What full professors can learn from Elizabeth Edwards

If you've been following the aftermath of the Elizabeth Edwards-Ann Coulter dialogue on Hardball, then you know that Mrs. Edwards confronted Ms. Coulter directly, asking her to stop making personal attacks and, instead, to debate the political issues. Ms. Coulter decided to construe the request as one to stop writing and speaking altogether, and—quite predictably—she refused.

Here’s my favorite excerpt from the call:

Elizabeth Edwards: Hello, Chris.
CM [Chris Matthews]: You wanna say something directly to the person who's with me?
EE: I'm calling you … in the south when we -- when someone does something that displeases us, we wanna ask them politely to stop doing it. Uh - I'd like to ask Ann Coulter -- if she wants to debate on issues, on positions -- we certainly disagree with nearly everything she said on your show today -- um but uh it's quite another matter for these personal attacks that the things she has said over the years not just about John but about other candidates -- it lowers our political dialogue precisely at the time that we need to raise it. So I want to use the opportunity … to ask her politely [to] stop the personal attacks.
Ann Coulter: OK, so I made a joke -- let's see six months ago -- and as you point out they've been raising money off of it for six months since then.
CM: This is yesterday morning, what you said about him.
AC: I didn't say anything about him actually either time.
EE: Ann, you know that's not true. And once more its [sic] been going on for sometime [sic].

What struck me was how much Ms. Coulter’s reaction was just like that of a petulant teenage girl. Wearing her sunglasses on-air and flipping her hair when she was formulating her responses, she denied that she had made the statements in question (the “did not!” response), and then she claimed that she meant the statements as a joke (the “just kidding” response).

Rachel Simmons, author of the wonderful book Odd Girl Out, has classified the “did not” and “just kidding” responses as two of the most common ways that teenage girls bully each other. Trained by society to “be nice,” teenage girls express their passive-aggressive instincts in ways that provide them deniability.

I’ve noticed that this particular type of passive-aggression is common among those who have no particular bosses—academics are a prime example. Professors, especially full professors, can bully their colleagues (and their deans, and the support staff) with impunity. Based on my own experiences, academia is rife with bullies, and they exist because their colleagues don’t call them on their bad behavior. Their putative bosses (deans and department chairs) can’t fire them for insubordination, because firing a professor for his speech would bring up all sorts of constitutional issues. Full professors have life tenure, so their jobs are not in danger when they act out. And so they do—openly, and mostly without reprisal.

I'd love to see more full professors behave, instead, like Elizabeth Edwards did: confronting bullies openly and directly. Most bullies back down when someone calls them on their bad behavior. There's no risk to a full professor to confront a bully (unless the bully is in the administration or has unusual influence over the administration). I wouldn't recommend that an assistant or associate professor take a stand against a bully, because the risk of retaliation is too great. But full professors are well-nigh invincible: their workload won't change because they confronted the bully; their salaries won't change; the atmosphere might even improve after a confrontation.

Brava for Mrs. Edwards! No matter where one falls on the political spectrum, it's easy to say that she did the right thing. Now let's see what Ms. Coulter does in response.

Open brain, insert black-letter law

With only a few weeks to go of bar review classes, I'm now at the point that I'm happy to accept passively the disgorgement of bare-bones law into my open and willing brain. I like the jokes that the lecturers use in between this dumping-into-brain action, but I also find myself thinking, "OK, more rules--NOW."

I hope, though, that law students, with fifteen glorious weeks of study and (often) open-book exams, don't feel the same way.

Bar review and summer camp

A friend of mine who's studying for the Texas bar has, quite aptly, compared bar review to summer camp "but without the horseback riding." Shannon's right, and I'd just add that listening to black-letter law (which is all I care about these days) is a lot like making plaster hand molds in camp: seems like a good idea at the time, and utterly useless after camp is over.

Teaching to the test....

As I begin the third week of bar review--and let me say how grateful I am that BarBRI is spoon-feeding me the material I need to know--I can't help but think how much bar review is like the reactions to "No Child Left Behind" or the rankings. The goal is to hit those points that can get measured. (The bar itself actually tests application of the law to facts, so it's NOT a by-rote thing.)

A lot of K-12 teachers resent No Child Left Behind, because their days of teaching mastery seem to be behind them. It's improvement on the test scores that gets their administrators rewarded, and thus that law (and the tests that measure progress) shapes the principals' decisions about time and resource allocation. The same is true of the rankings, of course. Schools chase the change of statistically insignificant places on an ordinal ranking system, which in turn forces certain priorities.

The good news for Stanford, of course, is that I doubt I'll affect the law school's rankings next year, no matter how I do on the Nevada Bar.

Reflections on the first week of bar review

One more day, and Jeff & I will be finished with the first week of bar review. Observations so far:

1. I liked Professor Whitebread's lecture in 1987, and I liked it in 2007, too. Can 20 years really have passed so quickly between the two periods of bar prep.
2. I love taking notes on my laptop, although I seem to be the only person in the class who's doing that so far.
3. So far, the prep consists of stenography, in large part, and a bit of application. I know that those proportions will shift midway through.
4. I secretly (well, not so secretly, since I'm blogging) enjoy re-learning most of this stuff.

Apparently, I get cranky in the midst of moving....

Am in the process of changing from Houston to Las Vegas (which is why I haven't had a chance to post much recently), but a couple of things I've read have caused me to need to post. (Who knew that blogging would be such an addiction?)

Here's my reaction to some very interesting MoneyLaw posts about tenure, including one by my buddy Jeff Harrison. See my Of tenure, post-tenure review, and the "don't trust anyone over 30" phenomenon post.

I've also been musing about what makes deans popular with their constituencies: is it really necessary for a dean to give in to all requests in order to stay popular? Is such a willingness even sustainable? What happens when the desires of one constituency conflict with those of another? Provosts have the ability to terminate deans (no other constituency does, although some of the others can make life miserable for the dean), so does that mean that deans must placate provosts first above all other constituencies? What about founders or major donors? Regents? Faculties? Students?

One of the things I loved about being a dean was that it reminded me a lot of being a chapter 11 bankruptcy lawyer: lots of competing needs and constituencies and not enough "stuff" to go around meant that the dean had to think very hard about her choices and their likely outcomes. (By the way, I still don't ever plan to be a dean again. I liked being a Camp Fire Girl, too, but I'm not going to repeat that experience, either.)

These issues are extremely topical at U of H and UNLV right now, with the one facing the issue of doing a dean search during a presidential search and the other facing the ramifications of a recent dean-firing. Life continues to be very interesting at both universities.

