Law Professor "Rights?"

In some posts here and over on classbias I have attempted to describe a view of collegiality that stresses substance over form. In connection with that I have described practices that are and are not consistent with actual collegiality.

A response I got which follows in bold type led me to think this may have more to do with Moneylaw than I initially thought. Inherent in the commentator's reasoning is a view that law professors are entitled to certain "rights." It avoids the more critical question of whether these rights were legitimately established. To me, one of the first tasks of a Moneylaw is to reexamine the allocation of "rights" that law professors have assigned to themselves.

"I only can think of one professor who voluntarily teaches extra credit hours, although I know plenty who open up their wait lists voluntarily and teach more students.They wouldn't justify it on grounds that they need to make up for their lack of writing, of course, but they get satisfaction about receiving recognition in an area in which they do excel. I also know lots of professors who don't apply for sabbaticals (even though they could probably trump up a scholarly project to meet the requirement) and therefore effectively voluntarily teach more classes than scholars. Moreover, there are dozens of examples of non-scholars voluntarily assuming larger administrative loads, in part because they recognize their lack of recognition for scholarship and get more satisfaction in the administrative side. None of this is rare at all.Of course, this isn't to say there aren't bad citizens. It's just that there are some face-saving ways in which people internalize the cost of their failure to produce elsewhere."

Reasonable on its face to be sure but underneath is a deep conservatism that stops Moneylaw, or anything else, in its tracks. Let's take it step by step.

1. "I only can think of one professor who voluntarily teaches extra credit hours, although I know plenty who open up their wait lists voluntarily and teach more students."

First, so what? What is an extra credit hour? "Extra" needs a reference. That reference is to already very small teaching loads. And, how were those teaching loads determined. Was it a legitimate process in which the interests of all affected were considered. A serious conversation about Moneylaw issues starts with questioning how the right was established or earned. Those who enjoy current allocations are understandably reluctance to examine them closely.

But there is more. Notice the idea that it is a sacrifice to open up a wait list. The implication is that there is a "right" not to open it. Where did that right come from? The fact that the list can be opened suggests it was not for pedagogical purposes. The commentators "good deeds" consistently flow from an assumption that the status quo is just. In fact, the status quo is consistently the product of the entitled being generous to themselves.

2. I also know lots of professors who don't apply for sabbaticals (even though they could probably trump up a scholarly project to meet the requirement) and therefore effectively voluntarily teach more classes than scholars.

Same idea. Teaching becomes an act of charity when compared with not teaching -- an initial allocation of questionable legitimacy. At my school, at least, we have sabbaticals because voted to give them to ourselves. For all practical purposes, there is no expectation of research. Now it has become a "right" that one is heroic to give up. In addition, "trumping up" tells me all I know about the expected level of accountability.

3. There are dozens of examples of non-scholars voluntarily assuming larger administrative loads, in part because they recognize their lack of recognition for scholarship and get more satisfaction in the administrative side.

Really!From this statement the sense of entitlement extends to a decision to not to all phases of the job even though that was part of the bargain when hired and when tenured. (I know of no one receiving tenure on the basis of administrative potential.) Where along the line did job switching become legitimized as a "right." But lets face it, the new administrators often head up manufactured centers or programs that do little. More importantly, usually the administration role means less teaching. Remember, this is the commentator's example of selflessness.

It would be disingenuous to claim I do not understand this. Those with a sense of entitlement are masters of rationalization and faux legitimization. They claim ownership of legal education and make sure to pass it to their heirs.

The Most Valuable Professor: Tale of Two Professors

Nancy's most recent entry (two below) led to two images that seem related, albeit like bookends. One image is of the law professor most likely to be of value to law schools. The other is of the professor with the highest value in every other sense.

I have actually known about the professor with the highest market value for several years. I was introduced when a mentor of mine and I were discussing an "on the way up" colleague and he observed "he really knows how to play the game." As our discussion continued, I realized that most valued means most valued to other faculty and "the game" was largely self-promotion and avoiding controversy. Not that the professor he spoke about was not productive. He was but, to some extent, even his productivity was self promotion. When he submitted an article his first sentence always mention his latest article in the Harvard Law Review. The fact that it was a book review was beside the a point as was his blatent appeal to institutional authority. That appeal was not confined to cover letters -- the class room, causal conversation, and every faculty blurb included use of the H word. As we talked it was also revealed that the professor was a perfect fit for Making Nice, Knowing Better, and Doing Nothing and was a heavy player in the market for tenure letters. The most valuable professor is one who is productive and who "knows how to play the game." Let the bidding wars begin!

