy different sides of the market. Law faculties tend to occupy both sides of the market – they supply the programs that they demand and are lucky enough to pay for what they demand with the money of others. Think I’m wrong on this? If so, when is the last time you heard someone proposing a new program say, “I am not personally interested in this but I am proposing it because I believe it is something the school ought to do.”

Let me give an example or two of how this plays out. One is about the life of a program. The other is about the difficulty of reexamination. At Florida we have a summer teaching program in France. It is far from our worst (or best) program and I use it here as an example. The director (who goes every year) takes another professor and 20 or so students who respond to what seems to me to be a massive advertising campaign. The program was approved at a summer faculty meeting over ten years ago with 17 people in attendance. (Our faculty numbered over 50 at the time.)When a lack of a quorum was mentioned, the dean replied that everyone knew about the meeting and could have come if they cared. The meeting likely had been selected so supporters would outnumber detractors. They did, but barely. Years later the program still exists. The costs and benefits of the program and its quality have never been seriously examined. The enrollment remains low and there are many other similar programs offered by other schools that our students could attend. In effect, it was established and continues to exist on a whim and it can hardly be something that elevates the School in any ranking or offers an opportunity to students that they could not get elsewhere.

On the inertia problem. A few years ago a former dean appointed a committee to review all of our programs and to make recommendations on whether any should be discontinued. Among those appointed to the program were some faculty with the most to lose if any serious changes were make and some faculty of the Making Nice, Knowing Better, Doing Nothing ilk. (I should add that instances in which others might think in terms of recusal are looked upon as opportunities on my faculty and perhaps others, but I do not know.) The committee worked and argued and worked and argued some more. That dean moved on and was replaced. The new dean wanted no part the controversy that is invariably necessary to bring about change. He distanced himself from “program review” and turned a deaf ear to complaints that the directors – within in his administration -- of the programs under scrutiny had not reported their full costs. (A charge he later conceded was true but the administrators remained.)

After two years, a report was written. The faculty voted not to consider it but to allow it to serve as something for the Dean to keep in mind. To say that the report was tame is an understatement. No programs were to be discontinued. There was a mild suggestion that one program should be increasing transferred over private funding. Years have passed and nothing became of it. In fact, in 25 years, as far as I know not one program of any kind had been eliminated or, for that matter, come close to it except for one that involved summer study in Poland. (Potentially the most important for the students.)

Once a program is established, people become attached it and are deeply vested. Efforts to examine a program are taken personally. Any attempt to overcome the resistance to examination is met with the charges of “uncollegiality.” “Owners” avoid evaluating other programs for fear theirs will be the next to come under scrutiny.

I have no doubt that a Moneylaw approach to programs requires a periodic evaluation with a real possibility that a program will be discontinued regardless of which faculty are affected and choose to play the “collegiality card.” Until law schools adopt this approach, they are all suspect to me.

Is it different at other law schools? I doubt it but if it is, please weigh in. Otherwise I will interpret your silence as agreement.

Sign of the Apocalypse - RateMyProfessor.com Acquired By MTV Networks

Yes, folks, it's true. Imagine the synergistic possibilities among RateMyProfessor.com, Comedy Central, and VH1.

By no small feat of imagination, I have parlayed this into some thoughts on the metaphysical nature of accounting fraud over at Legal Profession Blog.

Rankings redux

I just posted, over at my own blog, a question about whether touting SSRN "top 10 download" status would be one useful way to help people become aware of what the faculty of a school has been doing in terms of research. On the one hand, it's some indication of productivity and interest; on the other, SSRN deals with articles and not all of the other forms of scholarship, and it might be possible to game this system, too. I don't know if emphasizing such things would become so much "noise" (a la car alarms, fancy brochures about law schools that tend to come out in early September, the rankings themselves) or whether law professors would find this type of information interesting or useful. If you want to discuss this, you could either do that here at MoneyLaw or over at my blog. If SSRN downloads wouldn't be useful, would something else be useful? And--this is the more important question--would monitoring this sort of thing create behavior that we don't want to encourage?