What do the NYT article on the MBA cheating scandal and the WSJ article on accounting rules vs. standards have in common?

If you combine today's New York Times story on a cheating scandal at Duke (34 Duke Business Students Face Discipline for Cheating) with yesterday's Wall Street Journal story on the difference between using rules or standards in accounting regulation (What's Better in Accounting: Rules or 'Feel'?), you get a sinking feeling that using anything (rules OR standards) to regulate business will still lead to parsing beyond the regulation's intent. That's always been true, and it will always be true. Humans have quite a way of justifying their behavior to fit their desires. Take this excerpt from the NYT article today:

National surveys have suggested that cheating is widespread among graduate students. In a survey released last September by a Rutgers University professor, 56 percent of business graduate students admitted having cheated, compared with 54 percent in engineering, 48 percent in education and 45 percent in law school. More than 5,300 students at 54 universities were surveyed from 2002 to 2004.

“This is self-reported evidence of cheating, so it’s probably underestimated,” said Donald McCabe, a professor of management and global business at Rutgers who oversaw the survey.

“I would say at many business schools it is a part of the culture,” Dr. McCabe said. "You want to talk rationalizations? I could give you thousands of them: everybody else does it, it’s the teachers’ fault, you have to do it to get ahead.”

Do the students know that they're cheating? Of course they do. But cognitive dissonance is such a powerful drive in humans that--as Dr. McCabe says--they rationalize their cheating.

What should we do about the problem of cognitive dissonance? Bad news: there's nothing that we can do about it. It's part of our being human. The best we can do is to create an increased social pressure to educate people about the norms of behavior. We can't just say "don't cheat." We have to demonstrate that there is a social consequence for cheating, and that our community will not tolerate it. Pretending that rules (or standards) will change behavior all on their own is just whistling in the dark.

MoneyLaw's "law professor market"

MoneyLaw's currently talking about creating a market in law professors, akin to other types of markets. Take a look at the posts: Paul Caron (MoneyLaw2.0: The Law Prof Exchange), Jeff Harrison (Is There Hope for MoneyLaw?), and mine (A new market: law professors?).

On Crying: National Jurist and Wall Street Journal

Today's Wall Street Journal has a piece by Sue Shellenbarger on crying at work--Read This and Weep: Crying At Work Gains Acceptance. I wish it were true that crying in frustration and anger were more acceptable at work, but I just don't agree. If it were true, why would National Jurist still be focusing on tears instead of the issues raised on and after a faculty meeting of more than a year ago?

Perhaps, as more people become comfortable with tears as a legitimate way of expressing anger and frustration, there will be less use of those more violent means of expressing anger (although I doubt that, too).

St. John's LL.M. in Bankruptcy

Sorry for the gaps in my blog--I've been doing a lot of speaking (Enron, images of lawyers in movies, legal ethics, corporate ethics) and some teaching (St. John's LL.M. in Bankruptcy program--a short course on Enron and other corporate disasters).

A word or two about this year's class on Enron at St. John's: the students were quite good, of course; more important, though, they worked collaboratively. We began three out of the four sessions with brainstorming on the students' papers, and the students shared their ideas and research leads freely. The class discussions included an illustration of how easily smart people can run into problems. The students formed their own "law firm" from scratch and had to sort out how to hire people with good character, how to retain them while maintaining a collegial and cooperative environment, what to do with laterals from different corporate cultures, and how to evaluate associates.

My favorite discussion involved how to encourage associates to report problems. I gave them the following scenario: it's very late at night, and an associate is babysitting a closing. Five minutes before the closing has to occur, the associate spots a problem with the deal. She tries to reach the partner in charge, or any partner, but everyone's unreachable. What happens if she refuses to close the deal, and later, she discovers that she was wrong about the problem? Should the law firm reward her for having the guts to hold off on the deal (assuming that her mistake about the deal was reasonable), or should the firm punish her for not trusting the work of the partner who was in charge of the deal?

The class's discussion included several variations: What if she could wake up the partner in charge just before the closing--should the partner be angry or glad of the interruption? Would the firm "punish" her later by failing to give her work of the same level of importance? Should the firm trust her more, or trust her less, for making this mistake? Can the firm avoid a last-minute problem by briefing all of the associates on the deal before the deal closes?

I had a great deal of fun teaching this class, and I'm looking forward to reading the students' papers. Bravo to St. John's (and Ray Warner and Yvette Gutierrez) for such a wonderful program!

Sugar rushes for the season

I was just responding to Brian Leiter's ranking of law schools by LSAT score over at MoneyLaw, and I found myself using the word "peep," which naturally led to my thinking about Peeps. (It's a seasonal thing, although the Peeps website says that Peeps don't have to be only seasonal.)

My friend Carol Brown, who happens to be the sister of Larry "Bubbles" Brown, turned me onto Peeps, but I'll bet that she hasn't yet seen this website about Peeps experiments. Those experiments reminded me of the late, great experiments on Twinkies that Rice University students once performed. What made the experiments so priceless was the fact that the students performed them during finals week.

As my friends celebrate this season for reasons other than mine (we get matzot, they get...Peeps?), I thought that you might enjoy this scientific look at two classic foods.

Prediction of the death of billable hours, part 3

Peter Lattman's post today on Law Blog, You Say You Want a Big-Law Revolution, talks about the efforts of two Stanford Law School students to get the big-name law firms to agree to change the 24/7 nature of the practice of law. Here's part of Lattman's post:

A group of law students wants to change that. Last night, Stanford Law’s Andrew Canter and Craig Holt Segall — along with roughly 125 students from the nation’s top law schools — emailed hiring partners and recruiting coordinators at the AmLaw 100 law firms. Their new organization, Law Students Building a Better Legal Profession, wants the country’s biggest law firms to sign-on to principles espousing a saner work environment for lawyers.

“We are writing as a group of over 100 law students to propose a change in the way we all experience our profession,” the email begins. “We are working to ensur[e] that practicing law does not mean giving up a commitment to family, community, and dedicated service to clients.”

What makes this request different from all others (yes, it's Pesach, so the phrasing is intentional) is that the law students have indicated that they're willing to take a pay cut as part of the trade-off for more reasonable hours.

Quixotic? Maybe, given the immense budgets that large law firms have structured. But these students' request has recognized the relationship between high salaries and long hours. It'll be interesting to see which firms, if any, sign on and which signatories, if any, actually follow through on a change in the pace of work.

Francis Stokes is brilliant!