That, however, is different from the most valuable law professor from the standpoint of stakeholders -- students, taxpayers and donors. From that perspective the most valuable professor makes a difference in the lives of people other than law professors. Actually, there are many professors who tie for this honor. Mary Reilly has mentioned him or her here already. The actual most valuable in any meaningful sense usually does this: teaches a minimum of 200 students a year and does it carefully, does not insist on teaching 2 days a week to clear time for research or sailing (as a recent commentator suggested), picks topics to write about that have some connection with making others better off (ideally those least well off to start with) as opposed to simply impressing other professors, is more interested in feeling good about the substance of what is written than the status of the review or filling two more lines on a resume, does not make hiring or tenure decisions on the basis of social or political comfort, raises and discusses difficult issues even when the collegiality card is played. I could go on but you have one or more on your own faculty. There are no bidding wars about these professors which tells you all you need to know about the market for law professors.

Workers Unite!!

Several years ago a colleague and friend (and now a dean) referred to faculty as workers (or maybe it was labor) and the administration as management. I objected on the basis that the word “worker” suggests something most law professors are not and have never been.

Now I realize that most faculty like to slide between the two roles. Sometimes they are management and the Dean is the “agent of the faculty.” Faculty governance and all that. Managers typically take responsibility for the overall operation and success of an organization are accountable ultimately to shareholders. So they stay a little later than absolutely necessary, fill in even though it is not exactly in the job description, and, more importantly, in one way or another the welfare of stakeholders seems to be linked to their own welfare.

When being a manager requires faculty to rise to the level of recognizing their overall obligations most quickly revert to the worker role. Thus, “I cannot teach that section of torts, I have to do my research.” or, “The Dean should have hired a visitor to teach that course. I’d not doing it.” or, “I know 50 students want to take the course but, if I have more than 20, I cannot get to my research.” Or, “I can only teach in Tuesday and Wednesday.” You get the drift. Workers work, get a check and go home.

Can an organization have the same people acting as managers and workers? Think about it. You are the manager at The Gap. (I know this requires more responsibility than I have seen most law professors muster up but lets stay with the example.) So you worry about having enough cashiers at peak times, spotting shop-lifters, keeping the selves stocked and all those things that make shoppers happy and, thus, shareholders happy.

But, one of the people working for you as a cashier is, well, you. (Again, since most law professors could not cut it as a Gap cashier, the analogy is not so great.) When your break comes you shut down your line even if 5 people are waiting. Stay a little longer to clean up. No way! Help out a new cashier who is having a problem on the neighboring line? Give me a break. You do not get paid for that. It’s management’s problem.

The clash is obvious but far more crippling in the context of legal education. Not only are faculty both managers and workers – supervising themselves and moving back and forth from management to labor as it suits them – but, as managers they are insulated from the shareholders. Can you think of a more powerful formula for disaster?

(In response to Nancy's post immediately below, I know the most valuable law professor and will reveal the information after I grade a few more papers and feel entitled to a period of procrastination.)

A new market: law professors?

Paul Caron (MoneyLaw2.0: The Law Prof Exchange) & Jeff Harrison (Is There Hope for MoneyLaw?) have posed some great questions for MoneyLaw, and if we're going to come up w/a market for Law Professors (LaPDAQ? MLPE?), we're going to need analysts to provide information.

That, of course, gets us back to the original issue that MoneyLaw suggested: that someone is worth more for what he's doing than for where he went to school and where he clerked. Not all law schools understand this concept in hiring, but they do in allocating annual raises. (I've never heard an executive committee of the faculty argue for higher raises for someone on the basis of school/clerkship.)

Should the analysts take those raises themselves into account? (From a personal point of view, I hope not--after I stepped down as dean and announced that I was going to Boyd School of Law at UNLV, I was told that I wasn't getting a raise for the rest of my time at Houston.) Dick Chait, of the Harvard Graduate School of Education and one of my personal gurus, has suggested that raises really don't affect what good professors do. We'd still want to teach well and continue our research whether or not the administration rewarded us for our past work.

What about raises that reflect a bidding war for a professor "in play"? There are good and bad reasons for an analyst to look at those types of raises. A large raise (or the granting of a professorship) indicates the current institution's valuation of the professor but could be limited by the current institution's funds, by a provost who doesn't approve the raise, or by a dean's unwillingness to retain that professor. Most retention packages fly slightly under the radar, making more internal news than external news. And the more that people have to resort to school-shopping to get large raises, the less institutional cohesiveness that school will have.

So what factors should MLPE analysts use?

A new market: law professors?

Paul Caron (MoneyLaw2.0: The Law Prof Exchange) & Jeff Harrison (Is There Hope for MoneyLaw?) have posed some great questions for MoneyLaw, and if we're going to come up w/a market for Law Professors (LaPDAQ? MLPE?), we're going to need analysts to provide information.

