Wrath versus envy

In commentary on Bliss, an anonymous but wise reader observed:

I am a recovering lawyer working at the law school where I took my degree (I am staff, not faculty). I couldn't help but think how one makes a law school more like Iceland and less like Moldova. At the end of the day overcoming envy is probably the biggest hurdle (intra and interschool envy — darn those USNWR rankings!) for a discipline/profession that worships at the altar of elitism.

(Emphasis added; misspelling of altar corrected.)

Ah, envy. Saint Paul said that the love of money is the root of all evil, I Timothy 6:10, but he didn't work in academia. Around here, envy claims that distinction. Odious faculty behavior, in some cases so extreme as to turn someone into the worst law professor in America, often if not invariably begins with envy.

A baker's dozen years ago, the movie Se7en delivered the definitive statement on the wages of all seven deadly sins: gluttony, greed, sloth, pride, lust, envy, and wrath. As the theatrical trailer suggests, Se7en is the perfect cinematic expression of the ominous, foreboding atmosphere that pervades the envy-laden world of higher education. (Technical tip: if your browser can't play the media embedded in this paragraph, download the latest version of Apple QuickTime or watch a lower-resolution version on YouTube.)

Those of you who have seen Se7en know that movie's answer to envy. Deadly though it is in its own right, wrath has the virtue of being able to defeat envy. The dramatic conclusion to Se7en (spoiler alert!) shows how:

The upshot? If envy of others — at your own school or elsewhere — is consuming you, consider yourself forewarned. Don't piss us off. We'll get mad, and then we'll get even.

Both sides now

Jesse the Utah Law student tells it both ways:

Hat tip: TaxProf Blog.

The cathedral, the bazaar, and the School of Law

Editor's note: This column is reprinted from the January 2008 edition of Bench and Bar, the official newsletter of the Louisville Bar Association, and draws heavily from Law 2.0 and The cathedral and the bazaar, posts previously published in The Cardinal Lawyer. This essay is cross-posted there.

Welcome to January, the month named for the two-faced Roman god of gates and doors, beginnings and endings. It represents the perfect time for looking backward and looking forward, at Law 1.0 as we knew it and at Law 2.0 as we hope it will be.

Read the rest of this post . . . .
Law 2.0

Law 2.0 refers transparently to Web 2.0, a term expressing the sentiment that a second generation of Internet-based communities and services, all designed to facilitate collaboration and sharing between users, has transformed the social meaning and impact of the World Wide Web. My allusion to Web 2.0 is very loose. I am less interested in specific components of Web 2.0 such as social-networking sites, wikis, and folksonomies than in the broad concept of law, legal education, and legally mediated social change in a world of democratized technology. In addition, invoking a notion of Law 2.0 implies the erstwhile and perhaps ongoing existence of an older model, called Law 1.0.

Legal education today is operating in a technological environment that is cheaper, more widely distributed, and far more efficient than the setting in which all but the recent law school graduates experienced over the course of their own professional training. I am mindful that the legal academy is arguably the most hidebound wing of a temperamentally conservative profession. Law school faculties, for instance, spend extraordinary amounts of time debating (and, in some instances, implementing) policies that effectively disable wireless networks whose very raison d'être is to enable broadband access across an entire university campus.

All that said, the students we teach today, to say nothing of their successors and their future clients, are all wired — and wireless — in ways most of their instructors are not. The Law School has taken aggressive steps to prepare its students for success in the world of Law 2.0. Our renovated classrooms all include state-of-the-art technology. They are unrecognizable, in the best sense of that word, to graduates who learned the law in far more modest settings. The modal method for exam-taking today is not the handwritten exam booklet, but the laptop computer. At my express direction, the Law School's technology staff has comprehensively revamped our website not once but twice since January 2007. Every faculty member and every student organization enjoys access to a weblog of her, his, or its own.

These items, combined with the content streaming forth from a revitalized Law School communications department, are available in a dazzling array of RSS feeds. We offer both a consolidated faculty blog and a broader news and events page. Faculty scholarship, once a mysterious process discernible only by those willing to pay exorbitant subscription fees to proprietary online research networks, is now available, free of charge, through the University of Louisville Legal Studies Research Paper Series and the University of Louisville's BEPress/Selected Works site. We syndicate these series as part of the faculty directory. For my own part, I have endeavored to post new content on a regular basis on The Cardinal Lawyer.


The cathedral and the bazaar

Download the 96K .mp3 file  of Eric Raymond reading The Cathedral and the Bazaar. Or simply mash the "play" button above.

Among many ways to explain the differences between Law 1.0 and Law 2.0, I draw great inspiration from Eric Raymond's pathbreaking 2001 book, The Cathedral and the Bazaar. Raymond wrote specifically about the rise of Linux and open source software, but his observations have revolutionary implications far beyond software development. Law 2.0, powered as it is by the democratization and diffusion of technology and legal expertise, is rapidly driving law and legal education from a centralized "cathedral" model of development to a decentralized "bazaar" model.

The power of Eric Raymond's metaphor, the cathedral and the bazaar, is best appreciated in real rather than virtual space. A single glance at real-world cathedrals and real-world bazaars captures the essential difference between these models of creativity. In the airways of your imagination, travel with me to Istanbul. On one side of your mind, envision the dome of the great Byzantine cathedral, Hagia Sophia. And then envision, on the other side, Istanbul's Grand Bazaar.

Hagia Sophia is the product of centralized, carefully coordinated planning. It is the pinnacle of Byzantine architecture, arguably the most enduring physical manifestation of a regime that held sway in Asia Minor for a thousand years. By contrast, the Grand Bazaar arose as the result of millions of market transactions over the ages. Each has its place; each has enormous cultural value. But if you are looking for the next great idea, the next innovation, the engine of social change and personal transformation. the bazaar is the place for you.

As it is in software development and in Istanbul, so it is in law.


The rise of the law school bazaar

In the very distant past, legal education emphatically followed a bazaar-like approach. Young people aspiring to the legal profession "read the law" under the tutelage of established lawyers. Christopher Columbus Langdell's invention of the case method at Harvard, over time, conferred supremacy on the cathedral-like approach. By treating law as a scientific enterprise, Langdell helped give the upper hand to those institutions wealthy enough to fund the laboratories and lab scientists of law: the law library and a professional, full-time university faculty. Not surprisingly, the content of the legal curriculum followed suit. The same courses Langdell thought essential to the practice of law — contracts, torts, property, criminal law, civil procedure — still dominate in the first-year curriculum of every American law school. Some also teach constitutional law; others have tried, with variable success, to add courses addressing the rise of the administrative state. But the cathedral, from the institutional primacy of the so-called elite schools to the stranglehold of the Langdellian curriculum, holds firm.

Modern legal education, however, is beginning to trend back toward a bazaar-like approach. Legal education has experienced some of the decentralization, democratization, and diffusion that characterizes technology markets. There are nearly 200 accredited law schools in the United States. Flagship state universities, comprehensive or metropolitan public universities, private universities (some scandalously rich and others scandalously poor), stand-alone law schools, and even for-profit law schools all take part in the fray. Every school publishes at least one law review of its own, and the proliferation of online journals, blogs, and other electronic media has eroded the influence of casebook publishers and proprietary databases.