My new guilty pleasure is watching the episodes of God, Inc. on YouTube. Francis Stokes directed these The-Office (US version)-style mockumentaries of what's really going on in God's domain. Give 'em a shot....

My bad--and thanks to "anonymous" and my dad for finding glitches in my USNWR spreadsheet

Here's the updated one (with some charts added)--sorry for the glitches.

Most numbers don't speak for themselves

We're now in phase 2 of the annual USNWR rankings reaction: the PR machine's touting of the numbers for those schools that are highly ranked or that have moved up in the rankings, and the explanations for those schools that have stayed where they were ranked last year or that have moved down in the rankings. Bravo to Gordon Smith for this post: Law School Deans & the US News Rankings. He gets it exactly right.

At MoneyLaw, Paul Caron has posted Biggest Moves in the 2008 US News Law School Rankings, and I've posted a comment there, suggesting that--until we know where the natural "groupings" of schools are--the "numbers" don't mean much.

USNWR's rankings are, at best, useful for isolating trends, but they're not absolute measures of anything. In a way, they're exactly like curved grades for a course--they demonstrate a student's relative ranking against his peers on the test given that day, but they don't demonstrate absolute mastery and, at best, indicate trends that the student might want to investigate.

For each school that uses this year's rankings to say that the school itself is demonstrably better than before, perhaps that school could also list the changes that it has made--changes that the voters might know about through PR, for example--that have altered its inherent quality for the better. Houston has been doing great things for several years now (some say in spite of the "numbers") and perhaps the cumulative effect has had a change in its overall reputation. Peter Hoffman's work there--along with Jim Lawrence's work and the work of all of the folks in the Blakely Advocacy Institute--has certainly been paying off. But Peter and Jim have been doing their work without playing to the rankings. Their recognition in USNWR is a happy side effect, not their main aim.

In a way, phase 2 of the annual USNWR reaction reminds me of George Carlin's old bit about partial scores and sportscasters: "This just in.... [School X], 7."

Playing around with the numbers

I've done some sorting of the latest rankings by various measures. If you want to take a gander, my version is here.

LUV letter--thank you, Southwest Airlines!

Before I go to sleep tonight, I want to thank Southwest Airlines publicly for how nicely it handled my travel delays today.

I was headed to Jurist's 10th anniversary celebration conference, Law as a Seamless Web. My original flight out was canceled, and I was booked on the next flight out, which was also going to be a little late. The Southwest agent assured me that I'd make my connection, even though I was landing at Midway in terminal B and heading to a gate in terminal A. About two minutes after we landed at Midway, I was heading toward terminal A, and I heard "final boarding for Pittsburgh." I figured that I wasn't going to make my flight, so I didn't rush to the gate. I walked, heard a second "final boarding" announcement, and picked up my pace a bit. Made it to the gate to see the agent walking away from the boarding area--the agent turned around, and he asked if I was "Rapoport" (no I'm Not Rappaport play jokes here, please). Southwest held the flight for me--and my bag made it onto the plane.

I already "LUV'ed" Southwest's business plan and the fact that it lets its crews use their senses of humor to good effect. Now I love LUV because it got me to Pittsburgh in fine style.

In case you're wondering (or are preternaturally cynical): no one at Southwest has paid me to say this.

Same as it ever was, again (stop making sense)....

Paul Caron has posted this year's USNWR rankings on TaxProfBlog, and he's done us a favor by posting the vertical moves of several of the schools, including the schools in the top 50.

The backslapping and media wars may now begin. I'll be interested in seeing how Houston explains its 10-point leap to 60 from 70, especially since (1) the cluster of schools in which Houston falls (the band of similar schools) likely hasn't changed at all, and (2) the foundation for any change in the rankings occurs at least one year before (e.g., placement numbers are, obviously, not for the current year). In other words, when I first came to Houston and Houston was "in the top 50," Steve Zamora and his team deserved some credit. But the real lesson is that no one person changes anything about the score that goes into the rankings (although the head of placement is key, and Rhonda Beassie at Houston deserves significant credit for her hard work in helping graduates find jobs)--and that the bulk of the score has to do with things that aren't directly affected by changes at the margins (reputation, entering numerical credentials).

The most important thing to notice, of course, is how little movement there was at the top (once again). David Byrne and Talking Heads said it best:

And you may ask yourself
What is that beautiful house?
And you may ask yourself
Where does that highway go?
And you may ask yourself
Am I right? ...am I wrong? And you may tell yourself
My god!...what have I done?

Letting the days go by/let the water hold me down
Letting the days go by/water flowing underground
Into the blue again/in the silent water
Under the rocks and stones/there is water underground.
Letting the days go by/let the water hold me down....

Same as it ever was...same as it ever was...same as it ever was...
Same as it ever was...same as it ever was...same as it ever was...
Same as it ever was...same as it ever was...

Once in a Lifetime, Stop Making Sense, Talking Heads (1990).

YouTube, Viacom, AutoAdmit, and Ann Coulter--and, of course, the rankings

What do the Viacom/YouTube dispute, the brouhaha over AutoAdmit's content, and some of the back-and-forth on alternative rankings all have in common? From my point of view, it's a discussion about responsibility for one's actions. Here's some background.

AutoAdmit, which bills itself as "[t]he most prestigious law school discussion board in the world," is a collection of posts ranging from the insightful (well, theoretically, at least) to the disgusting. For a discussion about the latter, see WashingtonPost.com, Harsh Words Die Hard on the Web: Law Students Feel Lasting Effects of Anonymous Attacks. Last year, my actions, character, etc. were rehashed on both AutoAdmit and GreedyTexas.com, so I have an inkling of what it feels like to be e-mobbed. It didn't feel wonderful, but I blamed the people who posted on those sites and not the sites themselves.

Viacom and YouTube are in a dispute about what YouTube may or may not allow people to post on its website. (Here's one article discussing the dispute: Viacom's case against YouTube and Google: Site is not passive Web host digital copyright act protects.) Although it's my understanding that YouTube removes copyright protected work when it's notified of the copyright protection, the issue--best as I can tell--is that Viacom thinks that YouTube should be more proactive in monitoring postings on its site.

Ann Coulter. Ah, what can I say about her that won't be, well, just nasty and mean, which is certainly how I view her? At least I give her credit for being brave enough to attach her name to her opinions.