That, of course, gets us back to the original issue that MoneyLaw suggested: that someone is worth more for what he's doing than for where he went to school and where he clerked. Not all law schools understand this concept in hiring, but they do in allocating annual raises. (I've never heard an executive committee of the faculty argue for higher raises for someone on the basis of school/clerkship.)

Should the analysts take those raises themselves into account? (From a personal point of view, I hope not--after I stepped down as dean and announced that I was going to Boyd School of Law at UNLV, I was told that I wasn't getting a raise for the rest of my time at Houston.) Dick Chait, of the Harvard Graduate School of Education and one of my personal gurus, has suggested that raises really don't affect what good professors do. We'd still want to teach well and continue our research whether or not the administration rewarded us for our past work.

What about raises that reflect a bidding war for a professor "in play"? There are good and bad reasons for an analyst to look at those types of raises. A large raise (or the granting of a professorship) indicates the current institution's valuation of the professor but could be limited by the current institution's funds, by a provost who doesn't approve the raise, or by a dean's unwillingness to retain that professor. Most retention packages fly slightly under the radar, making more internal news than external news. And the more that people have to resort to school-shopping to get large raises, the less institutional cohesiveness that school will have.

So what factors should MLPE analysts use?

MoneyLaw 2.0: The Law Prof Exchange

Folllowing up on Jeff's post below, I offer from TaxProf Blog: MoneyLaw 2.0: The Law Prof Exchange, based on our intellectual founder Michael Lewis's latest work in the May issue of CondéNast's Portfolio.com: The Jock Exchange:

Wall Street is about to launch a new way to trade professional athletes the way you trade stocks. A piece of Tiger, anyone?

When financial historians look back and ask why it took Wall Street so long to create the first public stock market that trades in professional athletes, they will see ours as an age of creative ferment. They’ll see a new, extremely well-financed company in Silicon Valley that, for the moment, sells itself as a fantasy sports site but aims to become, as its co-founder Mike Kerns puts it, “the first real stock market in athletes.” And they’ll find, in the bowels of the U.S. Patent and Trademark Office, an application from a cryptic entity called A.S.A. Sports Exchange containing a description of a design for just such a market: The athlete would sell 20% of all future on-field or on-court earnings to a trust, which would, in turn, sell securities to the public. ...

As a number of smart people seem to have noticed at once, professional athletes have all the traits of successful publicly traded stocks, beginning with enormous speculative interest in them. Americans wager somewhere between $200 billion and $400 billion a year on sports, and between 15 million and 25 million of them play in fantasy leagues—which is to say that a shadow stock market in athletes already exists. That market may not know everything there is to know about the athletes it values, but it probably knows more than New York Stock Exchange investors know about the N.Y.S.E.’s public corporations. ...

A jock stock’s price is driven not directly by the athlete’s performance, but indirectly by supply and demand for the stock (just as in the real stock market). An athlete’s performance is important, of course. It’s the equivalent of corporate earnings. But the price of the stock is set by the market. A bet on the future dollar value of a player isn’t really based on the player’s performance, but on the market’s perception of that performance. The successful investor will need to predict who will play well and how play in general is understood. ...

What about a Law Prof Exchange? What criteria should we use -- reputation, publications, citations, downloads, teaching evaluations, contribution to bar exam passage? Which Law Profs do you think are undervalued by the market and would like to buy a piece of? Which Law Profs do you think are overvalued by the market and would like to short-sell?

Is There Hope for Moneylaw?

I hope so but I am not sure and it is not simply because our most provocative writer rarely visits these days. Instead I wonder if, as Bill Henderson (as I recall) has asked on a number of instances, there is a overriding theory that leads to specific goals. Beyond that, even if there were a theory, is there any real hope of change?

Think about goals first. If we use the baseball analogy, two goals or a combination of two seem reasonable – maximize profit or maximize games won. Since most Moneylaw contributors reject USN&WR rankings as comparable to “winning,” what are the goals of a Moneylaw school? Goals could be set – one article per faculty member per year or the equivalent, bar passage rate of 95% might be a start -- but even these are vague. Would fewer better articles be preferable? Still, if you were running a law faculty like a general manager would run a baseball team, it seems like setting some real goals would make sense as opposed to “soft” goals like “excellence,” “service,” “effective teaching.” I’ve heard of no law school dean or law faculty willing to take the risk of announcing real goals and then sticking to them.

There is a bigger problem, though, and it is with management, or more accurately, the lack of management. Thing about the Yankees for a minute. The night before a big game with the Red Sox, Joe Torre says, “I am passing out a form. Please indicate what position you want to play tomorrow.” The next morning, the Yankees take the field and there is no right fielder, and two people are playing second base. Joe explains to reporters that no one wanted to play right field and it was too late to trade for a right fielder.

This does not happen in baseball, of course, for two reasons. First, the manager would assign positions if the issue came up. Second, for the most part, all benefit if the team does well and eventually a right-fielder would step forward.

