Buffalo, Case, Iowa, Miami, Minnesota & UNC Deans React to Decline in U.S. News Rankings

David Lat collects school-wide emails sent by these deans in response to their school's decline in the just-released U.S. News rankings: Buffalo (#100, down from #77), Case Western (#63, down from #53), Iowa (#27, down from #24), Minnesota (#22, down from #20), and North Carolina (#38, down from #36). Miami (#82, down from #70) is here. (The deans should read Brian Leiter's caution about placing undue emphasis on the overall ranking.)

See TaxProf Blog for more law school reactions to the U.S. News rankings.

Relative Wages and How to Get There

If anyone has any doubt that, above a certain level, it is all about relative wages as opposed to absolute wages, visit a law faculty in the days after someone has acquired the salary list and distributed it. I have been around law faculties on 4 occasions when this has happened and it can get emotional and often for good reason. So what are the reasons faculty salaries rankings can be so unrelated to the value of a person to the School? Before starting this non exhaustive list, keep in mind that these irrationalities are the result of years and years of unforeseen events and wacko decision-making and, thus, pretty much out of the control of any current dean.

1. Playing favorites. Don’t tell me it does not happen. Deans “see” some people as more valuable to the School when they may just be more valuable to the Dean. Years later someone may come along and ask why X’s salary is so high. In many instances it is because X was the darling of a past or current dean.

2. Unpredictable allocations. Suppose the lowest paid person on your salary makes $100K. In September, your dean offers an entry level person $102K assuming that for the next year there will be a 3% increase and the current people will be elevated above the newcomer. The legislature actually says no raises and now the entry person is ahead of more seasoned and more valuable people.

3. Maybe only my School has this one. Every 7 years you can go up for a 9% pay increase. Not everyone gets one and that depends on funding, not on merit. Yes, you are worth 9% or 0%. This makes for some instant leap-frogging on the salary list without regard for relative productivity.

4. Tunnel vision matching offers. Deans get really focused on keeping particular people and lose sight of the market more generally. Suppose a hot shot gets a better offer elsewhere and your school matches or beats the offer. Equally productive people like where they teach and could but do not go out and get an offer. It’s an instant problem. Plus, the matching offers are often way too much. Does a college town school really have to match the offer of a high cost of living school? Of course not. Finally, and this is where tunnel vision hurts the most. As the bidding goes up and up I have yet to hear of a Dean say “Wait! For that salary I could go into the market and get someone even better.”

5. Sloppy administrative work. Some deans are really lousy at reading yearly reports. Professor X may list 10 coauthored articles most of which are 15 pages long. Professor Y may list 4 fully developed original articles. These numbers probably also correlate with the number of times they visit the dean to say how valuable they are or the level of whining about how underpaid they are. Deans are sometimes just awful at seeing through the smoke.

6. Halo effects. Professor X was productive back in the day and had a big name. Now he wants to double dip and your school pays big money to get him. Actually Professor X regards your school as semi-retirement. The halo can also apply to incumbents who already are working from such a high base that even average salary increases are huge.

7. Prodigal writers. These are the folks who retire after tenure and their salaries sink relative to others. Then several years later and out pops an article. Sometimes, although actually still 9 years in debt to the school, deans bring them back into the salary fold.

8. Narrow Chair descriptions. Suppose a donor endows a Chair for the study of Law Use Regulation in Sub Sahara Africa. You search and search. The best person in that area is actually not so good but you’ve got to spend the money. Right? So you hire “not so good” at way more than some “quite good” people who contribute to the core needs of the School.

9. Laterals. You bring a mid level lateral in from a high cost of living school and pay him more than comparable people on your faculty. Why? I don't know maybe your dean just wanted there to be some excitement. The reasoning actually will be that the faculty voted yes and the candidate would not take a pay cut.

There must be more.

Maximizing the audience / Motives for writing

Wim Mertens, Maximizing the Audience

With apologies to Tom Petty, any serious scholar knows that the writing is the hardest part. As spring deadlines mount, I offer a little musical distraction. A nine-minute video of Maximizing the Audience appears above; samples from Motives for Writing appear below. And if your heart is still breaking, careful inspection of this paragraph should lead you to yet another musical interlude.

Enjoy!

Wim Mertens, Motives for Writing
1. Watch
2. The Personnel Changes
3. Paying for Love
4. No Testament
5. Words on the Page
6. The Whole

Putting my money where my mouth is....

Over at my own blog, I muse a bit about possible improvements to the USNWR rankings (here).

Cool for cats

MoneyLaw's feline theme continues . . . .

Freedom to say whatever you want! Bourgeois salaries! Lifetime tenure! Accountability to no one!

What sort of business gives all this to its employees, plus the opportunity to conduct "self-governance" without regard to the company's real stakeholders? This is why many people call law teaching "the best job in the world." Employment terms this generous would ruin any for-profit business, and a government agency operating with comparable impunity would incite public outcry.

Fellow teachers of law, whenever we're feeling squeezed, remember that higher education is cool for cats, and faculty members are either tenured cats or not-yet-tenured kittens in waiting:

Squeeze, Cool for Cats (1979)

To change the mood a little I've been posing down the pub On seeing my reflection I'm looking slightly rough I fancy this, I fancy that I wanna be so flash I give a little muscle And I spend a little cash But all I get is bitter and a nasty little rash And by the time I'm sober I've forgotten what I've had And everybody tells me it's cool to be a cat Cool for cats

Can a Dean Make You Do It?