Neither the cathedral nor the bazaar has prevailed outright in today's legal academy. Despite its methodological flaws, the U.S. News & World Report survey still drives students and employers toward elite schools. Law schools place disproportionate weight on the laws of the United States (especially the federal system, whenever it is possible to teach a federal variant on a given legal theme) and on judge-made law (especially if the judges in question are the Justices of the Supreme Court of the United States).

But bazaar-style pressures loom. Anyone who cares about law students and the educational system they sustain must pay close attention to the emergence of a bimodally distributed market for starting salaries. For a strikingly large plurality of law students, the cathedral-style approach to legal education makes no sense. The mismatch between (immense) educational debt loads and (modest) starting salaries will surely strain the existing system. And this is to say nothing of curricular and programmatic priorities to which diverse law school constituencies — faculty, students, alumni, surrounding legal community — may assign different weight.


From Web 2.0 to Law 2.0

Let me sum up. Here are some of the salient characteristics of Web 2.0:

• Separation of content from its form, perhaps most vividly illustrated by the transition from HTML to XML
• "Cheap speech": The democratization and diffusion of communications technology
• The empowerment of individual consumers of content and their transformation into producers of content in their own right
• The emergence of a creative environment where all "bugs" are "shallow," given the availability of enough "eyes" devoted to solving collective problems

And here are some salient characteristics of Law 2.0:

• Separation of legal knowledge from the institutions traditionally entrusted with its creation and dissemination
• The democratization and diffusion of legal knowledge and authority to speak on legal matters
• The empowerment of students and nonacademic lawyers and their transformation into producers of content in their own right
• The emergence of a creative environment where all "bugs" are "shallow," given the availability of enough "eyes" devoted to solving collective problems

Neither Web 2.0 nor Law 2.0 has fully dethroned its predecessor. On the World Wide Web, the cathedral still holds sway in significant respects. Microsoft, Dell, and Intel aren't going away, and neither are the elite law schools and their law reviews. But as every tourist in Istanbul knows, if you want some fresh ideas in a world lit not so much by candleight as by lightning, go to the bazaar.

It's happening here

It's happening here, courtesy of the University of Louisville's new branding campaign. Come see how a university-wide marketing campaign looks on the official weblog of a law school dean.

Introducing MoneyLawyer

And so a practicing lawyer joins the ranks of MoneyLaw. I practice in a litigation boutique where I represent a broad range of clients. Frequently my firm is local counsel for major companies, which gives me the benefit of working against and with law firms of all sizes on a daily basis. Many of my opponents and co-counsel are graduates of upper tier law schools.

I read Moneyball last year and it fascinated me. Then I found this blog discussing how legal academe may systematically undervalue certain types of high-performing law professors, the same way that professional baseball systematically undervalued certain high-performing players. From this vantage point I started thinking about how Moneyball principles might apply to the practice of law. In my experience, the legal market significantly undervalues some of its participants and overvalues others. We are beginning to see some market corrections, such as Nancy's ongoing discussion on the death of the billable hour and Mike Dillon (general counsel for Sun Microsystems)'s preference for boutique law firms over Big Law.

My purpose here is to bring some practical insights on how Moneyball principles apply to the practice of law, particularly litigation. I want to begin by examining what is evaluated in the legal market and who performs the evaluation. The "what" consists of legal talent (lawyers and law students) and litigation tactics. The "who" is more complex, consisting of five market evaluators:

(1) Lawyers evaluating litigation tactics
(2) Clients evaluating lawyers
(3) Law firms evaluating potential hires
(4) Law schools evaluating law students; and
(5) Services that "rank" lawyers and law schools.

These market evaluators often base their decisions on traditional metrics, but these metrics do not move in step with what makes an effective advocate. For example, the ability to write clearly and persuasively does not follow firm size, class rank, law school, or the other proxy measurements of lawyer talent nearly as well as the evaluators seem to think it does. As a result, legal talent and litigation tactics become overvalued and undervalued in the market, as the case may be.

I will discuss these market failures in future posts. My goal is to determine what makes an effective advocate and find methods to identify effective advocates. After all, this is the central goal of legal market participants--an effective advocate is what lawyers want to be, clients want to hire, and law schools want to produce.

Bliss

Bliss, by Eric Weiner, is the title of a book about happiness. It is the pop psychology version of the much more serious work being done by economists, psychologists and neurologists.

Reading it reminds me of the recent discussion about unhappy law professors. There were several comments but no unhappy professors weighed in and the discussion ended. Maybe the discussion would have been longer if it had been about unhappy law schools. It's one think to love your job but another to work in a happy place. I know of many law professors who tell me they work in unhappy places. And I suspect many of those who claim to work in happy places are affected by some kind of relative deprivation that has led them to begin viewing what they have has happy.

In Bliss, the author visits some of the happiest and unhappiest places on earth. It is not entirely useful to generalize, but happy places are places where people trust each other, where there is a lack of envy, cooperation is common, and the people have meaningful control over their lives. Putting aside the problem of whether these factors cause happiness or are caused by happiness, the question is whether you can apply the generalizations to law schools? I think so.

Trust is big, no doubt. Administrator and colleagues should say what they mean and, if they change their minds say, so rather than reconstructing the past or claiming to have been misunderstood. This means saying "I got that wrong," or "I've thought more about that and changed my mind." When is the last time you heard a Dean or colleague say either of those?

As for envy, I am not sure. Does unhappiness lead to envy or does envy lead to unhappiness. In any case, to the extent envy undermines law faculty happiness, I am not sure how it can be addressed. "Hey, everyone, stop that envy stuff," somehow seems unlikely to make a dent. Of course, if no one has anything there would be little to be envious about. I do not like that solution either.

Cooperation is important and the lack of it probably feeds into distrust and unhappiness. Members of some faculties seem to go out of their was to encourage a lack of cooperation. New faculty are recruited when they arrive to be with one faction or another. They get an earful about who is not to be trusted and who should not be a mentor or a draft reader. The people who thrive on decreasing cooperation are like polluting factories.

The control point makes sense to me. In the context of the book it means being part of a community or country that is small enough to actually undergo change. All other things constant, does this mean that smaller faculties are happier? "All other things" swallows quite a bit. For example, I like the free-flowing nature, diversity, and relative anonymity of a large faculty and will happily accept some dysfunctionality to have that. Still, I would think that having a sense that institutional change could take place and one might be a part of it means greater happiness.

Oh yea, some of the happy places do quite a bit of drinking. This would favor a requirement that all faculty have a couple of shots of vodka before being allowed in the building. Unfortunately, unhappy places also do a fair amount of drinking. So, on this one, I suggest experimenting before committing either way.

Mission: Impossible?

Cinematic experience notwithstanding, Bill Henderson is far, far hotter than Tom Cruise. In a thoughtful and persuasive blog post, Benchmarking Law School Performance: Why Law Professors and Deans Should Care, Bill makes a compelling case that law schools should use the Law School Survey of Student Engagement (LSSSE) as a key tool in educational administration.