You can play the same scenario in terms of a GM plant. No one willing to install steering wheels one day? It could be that when the manager passed out the “what do you want to do” form, no one wanted to deal with steering wheels. This does not happen because 1) the manager would assign someone to steering wheel duty and 2) everyone would know “No steering wheels, no sales, no jobs for anyone.”

Law schools do not have what baseball and the GM plant have.

First, Deans do not make up assignments based on what courses a good school should offer or have requirements with respect to scholarship that are consistent with getting the most out a given level of resources. Instead, faculty are asked what they feel like doing. Fundamentally, once tenure is granted, a school is dependent on volunteers. If someone just does not feel like teaching an important course or is just too tired to do research, they don't. There is no process under which it is first determined what a law school should do and then management assigns resources to achieve those ends.

Also missing is a substantial sense of collective purpose. No right fielder, the team loses. No steering wheel, no jobs. On the other hand, the person hired to teach PR decides not to do it, what difference does it make to anyone else? It’s the students who suffer, not the faculty. The same is true with research. Joe Faculty prefers to water ski instead. What does it matter to great majority of faculty.

Does Moneylaw have a chance in a world of vague goals, limited management, and the absence of common commitment? Is Moneylaw Don Zimmer already?

Grade Inflation and Gum on the Sidewalk

Like most others I dislike the way that USN&WR has become the tail that wags deans, faculties, and law schools. On the other hand, the rankings do have a karma-like function.

For example, law schools have gradually raised grading curves. One argument, apparently true although it speaks volumes about law firm hiring practices, is that high grades make graduates more competitive in the job market. So take a C student call him or her a B student, as many law schools have done, and job prospects go up. Students have better job prospects and higher placement rates mean higher USN&WR rankings. I have not tracked it but I wonder if any school’s placement rate has gone up as a result of changing the curve. My hunch is that since most schools have done this, everyone just stays in place and placement rates stay the same. So, at best the increased grades provide a temporary and false sense of well-being for students before they face the reality.

On the other hand, unless adjustments are made elsewhere, higher grades mean fewer students are on academic probation. Today’s C+ student would have failed out a few years ago or have been identified as at risk and given assistance. Now fewer fail out and fewer are identified as being at risk. In a sense, giving into the demand for higher grades means undercutting the students who are most in need of a school’s attention.

Plus, if more admitted students end up graduating and taking the bar, it stands to reason that more will fail it. I do not know whether this is true. As an empirical matter and it would take a complicated study to isolate the relationship between grade inflation alone and bar passage rates. Even so, higher grades seem to do nothing to increase placement and may mean that actual percentage placement decreases (or becomes more expensive to maintain) because a higher percentage of graduates fail the bar exam. Plus, bar passage rates independently also have an impact on USN&WR rankings supposedly further devaluing the degree.

Like tossing your gum out on a sidewalk, handing out and demanding cheap grades may bring negative consequences.

The University of Louisville seeks an assistant dean for student affairs

The University of Louisville's Brandeis School of Law is searching for an assistant dean of student affairs. This senior level staff position will be the primary liaison between students and the law school administration, and will report directly to the Dean of the Law School. For more information, please see the home page for the assistant dean search.

New Leiter Law School Rankings by Placement of Supreme Court Clerks

Brian Leiter has posted new law school rankings by placement of Supreme Court clerks for the 2000-2007 Terms. The Top 5 feeder schools are the same as those from his earlier 1991-2005 study:

1. Harvard
2. Yale
3. Chicago
4. Stanford
5. Columbia

For more, see TaxProf Blog.

Accepted paper version of "Understanding the U.S. News Law School Rankings" now available

My article entitled "Understanding the U.S. News Law School Rankings" has been accepted for publication in the current volume of the SMU Law Review. The latest "accepted paper" version is now available on SSRN at this link.

Haste and Waste

Recently a colleague wrote the following to me: “I suspect that Money Law does not endorse the production of scholarship purely for the sake of quantity, but sometimes I feel as if that is the direction the profession is headed.” (I leave out her name only to protect her since I have recently discovered the dangers of mentioning others.)

I suspect the quality/quantity debate is as old as law teaching but I think there are three questions in play here. First, does an emphasis on quantity mean lower quality? Does the trend described in my colleague’s statement exist? Finally, is it bad thing?

My quick answer is that I do not know. My hunch is that the answer is yes to all questions.