7 Up -- Not the Drink

A few weeks ago I wrote a three part series on class and legal education. People interested in class bias in all its forms will find an article in the December 2006 the Atlantic Monthly interesting. The article, “Ordinary People” by Clive Crook (sorry, I would provide a link but you would still have to pay), is an overview of the documentary series that started with “7 Up!” in 1964. That film was an examination of the lives of 14 seven year old children. Every seven years the process has been repeated with the focus on the same group of “children” who are now 49 years old -- thus "49 Up!" is now out. (I have not seen all of them including the last one.)

According to the author, much of the seven year olds’ futures have been determined by the class that they were born into. In addition, it is not at all clear that class determines happiness. The author suggests that a capacity to experience happiness may not be class based. This is consistent with a December 16th article in The Economist on the importance of assessing happiness as opposed to standard measures of economic welfare.

The children are all British and some may argue that the lessons from the series do not translate to the U.S. The author says that is not the case and I doubt anyone paying attention will disagree.

Bringing this into the context of law schools, as I feel obligated to do, I wonder if there is a relationship between law school ranking in any form and faculty happinesss. My fear is that a really happy faculty may be one that has fully captured the law school, is without remorse, and completely devoted to the Matrix. On the other hand, maybe some faculties are composed of people who realize that, next to a job as an all-expense-paid, world-wide, roving guest lecturer on any thing that strikes your fancy, law teaching may be the best job in the world and in light of that feel obligated to repond as a team to stakeholder needs. If so, that could be a pretty happy faculty. My guess is that a really productive faculty is neither overly happy or unhappy. Seems unfortunate.

One more thing. Over on classbias I have asked professors with working class backgrounds to report on the event that explains their elevation to a decidedly non working class profession. If you fit the description please go over there and participate. Thanks.

Who Has the Record for the Length of Time Between Date of Last Post-Graduate Degree and Appointment to Tenure Track Law Professorship?

Another superannuated law professor and I (see picture, right) were comparing notes on who held the record (let's limit this to those presently appointed or pending appointment) for the most years between the last post-graduate degree (J.D., Ph.D. or other) and first appointment as a tenure-track law professor (not adjunct or visiting). Full disclosure: I believe I am in the running.

Nominations will be accepted as comments to the post.

Can You Believe it?? Even More on Rankings

I have avoiding much of the ranking controversy since law school deans and faculty started becoming dogs to USNWR’s tail. Sometimes they (rankings and deans) make me want to run screaming from the room, at least figuratively. We even had a guy on my faculty who would email all of us if we moved up or down a slot in whatever ranking he ran across while doing his early morning surfing. It was like getting tips from your bookie. Our tax department basks in being number two while I imagine our dean prepares for our drop since we will now be reporting all entering students instead of half of them. Generally people find some reason to think the ranking that puts them highest actually is pretty good. So we hear about SSNR downloads from some, USNWR from others and so on. The truth, as Nancy Rapoport reminds us, is that once you are outside the top 15 or so law schools we are pretty much the same. And, we all want to be higher but are unwilling to do what it takes to actually be ranked higher. That would mean tougher tenure and especially post tenure standards, reduced teaching for writers with the slack taken up my non writers, and discontinuing some programs that exist because law professors are in a never ending process of log-rolling and out-whimping each other.

Part of the problem is deciding the relevant consumer of ranking information. For example, in the case of potential students law school is a human capital investment. Some combination of bar passage rate, future income, discounted to present value, and compared to tuition would do the trick for many. Presumably that would capture at least some element of scholarship and teaching effectiveness as well. The model might be refined by accounting for GPAs and LSATs of entering student in order to assess which school can do the most with the “least.” This may not be right for the public service oriented student. This calls for a ranking based on placement with public service oriented employers.

If the consumers are the public more generally (and why not since they pay the salaries of most of us) the ranking would account for the “public goods” produced by attorneys and law professors. I have no idea now to get at the first factor especially since the students tend to arrive with public or personal interest goals already in place but an indirect approach might be to assess schools by the number of graduates involved in some kind of disciplinary problem. Would it be fair to say that schools with relatively high graduate involvement in disciplinary problem are probably not emphasizing the importance of ethics and public service?