He rests his case on two distinct grounds. The first is a variation on one of the ELS Blog's leading themes, that the world can almost always be understood in terms of quantifiable data, and that smart people are well advised to pay attention to those data:

[In] a typical for-profit business, a CEO with standard MBA training would be ecstatic if over 50 percent of her customers — all college educated with relatively high analytical aptitudes — had taken 15 minutes of their time to evaluate their experience with the school/company during the last year. Even more potent is the availability of aggregate-level data for key industry rivals. This information enables the school/company to identify ways to be better/faster/stronger than rivals with comparable inputs.

As Bill says, this is straightforward managerial wisdom: "this is all just Six Sigma, or TQM 101 — i.e., an iterative data- and theory-driven focus on quality outputs."

This particular post draws most of its persuasive power from a qualitative rather than quantitative source: Bill's statement of the basic mission of legal education — including his identification of the mental and temperamental barriers that keep many (if not most) law professors from grasping that mission:

Law professors are the most skeptical and argumentative lot imaginable. When empirical data is presented that challenges a well entrenched view, law professors query whether the sample or methodology can really be trusted — lack of statistical knowledge is rarely an impediment to this line of objection. This is a great mindset if we are engaged in a winner-take-all adversarial contest. But it not the right approach for building a great institution. . . .

For those law faculty who would dismiss . . . detailed market intel in favor of their own vision of a great law school, typically without any empirical data to assess actual progress, that path is fraught with problems. As the price of legal education rises faster than the earning power of most law school graduates, law school applicants are declining. Further, we can expect those students who do apply to be more discriminating consumers. . . .

Legal education is not about turning a profit or maximizing prestige . . . . [I]t is about educating highly competent, ethical lawyers who carry forward the highest ideals of the profession.

Do it now: read Bill Henderson's case for using law school benchmarks.

Senate Asks Why Colleges Earn 17.6% on Endowments But Spend Only 4.6% on Students

The Senate Finance Committee yesterday sent a letter to the 136 U.S. colleges and universities with endowments of $500 million or more, requesting the schools to respond within thirty days to more than fifty questions dealing with finances and tuition. From the press release:

Federal law requires most private foundations to pay out 5% of their assets each year toward their charitable purpose. No such requirement exists for university endowments. Donations to universities are tax-exempt, and endowment funds are tax-exempt. A Finance Committee hearing last September explored endowment growth. Since then, three colleges – Harvard, Yale, and Dartmouth – have announced increased student aid.

A new study from the National Association of College and University Business Officers (NACUBO) released today shows double-digit endowment growth at hundreds of colleges over the past year. According to the study, 136 colleges in the United States now have endowments of $500 million or more.

My school -- the University of Cincinnati -- ranked 63rd out of 785 colleges and universities with a $1.2 billion endowment.

Press and blogosphere coverage:

• Bloomberg: Harvard, Yale Are Questioned by Senators Probing College Costs, by Matthew Keenan
• Boston Globe: The Real Story on Harvard's Generosity (op-ed), by Steven Roy Goodman
• Chronicle of Higher Education: Senators' Letter Grills 136 Wealthy Colleges About Endowment-Spending and Financial-Aid Policies, by Brad Wolverton
• Inside Higher Ed: Senate Scrutinizes Well-Endowed Colleges, by Doug Lederman
• New York Times: Senate Looking at Endowments as Tuition Rises, by Karen A. Arenson
• USA Today: Senators Press for Colleges' Financial Details. by Mary Beth Marklein
• Wall Street Journal: Bulging Endowments Stir College-Aid Debate, by Robert Tomsho

Cross-posted on TaxProf Blog.

Ranking of Online Colleges

Online Education Database has released a ranking of 41 online colleges, which equally weights eight variables: Acceptance Rate, Financial Aid, Graduation Rate, Peer Web Citations, Retention Rate, Scholarly Citations, Student-Faculty Ratio, and Years Accredited. Here are the Top 25 online colleges using this methodology, along with each school's score (the sum of all of its ranks divided by the number of metrics for which data was found for that particular school):

1. Upper Iowa University (10.813)
2. LeTourneau University (11.960)
3. Liberty University (12.540)
4. Nova Southeastern University (13.323)
5. California University of Pennsylvania (14.232)
6. Grand Canyon University (14.709)
7. Regent University (14.742)
8. Champlain College (14.960)
9. Westwood College (15.428)
10. Tiffin University (16.700)
11. Dickinson State University (17.111)
12. Walden University (17.500)
13. National University (17.758)
14. Fisher College (19.887)
15. Colorado Technical University (20.165)
16. ITT Technical Institute (20.186)
17. Kaplan University (20.418)
18. Post University (20.467)
19. Franklin University (20.547)
20. Peirce College Online (20.765)
21. Western International University (20.891)
22. Florida Metropolitan University (21.223)
23. Bellevue University (21.335)
24. Capella University (21.712)
25. University of Phoenix (22.722)

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

The market for deans ... and two markets for deans

By way of MoneyLaw stalwart Paul Caron's home blog, I had the pleasure of reading Daniel B. Rodriguez, The Market for Deans, 16 J. Contemp. Legal Issues ___ (2007). Using "a loose admixture of anecdote, polemic, and preliminary data," Professor Rodriguez reaches the "especially vexing" conclusion "that the market for deans is — and will likely continue to be — more bear than bull."

The Market for Deans is well worth a trip to SSRN, and it will probably provide fodder for future MoneyLaw posts. One particular aspect of this paper warrants immediate attention. Professor Rodriguez, who served nearly a decade as law school dean at the University of San Diego, conducted a quick and dirty survey of deans at the U.S. News survey's top 25 schools and at 25 other randomly selected schools. I agree wholeheartedly that "[t]hese data yield at least one interesting conclusion":

Law schools in the so-called top 25 are far more likely to select their deans from their own faculty; the distribution among other law schools is more balanced. We can speculate freely about . . . this difference. For my money, the principal reason for the concentration of internal deans in the top 25 is elitism; the high prestige law schools are much more skeptical of the ability of law professors not on their faculty to reflect their key values. (Harvard and Yale are particularly striking; my recollection is that neither school has had an external dean in the past century). And, insofar as these “top” schools look outside their faculty only to schools at or above their stature, the pool is obviously much smaller. By contrast, nonelite law schools have a larger pool of non-internal law professors from which to draw; moreover, their desire to ascend the law school hierarchy may make some much more accepting of law faculty at higher-ranked schools, precisely because of the perceived “luster” that a recruitment of a faculty member from such a school might provide. . . .

[T]here does appear to be two somewhat distinct dean markets. In the world of elite law schools, the markets are more narrowly configured; we could predict rather accurately that law schools up the feeding chain will look primarily to a small group of individuals, a group that will usually be members of their own faculties; and we could predict that other law schools will be more eclectic and expansive in their searches.

Fascinating stuff. MoneyLaw has operated on the premise that Upstairs, Downstairs isn't just one of the most popular public television series of all time, but also a trope for daily life in American legal academia. Deeper, more rigorous analysis of the entire market for deans should expose the precise extent to which the decanal suite and access to it also reflect class divisions within legal education.

Be true to your school

After almost exactly 52 weeks in Kentucky, I've learned a few things. To be a "real" Kentuckian, you need a home county. Besides Jefferson. Boone barely counts, but Boyd is bona fide. And to be a Louisvillian, you need the "right" answer to this question: "Where did you go to school?"