What do these issues have in common? The fact that, often, people blame the medium rather than the writer, and I don't understand why they do that. Certainly, the people who posted the ridiculous things on AutoAdmit have amply demonstrated their own character flaws and should be worried about their own careers, should their anonymity ever be pierced. (And is it really a surprise that so many people post anonymously on blogs to spew their venom, rather than demonstrate a willingness to take responsibility for what they post?) But is it Anthony Ciolli's fault that the people who abused the law students on AutoAdmit exhibited such a lack of judgment? (For what it's worth, he's resigned from AutoAdmit.)

Opinions are just that: opinions. Sure, there are judgment calls about what to allow and what not to allow--in newpapers, on TV, in movies, on websites. But why do people attack the decisions to allow/disallow the posts rather than focusing on the posts (and those who write the posts) themselves?

I've seen well-reasoned disagreements about topics like the use of SSRN downloads as alternative rankings. (For example, see Brian Leiter's No Ranking is Too Trivial to Spark Commentary from Folks with Time to Burn..., Doug Berman's hilarious last line in SSRN rankings and Leiter's (rank?) omission, and Ann Bartow's Eats, Shoots and Leaves-like post, Fuck, SSRN Rankings, as well as my own MoneyLaw post, We're number, uh, something?) Sure, we're (sigh) older and probably wiser than the authors of the AutoAdmit posts in question. (I think that I'm older than Ann Coulter, too, which is very depressing.) But I also think that the fact that we attach our names to our opinions reminds us that we take responsibility for what we say and that we know that our posts will be available for a long, long time.

It's really possible to disagree using humor and kindness, rather than with the elementary school response of "I know you are, but what am I?" (Apologies to PeeWee Herman.)

On the usefulness of scholarship

I just posted, over at MoneyLaw, some musings on whether legal scholarship (especially that published in traditional law reviews) counts for anything. (See If an article falls in the forest....) Feel free to weigh in here or there.

Treasury meeting of corporate bigwigs--"same as it ever was?"

I just read, in today's Houston Chronicle, that Treasury Secretary Henry Paulson's convening a group of movers and shakers to discuss two related ideas: first, that perhaps firms shouldn't have to forecast quarterly earnings; and second, that perhaps big accounting firms shouldn't face as much exposure when things go wrong. See Marcy Gordon's story, Big names will weigh in on corporate laws. According to her article, "The panelists include billionaire investor Warren Buffett, General Electric Co. Chairman Jeffrey Immelt, brokerage founder and CEO Charles Schwab, former Federal Reserve Chairman Alan Greenspan and New York Mayor Michael Bloomberg." SEC Chairman Christopher Cox is the co-moderator with Paulson.



Not that the panelists aren't well-qualified (they are, especially Warren Buffet, who seems to be a true straight-shooter), but where are folks who represent other ways of looking at the market? Where are the academics who study corporate behavior? I know that almost all conferences consist of singing to the appropriate choirs--academic conferences are no different--but, well, geez! This conference is organized by the government. Would it have hurt Paulson & Cox to invite other perspectives to the table so that at least the panelists could have had some productive cross-talk?



I've said before (The SEC's “Bullwinkle” Enforcement and the WABAC Machine) that accounting firms don't deserve special protection. For what it's worth, I actually agree that the quarterly forecasting does more harm than good to companies, because it forces them to focus on short-term needs, rather than long-term issues. Short-term focus was one of the problems that Enron faced, and we all know how it chose to deal with those pesky facts that got in the way of its made-up forecasts.



Please, Mr. Paulson & Mr. Cox: I applaud you for asking important questions. I really do. But it's just as important to have a variety of views positing answers as it is to ask the questions in the first place.



In the immortal words of David Byrne & the Talking Heads,

Watch out you might get what you're after
. . . .
Burning down the house

Hold tight wait till the party's over
Hold tight
We're in for nasty weather
There has got to be a way
Burning down the house
Here's your ticket pack your bag: time for jumpin' overboard
The transportation is here
Close enough but not too far,
Maybe you know where you are
Fightin' fire with fire

Same as it ever was?

Countdown to the death of billable hours continues

Two stories in today's Wall Street Journal caught my eye (and, like all "the sky is falling" theorists, confirmed my theory that law firms are going to have to move away from a billable-hours based budget): a story on defense firms taking on more contingency fee cases (and the issues that they face divvying up the wins and sharing the losses) and a blurb noting that Harvey Miller is planning to leave behind his investment firm and rejoin Weil, Gotshal. For some juicy/nasty comments about the latter story, see the Wall Street Journal's Law Blog. (FWIW, I heard Harvey give a keynote address at an American College of Bankruptcy initiation, and his words and delivery moved me greatly.)

The point is that there's movement afoot in the larger law firms: moves to some non-traditional types of fees and moves of well-known players. Add to this my prior post about partners feeling the pinch between their draws and the starting salaries of new associates and an article by Stephanie Francis Ward in the Feb. 2007 ABA Journal. Stephanie's article, The Ultimate Time-Money Trade-off, suggests that some significant number of large firm associates would cut their paychecks in return for a cut in billable-hour requirements. That finding goes against the traditional wisdom I've heard from some big firms--that they must pay starting associates more and more each year to be able to get the ones they want.

At some point, firms won't be able to increase starting salaries for associates and still keep their rates low enough to get and keep the good work on which they've been relying to pay their bills. Something's got to give.

Updated Toledo Law Review Deans' Symposium article

For those of you who've been nice enough to give comments on the earlier drafts of my latest (and final) Toledo Law Review Deans' Symposium piece, Not Quite "Them," Not Quite "Us": Why It's Difficult for Former Deans to Go Home Again, I've just posted a revised draft on SSRN. Still happy to receive comments--I'll be using a revised version of this piece, as well as some interviews with some people who experienced some of the same things that I did, in my Managing by Ambush book. Thanks!

Two great lists to watch--thanks to Brian Leiter

Brian Leiter has pointed us to a list of lateral moves that Dan Filler of Drexel is compiling. (Thanks, Dan, for doing this! Any chance that you'd do another version of the list, using departure schools, not arrival schools, as the organizing principle? It'd be interesting to compare the two lists.) Dan then directs us to Larry Solum's list of entry-level hires. (Thanks, Larry, for compiling that list!)

Definitely a nice way to keep track of who's going where (and to start all sorts of theories as to why....)

Rapoport's tried-and-true method for learning how to take law school essay exams (with a shout-out to Mary Beth Beazley)

After way too many years talking with students after they've received their grades (especially first-year students), I started to think about how I could help students diagnose their grades. Typically, when I hear a student tell me that he "knew the material cold," I wonder whether the problem isn't about understanding the material but about misunderstanding what it means to write an essay exam.