For these consumers -- the public -- scholarship only matters if it makes a difference. Counting downloads or number of articles for them is a little like the falling tree in the forest question. If you write it an no one cites it or relies on it, have you written anything at all? In this regard a ranking akin to John Doyle’s but with the focus on law schools, not reviews, would seem to make sense. Perhaps this has been done. I think it may have and would look for it but if I spend one more minute thinking and writing about rankings I sincerely hope my dean will fire me.

Finally, (don't get your hopes up, this is less than a minute) why don’t we take the law and economics approach. Let’s just ask everyone we see: Please rank the top 50 law schools. They will, in a sense, reveal their preferences no matter how ill-informed. What else matters?

What are Hein OnLine's Most Cited Journals?

Thanks to a link by Brian Leiter, I saw this study by a Berkeley law student on faculty productivity. The study has all sorts of problems, beginning with a failure to take into account books as well as articles outside of law. One of the comments asked the author, Tom Fletcher, why did you do this? Fletcher wrote:

I started thinking about some of these things after reading Dean Jim Chen's "Moneylaw" blog (careful, long download time), where he opines and theorizes on how to build a good legal faculty.

(We really need to address the long download time). Readers of MoneyLaw might find this comment in response particularly amusing:

By the way, aren't the "Money Law" guys the same idiots who found Iverson was the 91st best player in the NBA the year he won the MVP award and Ben Gordon was the worst player the year he won Sixth Man of the Year? Some people are so into their equations and numerical measurements that they make fools of themselves. In the legal world, we say these people have no judgment.

I have no clue what that poster's talking about. But, hey, I try to maintain the ability to laugh at myself....

That's not what's motivating this post, however. The study measures publications in Hein OnLine's "Most Cited Journals." I'm interested in citations as measure of law review quality. So that led me to ask, what does Hein OnLine think are the most-cited law reviews? Here's their list:

Boston University Law Review
Business Lawyer
California Law Review
Columbia Law Review
Cornell Law Review
Duke Law Journal
Fordham Law Review
George Washington Law Review
Georgetown Law Journal
Harvard Civil Rights-Civil Liberties Law Review
Harvard Law Review
Hastings Law Journal
Hofstra Law Review
Iowa Law Review
Law and Contemporary Problems
Michigan Law Review
Minnesota Law Review
New York University Law Review
North Carolina Law Review
Northwestern University Law Review
Ohio State Law Journal
Southern California Law Review
Stanford Law Review
Supreme Court Review
Texas Law Review
UCLA Law Review
University of Chicago Law Review
University of Pennsylvania Law Review
Vanderbilt Law Review
Virginia Law Review
Wisconsin Law Review
Yale Law Journal

That's a list of great law journals, no doubt. And I would be honored to publish in any of them. However, I am surprised that some of them appear on a list of the 32 most-cited journals (like Wisconsin, Hastings, and Harvard Civil Rights-Civil Liberties--though perhaps the later fits on a list where citations per article is used as the measure). Moreover, ones that are well-cited are missing (like William and Mary, Notre Dame, Indiana Law Journal, Cardozo, and maybe University of Colorado). Our friend John Doyle has a terrific website that ranks journals by citations and impact.

Over at First Movers, Anthony Ciolli has also linked to the study.

Am I the poster child for why the USNWR rankings are bad?

There I was this morning, happily posting a blog about shared governance on my own site, when I noticed the TaxProf Blog about the National Jurist's cover story on the rankings. Then I read the first paragraph (the part about my resignation).

To the extent that I've become the poster child for how schools can use the USNWR rankings for other ends, so be it. (I could live without yet another reporter who wasn't at the meeting describing what it was like; for another take on the meeting, see this article, which is no longer on the Houston Chronicle's website.) Footnote 56 of Not Quite “Them,” Not Quite “Us”: Why It’s Difficult for Former Deans to Go Home Again gives a rather more complete description of what prompted my resignation.