My answer doesn't appear on my curriculum vitae. That's because many Louisvillians, the vast majority of whom (hard as this may be for fellow legal academics to understand) do not work for the University of Louisville, aren't interested in my undergraduate, graduate, or professional credentials. So I answer the question exactly as it was asked: "I attended Clarkston High School, DeKalb County, Georgia."

It's an obnoxious answer, really. Not because it is untrue, but because it defeats the social purpose of asking. High school allegiances, at least in Louisville, expose a host of presumptions about race, class, religion, and every other badge of social status vel non.

In defense of my neighbors here in Jefferson County, Kentucky, the "school question" gives the asking party a quick way of assessing a new acquaintance's core allegiances. Dare I reveal that my favorite college football teams are Louisville, Georgia, and Notre Dame's opponents? If my dinner companion went to Sacred Heart Academy, I'll save that last item for some other time and probably some other conversational partner.

And here in the legal academy, or at least in that corner covered by MoneyLaw, some readers have questioned my admitted assumption that J.D./Ph.D. types, ceteris paribus, are less likely than their strictly legal counterparts to be dedicated to teaching the core law school curriculum and to teaching it well. No, I haven't conducted any rigorous empirical test of the proposition. It's based on a dangerously casual assessment of patterns I think I've observed, bolstered by this little insight drawn from the dismal science: Comparative advantage applies to people as well as countries. Sure, a moral philosopher could cover criminal law, quite well at that, and an economist might well become this recruiting year's best pick in corporate law. And for a substantial boost in salary relative to other university departments where this philosopher and this economist might find work, these scholars have every incentive to add the Model Penal Code and the Delaware Corporation Code to their bedside tables. But no shift in primary intellectual allegiance comes free of cost, either to the person reinventing herself as a law professor or to the law school that would appoint her to its faculty.

So here's the question. Imagine yourself a member of the hippest clique in today's legal academy, doubly credentialed interdisciplinarians. You are attending a conference with equal numbers of professors in law and in your nonlegal discipline. A friendly stranger approaches and asks, "Say, don't I know you? Where did you go to school?"

For the love of God, think fast. What pops up first? Your J.D. program or your Ph.D. program? Where your mind turns first is where your heart rests best. Within an academic setting where costs matter and faculty salaries cost more than anything else, this cost-conscious dean would like to offer you a little career advice:

Be true to your school.

Interdisciplinary Stuff

It's been fun reading the various posts on this topic but, for me, some of the analysis is a little fuzzy and some not fuzzy enough. Still, most of what follows may just reflect not being up to speed on what is happening in legal education at non elite schools (other than my own) so I am beginning this post with a preemptory "never mind."

If the topic is, as Brian originally put it, "offering courses from other academic disciplines (economics, statistics, anthropology, etc.) in the law school curriculum, creating law and social science institutes of various sorts within the law school, offering joint JD/PhD programs, and hiring JD/ PhD faculty," I am not sure I understand the problem. I will call this the "hard" version of Brian's thesis. (The soft version, which is not his at all but which seems to be the one to which some people are responding is that Law Schools are overly enamored of interdisciplinary faculty.) In the hard version, the programs will only succeed if students enroll. If they do, is the logic that there is an obligation to discontinue them in the interest of giving the students what they really need? I doubt it. At my school, students already flock to bar oriented courses and I doubt there would be any change if we offered a course in statistics or a law and statistics specialization. In fact, I feel certain that we could offer a statistics course till the cows come home and no one would enroll if it were an elective. If required, there would be open revolt. In any case, not a single student will believe the course will be useful on the bar exam and, thus, unwittingly sign up.

I also wonder how many of the 185 non elite schools are actually offering these courses and programs. I just do not know but I worry that this may be like last month's blogging about unhappy law professors -- no empirical backing. In any case, one's response depends on what law school is for at the non elite schools. The theme seems to be that at the non elite schools it is even more important to prepare people to pass the bar exam and practice law. I could be wrong but I am pretty sure that the number of people attending law school who view it as a natural extension of an good education has increased. They may or may not practice law in the conventional sense. And I am not sure that the increase in this number, assuming it exists, is any lower at non elite schools. It may be higher if applicants are sensitive to placement rates. In fact, if college graduates are paying attention to the market at all, they understand that going to law school for the sole purpose of becoming not just an attorney but one with a satisfying life is increasing a long shot. Hopefully, they are looking for something more. At the close of Jim Chen's post two spots below, he notes that the real threat is decrease in law school applications. I am not sure that is a threat or maybe just reality setting in but one way to meet the threat is to offer something new. Interdisciplinary responses may save legal education.

The soft version of Brian's hypothesis -- too much emphasis on interdisciplinary matters -- is a different matter altogether and comes through more in the various responses than in his orginal post. He uses law and economics as an example of an interdisciplary area in which students can learn all they need to know by reading the book. And, therefore? Does that mean the teacher of antitrust should know just enough economics to get by? Does it mean that the property law or constitutional law teacher should know just enough history to get by? It seems like the interdisciplinary issue should be approached on a course by course basis. For some areas, being an effective teacher and scholar requires a high level of interdisciplinary work. Other areas probably require less.

Somewhere in all this I "hear" the argument that a downside of the interdisciplinary route is teachers without extensive practice experience. Sorry, but I am rolling my eyes right now. Judging by my school's hiring and that of other schools, "extensive practice" is hardly prized. Plus, just how important is having practiced for 2 years 25 years ago. I mean, how many times can the same war stories be told? I am not convinced that two years of practice in a particular specialty in a single law firm that, in all likelihood, will be unlike the firms most non elite law schools grads will join means better teaching. I am not saying that schools would not do well to place more emphasis on practice. I just don't think they do. In fact, 10-15 years of practice probably works to disqualify most potential candidates. Admittedly this is off-set to some extent by the wide-spread use of adjuncts.

The scenario Brian describes can be expensive but only if a School is actually hiring people who do not teach law at all. Again, I'd like to hear just how prevalent this is. If they do teach law, it's not expensive at all. Where else can a Ph.D/J.D get a job but in law teaching? At bottom can some of the worry -- certainly not by anyone who has commented so far -- be traced to competition for jobs?

Everything You Ever Wanted to Know/Read on Interdisciplinary Legal Scholarship

(Posts in bold are the "must read" posts)

1. Original Post by Brian Tamanaha at Balkinization.

2. Brian Leiter asks for comments . Read Matt Lister's and John Oberdiek's comments and Tamanaha's response.

3. Dan Solove has a thoughtful response at Concurring Opinions about the benefits that do accrue to students from having interdisciplinary teachers.

4. Ethan Leib comments at PrawfsBlawg, giving a good argument that non-elite schools ignore this trend at their peril.

5. I think that the trend just goes to show how much more it takes nowadays to join the legal academy, but also how many different paths you can take, which is a good thing.

6. Josh Wright at Truth on the Market says that Tamanaha's question of whether interdisciplinary legal scholars produce better lawyers is an empirical one, and says that it does at least with respect to the study of economics. So what about sociology or philosophy?