Take the middle question first. Do law schools stress numbers of articles more than in past years? I do not know what goes on at the very best or worst law schools (whatever those terms mean) but elsewhere conditions seem right for “quantity stress.” The new emphasis on ratings seems to carry with it “what have you done for me lately” pressures. After, all those decanal glossies need to be filled up. Technology has changed things. There are online journals, rankings by SSRN downloads, and the notion of distributing reprints seems outdated. Plus, I know many of you disagree and that’s fine but I feel the proliferation of symposia articles adds to this. There is great temptation to say yes even before you know if what you will eventually say is important. After all, it’s a guaranteed publication, no waiting, no bargaining up, and no student involvement. Let’s face it, most law professors are unwilling to spend a year engaged in pure research that could result in deciding there is nothing interesting to say at the end.

Second question: This is hard because I applaud the decreased emphasis on the 150 page 350 footnote articles. So many started with 70 or 120 purely descriptive pages. Sometimes I think what a professor of mine said is true: If you cannot say it in 30 pages, maybe it is not worth saying at all. Plus, maybe four 25 page articles add up to at least the same quality as one 100 page article. But length is not really the issue at all. It is haste. Does the rush mean not tracing out each thread that could make the article better? To the extent quantity means haste it seems to me that it must mean lower quality – at least on a per article basis.

This would seem to answer the third question but maybe it does not. Is it possible that 300 hastily prepared and superficial articles actually deliver more in terms of the dissemination of knowledge than 75 long well researched articles? It seems possible especially since they are likely to be more accessible. I think the answer is that the best outcome is a mix. Some issues cannot be handled in 30 pages. The point is that, as the trend moves to shorter and quicker, something has to be lost that is not off-set by an infinite number of hasty articles. (I am trying to think of a food analogy but, since I feel hurried, I can not take the time to come up with a good one.)

If all of this is true, is there any way to reverse the trend? Can a USN&WR, SSNR, WESTLAW world revert to a slower and more thoughtful pace? Can incentives be altered to achieve this? And, as my colleague also asked, what do you advise untenured people.

Exploiting the Imus Fracas to Ruminate on the Problem of the Incremental A**h***

It's not pretty, but it's over at Legal Profession Blog. And somehow I managed to bring Wittgenstein into the discussion.

Wonderful comment

This comment was sent to me directly but not posted since the author was a bit concerned about the use of the term bullshit. With his permission I added it to the comments to Profscam and then he decided that attribution would be acceptable too. It is wasted as merely a comment so here it is:

In his 1986 essay On Bullshit, Harry Frankfurt, Professor of Philosophy Emeritus at Princeton University, writes:

"What bullshit essentially misrepresents is neither the state of affairs to which it refers nor the beliefs of the speaker concerning that state of affairs. Those are what lies misrepresent, by virtue of being false. Since bullshit need not be false, it differs from lies in its misrepresentational intent. The bullshitter may not deceive us, or even intend to do so, either about the facts or about what he takes the facts to be. What he does necessarily attempt is to deceive about his enterprise. His only indispensable distinctive characteristic is that in a certain way he misrepresents what he is up to.

This is the crux of the distinction between him and the liar. Both he and the liar represent themselves falsely as an endeavoring to communicate the truth. The success of each depends upon deceiving us about that. But the fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.

It is impossible for someone to lie unless he thinks he knows the truth. Producing bullshit requires no such conviction. A person who lies is thereby responding to the truth, and he is to that extent respectful of it. When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He doesn't care whether the things he says describe reality correctly. He just picked them out, or makes them up, to suit his purpose.1"

[end of quote, now to commentator's own thoughts]

Profscam professors aren’t really liars; they’re bullshitters. The problem with “calling bullshit” on a fellow law faculty member is that at the same time you’re “calling bullshit” on a lawyer. And lawyers can readily either defend “bullshit” on the merits or keep the argument alive so long that the resulting angst becomes no longer worth it.2 And of course, anyone who “calls bullshit” on a colleague is, by definition, no longer “collegial.”3

Eliminating Profscam becomes more problematic when the group that decides what is and isn’t bullshit can not only understand the argument, but can extend it ad infinitum, 4 sometimes to the point of convincing others that “Yes, it is bullshit, but it’s good bullshit5 and it’s good for you, too.” Getting outside input on what is or isn’t bullshit is out of the question, too, either because “academic freedom” principles forbid it (sigh!) or because in the minds of some no other body is qualified to make that determination.

Will Profscam prosper in perpetuity? Maybe not, after a critical mass of MoneyLaw devotees and Utility Law teachers infiltrate the current system. Maybe then, more law professors will find validation and worth in what they do, not in what they pretend to do so that others will find “value” in them.


Richard Peck

(Sorry, the footnotes corresponding to the numbers in the text were not contained in the email. Jeff)

17 U.S.C. § 107

Paul Caron's perceptive post, consisting of a link to Dilbert, deserves full display. And so here it is, courtesy of some .html coding and an assist from the United States Code:

On Assessing Student "Quality"

Nancy is right that any assessment of student quality should include dimensions of character and ethic that GPA and LSAT scores do not reflect. The ideal of law student "quality" like that of "diversity" must be broad enough to encompass attributes that make one person more valuable than another as we deploy scarce resources toward achievement of a worthy goal.