So here is the problem. The Dean or Associate Dean at your School is making up the schedule for the fall. Nearly everyone wants to teach in the time period from 10-2 on Tuesday - Thursday and so indicate on a form that asks for their preferences. There are not enough rooms and, even if there were, there would be conflicts that mean students would have to make choices. The conflicts would not occur if classes met earlier or later or on Fridays and Mondays. The Dean sends out a schedule that has Professor X teaching on Wed - Fri at 3:00 even though Professor X said he prefers the same times as everyone else. Professor X is no different from anyone else with respect to his "need" not to teach on Friday.

An exchange of emails occurs with X saying "I do not teach on Fridays." Literally, it is possible for X to teach at his preferred times but, again, it would mean students could not take his course and another also scheduled at that time.

I am not sure exactly how to pose the question but the generalized idea is what can/should a dean do. Can a Dean order people to teach at a certain time? Here is a non exhaustive list of possibilites:

What should a dean do?
	Back off. It is more important to keep X happy than avoid conflicts.
	Stay firm with the schedule and if X is a no show start appropriate disciplinary action.
	Negotiate. Offer X something others do not have.
	Call a faculty meeting, You've got a problem. Explain the scheduling issue and ask the faculty how they want you to solve the problem.
Free polls from Pollhost.com

Cat Hatter II

Meow! Roar! Ever fond of cats, Jeff Harrison asks, "What's a dean to do?" Jurisdynamics answers: And a jaguar shall lead you.

[T]hink deeply about what is right and then put all [your] energy into doing it. —  Murray Gell-Mann, The Quark and the Jaguar (1994)

A MoneyLaw move by Murray Gell-Mann

Physicist Murray Gell-Mann, along with George Zweig, predicted the existence of quarks. For this feat Gell-Mann won the Nobel Prize in Physics. He also demonstrated his affinity for literature by drawing the name quarks from a passage in Finnegans Wake: "Three quarks for Muster Mark!" A Jurisdynamics post describes how Gell-Mann's autobiographical and lyrical book, The Quark and the Jaguar: Adventures in the Simple and the Complex, spans this broader weblog network's subjects of interest. Gell-Mann does propose at least one intriguing change in academic culture, which I commend to MoneyLaw's readership: We must attach a higher prestige to that very creative act, the writing of serious review articles and books that distinguish the reliable from the unreliable and systematize and encapsulate, in the form of reasonably successful theories and other schemata, what does seem reliable. If an academic publishes a novel research result at the frontier of knowledge . . . , he or she may reap a reward in the form of a professorship or a promotion, even if the result is later shown to be entirely wrong. However, clarifying the meaning of what has already been done (or picking out what is worth learning from what is not) is much less likely to advance an academic career. Humanity will be much better off when the reward structure is altered so that selection pressures on careers favor the sorting out of information as well as its acquisition. If I may be so presumptuous as to rephrase the wisdom of a Nobel laureate in a genuine discipline: Humanity will be much better off when academia is governed according to its proper and legitimate purpose — the advancement of knowledge and its propagation to students and to society at large.

Nike: Goddess of victory, marketing, and academic management

Νίκη — Victoria — Goddess of Victory

Νίκη was the Greek goddess of victory, a connection made more obvious by the name of her Roman counterpart (Victoria) and her contemporary corporate namesake. These days she serves primarily as the goddess of marketing, whose feast day is Super Bowl Sunday. The advertising campaign, My Better Is Better, reminds those of us in academic management that victory in this admittedly nonathletic domain can also be ours. We just have to bring our best game.

It's tournament time

March   madness!

It's time for the NCAA men's basketball tournament, and I'll be pulling for three teams: the Louisville Cardinals, the Georgia Bulldogs, and the Belmont Bruins.

Louisville is my present; Georgia represents my past. But Belmont? It's an easy call. Fifteenth-seeded Belmont meets Duke in the first round, and Duke's opponents are always my third-favorite college basketball team after Louisville and Georgia.

I'm sure there are freaks who cheer for Duke, but they are all sick, evil, twisted perverts. None of them are friends of mine. Backing Duke basketball is like cheering for a law school with a $1.7 billion endowment.

There are other reasons to support Belmont. It's the alma mater of Lee Ann Womack and Trisha Yearwood. Doesn't that make you feel the love? If that's not enough, here's one more reason to cheer for Belmont. Unlike the other team from Nashville that will be playing in the tournament, Belmont doesn't have a law school.

Finally, here's a bit of MoneyLaw wisdom from Belmont alumna Sarah Cannon, probably better known by her stage name, Minnie Pearl:

Cannon . . . once aspired to a part in the new musical “Oklahoma!” when she was performing and teaching drama in the late 1940s. During a snowstorm somewhere in Kansas, only 15 people showed up for her little act, and she gave a low-energy performance.

Little did she know . . . that a talent scout was in the sparse audience, measuring her for a part in “Oklahoma!” She never got to Broadway, but she always remembered that snowy night whenever she went on stage. As Joe DiMaggio once said, there will always be somebody in the stands who is seeing you for the first and only time.

Being Who You Are

I am in Vienna right participating in one of the best things my Law School or any law school can do for its students. The event is the annual Willem C. Vis International Commercial Arbitration Moot. Over 200 teams are here from over 50 countries. For many students it is life changing, magical if there is such a thing.