7. Tamanaha clarifies what he means by "bad for non-elite law schools," that is the exhorbitant cost of legal education--shouldn't non-elite law schools be training lawyers who can pass the bar and repay their loans? Are interdisciplinary scholars, most of whom are not practitioner-oriented, the best people for the job?

8. Solove re-replies to Tamanaha's clarification, conceding this point, but still arguing that interdisciplinary scholarship has a place at some, if not all, non-elite law schools.

9. Larry Solum writes the definitive essay on interdisciplinarity, multi-disciplinarity and the future of legal education. It is a long essay, but well worth the read and is a must read. I want to print it out and tack it onto my wall.

10. Larry Ribstein at Ideoblog says that the real question is "whether the current system of lawyer licensing is a good thing, or if we should have narrower licensing requirements that allow for cheaper legal training."

11. Jeff Lipshaw of Legal Profession Blog chimes in at Concurring Opinions. He can't resist.

12. Mark Graber at Balkination highlights the red herrings in the debate, comparing interdisciplinary legal scholars to Aesop's Bat.

13. Jim Chen has a thoughtful essay on MoneyLaw, and his dean's perspective is valuable.


Craig MacFarlane of Theoria: Blog and York University collects all of links, and connects them to previous debates over interdisciplinary legal scholarship.

Interdisciplinary legal education: the overt costs

Brian Tamanaha's Balkinization post, Why the Interdisciplinary Movement in Legal Academia Might Be a Bad Idea (For Most Law Schools), is an instant classic. I sincerely wish I had written it. Since I didn't, I'll be content (if only for the moment) to join the chorus of commentators who have chimed in. (I also think it's worth an aside to express my view that Larry Solum's response is the most thoughtful and thorough of the bunch.)

Among those who have expressed an opinion about the desirability of interdisciplinary legal education, at least at so-called nonelite schools, Brian and I share something that most of the other writers do not. We have both been law school deans. Deans know what it costs to build a faculty. Not in political capital, not in hours spent on recruiting. In hard, cold cash. Deans, at any rate, should know these things, at least better than rank-and-file faculty members throughout the legal academy. And to the extent that much of the criticism of Brian Tamanaha's position assumes that interdisciplinary legal education doesn't "cost that much," I suppose that the task of explaining this economic model was bound to fall on a dean. Especially one who has gone to the trouble of establishing an "Interdisciplinary Circle" at his school.

One more caveat: Deans do not advance their career prospects — at their current institutions or in the academy at large — by revealing too much information about law school finances or, for that matter, their mastery of a subject most law professors are all too happy to treat as mysterious. Even though I'm undermining my own self-interest by addressing this subject at all, I still have every incentive to obfuscate. You are forewarned.

Very well, then. Recall the crucial passage in Brian Tamanaha's critique:

In the non-elite law school universe — with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors — the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons . . . . First and foremost . . . there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience . . . .

I hasten to add my previously stated (and frequently repeated) point that the set of "nonelite" law schools may be the entire AALS roster, minus fifteen schools. If your law school has to argue whether it's at least as good as Vanderbilt or Southern California, you need to listen.

The single costliest component of any law school budget is skilled labor. Translation: professors cost money. Once you give them tenure, you can't (readily) fire them, and you are equally crippled in motivating them to do more work. So spend wisely, and be prepared if you make the wrong choice to endure another three or four decades of overpaid mediocrity (or, worse still, overpaid and socially insufferable mediocrity). This is crassly stated, but not falsely so.

Of course, the vast majority of professors represent money very well spent. Without them, you don't have a law school. You need good professors to cover a law school curriculum. I'll illustrate the point with a thought experiment.

Let's say you'd like to start a very small law school. You have only ten faculty slots to fill. Yours is a financially shabby shop — your host university is chartered by a historically poor state that doesn't value education, and there is no naming opportunity that would harness a private donor's generosity. How do you propose to hire your first and — for all you know — only colleagues?

Given the constraints on your budget, I strongly recommend that you start by hiring people who can cover the standard first year curriculum, plus the professional responsibility course that every bar examiner considers a prerequisite. Don't overlook the highest-enrollment upper level "electives." They are electives to you, but de facto requirements for students who genuinely fret about their ability to pass the bar. (Don't forget — you aren't running a law school that resembles the one you attended.) Here are some of those "electives": constitutional law, administrative law, evidence, corporations, tax, family law, the entire battery of UCC courses. Hmmm. How about remedies and labor and employment? Oh, before I forget, you might consider spending a tenure-track position on a writing and skills specialist, since nothing else you teach in law school will be visited on your head as miserably — if you teach it badly — as writing and skills.

Let's count the number of essential faculty members and see whether you have space left for anyone else:

1. A utility infielder specializing in all areas of commercial law.
2. A corporate and securities law specialist. That's right — though many public law and "law and" professors don't know this, business organizations and commercial law are rarely taught by the same people.
3. A tax specialist.
4. A proceduralist — good for everything from civil procedure to federal courts to conflict of laws.
5. Public law from the "rights" side, probably including a smattering of federal employment and labor law.
6. Public law from the "structure" side. Want to economize with a single public law specialist who covers rights and structure with equal skill and enthusiasm? Happy hunting!
7. A criminal justice specialist.
8. Someone who can absorb all sections of professional responsibility, because no one else can or will do this.

Wow. I've gotten to eight really fast, and that leaves me just enough room for a real estate guru (my best hope for covering property) and a family law specialist. Maybe I can persuade my rights-oriented public law specialist to cover family law. Why? Because I still haven't managed to cover torts or remedies or . . . . And that nasty question of hiring a writing and skills specialist persists.

You'll notice that I haven't had an opportunity to cover some areas that law schools like to cover, even in the absence of pressure to teach law on an interdisciplinary basis. These are little things like international law (in whatever flavor), intellectual property, environmental law, and some of the areas of advanced business law on which I've spent most of my scholarly energy. Insurance, media law, banking, public utilities, antitrust, labor law, trial practice? A clinic? Ha. You should live so long.

Here's the bottom line. Not every law school is this constrained, and my hypothetical is admittedly extreme. But every faculty position committed to a professor whose primarily intellectual allegiance lies far afield from the core law school curriculum, who is unwilling or unable to absorb large numbers of mostly frightened, uninterested, and/or unprepared students — that faculty salary represents precious financial resources that all but fifteen law schools in the United States must consider very, very carefully before committing.

And with that, and a vague promise that I will eventually address the "revenue" side of this question, at least as expressed in the impact of interdisciplinary legal education on alumni relations and law school fundraising, perhaps we law school bloggers can train our attention on the real threat looming in last week's hot topics: Kirsten Wolf's campaign to dissuade people from going to law school in the first place.

Responses to Tamanaha on Interdisciplinary Legal Studies

1. Original Post by Brian Tamanaha at Balkinization.

2. Brian Leiter asks for comments . Read Matt Lister's and John Oberdiek's comments and Tamanaha's response.

3. Dan Solove has a thoughtful response at Concurring Opinions about the benefits that do accrue to students from having interdisciplinary teachers.

4. Ethan Leib comments at PrawfsBlawg, giving a good argument that non-elite schools ignore this trend at their peril.

5. I think that the trend just goes to show how much more it takes nowadays to join the legal academy, but also how many different paths you can take, which is a good thing.