The point is that the USNWR rankings can be used for all sorts of reasons, as the recent AALS Workshop on the Ratings Game indicated. They can be used to provide imperfect information for prospective students and prospective faculty candidates. They can be used as an imperfect way of benchmarking, as Andy Morris & Bill Henderson ably demonstrate in Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings. They can be used--in much the same way that first-year law students use first-semester grades--as an artificial way of measuring relative strengths, with those schools and students receiving low grades tending to feel worse about themselves than they should. (Those tiny and irrelevant differences among schools within any given cluster remind me of Ellen DeGeneres's bit about the difference between airline seats in their upright position and in their reclined position.) And they can be used as surrogates for other motives.

Poster child for improper use of the USNWR rankings? Sure, as long as people learn the appropriate lesson: using the USNWR rankings as the sole justification for any serious decision about law school policy leads to all sorts of collateral consequences.

National Jurist: How Far Will Law Schools Go to Win the Rankings Race?

Interesting cover story in the January 2007 National Jurist: The Rankings Race: How Far Will Law Schools Go to Win?, by Rebecca Luczycki:

Misreporting or selectively reporting statistics, firing deans, spending thousands on marketing; the law school rumor mill runs rampant with stories of law schools going to great lengths to boost their U.S. News & World Report ranks. How much is true, and why are schools willing to put it all on the line just to get a few points higher on the list?

For more, see TaxProf Blog.

Race, Class and Diversity: A Follow-up

A couple of my recent posts have drawn some modest commentary leading to this effort to extend the discussion with respect to one of them. The following is part of a comment on my post, Race, Class and Diversity.

"To me, it seems risky for anyone outside of the "top 10," because I suspect that even if a non-top 10 law school candidate were extended an offer to join a law school faculty, the barriers to getting tenure and eventually being promoted to full professor would be very high, if not insurmountable. That person would never be part of the ivy "clique"; the person would never measure up to the others on the faculty. It's just like everything else in life...kinship and friendship."

The author, an African American attorney, first noted that most of his African American colleagues who had jumped from practice to teaching had graduated from elite schools. He or she ended the comment with what I have produced here.

Part of the reason I am responding in a post is that the comment was “anonymous” and I am not sure the assumption made is correct. I'd also like others to weigh using the poll below if my response to the underlying assumption is wrong.

My impression is that things shift dramatically once non elite candidates enter law teaching. Suppose landing a teaching position at a law school is comparable to a 20 foot pole vault for a non elite candidate. For the suitably credentialed person it is more like a 10 foot pole vault. (In other words, it is still not easy.) When it comes to tenure, though, the difference is more along the lines of a 12 foot pole vault for non elites as opposed to a 10 foot pole vault for the privileged. In other words, I would not allow the slight disadvantage to discourage the comment writer from giving law teaching a go.

I think the reasons for the shift are as follows.

1. Credentials are not nearly as important at tenure time. By then the halo effect has worn off and there is performance to go on. This is not to say the credentials are unimportant. They will affect the content of the name-dropping footnote, the people to whom you can sent drafts, possible reviewers, and the ranking of the reviews accepting articles. Still, performance matters.
2. Unless you really irritate a number of people, law professors do not like to admit to mistakes. Tenure denials are rare and mainly reserved for the disliked, the incorrect, real screw-ups, and the seriously underachieving.
3. The non elite candidate is not going get a job at a “fast track” school. The standards and the competition are, thus, not likely to be overwhelming.
4. This goes back to performance but non elites will be surprised at how often the elites are unable to live up to expectations.

So here is a poll on the topic:

If attaining tenure is like a 10 foot pole vault for a highly credentialed candidate. How high is it for the non elite candidate?
	The same
	12 feet
	15 feet
	20 feet
	12.5 feet but it is over a pit of crockadiles.
Free polls from Pollhost.com

BEPRESS, SSRN, USNWR, and Tufte

At the AALS Workshop on the Ratings Game, I was glad to hear Erica Moeser's point about presenting the USNWR rankings in a clear graphical format, in order to highlight how little difference there is among most law schools. (If you want to see how I presented the rankings and the University of Houston's place among them one year, see it here. As best as I can tell, this version--edited because of length--is the final version that I presented, rather than an earlier draft.) The tighter the grouping band of schools, the less real difference there is among them. (I made this point at the Indiana Law Journal's symposium, The Next Generation of Law School Rankings, in my article, Eating Our Cake and Having It, Too: Why Real Change Is So Difficult in Law Schools.)