One thing the American students learn is that outcomes can be arbitrary – and I do not mean as in arbitration. (Europeans are so much better at handling arbitrariness as you know if you follow soccer at all.) Although American law schools have done well in the competition it has also been my theory that they must do more “better” than their competitors. Many of the arbitration panels prefer a more formal style than Americans are used to. It is great for the students to recognize and experience this. In addition, the competition is in English and the general sense is that the benefit of the doubt goes to those for whom English is not the first language. Finally, although I think the vast majority of judges strive to be neutral, when they are not, the feeling here is that that are not pro American. The English matter is particularly strange. First, the fact that a team is from a particular country does not mean the team members are. We competed against a French team with a native from Tennessee (not part of France) and a Dutch team with a member from Wisconsin (at least they are connected by cheese). Second, the preferred English here is a very formal British style – the kind most Europeans learn when they learn English. American students, on the other hand, usually learn English from their parents who, let’s face it, may not pass Jim Chen’s test for English usage.

After all that build up, what does this have to do with Money law? Here is what I tell my students. You are American and, while I want you to clean up the slang, no one will doubt where you are from. It means things may be slanted slightly against you but just accept it, enjoy the experience, and move on. It is what it is and you are not going to change it.

The same message may be equally meaningful to a growing number of law professors. (I do not mean the American part.) If you entered law teaching before the age of massive self promotion and before 10 page articles began to count as much as year long efforts to work through difficult topics, you are in a new environment. This would be before deans counted lines on resumes without regard for originality or coauthorship. And before anything actually put on a printed page, no matter what printed page, was deemed to be an “article.” Many of you are in a world as different as my Arbitration Moot students. And my advice to you is the same. Just accept it and enjoy. And, in particular don’t become part of the process that substitutes form for substance.

With pug all things are possible

Any dog owner knows that this is a very serious disturbance in the canine Force:

Here in the world of MoneyLaw, what might be as implausible as a dog volunteering to be vacuumed? Here's a suggestion from my Saint Patrick's Day correspondence: The idea that law schools might actually fulfill their "fiduciary duty to their constituents (students and alums and the public)," as opposed to exploiting the legal academy's "monopoly position as an entry-point to the profession to preserve high [faculty] salaries."

I welcome other nominations in the commentary to this post. Remember: In pug we trust, for with pug all things are possible.

Hat tip: I thank Ann Bartow for bringing this pug video, and yet another, to my attention.

Lay Down, Sally

Okay, so Eric Clapton can't conjugate. But Lay Down, Sally is still one of the coolest songs ever, and shockingly simple in its underlying musical structure. Enjoy!

Lay Down, Sally There is nothing that is wrong In wanting you to stay here with me. I know you've got somewhere to go, But won't you make yourself at home and stay with me? And don't you ever leave. Chorus: Lay down, Sally, and rest you in my arms. Don't you think you want someone to talk to? Lay down, Sally, no need to leave so soon. I've been trying all night long just to talk to you. The sun ain't nearly on the rise And we still got the moon and stars above. Underneath the velvet skies, Love is all that matters. Won't you stay with me? And don't you ever leave. Repeat chorus I long to see the morning light Coloring your face so dreamily. So don't you go and say goodbye, You can lay your worries down and stay with me. And don't you ever leave. Repeat chorus x2

Industry 1, intelligence 0

How often do you see something like this? The 1L from a compass-point state college beats the Ivy League alumna. The C-average graduate, not the law review's editor in chief, eventually donates $1 million. The tier-four law school graduate becomes the faculty star, while the Supreme Court clerk hired the same year is grudgingly voted tenure and becomes an unproductive curmudgeon dedicated to guarding his sinecure. One underlying factor may be driving the entire phenomenon.

Click here to read all about it.

The fable at work here, of course, is that of the tortoise and the hare. Folk wisdom and anecdote find further support in the latest report of the National Mathematics Advisory Panel.

Much of the report covers ground that is as depressing as it is familiar. The report cited a 2007 assessment concluding that 15-year-olds in America ranked 25th among their peers in 30 developed nations in math literacy and problem solving. The National Assessment of Educational Progress found that almost half the eighth graders tested could not solve a word problem requiring the division of fractions. According to the advisory panel, the failure to master fractions posed the greatest obstacle separating American students from mastery of algebra.

There is no shortage of reports lamenting the woeful state of American education and the vast extent of ignorance in which many young Americans languish. We live in a country, after all, where even top-tier law school graduates routinely bomb the distinction between lie and lay, even though lie is an intransitive class 5 strong verb that readily retains a separate identity from the equivalent of lay, a transitive weak verb, in other Germanic languages. Repeat in an accent vaguely reminiscent of Arnold Schwarzenegger: "How can you hope to distinguish liegen from legen in German when you can't even conjugate lie and lay in your own language?" In a single generation, Americans of all classes and educational backgrounds will have eliminated all verb uses of lie except the intransitive weak verb denoting prevaricate. And so ends one of the most vivid manifestations of ablaut, a rich phonological and morphological tradition stretching back to the origins of the Indo-European languages. Lay down, Sally.

But I digress. The Advisory Panel made one additional finding of special interest to our educational system as a whole. Its report cited findings that students who draw upon their native intelligence learn less math than those who believe that success depends on hard work. The panel's chairman, Larry Faulkner, condemned the current “talent-driven approach to math, that either you can do it or you can’t, like playing the violin.”