I hope that Larry Solum will comment next.

Tamanaha on Interdisciplinary Scholarship

I'm an avid reader of Balkinization, which offers such incredible legal analysis that I wonder if I should be paying for the privilege.

But while I would have eventually caught this on my RSS feed, Brian Tamanaha was nice enough to alert me to his post expressing skepticism about the current trend of interdisciplinary legal scholarship, at least with respect to the benefits that would accrue to non-elite law schools and their students (and thus the future legal profession).

This was generous of him to share, and especially generous of him to point out (not that I would have taken offense, understanding his meaning) that this isn't a criticism of the movement in general, the work, or people who do the work. That was very nice of him.

I hope you read his post, which will offer a nice counterbalance and perspective to the posts here (and elsewhere, e.g. on ELSBlog ) that aggressively push for interdisciplinary scholarship as the new Valhalla for legal scholarship. Heck, I just posted on the fact that I'm taking statistics again, first basic, and then later advanced modeling courses. Why the Valhalla metaphor? Because the common critique of traditional doctrinal legal scholarship is that it's "not rigorous," i.e. "empirical." Admittedly, social scientists (not that I'm really one of them! I have no formal training...yet!) turn up their noses at case-crunching, theorizing, doctrinaire legal scholarship with its insane footnotes and bizarre citation system. I know this for a fact. I am taught by J.D./Ph.Ds who say such things out loud.

So it's as if the valiant warriors, having demonstrated their rigor and vigor on the battlefield of scholarship (look! data! math! tables!) think of their work as a way into Odin's Hall, and that empirical legal studies is the future pinnacle of legal scholarship.

I am not a fan of false dichotomies or fightin' words like "more rigorous" or "experientially grounded" or "at least we have a theory." Whatever. The stuff I'm doing is technically empirical, being a qualitative study, and my future work might be more statistical. Even within the social sciences there's a schism between the qualitative and quantitative types. There seems to be many more paths to legal scholarship now than just a few years ago, and I'm grateful about that. It's no longer only Top 5 + law review + clerkship.

There is no single way into Valhalla, and there's no best method of legal scholarship. Be wary of any intellectual movement that proclaims as much, whether it's old school or new school. That there are so many different types of legal scholarship speak to the fact that there are more paths ot legal academia now.What this portends for students and future lawyers at non-elite law schools, I don't know. Perhaps social scientists will tell us 25 years from now.


I hope that you read Tamanaha's post, which offers much to think about.

Stats For Poets

I have decided to take a refresher course in quantitative methods, designed for legal academics and lawyers. It's designed to be a basic intro to multiple regression analysis and to teach me how to use STATA.

The last time I took a statistics course I did pretty well, but it was seven years ago, from Fall 2000-Spring 2001. I was a junior in college, and while I could have taken three quarters of linguistics to satisfy the math requirement had I only been an English literature major, as a double political science major I had to at least take statistics. So, that I did. And it was good and interesting, and I learned how to use SPSS. And because I have forgotten how to do statistical analysis, it is time for a refresher.

The professors tried to kick me out of class. Me and everyone else who has taken statistics. This stats course is quite basic and introductory: while I may have a hard time remembering what a T-test is vs. a p-value, or the difference between one-tail or two-tailed test, or what a chi-square test is, at least I know these terms. Supposedly, this class is for true neophytes. This is why this post is called "Stats for Poets," you would presume that poets (cough) do not know statistics, but had I titled this "Stats for Lawyers," some of you may have been offended by the implication. You know, the implication being that the coursebook for such a course could be hazard sign yellow with a black chalkboard sign saying that you are a dummy.

Although appallingly, most law students and lawyers have never taken a statistics course, and statistics are being increasingly used in litigation and scholarship. That's my reasoning for re-taking something I'm not that much of a dummy about. I know that it'll all come flooding back to me fairly quickly, but I want to be fluent enough in basic statistics such that next Fall, when I take an advanced statistics course and maybe try to learn how to design my own models and experiments, I won't fail that course. Reading tables where the p-values are bolded for you and where they telly ou the threshhold of significance isn't that hard. Understanding what that really means doesn't require much training. But designing your own research does require training, and it's a process that requires the cumulative accretion of knowledge and skills. Understanding the purpose of such research in addition to mechanical aspects of executing such research.

So, that's why I'm staying in this intro course, and why I'll be doing problem sets and going to the lab every week to plug numbers into computers, and why I'm going back to college.

The Blind Side

I just finished MoneyLaw Icon Michael Lewis's book "The Blind Side" which describes an outstanding high school left tackle and the evolution of the position for which nature has ideally suited him. It's a great and quick read for those interested in race and class in the United States, the state of intercollegiate athletics, or, most relevant to readers of this blog, the evaluation of untested talent.

The most interesting thing to me about the book is that there are almost no objective criteria to measure offensive linemen like Michael Oher, the book's focus . Offensive linemen don't generate a lot of statistics; their job is to stop the quarterback from being sacked, but because quarterbacks get sacked (or not) for lots of reasons, it is very hard to measure the effectiveness of a particular member of an offensive line. While quarterbacks are measured by a fantastically arcane rating system designed to quantify their every on-field performance, there are simply no corresponding metrics to evaluate left tackles.

As a result, intuition and intangibles become paramount in evaluating offensive linemen. Although he didn't play organized football until his junior year of high school, Michael Oher became one of the most highly recruited football players in the country. He, like the young Billy Beane depicted in Money Ball, simply looks the part. He is described at least 7 times in the book as a "freak of nature" a tall, immense yet agile young man whose hips and backside are described in nearly homo-erotic detail by the college scouts who parade through his high school. Although he was only slightly more than inept in most of his 15 high school games and was nearly non-communicative with the scouts who came to watch him play, his physical characteristics made him one of the top 5 college prospects in the country.

It is not yet clear whether Michael Oher will live up to the praise lauded on him as a 15-year-old. He just finished his Junior year at Ole Miss where he has been a very-good but not world-beating offensive lineman. What struck me about this story is how different it is from Moneyball. In that book, Lewis points out the absurdity of scouts who rely on their eyes and not on proven performance to evaluate talent. Here, there are simply no statistics that will do the job; all that scouts can do is guess.

When we're evaluating talent as law professors -- whether of potential colleagues or of potential students -- we are usually somewhere in between these two extremes. We have some "measurables" -- LSAT scores, article placements, etc. -- but we also have to use our intuitions: Do we think this person has potential, do we think this person's best work is behind her, etc. Decision-making would be far easier if there were always measurable statistics that correlate well with performance; until then, we are forced to rely on our intuitions to fill the gaps.

The Unbearable Lightness of Rankings

We are all familiar with experiments in which subjects cannot tell the difference between a high priced wine and and low priced one. Now comes a study showing that knowing the price ahead of time affects the ranking. Not surprisingly, subjects rank a wine as better if it is more expensive. The is as one would expect. Price is a form of information; high price can mean high quality. What is more interesting about the newest studies is that those ranking the wine are not making it up. In reality, pleasure receptors in their brains actually did react more to the higher priced wine even though it was the same as the wine marked with a lower price.