We must be at least equally sensitive to the ways that consideration of "soft" personal attributes may provide cover for objectives other than an accurate assessment of student quality. Consider the typical law school admissions process by which faculty members review student application files to predict who will succeed in law school and the profession. Each professor idiosyncratically considers a host of information about the candidate including letters of recommendation, student essays and interviews, and pressure from interested persons with influence. Although they are imperfect, GPA and LSAT provide information about academic achievement, a personal attribute that is unquestionably relevant to predictions of a student's future performance. Some of the soft information solicited and evaluated in law school admissions processes seems patently pointed at social status ("who yo daddy?") and unrelated to quality as Nancy describes it. I worry that narrow focus on GPA and LSAT scores, leaves some talented students out of luck. But I worry even more that assessment of soft information under the guise of a search for "quality" leaves students without saavy as to how to present themselves to an admissions committee, display their political connections or reveal their family's development potential out of the legal profession. When that happens, we all lose.

Profscam

I had not heard of the term Profscam until my pal Amy Mashburn -- currently finishing a drop dead excellent piece that, in part, defends the Socartic method -- called me the other day to read a passage from a 1989 article by Arthur Austin (1989 Duke L. J. 495). He writes, "The faculty in law schools rely on the Socratic method as a source of profscams. Faculty and publishers work together to exploit a captive market by . . . [selling materials] at supra competitive prices. Shirkers exploit the casebook and instruction manual to minimize class preparation and reserve time to read the Village voice and play squash."

The term Profscam evidently comes from a 1988 book, C. Sykes, Professors and the Demise of Higher Education, which I have not read but have ordered from Amazon for 9 cents -- foregoing the temptation to buy the 10 cent offering.

Now fast forward to 2003 and Don Weidner's article, "Academic Freedom and the Obligation to Earn It," 32 J. L. & E. 445. He refers to the same book and notes that it reflected a movement to hold professors more accountable. A movement that he says still exists, although at 9 cents on the used market, I am not sure I agree. It's a very interesting article. Weidner points out that faculty often do not produce enough scholarship to justify their low teaching loads and that administrators do not have the courage to hold faculty accountable.

Although I had never heard of Profscam my own take on this was my 2005 offering, "Faculty Ethics in Law School: Shirking, Capture, and the Matrix," 82 Detroit Mercy L.Rev. 397. On my own faculty only three people approached me with positive comments about the piece. Those three were easily our most respected law teaching veterans. ("Were" because sadly Frank Allen recently passed away.) (They also ask why it ended in Detroit Mercy and I say I am proud to have it there.) Admittedly, a number of other people on my faculty, I am happy to say, have approached me privately to express their agreement with one or more of my Moneylaw postings which have a definite profscam flavor. (Agreeing with me publicly can be dangerous.)

What I have found since writing my 2005 is that privately and publicly many in our profession seem to agree with the theme of Profscam if not with my specific examples. I do not know if it is a critical mass yet.

The one my mind is on right now is the teaching Profscam. For example, here we have 9 hour teaching loads. So, say I do 4 or 5 hours each semester. Let's take the 5 hour semester and assume I prepare 2 hours for each class. That's 15 hours. Let's say I spend another 3 hours talking to students so we are up to 18 hours -- not quite a half time job. Throw in a committee meeting or two. No matter how you cut it, that leaves about 20 hours for writing yet, to me at least, it just does not seem like all faculty produce as though they are half time researchers.

I have over the past several months described a number of other Profscams and I will not repeat the list here. Let's just say that people in the private sector are fired or in jail for similar self-serving uses of money not their own. Why do law faculty get a pass? It reminds me of one of my colleages, generally regarded as very principled, relating to me how he copies the music tapes of his friend without a molecule of recognition that he was engaged in the white collar version shop-lifting.

If, as I think I have learned over the past three years, the is a broader recognition of Profscam than I suspected, there are three possible explanations for not cleaning up our act. The first is gutlessness of which law teaching has an enormous amount. These are the Making Nice, Knowing Better, Doing Nothing People. Another is a sense of entitlement that means even common sense rules of fairness to others do not compute. Finally, there is the idea that being on the take is the norm for professionals (not just law professors but politicians, physicians, attorneys, accountants, corporate officers, etc.) and why buck the norm.

How to Tell If You Have An Unhealthy Faculty

Check out today's Dilbert.

Chisel me Elmo

Sorry to interrupt the USN&WR debate.