We can talk about IRAC, CIRA, and every other acronym under the sun but, often, students hear what we're saying but can't apply it. Here's why I'm giving a shout-out to Professor Mary Beth Beazley at Moritz College of Law, The Ohio State University.

When I was lucky enough to be teaching at OSU, Mary Beth taught me a great deal about teaching, and she published this wonderful article called The Self-Graded Draft, Teaching Students to Revise Using Guided Self-Critique, 3 Leg. Writing 175 (1997). (MBB: please, please post a copy on SSRN!) In this article, Mary Beth gave me an "aha!" moment:

The process of finding the elements and of physically marking them -- e.g., with a highlighter -- forces the writer to focus his or her attention on one element of the document at a time. This focus often helps to provide enough psychological distance to allow the writer to conduct an objective evaluation of his or her writing and, ideally, to improve it.

When I go over students' exams with them, I use a jazz riff off of Mary Beth's approach. (I've also done several talks to law students about how to take exams, and I spend the first portion of the talks explaining how I come up with ideas for exam questions and how I turn those ideas into the questions themselves.)

So here's the Rapoport method.
1. The best way to prepare for an exam is to take practice exams and diagnose the answers to those exams. (Analogy: the best way to play a sport is to play it, not read about it.)
2. You get points on exams for what you put in your answer, not what you have in your head.
3. There are two types of errors that I see on most exams. The first type of error is serious: not understanding the law. (Let's call that error the input error.) My method doesn't deal with that error. It deals with the second type of error: not understanding the components of a good answer. Let's call that error the applicaton error.
4. Often, students with the second type of error systematically skip one or more of the components of a good answer, thereby cheating themselves out of points that they could have gotten.
5. So, to the diagnosis part. Get four colors of highlighters. You'll use one for highlighting your statement of the rules, one for highlighting your use of the facts from the hypothetical, one for your application of those facts from the hypothetical to the rule (including any exceptions to the rule), and one for any conclusions that you draw after you apply the facts to the law.
6. Students who systematically forget to put the rule(s) down on paper will see that mistake. So will students who jump to conclusions without demonstrating each step of their analysis, or those who write general statements about the hypothetical without looking for those particular facts on which a given hypo will turn.
7. After the student has had a chance to look for systematic errors, then it's time to start with step 1 again: more practice exams, more diagnosis, then still more practice, and still more diagnosis.

Some students resist the extra work that this method takes, preferring instead to focus on more detailed outlining or on buying more commercial outlines. But knowing the law and using the law are different skills, and both skills are necessary. Each without the other is useless (except at cocktail parties).

Will this work for everyone with an application error, rather than an input error? I don't know. But I know that not diagnosing the problem is a sure-fire way to repeat the error each semester.

The SEC's “Bullwinkle” Enforcement and the WABAC Machine

Peabody’s Improbable History [a regular segment on the Rocky and Bullwinkle shows] featured a talking dog genius named Mister Peabody who had a pet boy named Sherman. Sherman and Peabody would use Peabody’s “WABAC machine” (pronounced “way-back[,”] and partially a play on early computer brands such as UNIVAC and ENIAC) to go back in time to discover the real story behind historical events.

(http://en.wikipedia.org/wiki/The_Rocky_and_Bullwinkle_Show#Supporting_features.)

Using our own WABAC machine, let’s imagine the beginning of the year 2002: Enron has filed for chapter 11 protection, followed shortly thereafter by WorldCom’s chapter 11 filing (which then surpasses Enron’s chapter 11 as the nation’s largest bankruptcy). The Enron and WorldCom scandals involve accounting fraud on a grand scale. Then tick off the rest of the scandals, including Tyco, Global Crossing, and Adelphia. Market confidence plummets. Congress, in its rush to distance itself from those scandals, enacts Sarbanes-Oxley as a way to tighten up the reports from public companies.

We can spend a lot of time wondering whether Sarbanes-Oxley was even necessary or whether it’s deterred any new fraud. (Personally, I don’t think that Sarbox was necessary, and I doubt that it’s deterred any determined liars or cheats.) But as a symbolic gesture, Sarbox was designed to level the playing field a bit.

Part of that playing field involved the Private Securities Litigation Reform Act of 1995, which was Congress’s reaction to perceived litigation abuses in securities class actions suits. (Michael Perino has written a well-balanced empirical study of the aftereffects of the PSLRA, available here.)

In section 21D(b)(2), the PSLRA ratcheted up the standard of proof for a prima facie case:

In any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.

As any law student could guess, much rides on the interpretation of “strong inference.” Currently, there’s a case in the Supreme Court that should help to decide this interpretation issue. According to the Times (and other stories that I’ve Googled), the SEC is “considering ways to protect accounting firms from large damage awards in cases brought by investors and companies.”

Excuse me? Let’s go into that WABAC machine again. For a long time, we had the Big Eight accounting firms. With some mergers, we went to the Big Six, and eventually to the Big Five. One of those five was the late Arthur Andersen (killed by a successful firmwide indictment, then resurrected—too late—by the United States Supreme Court in Arthur Andersen LLP v. United States). Arthur Andersen gave us major accounting errors in Sunbeam, WorldCom, Waste Management, etc., and, of course, it gave us Enron. Now we have the Remaining Few.

None of the major public accounting firms is error-free, of course, and that’s the point. Reasonable mistakes are one thing, and those shouldn’t be actionable; aiding and abetting is something entirely different. Mind you, it’s the rare company that will police itself. The SEC is one of the two watchdogs the public has to monitor large-scale fraud, and litigation is the other. When the SEC wants to curtail the size of damage awards, it’s telling us that it doesn’t trust juries to weigh the evidence, and it doesn’t trust judges to keep out improper evidence.

What’s the reason that the chief SEC accountant gives for wanting to protect these remaining large accounting firms? Here's the theory: without the biggest firms alive and well, no one's going to be around to do the audits of public companies.

Here’s a suggestion: if the Remaining Few do such a poor job that juries award large damages in cases against them, maybe those companies shouldn’t be the ones doing the bulk of auditing. Maybe other firms could take their place.

I’m not saying that we should beat up on the Remaining Few. There are plenty of talented, ethical lawyers and accountants there, just as there were at Arthur Andersen. But if the Remaining Few get sloppy—or get captured, even after Sarbox has separated the audit and consulting businesses—why should the government protect them? What justifies placing the Remaining Few into a special category?

Mr. Peabody and Sherman used the WABAC machine to go back to famous historical events, interact with the key players, and then return to the present, always ending the episode with a bad pun. The SEC should use its own WABAC machine to remember how stunned we all were by the events of late 2001 and all of 2002. Maybe then it would change its attitude, which appears to be that money doesn’t grow on . . . pleas.