Replace high price with a candidate's law school and wouldn't you will find the same response in law school hiring and law review placement. Take the same person, send that person to one interview armed with a super resume and to another with a second level resume. Don't you think that the first interview will be perceived as having gone better than the second? Send the same article to law reviews. One submission identifies the author as from a highly ranked school with all kinds of name-dropping acknowledgements. The other submission says it is from a professor at a mid or lower level law school and delete the acknowledgements. My bet is a different set of acceptances.

I do not know of any one who has tried either of these experiments. Years ago I heard of a Houston attorney, whose name I will not disclose since this is hearsay, who provided a bartender with a super resume and sent him to interview at his very prestigious law firm. The result was an offer.

What the wine study suggests is that these feelings are real. Or as real as as, well . . . "real" can be. As many economists, including Amartya Sen, have pointed out in one way or another, good feelings can be "light" -- without an underlying foundation -- and fleeting.

Steven Pinker on morality and on academic culture

Anything Steven Pinker writes is worth reading and heeding. When you've finished reading what Jurisdynamics has to say about Pinker's latest, an essay on "The Moral Instinct," come back to MoneyLaw to watch the adjacent video summarizing Pinker's thoughts about academic culture.

Bees

A reader sent this letter to me and I think it is more of a moneylaw than classbias issue and almost certainly something about which people have different views.

Prof. Harrison,I'm a reader of your Class Bias blog, as well as your posts on Moneylaw (which is where I found you first). After searching the Class Bias blog for the word"laptop", it appears you haven't discussed the issue of the never ending debatein the legal blogosphere about whether to ban laptops in the classroom or not.It recently occurred to me that the topic might interest you because of an intersection with your general theme. That is, why do professors always propose to solve the problem of student inattention by banning laptops, thereby forcing students to do more work -- handwriting notes is harder, and then creating outlines at the end of the semester requires more time because cuttingand pasting isn't available? Why don't they put the onus on themselves?Instead of kicking laptops out, professors could integrate them into their teaching. Or they could just make their lessons more interesting. (I've used laptops and handwriting in the classroom -- I've found that I'm engaged in engaging classes and inattentive in boring classes regardless of how I'm taking notes.)I hope the new semester is treating you well.

Dear Student;

I do not permit laptops in the first year but do in upper level courses. I do not claim to have figured this out and my analysis may be a bit too general because I am sure there are big differenes among laptop users. My reasoning is this. In a first year class as soon as sound comes out of my mouth most of the students with laptops begin transcribing. Buzzing like a swarm of stuttering bees. Sometimes I say complete nonsense and the buzzing, rap-tapping does not let up. My assumption is that since they are fresh out of undergraduate programs they have the impression that taking and memorizing notes will get them what they want. In addition, I am pretty sure people cannot do two things at once. They cannot transcript and evaluate, form questions and counter-arguments, and think about nuance and fuzziness in the law. It hard to be interactive when someone is typing. Conventional note takers tend to wait and take "notes." So, when you say "more work," that is not what I am after, it is about "different work." I want the students to listen, evaluate, and then record things in their own words. In the upper level courses, I think the students understand. Certainly the humming and buzzing of note taking is less. During the last millennium when I was a law student, all my outlining took place on the weekend with the use of hornbooks and treatises. Class notes provided general guideline only.

I guess I also disagree with the idea of integrating laptops simply because they are there. In some courses they may be useful and in others not so useful. Of course, as traditional casebooks become obsolete, the laptop will be the casebook.

I disagree on one other matter that some students suggest and which comes through a little in your note. It is true that I spend time complaining about faculty shirking. Not shirking does not mean giving students what they want. And, it definitely does not mean entertaining them. In a public school like mine at which (the last I heard) 80% of the University's cost of the program is paid by taxpayers, I view both teachers and students as having an obligation to earn their "pay." I do not regard the salaries of the professors and the subsidization of the students as different in any important way. A student sitting there surfing the net because the teacher is not making it interesting deserves to be "fired" as much as the ill-prepared professor.

Of course, when to comes to private schools, they are free so sell whatever they want and if I were paying full cost of tuition I'd expect a floor show every single day and a latte waiting (non fat milk please) for me.

So Much for The Wisdom of Crowds

A lot has been made, in James Surowieicki's The Wisdom of Crowds and elsewhere, about the power of futures markets (such as the Iowa Electronic Market or IEM) to outperform polls in predicting the outcomes of elections. For example, in his book, Suroweicki wrote: "The IEM has generally outperformed the major national polls, and has been more accurate than them even months in advance of the actual election."

IEM and other markets work by allowing investors to buy futures in particular events, in this case the outcome of elections. So, for example, you can buy the right to be paid $100 if Barack Obama wins the democratic nomination. If this Obama Futures are selling for $40 and you buy, you're saying that you think Obama is better than a 40% bet to win the nomination. If there are more buyers than sellers at $40, the price goes up until an equilibrium is reached. In this way, the views of people with money to spend can be turned into a supposedly accurate prediction of future events. Unlike polls which provide little if any incentive to tell the truth, with futures markets people are rewarded for sharing their views about future outcomes.

However in Iowa and New Hampshire, the electronic markets have not worked very well. If anything they has followed the (often wildly incorrect) polls rather than deviating from them. At midnight the night before the Iowa Caucuses Clinton futures on IEM were trading at almost $60, Obama futures at under $30. After Obama surprisingly won the caucuses, his stock rose to over $50 while Clinton's dropped to $32. Then the day after Clinton's comeback in New Hampshire they switched again: Clinton is once again the favorite, Obama trails. (I've found the best way to read the markets is here.)

I'm not doubting the power of markets like IEM to aggregate opinion and predict future events. But so far this election cycle the markets have trailed performance rather than predicting it.

The Itinerate Law Professor: So What's Wrong with That?

For a long time I have thought that being a law professor is only the second best job in the world. The first is the traveling lecturer. This person is paid a salary and wanders from state to state and school to school and drops in on any class anywhere to give a lecture or just to say what is on his or her mind. It's a little like paid blogging only you go to neat places. So one day, you get up and think. . . hmmm, I wonder what is happening in San Diego and while I am in there I think I will talk to a freshmen class about Rigoletto and advances in reconstructive surgery.

Actually, some people have a job that is fairly close. These are the traveling law professors, often emeritus, who show up for a semester here or there to fill in. When you take those travelers, other double dippers, and adjuncts, it makes you wonder a bit about where this is all going.

For example, at my school and most others, a fair number of the offerings are taught by people who fall into one of four categories. There are adjuncts. They tend to be volunteers or, at least in my view, poorly paid. There are part time teachers who hold full time jobs somewhere else in the law school. And, there are permanent double dippers. These are people who retire from one school and accept a full time and fully paid position at another school. Finally, there are the theoretically temporary double dippers. These are people who retired from my school or another and are hired to teach a semester at a time.

What is true about most of these groups is that there is no tenure obligation. What should also be true is that they are relatively inexpensive. I do not know if any deans actually put it into practice but why pay a double dipper anything close to a regular salary? For example, if you retire from the University of Bozo at 60% salary, wouldn't you take a job and another school for a 70% salary? I mean it's still 130% for the same and probably less work. I understand that if the double dipper is highly valued the price may be bid up to a regular salary but I wonder how often that happens.