We all know the biggest job of many deans and the "decanal" team is to raise money. One of the tools is the “decanal glossy” – the flashy magazine that has no purpose other than to make alums feel happy to be part of the team and to open their wallets. It’s not a bad thing and hardly deceptive. Everyone knows the story. Most law schools have other publications – weekly newsletters, announcements of new hires and visitors, dedication notices. Entire forests die and go to the recycling bin in the interest of marketing law schools.

The hitch in the process is that there is always a faculty section in which current activities – mostly self-reported – are included. If you are really interested in good marketing, is there a line to be drawn? For example, what if a faculty member is simple quoted in a newspaper? Is that likely to impress anyone? Or suppose someone has said something so silly that potential donors are offended? Does that go in? How about publications in journals that would not impress a single person in the law teaching profession?

It is in the faculty activities section that self-promotion and institutional promotion clash. Is there a danger that a School that treats every possible faculty activities as noteworthy actually begins to look unimpressive to potential donors and law faculty at other schools? I think so. I look at the materials I get from other schools with skepticism, completely unable to engage myself in the Matrix and keep thinking in terms of Proflawgate. In fact, some of the entries seem to carry the implicit message that the folks creating this material think their readers are morons. Oh yes, it just knocks me out that Professor Somebody gave a talk to the Young Peacefinders Club. It is honestly hard to believe that Professor Somebody reported this to the Dean's office.

Many faculty have an unlimited need to self-promote even when there is no “promotion” there. Deans have to decide: Do they want to do impress alums with real achievements or do they dilute the image of their law schools by never saying no to faculty self-promotion.

Sorry, Brian--you can't measure student "quality" by using the LSAT

Paul Caron has linked us to Leiter's Top 40 Schools by Student Quality. (Thanks, Paul!)

I like Brian's stuff, and often I agree with him, but on this issue, I have to say that he's just plain wrong.

He's right that it's difficult to measure student quality by UGPAs, because (1) grade inflation and (2) difficulty of curriculum are hard things to factor into the mix. We could probably eyeball some UGPAs from some schools (e.g., Chemical Engineering at Rice University) and get some meaningful information from that, but we certainly couldn't compare every UGPA at every undergraduate institution to measure a student's "smarts." (Not to mention that some of these students may have responsibilities that affect their ability to do the traditional "just take classes and study and graduate in four years" path to their degrees.)

But he's wrong when he jumps to the use of LSAT scores as a measure of "smarts." LSAT scores are useful because they're a way of comparing people across institutions and majors. LSAT scores do a good job of predicting first-year grades, but even the LSAC says that LSAT scores aren't perfect predictors of first-year grades. They're just the best predictors we've found so far.

If you do a multiple regression analysis to try to predict first-year grades, you'll likely find that the combination of [(multiplier A) x UGPA and (multiplier B) x LSAT] can give you some of what goes into first-year grades (and by "some," I mean maybe 30-40%). The rest is hard to quantify, but it must certainly include things like studying the material.

I cannot imagine describing someone's "quality" using just the numbers. Quality includes a lot of nonquantifiable characteristics: maturity, honesty, dedication, empathy, etc. I'd like to think that evidence of leadership ability, ability to juggle multiple responsibilities, and willingness to think of others' needs would all factor into any judgment about "quality."

Brian, if you called your rankings "Top 40 Schools by LSAT scores and UGPAs," without any cognitive leap from those numbers to an overall judgment of "quality," I wouldn't say a peep.

Five Degrees of Coastal Bias

A commenter to my post on lawyer-judge USNWR assessments thought there is a coastal bias going on. For an explanation of Coastal Bacon numbers, and their relationship to the scores, see Legal Profession Blog.

Leiter's Top 40 Law Schools by Student Quality

Brian Leiter has updated his ranking of the Top 40 Law Schools by Student Quality -- as measured by the 75th percentile LSAT and 25% percentile LSAT of the Fall 2006 entering class.

Another Take on the USNWR Reputation Data - Lawyers vs. Peers

I went back and did the same thing for "lawyer/judge" reputation score as I had original done for "peer" reputation. For at least one take on the relationship between the two curves, see my note over at LPB.

Jeff Lipshaw's chart is helpful

Jeff's chart shows the number of schools in each academic reputation ranking score. If we looked at the rest of the categories, maybe we could see each bunching of schools. Taken alone, his chart shows us that a small group of schools is really different from the rest, in terms of academic reputation. That's no surprise, but the chart also shows how similar the rest of the schools are to each other. Bravo, Jeff!

National Jurist's Law School Diversity Rankings

Over on TaxProf Blog, I discuss The National Jurist's diversity rankings of 177 law schools in its just-released March 2007 issue, based on the change in student body diversity from 2000 to 2005. Here are the 10 schools with the biggest increases and decreases in student diversity [click on chart to enlarge]:

The Star Stomps In

Next to the WJS and NYT there is probably no more widely read publication by law professors than The Star. Little wonder that The Star has finally initiated its own Law School rankings. The Star rankings appear, to me at least, to be far more insightful that any others on the market. The Star concentrates on 10 ranking factors:

1. Average faculty divorce or separation rate: Long hours at work can place stress on marriages. More divorces = more productivity.