So much of the rhetoric of prestige and rankings in education, especially in universities, treats academic achievement as a function of talent rather than a function of hard work. Shortcuts such as the identity of one's alma mater, one's class rank, and the academic reputation of a law school reinforce the assumption that innate talent, or access to elite institutions and resources more easily attained by families to the manor born, outweigh persistence, resilience, and industry. If it were otherwise, our profession would give ample opportunities to the graduates of less well regarded colleges and law schools — to say nothing of our own students who land well short of Coif, Latin honors, or the law review — to prove themselves through raw, hard work.

As a rule, of course, we do no such thing. This profession's nonelite tortoises, whatever they might lack in resources or opportunities, will simply have to keep outworking and outracing their hare-legged counterparts. I'll be betting on members of family Testudinidae.

Reverse auctions for entry-level law professors

At the end of a spring break that I spent, in significant part, staring at budget numbers and thinking about law school finances, I've finally come around to responding to a neat post by Rick Bales called Getting what you pay for.

Rick made good MoneyLaw use of Michael Dorff's newly posted article, The Rational Choice Myth: The Selection and Compensation of Critical Performers:

Some positions within an organization wield unusual impact over the entity's success. The decision makers who hire these critical performers face a daunting task: to distinguish among closely comparable finalists in a context where small differences in talent can produce enormous outcome divergences. I apply research from psychology and behavioral law and economics to argue that decision makers demonstrate unwarranted confidence in their ability to distinguish among nearly identical candidates. The illusion of validity, representativeness bias, insensitivity to predictability, and the fundamental attribution error all impede decision makers' ability to make these fine distinctions. Once they have made a selection, cognitive dissonance induces inappropriate confidence in the outcome's validity and promotes excessive compensation. Involving a group in the decision may worsen these effects by imbuing outcomes with the false veneer of market legitimacy through social cascades and by discouraging contrary views through excessive consensus or groupthink. * * * In the corporate context, I . . . propose a combination of mandatory compensation caps linked to firm size and a reverse auction among CEO finalists to determine the successful candidate.

Rick "enjoyed [Michael's] article, and couldn't help thinking about how it might apply to hiring in the legal academy." Michael's observation that corporate boards' "strong emotional incentive to bolster their confidence" in their CEO choices may lead them "to exaggerate the distinctions between the winning and losing candidates" and to "remain insensitive to the predictability of the new CEO’s future performance." According to Rick,

This sounds to me remarkably like the way we traditionally hire entry-level law faculty. Our predictors of future success, such as the prestige of law school attended, are an empirically poor predictor of future performance, so we convince ourselves that we have found a star, then are loath to recognize, even years down the road, evidence indicating otherwise.

This is a very long road, but it leads to a large, beautiful, and eminently habitable house. In academia as in corporate management, reverse auctions can't eliminate imprudent hiring decisions. But they can lower the cost of all hiring decisions.

Read the rest of this post . . . .In the corporate context, Michael Dorff recommends a reverse auction for CEOs, based on "a small group of finalists based on traditional criteria, all of whom . . . deem[ed] acceptable" by the corporation's board. Since "boards cannot manage the production side of the equation, they should at least minimize cost" by choosing the CEO candidate who agrees to do the job for the lowest salary.

For his part, Rick "continue[s] the analogy to entry-level law teachers" by arguing for a variant of reverse auctions: "the faculty should recommend to the dean a slate of candidates, and then let the dean do some bargaining." In the place of salaries, which are harder to negotiate in academia (at least by entry-level faculty candidates) than in for-profit environments, Rick suggests that law schools "could bargain for [things] such as institutional service and a commitment to innovative teaching."

I find the entire analogy and analysis fascinating. I hasten to add one point. There is a way to implement a reverse auction for entry-level law professors in more explicitly financial terms: student contact hours. A single figure — number of students times credit hours per course — simulates the financial impact of a potential faculty hire. The vast majority of law schools are dependent on tuition, and student contact hours correlate strongly to the amount of tuition collected. And since students per course directly correlate with the number of hours that a would-be law professor must spend teaching, answering questions, and grading exams, the candidate who expresses a high degree of willingness to absorb those students and those hours is sending a strong signal. According to this strategy, a law school faced with a slate of acceptable entry-level prospects should hire the candidate who, relative to her or his rivals, is willing to work longer hours, to serve more students, and to accept a lower amount of unstructured time — for scholarship and for leisure — for a given salary level.

Everyday I write the book

If Every Day Is a Winding Road is academic administration's theme song, then Everyday I Write the Book should be the research faculty's response:

Elvis Costello, Everyday I Write the Book, Punch the Clock (1983):

Don't tell me you don't know what love is
When you're old enough to know better
When you find strange hands in your sweater
When your dreamboat turns out to be a footnote
I'm a man with a mission in two or three editions

And I'm giving you a longing look
Everyday, everyday, everyday I write the book

Chapter One we didn't really get along
Chapter Two I think I fell in love with you
You said you'd stand by me in the middle of Chapter Three
But you were up to your old tricks in Chapters Four, Five and Six

The way you walk
The way you talk, and try to kiss me, and laugh
In four or five paragraphs
All your compliments and your cutting remarks
Are captured here in my quotation marks

Don't tell me you don't know the difference
Between a lover and a fighter
With my pen and my electric typewriter
Even in a perfect world where everyone was equal
I'd still own the film rights and be working on the sequel.

I'z the Cat Hatter

I'z the Cat Hatter. I wearz 3 hatz! Click here to read about me @ ClassBias!