A shout-out to the wonderful Carol Lam (Stanford Law Class of 1985)

As I was reading the morning's paper, I noticed this news item: Former CIA Official, Contractor Indicted, along with a picture of U.S. Attorney Carol Lam. Carol was the U.S. Attorney in San Diego responsible for the prosecution of Randy "Duke" Cunningham. She's quoted in this post at ABC.com as saying, "'High government positions and powerful connections should not be tickets to corrupt self-enrichment.'"

She's also one of the U.S. Attorneys recently asked to resign, although she's behaved very professionally about that.

I remember her from law school--extremely smart and talented in several ways, with gravitas and yet a friendly manner. I liked her then; I like and respect her even more these days.

I have no idea what she's going to do next, but I'm hoping that the folks at her next post value her for what she brings to the table and for what she's done for all of us.

I have seen bad customer service, and I have never seen customer service as bad as that "offered" by McAfee

I foolishly tried to update my anti-virus software. Because my computer originally came with McAfee, I thought that I'd just update that software. That was my first mistake.

Here's what has happened so far today:

1. I purchased the newest McAfee VirusScan.
2. I installed it.
3. I registered it.
4. I ran its diagnostics, and it suggested that I update two files.
5. I clicked on the link to get me to the update area, called McAfee Service Portal.
6. I tried to log on, but Service Portal wouldn't accept the very account that I had just opened when I purchased my software.
7. I tried to get technical support from the web. I couldn't log on because technical support also wouldn't accept the account info that I had just created.
8. I tried emailing McAfee. I couldn't find a working email address that didn't first start by taking me through steps #6-7.
9. I tried creating a new user account, but I couldn't get a grant number (a GRANT NUMBER? for a NEW USER????).
10. I tried emailing sales, on the theory that someone there might be able to get me to a human. No response.
11. I tried emailing web feedback, but in order to email web feedback, you have to promise that you're not requesting technical support. (I emailed web feedback anyway.)
12. I finally reached a live internet chat line and talked with a very nice tech rep named Steven. Steven couldn't help me, so he gave me this number:
800-338-8754 .
13. I called that number. It's for CORPORATE support, so corporate support gave me to consumer customer support, at (866) 622-3911.
14. Before I called consumer customer support, I asked corporate support to let me speak to a manager. Corporate support put me into a phone loop. I hung up.
15. I called consumer support, which told me that it couldn't help me. It suggested I call corporate support for a refund.
16. I called corporate support, which told me that I had to call another number--866-622-3911--for a refund. I asked to speak to a manager without being put into another phone loop. I was transferred to the phone loop. I hung up.
17. I called this latest number, and I found someone willing to give me a refund. Well, sort of--it may take several days, and I'll have to wait for a disk to be sent to me so that I can return the disk, unopened, for yet another refund. I asked if someone there could get a message to corporate that this experience in customer taunting has been the worst of my life (46 years and counting). Nope. There's no link to corporate from this number. My gut hunch is that I'll have to spend several more minutes of my life getting an actual refund.

Moral: Kafka couldn't create a worse customer service story. I suggest that anyone who wants to avoid this type of stress also avoid McAfee.

Jeff Harrison's salary compression question, viewed from the standpoint of shared governance

In answering Jeff Harrison's question on salary compression with a comment of my own, I realized that I'd answered him from the standpoint of years of reviewing professors' annual reports, not from the standpoint of shared governance.

How should the dean work w/a faculty committee on raises? From the perspective of the dean and any faculty executive/budget committee, the point is to make sure that the reviews (and resulting raises) are fair across categories (across various faculty ranks) and to the individual professors getting raises.

At UH, the faculty executive committees over the years were generally willing to give me advice about general categories and to look over the recommended raises to see if I had missed something that would cause me to want to recommend a different raise amount. Very few committee members were comfortable doing a full-scale review of everyone's case for a raise. When committee members did such reviews, they (naturally) noticed cases most similar to their own.

I faced a fair amount of resistance in trying to adapt the criteria for review to individual professors' assignments, even though such individualized criteria are common in land-grant universities (e.g., X% of someone's time allocated to research, Y% of time allocated to teaching, and 100-(X+Y)% allocated to service). I still believe that individualized criteria would be more fair to those groups who traditionally provide a large amount of unrecognized service: professors who do significantly more student counseling than their peers (often, these professors are women or people of color); clinical professors; research and writing professors. Individualized criteria would also be more fair to those who tend to focus on either research or teaching, as long as the criteria still encourage both groups to pull their weight on their less-favored obligations. But I recognize that there's plenty of potential for a bad administrator to use individualized criteria for unsavory purposes.

What do other schools do? Feel free to post a comment here or at MoneyLaw, or better yet, at both blogs.

OK, OK--you actually can hear it in a lot of places

Here's more on the issue of starting salaries at large law firms: Jeff Lipshaw, Days of Whine and Roses, or the Strangled Cries of Lawyers in Love; David Luban, Associates of the World, Unite!; and Brian Tamanaha, A Slice of Information About Corporate Law Firms and Legal Academia.

Would love to see what folks think about any of these takes, and especially about my last post on law firm budgets--thanks!

You heard it here: the beginning of the end of law firm "billable hours"-based budgets

On February 6, the WSJ Law Blog posted this article: Pay Gap: Top Firm Associates Fall Behind Partners. In that post, Jessica Marmor points out one longstanding truth and one important trend.

The longstanding truth: associates getting the highest paychecks are supposed to work their tails off. According to Wilkie Farr's chairman, Jack Nusbaum, “We expect our associates to work hard, but maybe this will make them feel better about the Saturdays and Sundays.”

The important trend: large law firms have reached the point where the dramatic starting salaries have started to carve significant chunks out of partners' draws:

One key reason for the differences between smaller and larger firms may be the rise in nonequity partners, according to Indiana University law professor William Henderson, quoted in the NLJ article. As more senior associates are promoted to nonequity partner instead of full partner, the pay differential between associates and full partners becomes more pronounced.

The article doesn’t address the effect of the recent pay hikes. But New York Magazine points out this week that the recent rash of raises will take a chunk out of partners’ paychecks. According to the article, it’s estimated that at a big firm like Simpson, each partner will take an approximate hit of $40,000 to $70,000 a year to pay for the salary bump. “It’s horrible,” said one partner at a big firm.