There are all sorts of ways to present information. Edward Tufte makes this point over and over in his work, which itself has led to some wonderfully funny work, such as the Gettysburg Address, done in PowerPoint and the single best customer service complaint ever done in PowerPoint, Yours Is a Very Bad Hotel.

For example, I now have a BEPRESS page and a blog and an SSRN page. I added the BEPRESS page because I liked the way it presents my scholarship. I also like the SSRN page, although it presents my same information in a different way. And I like the blog because, now that I'm no longer an administrator, I'm enjoying my revived freedom of speech. Same person, three different aspects. (Not to mention my current official page at the University of Houston Law Center--or the one I'm going to get at UNLV.) If a very small person can have so many ways of presenting her information, why can't we look at the USNWR rankings in a way that shows how they distort small (and not particularly important) differences among schools?

Do we give the USNWR rankings so much power because we don't understand statistics? Or are there other reasons? Is it a problem of social pressure, a la Solomon Asch's conformity experiments? Is it because we don't want to have to change what we're doing (either for the right reason, which is to make law schools better, or for the wrong reason, which is to chase the rankings)? Is it easier to blame others for the imagined slights of being, say, 10 on an amplifier's volume scale when the amplifier itself "goes to 11"?

The ABA's Role in Law School Rankings

I learned a lot at the AALS's workshop on US News' rankings. I learned there is less consensus about those rankings than one might think. Some folks want them to disappear. Some would prefer multiple rankings along the business school model. Although few are willing to defend the quality of the current rankings, I learned that folks commonly cannot agree about what needs to be fixed.

The most important thing I learned, however, was that the current mess is, in significant part, a creation of the ABA.

Bob Morse of US News admitted that the reason his magazine ranks law schools as it does is simply that the data are available. The data are available because the ABA, as a condition of accreditation, requires law schools to compile and submit them annually on a schedule that happens to fit nicely with US News' publication needs. (I understand, without having researched the question, that the ABA is unusual among accrediting agencies in this regard.) All US News has to do is to send out a questionnaire that says "tell us, too," and it gets more than enough grist for its mill.

The ABA then posts a large "confidential, keep out" sign on the raw data it has collected, preventing potential competitors from poaching on US News' monopoly unless they are able to persuade law schools to fill out a yet another obtrusive form. Schools feel that they have to comply with the ABA's and US News' requests. They don't feel they have to comply with anyone else's.

Result? The ABA has the raw data. US News has the raw data. No one else does. The ABA thus enables US News to publish its rankings and at the same time creates significant barriers to entry for potential competitors.

If the ABA could be persuaded that the current situation (one flawed but profoundly influential ranking system, no real competition) is not in the best interests of legal education, this aspect of the rankings problem could be solved.

One option would be to make life harder for US News. The ABA could accomplish this in a variety of ways: (1) annually collecting only such data as is necessary to determine whether any law school presents a pressing problem, e.g., bar pass rates, (2) collecting two years' worth of data every two years, or (3) not collecting data at all between reaccreditations. The net effect would be to raise the cost to law schools of complying with US News' requests, thereby reducing the likelihood that a large enough percentage would do so to permit credible annual rankings.

A second option (which I would prefer) would be to make life easier for potential entrants to the rankings business. The ABA could do so by web-publishing and releasing copyright protection on the kinds of stats most likely to be used in plausible rankings. If it were to do so each fall, we might well see multiple law school rankings published each spring. This would have two salutory effects. First, it would reduce law school behaviors undertaken primarily in response to the rankings. Second, it would put pressure on US News to improve its methodology.

Folks can reasonably disagree about whether rankings are bad. But unregulated monopolies are almost always bad. The ABA is charged with ensuring the quality of US legal education. Through its data collection and disclosure policies, it appears unwittingly to be supporting a rankings monopoly that creates perverse pressures on the very schools it is supposed to accredit. Perhaps it should rethink those policies.