» With apologies to the LOLCats of  I Can Has Cheezburger?  «

NY Times: Moneyball and Charitable Giving

Interesting article in the Sunday New York Times Magazine: What Makes People Give?, by David Leonhardt:

What makes people give their money away? [John List and Dean Karlan] considered the usual answers (to make the world a better place, to see your name printed in the back of an annual report and the like) too pat, too simple — and sometimes just wrong. Over the years, whenever one of them asked fund-raisers why they did what they did, the responses were vague and unimpressive. There didn’t seem to be much empirical evidence to support the strategies employed by most fund-raisers. So the two economists wondered whether charities were wasting a lot of effort. ...

For a long time, philanthropy was mostly ignored by social scientists ... Academics, for their part, have come to realize that charities provide an excellent laboratory for studying human behavior ... When charities are designing their donor appeals, they often go by nothing more than a few rules of thumb, some of which may be profoundly insightful and others a good deal less so. ...

As Michael Lewis (a contributing writer for this magazine) explained in his 2003 best seller, “Moneyball,” baseball executives spent years clinging to beliefs that were simply false. Only recently, thanks to the emergence of young executives who insisted on looking at data, had some of the myths been exposed. The research on charitable giving is still in its early stages, but is it possible, I wondered, that fund-raising would also prove to be riddled with inefficiencies? Absolutely, List replied. “I think most fund-raisers are doing this wrong.” ...

Cross-posted on TaxProf Blog.

Then face to face

Top: Edgar Degas (French, 1834–1917), The Dancing Class (ca. 1870). Bottom left: Ernst Ludwig Kirchner(German, 1880-1938), Woman at the Mirror (1912). Bottom right: Pablo Picasso (Spanish, 1882-1973), Girl Before a Mirror (1932).

I am fresh off a weekend in Washington and Baltimore, where I took part in University of Louisville alumni events in connection with a shootout for the Big East men's basketball regular season title and in the University of Maryland's Constitutional Law Schmooze. I've lost count of the number of alumni, University of Louisville partisans, constitutional law scholars, and political scientists with whom I connected.

Here's the MoneyLaw connection, one that has the incidental benefit (at least to me) of combining a little modern art with some biblical exegesis: In alumni relations and university development as in academic networking, there is no substitute for the face-to-face meeting. I explained as much, albeit in more Louisville-specific terms, in a Cardinal Lawyer post last fall: Anyone. Anywhere. Anytime.

In the absence of face-to-face contact, we fall quite naturally into a pattern of ascribing our own wishes, fears, predilections, and ambitions onto others. In personal as in academic matters, the hardest thing to do is to imagine that someone else, for perfectly legitimate and perhaps even compelling reasons, sees the world and the good that is in it in ways that you do not.

Consider 1 Corinthians 13:12, best known in English through the King James Bible: "For now we see through a glass, darkly; but then face to face: now I know in part; but then shall I know even as also I am known." In the original Greek, the first part of this verse reads: "βλεπομεν γαρ αρτι δι εσοπτρου εν αινιγματι." The crucial word in this sequence, ἔσοπτρον (esoptron), speaks not of windows, but of mirrors. And the mirrors of the ancients were made not of glass, but of metal:


The rendering of this verse in the Revised Standard Version makes the connection unequivocally: "For now we see in a mirror dimly, but then face to face. Now I know in part; then I shall understand fully, even as I have been fully understood." See generally Samuel E. Bassett, 1 Cor. 13:12, βλεπομεν γαρ αρτι δι εσοπτρου εν αινιγματι (blepomen gar arti di esoptron en ainigmati), 47 J. Biblical Lit. 232-36 (1928) (click here for the first page). Whether it takes Saint Paul, or a modernist trio as exalted as Degas, Kirchner, and Picasso, to do the trick, I'll do my best to remember the value of face-to-face contact vis-à-vis :-) the pitfalls of mirror-gazing.

Editor's note: Cross-posted at The Cardinal Lawyer.

Padding

I am a big sports fan but not that knowledgeable about ways to pad sports statistics. Of course, in basketball, total rebounds is not very useful. Offensive rebounds are critical. Points without much attention to attempts is pretty worthless. In baseball, I am not sure. Certainly a win/loss record is way too mushy when ERA tells you more about pitching effectiveness. Hopefully even the most unMoney Ball manager in any field knows to look at stats that really reflect performance.

I am not so sure the same level of scrutiny is uniformly applied in law. I say this not because I know how decision-makers and deans evaluation resumes but because of the persistent use of "stats" that can be deceptive. Since I believe that markets sometimes work, I believe that some decision-makers must be buying what some law professors are selling.

Some examples:

1. Lists of books. The best book is a university press original offering. It is not a recycling of old articles which most books by law professors are. Also listed in the books category are collections of works by others. This takes the form of a book but is hardly a "book" in the sense that it signifies a traditional book-like effort. In fact, the professor's role here is more as an administrator. Casebooks are harder to classify. I'd rank them behind the real university press book and way ahead of the edited book of readings. Still, there they all are listed as "books."

2. Coauthors. It is very difficult to find any book that is not coauthored. This is especially true when it comes to casebooks. There is nothing wrong with this. In fact, it probably makes for better work. But, I have seen way too many claims to be an "author" as in "I have published 3 books" when the person was one of two or three This problem is magnified when the author is actually a "coauthor" of a selection of readings by others. The same issue comes up with articles. Professor X boasts of 15 articles and Professor Y has measly 10. X's are all authored, none of Y's are and the difference goes unnoticed.