We're not talking about rocket science here: law firms have fixed and variable costs. They have to pay their expenses before they can net out any profits. As associate salaries go up, overall expenses go up, and something has to give. In every market (except, perhaps, New York and Miami, from what I've seen of the billing rates in those two markets), there will come a point at which a firm's billable rates price that firm out of the market. That firm will start losing business if it then keeps its billable rates too high. The clients of these large law firms are sophisticated, too, and they have choices in their selection of law firms. And no billable rate is going to work if it becomes uncollectible--if the clients don't pay their bills.

So partners are faced with a dilemma. Should they pay "going rates" for starting salaries? How will they make up the added expenses in their budgets? At some point, honest lawyers can only bill a certain amount in a year, because years themselves have a fixed number of hours. There are two options: partners take less, or law firms will have to change the way they bill.

The funny thing is that law firms changed their billing styles to the billable hours model because the "old way" of billing -- a one-line bill, with "for professional services rendered" -- wasn't getting the firms enough money. Instead of eyeballing the work done and coming up with a bottom-line number that the billing partner thought was fair, the billable hours model was supposed to make the practice of law more businesslike and thus more profitable.

Now it's too late to go back to the old eyeballing model, and firms are going to have to come up with some other method. Value billing (book rate)? A pre-fiscal-year plan for how many of what types of matters will add up to a profitable year for the firm? A permanent decrease in partners' draws?

Of course, associates could take less money. No one claims that first-year associates are worth the salaries that they receive, especially if those salaries begin with a six-figure sum. Do associates really understand the golden handcuffs that come with such large salaries? My sense is that few of them really understand the personal sacrifices of 6.5/day workweeks.

I'll be watching this development very closely.

Mimi Swartz's Lone Starlets--a salute to iconic Texas women

In today's New York Times, Mimi Swartz has a lovely piece (Lone Starlets) on the late Molly Ivins, Nellie Connally, and Ann Richards. I grew up knowing the names of these Texas heroes of mine, although I only met one of them--Ann Richards--once, and only briefly. Their names mingle in my mind with the very-much-alive Sarah Weddington, someone I'm lucky enough to call a friend. I think of three of these names--Ivins, Richards, Weddington--as people who have changed the nation, each in her own way (and in my opinion, for the better). Funny, irreverent, strong, and brave women, all of them. There's another generation of strong, iconic Texas women coming right behind them, with Mimi definitely on that list.

There's another woman that fewer people knew, and today would have been her birthday. A Texan-by-choice (well, sort of: she followed my dad down here for his Ph.D. at Texas A&M, a story that she told in The Third Jewish Catalog), my mother, Shirley Bard Rapoport, was just as strong and as brave in her own right. Almost totally deaf since childhood, my mom was a classic extrovert, meeting people in every type of circumstance imaginable and having an uncanny ability to turn complete strangers into friends.

If I had to pick one adjective for her, it'd be "fearless"--she was always ahead of trends, always willing to try something new, always up for an adventure. She was also incredibly generous with her love and usually optimistic (effervescent, really) in mood, even with health problems so severe that I was always amazed that she lived as long as she did. Of course, she had her bad moments, and she and I had catfights aplenty while I was growing up. I didn't see much of her in myself until just shortly before she died, and now I see so much of her in me--and I'm very grateful for what she gave me. Most of all, she and my dad gave me an example of love-for-life with their extremely happy marriage.

So here's to Mimi's salute to iconic Texas women, with my added toast to one person less well-known but no less loved.

I, Grantmore, feel the rage

Greetings, Nancy and fellow readers of Nancy Rapoport's Blogspot:

Thanks to Nancy for inviting me to contribute to this page. I am especially grateful that she has invoked my name in the fight against Chadsworth Osborne Junior III. I agree that it is the responsibility of every lover of knowledge and justice in the legal academy to oppose the scourge known as PrivilegeLaw. In future posts I will reveal, one by one, the true secrets of my despicable classmate Chadsworth.

In the meanwhile, I exhort everyone to support Nancy Rapoport's Blogspot, Class Bias, and MoneyLaw. And in case you haven't visited, please drop by my own blog, named simply Grantmore, and my SSRN page. I may not have a body, but I do have a blog!

Best wishes to all,

Gil Grantmore
Webmaster
Jurisdynamics Network

Touching a nerve at The National Jurist?

I just received an email from National Jurist:

As you are already aware, in our latest January issue of The National Jurist, we covered the story on law schools and their relationship with the U.S. News & Word Report’s rankings. We seem to have touched a nerve and as a result, many discussions have arisen on the subject. We have posted a link to your blog site on http://www.nationaljurist.com/ on our blogs page. To keep this important discussion going, we would also appreciate if you could post our link as well. You can follow the discussion or join in the conversation yourself by e-mailing comments to Rebecca@CypressMagazines.com.

Sincerely,
Krista Burnett
National Jurist
Marketing Coordinator
858-300-3203 ext. 303

I'm certainly happy to do my part. If you'd like to weigh in on the story, or on my posts about the story (see here for my post on the National Jurist story, here for my MoneyLaw post on the story, and here for my post on the AALS Workshop on The Rankings Game), you can do that here or on The National Jurist's website.

For those whose clicking fingers are already too pooped, here's National Jurist's post about the response to its lead article in the current issue:

Legally Blogged

In our latest issue of The National Jurist, we covered the issue of law schools and their relationship with the U.S. News & World Report's rankings. We seem to have touched a nerve. You can follow the discussion by clicking on the blog links below -- or join in the conversation yourself. E-mail comments to Rebecca@CypressMagazines.com[.]

* CALI’s Pre-Law Blog: "Law School Rankings" (His follow-up post is here.)

* Brian Leiter’s Law School Reports: "How Far will Law Schools Go to Win the Rankings Race?"

* TaxProf Blog: "National Jurist: How Far Will Law Schools Go to Win the Rankings Race?"

* Law School Innovation: "Does US News promote good or bad innovation?"

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

* MoneyLaw: "Am I the poster child for why the USNWR rankings are bad?"

* Nancy Rapoport's Blogspot: "Closure (?) on National Jurist"

* Shangrila Towers: "School: Much ado about nothing"

* Empirical Legal Studies: "USNWR Gaming and the Failure of Self-Regulation"

So please do weigh in: What'd you think about the article? About the comments in all of the blogs?

MoneyLaw, Class Bias in Higher Education, and PrivilegeLaw

Jim Chen, over at MoneyLaw, pointed out Chadsworth Osborne Junior 3d's blog, PrivilegeLaw, the sworn enemy blog of MoneyLaw and Jeff Harrison's blog, Class Bias in Higher Education. In Jim's post, Two princes tackle PrivilegeLaw, Jim uses the classic "popular culture defense" to call attention to PrivilegeLaw's anachronistic view of legal education.