New Tax Rankings

Check out the new monthly tax rankings, based on the number of all-time and recent SSRN downloads through January 1, 2007:

• Top 25 Tax Professors
• Top 25 Tax Faculties
• Top 15 Graduate Tax Faculties

On Being Important

One of the interesting aspects experiencing socioeconomic displacement is that you are more sensitive to the rules that the important people observe. Here are some:

1. Grading deadlines are not critical. The students can wait when you are important.
2. Distribute your resume to your class if you cannot come. The message is clear. When you have time you will drop by.
3. Have an affair with a secretary. What's the big deal when you are a big deal?
4. Secretary does not have your work done on time although it was given to him at 3 and it was not due until 2? Call the dean and have him fired. After all you are a "professor" and the secretaries are so. . . well, inept.
5. Limits on travel expenses apply to others.
6.Need to take off three weeks in the middle of the semester to teach a course in England? By all means. Everyone understands when you are important.
7. No time to write a new exam? Just use last year's. Make sure it is machine graded.
8. Students need to see you? Have them talk to "your secretary" (who you share with ten others) and make an appointment someday in the distant future.
9. University rules on letterhead comformity? Forget it!
10. Office color not quite right? Demand that it be repainted. You need your color and you deserve it.
11. Teaching 30 students a year? That is way too many. Schedule an appointment with the dean and remind him or her of the demands on your time.
12. Didn't get your book order in by the deadline? What are deadlines when you are important?
13. Pontificate on the quality of the work you have not read. You are an authority on just about everything, right!!
14. Assure a visiting professor that he will get a permanent offer even though you have no way to know. Why not? You are a leader!

And it's only the third day of the semester. There are so many more ways to be important.

Jurisdynamics' Dixie Chicks concert

Readers of this forum have undoubtedly noticed my affection for the human voice between 170 and 220 hertz, rendered with perfect pitch and a particular sort of acoustic resonance. To this forum's previous items on Nanci Griffith, Madonna, and Liz Phair, I now add this miniature Dixie Chicks concert, hosted right now at Jurisdynamics. Just shut up, click here, and listen.

Populism unmodified

Reyes and Hulon and Bush, oh my!

By now the shortcomings of House Intelligence Committee Chairman Silvestre Reyes and FBI national security director Willie Hulon are old news. (Reyes and Hulon are rather famously confused about the sectarian affiliations of Hezbollah, Iran, and Al Qaeda.) As for George W. Bush . . . had we world enough and time, my coyness here would be no crime.

Still, Reyes and Hulon prompted Peter Beinart to make these astute observations about the real relationship between populism and elitism in American politics:

Hulon and Reyes . . . are symptoms of a disastrous American tendency to see knowledge of foreign societies as superfluous to foreign policy. According to the Iraq Study Group, the 1,000-person U.S. Embassy in Baghdad boasts only six employees fluent in Arabic. And the Study Group isn't exactly an intellectual powerhouse itself: Of its ten members, only five have significant international experience, and none is a genuine expert on Iraq or the Middle East.

Why do we think this is OK? Part of the answer, I suspect, is populism -- a deep-seated American distrust of experts and faith in the wisdom of the common woman and man. In 1999, for instance, after George W. Bush couldn't name the leaders of India, Pakistan, and Chechnya in an interview with a Boston reporter, spokeswoman Karen Hughes huffed that "99 percent of most Americans" couldn't either, as if that made it all right. But it's not elitist to expect politicians to know more about the rest of the world than average Americans. In fact, true populists should insist on it, since, at its best, populism abhors undeserved power -- the kind that allows people with no particular expertise or ability to enjoy privileges that ordinary people don't.

Yes, this was an essay on American politics and foreign policy, but Beinart's last sentence deserves repetition and recognition here at MoneyLaw:

[A]t its best, populism abhors undeserved power -- the kind that allows people with no particular expertise or ability to enjoy privileges that ordinary people don't.

Now that is populism unmodified. Amen.

Finally, some talk about rating the internal life of a school!

This morning, Inside Higher Education posted a story called Can You Rank Crotchetiness? (Definitely a must-read.) Unlike a certain other ranking system, which focuses mostly on numbers that don't affect a student's daily experience at the school, the interaction between students and professors is important to know. (Overall community ambience is also important, as Law School Risk Factors demonstrates.)