There are, therefore, several sources (suppliers) of law teaching and pretty good ones at that. The supply keeps growing and people retire but really do not and new people come into the market. And, if I am right about this, by hiring adjuncts and dders most law schools should be able to operate much less expensively. I don't mean simply because dders and adjuncts would be paid less but because tenure track people are riskier and expensive in different ways since they tend to require summer research grants and reduced teaching loads. Plus there is all the time reviewing articles and sitting in on classes.

The a law school goes the route of dders and adjuncts it is likely to have an older faculty and, perhaps, a faculty with less commitment to the institution over the long run. But "less" is a sticky proposition here. A great deal of the so-called commitment I see among tenure track faculty is actually commitment to self-interest. Policies, scheduling, course offerings, programs and the like seem to be pretty much about faculty desires and convenience. I have discussed this all before in numerous posts about shirking, the destruction of the law school commons, and the inability of law professors to make counter-preferential choices. It is possible that a faculty with "less" commitment would be one that more disinterested and make decision about the long run that are more consistent with stakeholder, as opposed to faculty, interests.

I am not sure of any of this, though, and wonder if twenty years from now law faculties will look very different and whether that will be a good thing.

Take the long way home

In times hard and good, but especially the hard ones, it's worth reminding ourselves that we do this not because of the money, but in spite of it:

I've put food on the table
And a roof overhead
But I'd trade it all tomorrow
For the highway instead

Norah Jones, The Long Way Home, on Feels Like Home (2004)

Well I stumbled in the darkness
I'm lost and alone
Though I said I'd go before us
And show the way back home
Is there a light up ahead
I can't hold on very long
Forgive me, pretty baby, but I always take the long way home

Money's just something you throw
Off the back of a train
Got a headful of lightning
And a hat full of rain
And I know that I said
I'd never do it again
Oh, and I love you, sweet baby, but I always take the long way home

I've put food on the table
And a roof overhead
But I'd trade it all tomorrow
For the highway instead
Watch your back if I should tell
Your love's the only thing I've ever known
One thing for sure, sweet baby, I always take the long way home

You know I love you baby
More than the whole wide world
I’m your woman
You know you are my pearl
Let's go out past the party lights
Where we can finally be alone
Come with me and we can take the long way home
Come with me, together we can take the long way home
Come with me, together we can take the long way home

New Hampshire Recap -- Your Depressing Thought for the Day

So as a bandwagon-jumping Obama supporter, I was trying to figure out how things went so wrong so fast for my guy. Both Obama's and Clinton's polls had her losing by double-digits in New Hampshire last night. Yet, as we now know, Hillary won and is re-energized heading into South Carolina and Super-Duper Tuesday.

How did they get it so wrong?

Katherine Q. Seelye at the Times politics blog has this simple but depressing explanation. "[The Iowa result] may lead to speculation that in a secret ballot, white voters will not vote for an African American. In Iowa, which Mr. Obama won, the caucuses are public." In other words, white voters may tell a pollster that they're for the African-American candidate in order to appear enlightened, but when alone in a ballot booth their baser instincts take over.

Ms. Seelye's colleague Janet Elder had previously published a longer piece on this topic, the first paragraph of which foresaw what happened last night in Iowa:

In high-profile contests where one of the major party candidates is black, pre-election telephone polls have often been wrong, overstating the strength of the black candidate. In polling circles this is known as the “Bradley effect” or the “Wilder effect” or the “Dinkins effect.” Will it also be known as the Obama effect?

I don't purport to know much about polling, but this argument and last night's result is going to affect (can I say color?) the way I look at prediction and results from now through November.

*UPDATE* I see this morning that Andrew Sullivan blogged essentially the same theory last night. Complete with Wikipedia link no less.

How Surfing Saved My Sabbatical

What motivates tenured law professors to write? I suppose that some do so as second nature, as automatically as lesser scholars breath. Perhaps other law profs write out of a heroic sense of duty, confident that what they publish will change the world for the better. It takes more than that to get me to write, alas. It seems that my inner 14-year-old, still going strong despite decades of scolding, won't settle down and let me write unless I resort to embarrassingly juvenile carrots and sticks.

Sometimes I bribe myself with a new toy for getting my writing done. Last spring, for instance, I gave myself a a new Breedlove guitar for meeting the deadline on an article I'd promised to the Utah Law Review. That deal worked out nicely (or, as my inner punk would say, "Saaaaaweet!").

My auto-goading strategy faced a more difficult challenge this fall, however, when I prepared to knuckle down and write a book during my one-semester sabbatical. I realized early on that I could not afford (read, "am too cheap to buy") all the cool stuff that it would take to stimulate the requisite labor. And, anyhow, a guy can use only so many surfboards, skateboards, and snowboards (though a great many more than you might at first think). How, then, would I motivate myself?

As so often happens in life, surfing held the answer.

On most work days during my sabbatical, I would head first thing in the morning to my "beach office": a rugged picnic table, hidden in a grove of laurel sumac, on a bluff above one of my favorite breaks. After briefly salivating over the waves, I'd crack open my laptop and get to work on a pre-assigned task. Some days I'd aim to write a new chapter section, for instance, while on others I might have to create new set of illustrations. It helped that my beach office lacks internet access; email and blogs could thus offer no distractions. The real motivation came in this, though: I could not go surfing unless and until I finished the day's assignment.

As my family can attest, I stuck to my bargain. Several days I dragged in late, long-faced and bone-dry because I had not met my daily goal. Things got especially rough after my computer's hard-drive crashed, forcing me to recreate data and write some passages in long-hand. Happily, though, I got to cap off many days at my beach office with some well-earned waves.

It may sound like a ridiculous arrangement to you, but the results satisfied me. I got my book, Intellectual Privilege: Copyright, Common Law, and the Common Good, into late draft. (It remains only for me to re-read the whole thing, polish it as necessary, and write the conclusion). That effort has already spun off one paper; a couple more will follow. Perhaps surfing did not help to motivate the other stuff I did during my sabbatical—presenting papers and attending conferences—but it didn't seem to hurt. As a nice side-effect, my surfing improved a lot, too; towards the end of my sabbatical I managed a few fin-forward take-offs and spins on my 9'0" longboard (sort of like Sensei Nuuhiwa's example, but without the iffy neighbor and with a lot more falling down), and I've started feeling pretty comfortable on my newer board, a 6'10" French "Soul Fish."

In other ways, granted, my sabbatical fell short of my goals. I had hoped to drywall the garage and record a few songs, but did next to nothing on either project. The oil painting that I planned—something like this earlier one—remains for now only roughed-in. I console myself that I at least managed to install a new irrigation line and several area drains. And, anyhow, who really cares if that work—productive play, really—remains undone? The good folks at Chapman who funded my sabbatical didn't ask me to rebuild my house, after all. With luck, though, they will like what I did get done, and continue to support my scholarship. The Channel Islands 7' M13 I put on special order should come sometime late this coming spring, you see, and I expect it will take a lot of study to master it.

[Crossposted to Intellectual Privilege and Agoraphilia]