3. Articles. Don't even get me started. I have now seen listed and reported as "articles" everything from 2 page introductions to sweeping 100 page treatments of complex issues. Yet from the mouths of many of those with the 2 pages I hear "I have written X articles." Worse I have seen decision-makers look no further than numbers.

4. Placement. Privately professors will concede that placement is a crap shoot Actually, not quite. Your chances of a high placement soar if you can list some elitist credentials. Placement for my purposes here means was the article send into the marketplace for articles or was it a solicited symposium article. Not only are the latter generally shorter but placement is based, nearly exclusively, on what the author has already said somewhere else. Still, there they are listed along with other articles and often counted as equal to the the other articles. Don't get me wrong. Some of these pieces are better than standard articles but, for the most part, they are not selected by someone looking at two or 2000 completed articles and deciding which is best. To me ten articles send out to fight it out with the other hundreds of articles law professors produce is, without more, way ahead of ten invited offerings in which the author is often asked to preach to the choir.

5. Speeches and presentations. This part of a resume has always puzzled me. Is it scholarship? So far, I do not think I have heard a talk that was not part of something already published or part of something to be published. So, what is the contribution here? Orally presenting something that can be read? More importantly, if these talks are viewed as scholarship, isn't the risk of double counting huge?

6. Double counting. There are many ways to do this. I have noted lunch time talks and recycling articles into books. I have also seen this. Under articles there is an entry. The same entry is then found in "Book Chapters" because the article also appears in another book of readings.

All of this does go on. A few months ago I surveyed 4 schools at the level of my own to determine if elite credentials were good predictors of future scholarship. They were not. In the course of that, I discovered a number of outliers -- people with resume items way in excess of the average. In every case, all or some of the above were at work. Of course, it also goes in the context of shorter resumes.

I'd like to think law schools are as good as sports general managers at looking past the numbers but I am not sure they are. Obviously, a great number of law professors are counting on the possibility that they are not.

Liar's Poker Revisited

Lest we forget our literary inspirator's first book, the debacle with Roger Clemens and Brian McNamee illustrates key differences between practicing law and attending law school. As the next wave of law graduates approach entry into the market, this case helps to show why practicing law can sometimes be deflating to graduates after the law school experience.

There is No Scholarly Discourse or Fundamental Truth
In law school, we would have a Socratic discussion about defamation law and legal aspects of professional athletes using performance-enhancing drugs. At the end of the discussion we would feel we had reached some fundamental truth of humanity. I believe this is an effective way to learn how to analyze law, and it provides intellectual rewards for the students. However, I also believe students expect to find these same rewards in their practice.

In the actual case, there is no such debate and there is no fundamental truth. One side will eventually prove his story is more credible than the other side's story. The case will be won in the trenches by digging up evidence rather than a creative new application of law. Enough dirt has come out about both men to make them blush; more is sure to follow. The "truth" will be determined by what a 12-member jury believes. The loser will undoubtedly remain committed to his story even if he does so from a jail cell.

One of the Parties is Defiantly Lying
Clemens and McNamee both swore under oath before Congress, and at least one of them defiantly lied. It is hard to tell because they both performed so poorly, but the FBI is now investigating Clemens. We would like to think that people respect the majesty of courts and take sworn oaths seriously, but this sort of lying happens all the time in litigation (Bill Clinton, anyone?). Sometimes you can prove the other side is lying, sometimes you cannot, and sometimes it is your client that does the lying.

What is the Other Side Thinking?
A lot of times the other side will leave you scratching your head. Clemens produced "evidence" in the form of a commissioned study about his career statistics and a taped conversation with McNamee that both seem to confirm he took steroids. His argument before Congress is that the Mitchell Report is accurate about every other named player but contains lies about him. Clemens threw his family and friends under the bus to make his argument.

McNamee, a former cop, produced "evidence" of 8-year old syringes and gauze pads that allegedly have Clemens' DNA. So he had the foresight to keep it but not the foresight to authenticate it? His argument is that he has a history of habitual lying but he is telling the truth about Clemens.

* * *

While you occasionally get to take a novel issue of law to your state supreme court or circuit court of appeals, most cases pan out like this one. After mastering the law, you have to sort through suspect witnesses and suspect evidence to find the best way to generate a favorable outcome for your client. You do not get the opportunity for scholarly discourse or to reveal a fundamental truth, and the case will most often end with little fanfare in a confidential settlement. It can make practicing law deflating for new graduates.

Practicing law is a wonderful profession, and there is nothing else I would rather do. It is rewarding to know that you provided your client with outstanding legal representation in a time when they most needed help. The rewards are simply more different from the law school experience than many new graduates realize.

Law School Advice Wiki

I have created a wiki to collect links of advice pro/contra/useful for aspiring law students.

The link is here. To remember it, think anti-troll: http://lawschooladvicewiki.wikispaces.com/

I have made this public, so that anyone can edit this wiki and do whatever it is that people do on wikis. The easiest thing to do is to figure out the slightly different syntax and use the text editor rather than the visual editor.

Good riddance

Herewith an open letter to Michael Stokes Paulsen, Distinguished University Chair and Professor at the University of Saint Thomas School of Law.

Dear Mike,

I just got around to reading your piece, Good Riddance, Jim Chen, You No-Good Lousy So-and-So, 24 Const. Commentary 1 (2007). It's a tribute that only you could have pulled off. You managed the rare feat of making me laugh and cry at the same time. I meant what I've said about you in the blogs: "I don't miss working at 229 19th Avenue South in Minneapolis, but I do miss working with Michael Stokes Paulsen."