Of course, there are all sorts of ways that schools and students could distort the reporting of information about student-faculty interactions, but the Crotchetiness article includes some factors that should be of interest (when adapted for use in law schools) to students:

"Burke offered the following as information that should be available for every graduate department:

• For individual faculty members who have been in a department over a long enough time to have a good sample, precise information on the numbers of students they have advised on doctoral programs, their completion and dropout rates, time to degree, and specific jobs earned by new Ph.D.’s.
• A list of any “foreseeable changes” in personnel, including relevant tenure clocks, retirements or possible moves.
• Complete data on funding of graduate students — how much money, sources of funds, how long money lasts (for duration of degree or shorter).
• Average time for Ph.D. completion in a department.
• The exact process — both official and unofficial — of how graduate students are evaluated.
• The true scholarly[]strengths of a department, acknowledging that many departments don’t have the depth to cover all periods or regions, and that just having one person with a particular specialty may not make a Ph.D. program viable."

Perhaps the Law School Survey of Student Engagement can be mined for crotchetiness data. The point is that there are many things that go on inside a law school that can make the student experience pleasant or unpleasant, and other rating systems (not ranking, which uses ordinal numbering, but a way of teasing out important factors) could go in this direction.

Race, Class and Diversity

Did you ever notice that MoneyLaw and Classbias contributors do not have much to say about race? A person without similar concerns is Walter Benn Michaels, author of The Trouble with Diversity: How we Learned to Love Identity and Ignore Inequality. Here is the Amazon description:

If there’s one thing Americans agree on, it’s the value of diversity. Our corporations vie for slots in the Diversity Top 50, our universities brag about minority recruiting, and every month is Somebody’s History Month. But in this provocative new book, Walter Benn Michaels argues that our enthusiastic celebration of “difference” masks our neglect of America’s vast and growing economic divide. Affirmative action in schools has not made them more open, it’s just guaranteed that the rich kids come in the appropriate colors. Diversity training in the workplace has not raised anybody’s salary (except maybe the diversity trainers’) but it has guaranteed that when your job is outsourced, your culture will be treated with respect.

With lacerating prose and exhilarating wit, Michaels takes on the many manifestations of our devotion to diversity, from companies apologizing for slavery, to a college president explaining why there aren’t more women math professors, to the codes of conduct in the new “humane corporations.” Looking at the books we read, the TV shows we watch, and the lawsuits we bring, Michaels shows that diversity has become everyone’s sacred cow precisely because it offers a false vision of social justice, one that conveniently costs us nothing. The Trouble with Diversity urges us to start thinking about real justice, about equality instead of diversity. Attacking both the right and the left, it will be the most controversial political book of the year.

What is unique about the Michaels’ book is that he regards himself as writing from the point of view of the political left. He reinforces what many have known for years: The connection between race and especially gender and leftist values is very tenuous.

About the time I became aware of the Michaels' book, I received an email from a faculty candidate who was not having much luck finding a job:

“I recently read your . . . J. Legal. Educ. article addressing class bias in law school hiring. . . . Your comments regarding black candidates (p. 122) really hit home, as I am a black candidate who recently entered the teaching market. I come from a rigorously working class background with "nonelitist credentials." In fact, I am the first person in my family to attend college (my father did not even finish high school!).”

The excerpt to which the candidate refers is below

Initially, I thought that most law professors simply could not understand the value of recruiting those who are economically and socially disadvantaged because their own background was so "impoverished." Now I believe that there is a desire (perhaps unconscious) to exclude candidates from less privileged classes. When I observed efforts to recruit minority candidates, I began to realize what was really going on. As most members of law faculty recruiting committees go through the AALS resumés, the "plum" they are looking for is the minority candidate with a string of degrees and a high ranking from an elite law school. Hiring a high-ranking black candidate from Texas Southern Law School or North Carolina Central is a stretch many are unwilling to make. Clearly, a privileged education clinches a position for a black candidate, whereas nonelitist credentials are only sometimes offset by being black. Thus, even in the seemingly honorable effort to obtain some diversity, the aim, as much as possible, is to recruit minority candidates who have been more or less "styled" by seven years at Harvard or Stanford or Pennsylvania. In short, the class bias is so overpoweringly important that it actually undermines ongoing efforts to create faculty diversity through minority hiring. (42 JLEGED 119)