2. Number of actual or threatened law suits by disgruntled faculty: Tenure denials to the marginally productive often lead to legal problems. The up and coming law school is one that is likely to be named as defendant.

3. Average pounds overweight: Hard workers have little time for exercise. The chubbier, the better.

4. Average pounds underweight: Disciplined people exercise regularly. The thinner, the better.

5. Beards per male faculty member: Smart serious people have beards. More beards = better law school.

6. Laughter: No laughing allowed on productive faculties.

7. Dancing (with or without stars): Serious scholars do not dance (or if they do, it is like Elaine on that episode of Seinfeld in which her dancing is so bad it is hard to watch).

8. Minutes per day examining USN & WR law school rankings: Lower the better for too many reasons to go into.

9. Average times per day per faculty member checking personal SSRN downloads. Lower the better.

10. Average number of professional hockey teams that the average faculty member can name, normalized by geographic region. The lower the better.

11. (The Star is not good with numbers.) Number of arrests for naked bongo playing. Lower is better unless you are in Austin, Texas.

12. DWIs/Rehabs. This ratio picks up factors not accounted for in numbers 1-10.

I took some time it check out the reliability of the Star's system. As it turns out, it is a perfect predictor of law school quality

Charts, Hylton Rankings, and other ways to look at USNWR

Jeff Lipshaw has posted the distribution of academic reputation scores and has found a rough bell curve distribution. (Thanks, Jeff!) And with Paul Caron's post on the Hylton rankings, described also by Al Brophy here. There are all sorts of posts about the Hylton rankings, see here, and my only additional comment is that Hylton's use of peer assessments and LSATs can't really get at the "quality" of faculties or students. Leiter's rankings, of course, try to assess quality without the halo effects inherent in USNWR's questionnaire, but even his methodology isn't perfect (although it's certainly creative, and it's better by far than what USNWR uses).

In the spreadsheet that I posted on my blog, I tried to come up with some more useful combinations of the USNWR rankings, concentrating on the two factors that I think are most useful to prospective students: placement rate and bar passage rate. But because placement can be gamed, see Bill Henderson and Andy Morriss's piece, as well as Tom Bell's post, my factors don't improve the situation at all.

So what are we to do? The "objective" measures that USNWR uses aren't really that objective; moreover, just because something can be counted doesn't mean that it's useful information. My cat Grace's fur is made up of four different colors. (Grace, to the left, is in her typical "cool down" pose--sort of a modified "downward cat.")

But counting the colors of her fur doesn't get to the quintessential nature of Grace. And don't even get me started on the quintessential nature of Shadow, shown below on Erev Rosh Hashanah 2003, wondering whether she'll be allowed to eat the soup, even though she can't hold a spoon properly.

Another Entrant in the USNWR Fray!

I have decided to throw caution to the wind, and explain this take on the USNWR law school rankings over at Legal Profession Blog.

If nothing else, it demonstrated my non-pareil ability with Excel.

U.S. News Rankings: Faculty & Student Quality

Over on TaxProf Blog, I blog the new 2007-08 Hylton Rankings, which take into account only the mean LSAT scores and peer assessment rankings from U.S. News. I compare how the Top 25 law schools in the overall U.S. News ranking fare using just the LSAT and Peer Reputation data, and note the schools that are most helped (and most hurt) with the inclusion of the other data in the overall U.S. News ranking.

Biggest Moves in the 2008 U.S. News Law School Rankings

In my post last week on the new 2008 U.S. News & World Report Law School Rankings, I tracked the biggest moves (up and down) in the overall ranking among the Top 100 law schools. Over on TaxProf Blog, I have expanded list to include the biggest moves among all 184 accredited law schools. Here are the Top 10 moves (up and down):

SSRN Joins with YouTube to Measure Faculty Downloads

Over on TaxProf Blog, I report the exciting news of the partnership between SSRN and YouTube to combine paper downloads with video downloads to more comprehensively measure the impact of faculty scholarship. According to a press release from Bernie Black, Managing Director of SSRN:

"SSRN's mission has always been to facilitate scholarly communication between authors and their readers using the latest technological tools. With the explosion in the use of video as a communications device, SSRN is delighted to partner with YouTube in measuring the influence of faculty scholarly work through video. By including video downloads in our monthly law school and law faculty rankings, SSRN hopes to encourage faculty to embrace this new tool for disseminating their scholarly work."

Update: For those of you who did not click on the SSRN press release or otherwise catch on due to the April 1 date on the post, it was an April Fool's joke.