It's worth noting the irony. As far as I can tell, Good Riddance was the last thing you wrote before you joined the law faculty at Saint Thomas. I don't have as gaudy a platform as Constitutional Commentary to pay you tribute. So you'll have to accept this online gesture.

Good Riddance, of course, is the real title to a 1997 Green Day song many people call The Time of Your Life. In honor of your love and mastery of music, and of the years we worked together at Constitutional Commentary and its host institution, I offer a video and the lyrics to Good Riddance.

Best wishes,
Jim

Green Day, Good Riddance, Nimrod (1997)

Another turning point, a fork stuck in the road
Time grabs you by the wrist, directs you where to go
So make the best of this test, and don't ask why
It's not a question, but a lesson learned in time

It's something unpredictable, but in the end is right
I hope you had the time of your life

So take the photographs, and still frames in your mind
Hang it on a shelf in good health and good time
Tattoos of memories and dead skin on trial
For what it's worth it was worth all the while

It's something unpredictable, but in the end is right
I hope you had the time of your life

It's something unpredictable, but in the end is right
I hope you had the time of your life

It's something unpredictable, but in the end is right
I hope you had the time of your life

Is T.O. on Your Team?

Two posts below, Jim Chen has noted the importance of playing for the team as opposed to oneself. He is writing about the Louisville basketball team but suggests the question can be applied to other university units. No doubt, he is thinking about law schools.

When it comes to a law school, is it possible that trying to rack up individual statistics detracts from the success of the team? Before thinking about this, one other factor should be noted. If players are too self-serving and the team suffers, the team loses. If the team loses enough, the coach is fired. Consequently, there is a control. A player who tries to run up his or her score by taking the shot and not passing to an open teammate or ignoring fundamentals that make the team better off will be benched.

In the context of law schools there are, therefore, two issues. How do we know when a law professor is detracting from the team and is the dean comparable to a coach who can control this problem?

Running up individual stats for a law professor may mean publication after publication -- lines on a resume -- without any real consequence. This means being on the "take" for every 10 page symposium opportunity, accepting every opportunity to speak even if it has all been said before, fretting over SSRN downloads and patronizing the students to inflate teaching evaluations and so on. In the individual race, all of these things look good and enhance the image of the individual especially to fellow self-promoters who want to legitimize these activities. Much of this activity is "froth" that is unrelated to the actual overall quality of the team's effort.

Deans have a choice. They can facilitate this process or take a closer look at what is good for the team and, thus, the school. Specifically, a dean can be a counter -- how may times has your name appeared on an article, how many talks did you give -- and ignore actually "nose to the grindstone" efforts. To this dean, a 5 page symposium piece is the same as a 60 page article. That type of dean is a disaster for the team. By encouraging individual stats the nature of the game is set. Competition among team members means more wastefulness.

Or the dean may choose to put some faculty on the bench by indicating what is best for the team. This means not counting but actual attention to depth. For example, is the work original? Does it represent painstaking research? Does it represent actually research as opposed to an effort to justify the professors opinion. Is it risky research in that it may actually not lead to a marketable article.? Does the work represent a new direction for the faculty member or another safe effort?

Finding a losing law school team often means finding a coach who does not know the difference between running up individual stats and winning.

Teaching (commercial) law

Editor's note: Overnight I posted this item on the new Jurisdynamics Network blog, Commercial Law. Given the post's connection to Beyond ratings: Actually doing our jobs, an item published on this forum in August 2006, I thought I'd post it here at MoneyLaw as well.

A year and a half ago, The Conglomerate rightfully devoted careful attention to Larry Gavin's recent SSRN post, The Strange Death of Academic Commercial Law. Christine Hurt and Vic Fleischer each posted thoughtful proposals for reconfiguring the law school curriculum to bring this venerable and valuable subject back to legal academia.

After reviewing what I wrote in response to these proposals, I will add a few thoughts about commercial law and its centrality to legal education.

Read the rest of this post . . . .In August 2006, I wrote this in response to The Strange Death of Academic Commercial Law and The Conglomerate's discussion of that paper:

There is something to be said for reconfiguring the law school curriculum, especially in a third year that is as widely wasted as it is dreaded, according to the functional needs of new lawyers rather than the intellectual predilections of sinecured professors or, even worse, those professors' personal convenience.

Short of a comprehensive restructuring of the upper-level law school curriculum — which after all is the sort of proposal that sinks tenure petitions, ends deanships, and generally withers otherwise promising academic careers — perhaps we can consider a more modest intermediate step. Every law school student should complete a six-credit, two-semester "capstone" sequence as part of her or his third-year experience. Relying strictly on my personal arsenal of curricular weapons, I could conceivably offer full-year sequences in economic regulation (from antitrust to full-blown, command-and-control regulation of entry and rates), agricultural law and agribusiness law, the law of disasters, or natural resource and public lands management, among other possibilities. These are not offerings that lend themselves to a single 2-, 3-, or 4-credit course. In the tradition of, say, sports and entertainment law, they undertake to explain an entire way of doing business and to integrate such bodies of law as may be pertinent — all from a prospective client's perspective rather than the professor's idiosyncratic view of the field. Team teaching, skills training, and clinical experience can all be incorporated into this capstone sequence.