Several years have passed since I wrote that but I cannot say that anything has changed. The same elitist leanings that exclude less privileged whites seem to apply to African Americans as well. When it comes down to it, the elitists who control legal education have little interest in actual contact with the world outside their own. White and African American candidates who attended elite schools; can drop the right names; have educated parents; are able to discuss the best restaurants in L.A., New York or Boston; and who can pass a political litmus test will he hired over an African American candidate who cannot check off everything on this list. In seeking diversity the search is on for what seems to be the least diverse candidates possible.

Ranking Law Journals by Submissions

Just as I was working on this post, I saw my good friend Dan Filler's latest over at co-op on the new Bepress ranking of law journals. By way of background, Bepress ranks jounrals based on the number of submissions their expresso delivery service processes for each jounral. I've written a little bit about this before over at propertyprof.

NYU is number one because they got the most submissions through Bepress, not because they have the most citations in recent years. How did NYU Law Review arrive at the number one spot? By requiring electronic submissions through Bepress, of course. NYU Law Review's behavior seems at least slightly unfortunate. They're driving people to use bepress' expresso delivery service, which is in the opinion of some, expensive. Moreover, law reviews probably ought to be doing whatever they can to get their hands on good work, rather than restricting the methods of submission.

New Faculty Scholarly Productivity Ranking

Today's Chronicle of Higher Education has a series of articles on a new faculty rankings measure, The Faculty Scholarly Productivity Index (FSP Index):

A method for evaluating doctoral programs at Research Universities (both Carnegie Research Extensive and Research Intensive), based on a set of statistical algorithms developed by Lawrence Martin, PhD. The FSP Index measures the annual productivity of faculty on several factors including:

• Publications (books and journal articles)
• Citations of journal publications
• Federal Research Funding
• Awards and Honors

The FSP analysis creates, at the discipline level, a scale based on the cumulative scoring of a program's faculty using these measures compared against national standards. Each program can then be compared to the national mean z-score.

For more, see TaxProf Blog.

Why I love Ohio State (and no, it's not about football)

I'm not a football person, but I'll be cheering for Ohio State tonight, and not just because I married into a passionately pro-OSU family. I'll be cheering for OSU because the Moritz College of Law at The Ohio State University taught me a lot about how to nurture collegiality (from a "what to do" standpoint, not from a "what not to do" standpoint). Some lessons that I'll pass along, from my happy time there (1991-1998):

1. Before someone started there, his or her colleagues created a very positive buzz about the person, especially with the students. ("You should take a course from New Professor X, who's [the leader in the field/comes to us with a strong background/etc., depending on the person's particular background].")


2. People referred to each other's work in positive ways in the classroom--the work of the "newbies" as well as the work of folks who had been there a while. I can't recall any instances of someone disparaging a colleague in front of students, but I recall a number of examples where people bragged about someone else's achievements in public (even when they didn't particularly like each other privately).


3. People shared drafts and ideas freely, read each other's work, gave advice about teaching, and generally helped each other out. Mary Beth Beazley, Douglas Whaley & Rhonda Rivera (both emeriti) taught me about teaching, and Barbara Snyder (the incoming president of Case Western) and Nancy Rogers spent time talking with me about the automatic way that students adopt professors as role models. Peter Swire and Debby Merritt (and countless others--I'm starting to run the risk of offending other OSU colleagues by not naming them!) were particularly helpful with my scholarship.


4. People rotated through courses, even when they had strong preferences, to be considerate of the newest additions to the faculty (what Jim Chen calls "platooning," see here and here)


5. People were usually civil in faculty meetings, and when they weren't, other people noticed (and didn't like that behavior).

I owe Ohio State a lot for imprinting me with its collegiality, and as Woody Hayes has said, "You can never really pay back. You can only pay forward." That's what I plan to do at Boyd School of Law at UNLV, and having spent time with my new colleagues last week at AALS, I know that I'm joining a faculty with the same standards for collegiality that I enjoyed at OSU. So for this reason alone, GO, BUCKS!