I still embrace the notion of building the entire third-year law school curriculum around capstone courses and practice-oriented exercises such as clinics, moot courts, and externships. I am now less sanguine, however, at the prospect that the legal academy as a whole would ever embrace something this radical. Even in August 2006, I feared that "an academy that is paralyzed by fear of The Ratings will be loath to try something different, no matter how sensible or how useful the alternative might be." Mark Osler has since identified serious and systemic institutional barriers to curricular innovation. Only partly in jest, I've suggested that those barriers dictate a single approach to faculty appointments: Hire no one.

As a compromise, therefore, I modestly propose this intermediate step: Law schools should actively encourage all students, and not just those who contemplate a future in business law, to complete at least one course in commercial law. Better yet, all students — especially those who expect to work in areas they may not characterize as commercial or economic — should complete a core business law curriculum, including commercial law, the law of business associations, and basic income taxation. This may be an obvious point to the contributors to this blog, but a shocking number of students (and even professors) indicate a contrary belief through their curricular choices. Marie Reilly has already extolled the utility law teacher. I now praise the utility law course.

The virtues of teaching commercial law are many, but the principal ones merit quick mention here:

• Commercial law, throughout its manifestations, is primarily a product of statutory law. In an academy where few schools undertake to teach legislation and statutory interpretation and few students encounter the chief tool of contemporary lawmakers and courts, courses in commercial law (and, for that matter, in tax) may represent most students' only systematic introduction to statutes and codes.


• Commercial law covers the sort of substantive legal knowledge for which clients are most likely to be willing to pay. We must never forget that the vast majority of law students are not going to school for fun or mere intellectual stimulation. Every law students should take at least one upper-level course that will enable them, quite simply, to get a job.


• Commercial law outperforms most other law school offerings in its integration of legal doctrine with real-world problem-solving techniques. That potential, at any rate, means a great deal in the hands of a skillful teacher of commercial law.

For these reasons and more, I have expressed my belief that a start-up law school should hire a Reilly-style utility law teacher as the first member of its new faculty. I would hire a broad-gauged business law generalist ahead of, say, an intellectual property or environmental law specialist, and far, far ahead of an interdisciplinary scholar whose devotion to teaching law students might stem entirely from the relative heft of a law teaching salary vis-à-vis paychecks offered elsewhere on a university campus. Commercial law may lack the glamor attributed to other fields in today's legal academy, but it is the bedrock of a legal education that works for its students — both in the sense of serving those students prudently, and in the sense of committing law schools to devoting labor, time, and resources toward those students and their future.

The name on the jersey

University of Louisville Men's Basketball Senior Class, 2008
#43 Terrance Farley	#4 David Padgett	#3 Juan Palacios

Sunday, March 2, was the home finale for the University of Louisville's men's basketball team. I was privileged to attend. The pregame ceremony honored three seniors who played their final game at Freedom Hall: Terrance Farley, David Padgett, and Juan Palacios. Head coach Rick Pitino, in his tribute to these three seniors, delivered no greater compliment than this:

These players played for the name on the front of the jersey, not the name on the back.

It's a compliment I hope to infuse in a different portion of the University of Louisville.

»  Cross-posted at The Cardinal Lawyer  «

Faking it

Looking back over the years I've served in some form of educational administration, I must confess that this was the single most effective pep talk I've given:

I know you're hurting. For that I'm sorry. But for your sake and the school's as well, you must be cheerful. Act happy. Fake it if you must.

Because this is MoneyLaw, because I know how to embed videos, and because I like the Dixie Chicks, I offer you a song that captures the sentiment of the moment:

Dixie Chicks, Everybody Knows, Taking the Long Way (2006)

Tell me now if you came sneaking up behind
Would you know me and see behind the smile
I can change like colors on a wall
Hoping no one else will find what lies beneath it all
I think I hide it all so well

Stepping out, everyone can see my face
All the things I can't erase from my life
Everybody knows
Standing out so you won't forget my name
That's the way we play this game of life
Everybody knows

Looking through the crowd
I search for something else
But every time I turn around
I run into myself
Here I stand
Consumed with my surroundings
Just another day
Of everybody looking
I swore they'd never see me cry
You'll never see me cry

Stepping out, everyone can see my face
All the things I can't erase from my life
Everybody knows
Standing out so you won't forget my name
That's the way we play this game of life
Everybody knows

You say I'll pay the price
That's the chance that I'll take
Though you may think I'm telling lies
But I just call it getting by

Stepping out, everyone can see my face
All the things I can't erase from my life
Everybody knows

Standing out so you won't forget my name
That's the way we play this game of life

Und jetzt suche ich den Weg zwischen Vorgebung und Ergebung:

In den dunkelsten Ecken meiner Vorstellung fürchte ich mich, daß ich das ganze Leben bereits vergeudet habe, daß ich immer noch ein akademisches sowie persönliches Trauerspiel erlebe:

Habe nun, ach! Biologie
Mathematik und Fremdsprachen
Und leider auch Juristerei
Durchaus studiert mit heißem Bemühn.
Da steh ich nun, ich armer Tor!
Und bin so klug als wie zuvor;
Heiße Magister, heiße Dekan gar
Und ziehe schon an die zehn Jahr'
Herauf, herab und quer und krumm
Meine Schüler an der Nase herum —
Und sehe, daß wir nichts wissen können!

Die Übersetzung dieses von Faust: Der Tragödie, Erster Teil begeisterten Stückes lasse ich als eine Übung für Euch, liebe Leserinnen und Leser. Die wunderschöne Webseite Theologisches Deutsch empfehle ich wohl, falls Ihr etwa Hilfe mit der deutschen Sprache braucht.