Sure, Jim, you can take the high road. I, however, now believe in fighting fire with fire, so I went straight to someone who might have been one of Osborne Junior 3d's contemporaries, Gil Grantmore. Gil has his own blog, and more important, he has some pretty interesting stories, some of which tangentially might relate to Osborne Junior 3d's performance in law school.

Perhaps a détente might be in order?

Dance, dance

Hey Nancy!

I had no idea you were just two degrees from some bona fide rock stars. Here's a Fall Out Boy video to show your loyal readers just how cool you are:

Love,
Jim

Only two degrees to Fall Out Boy....

Thanks to Alan Childress, of Legal Profession Blog fame (among other things) and his post about my Bacon number, I started thinking about other types of connections and numbers. I have a Fall Out Boy number of two, thanks to Pete Wentz, who did a wonderful job on the University of Houston Law Center's strategic plan. Pete's son is also named Pete Wentz, and he's one of FOB's band members. I really like how tightly FOB's lyrics are written. Check out Dance, Dance and Sugar, We're Goin Down as examples. So the Pete in the picture is pretty darn talented. So's his dad.

Closure (?) on National Jurist article

After mulling things over, I sent Rebecca Luczycki, Editor in Chief of Cypress Magazines' National Jurist and preLaw publications, an email to explain that I wasn't exactly thrilled with her description of the meeting in the first paragraph of National Jurist's The Rankings Game article. (If you want to see the Word version of my email and her response, click here.)

Why wasn't I thrilled? Well (and I might be a tad sensitive about this), I wasn't happy (1) that, after two-and-a-half hours of a loaded meeting, I was so emotionally drained and frustrated that I'd ended up shedding a few tears in public (embarrassing enough at the time), and (2) that the stories (Houston Chronicle and National Jurist) reporting the tears might have been a nice hook for the reporters but certainly also added to stereotypes about women executives "not being tough enough" to lead.

In any event, I wrote Ms. Luczycki a letter, she apologized, and life moves on.

Closure on SSRN--two comments, and then two new questions

Thanks, everyone, for weighing in on my questions about SSRN "top 10 downloads" lists. Two of the comments were so good that I want to recap them here:

• First, from Ann Bartow, of Feminist Law Professors fame (among other things):

Here is an SSRN Top Downloads story: A friend accidentally gave his article a fairly obscure label. Soon he got a congratulatory e-mail notifying him his article was one of the Top Ten Downloads from a certain legal subject area. He had, it turned out, accomplished this with ONE download, the very download he himself undertook to verify that the article had been successfully uploaded.

• Second, from Anupam Chander, who has his own blog here:

As regards your SSRN inquiry, I've noted that my school, UC Davis, has just begun publicizing the "top 10 downloads." As Ann Bartow's story demonstrates, however, the list is not particularly meaningful. Certain subject areas may have very small readerships. I do not list my own "top 10 downloads" on my c.v. I believe that traditional indicators of influence--e.g., citation in a legal decision, excerpting in a casebook, anthologizing in a book--are more revealing.

Thanks, Ann & Anupam! Your posts demonstrate that there's no easy way to measure the effect of someone's scholarship on the field. Instead, we'd have to do much more intensive searches, in part because people use a variety of different ways to circulate their work (articles, books, chapters, blogs, etc.).

And now, two new questions:

(1) Has anyone come up with an easy way to do the more intensive type of search for how and where one's work is cited? It's easy to check for citations in articles and cases, but what about checking for citations in books, chapters, blogs, and other types of publications?

(2) How do we then account for what the late, lamented (at least by me) Spy magazine used to call "Logrolling in Our Time"?

A little Ellen Degeneres to start your week out right

I've been an Ellen Degeneres fan for a long time, and I record her show on M-F. Thanks to two other friends of mine, who happen to share many of my musical tastes, I saw a certain Saturday Night Live video about a week ago. I didn't particularly like it, but I love Ellen's parody of it, which I found on wikipedia. Enjoy!

Mary L. Dudziak and the Legal History Blog

Mary L. Dudziak just posted a comment in response to my post on figuring out SSRN downloads, and I wanted to upgrade her comment to a new post so that I could make sure that folks can see the two links that she sent along. Here's her post:

Just found your new blog via the Feminist Law Professors blog/Law Blog Central, and wanted to say welcome from the Legal History Blog! For comments on rankings (SSRN & others) over at the Legal History Blog, here are a couple of links: Your New Year's Resolution: An SSRN Download A Day, and Chronicle of Higher Ed reports new Scholarly Ranking Service.

Best wishes, Mary Dudziak

Thanks, Mary, and while I'm at it, a shout-out to Chris Fairman at Ohio State, who just emailed me to tell me how to find the "top 10 downloads" when I get one of those "you're in the top 10 downloads" notices. Thanks, Chris!

Figuring out SSRN downloads--and some questions for everyone

There's been a lot of recent blogging going on regarding the rankings (see, e.g., MoneyLaw's recent posts here (Jeff Harrison), here (Al Brophy, also mentioning Brian Leiter's and Anthony Ciolli's links to the Boalt Hall law student's study on which members of the tenured faculty there are publishing articles), here (Paul Caron), and here (my own post about the "joy" of being a poster child in the anti-USNWR rankings fight); see also Paul Caron's post over at the TaxProf Blog about the National Jurist's lead story on the rankings).

Here's a related question, as law schools search for new ways to tout faculty scholarship (preferably at low cost): Does your school tout instances of SSRN notification of "top 10 download paper" status? I know that UHLC used to do that (Doug Moll & Jacqueline Weaver each received notices like this), but I don't know what other schools do. Is this something that your school (1) keeps track of & (2) publicizes (a) to internal (law school & university) audiences or (b) to external audiences? Do any of you mention receiving this type of notice on your CVs? Would it matter to you if you received info about "top 10 downloads" from other schools? (And would it change your opinion of those schools, either for better or for worse?)

Thanks--looking forward to hearing from you!

My response to Tony D'Amato's post about governance

Tony, thanks for asking me to clarify my earlier post. I don't think that university presidents as a group are wiser or better than are faculty members, although I can think of at least three university presidents who are pretty darn wise, each in a different way.

But university presidents do have knowledge that is different from the knowledge that faculty members have (at least in most professors' day jobs--I'm sure that most faculty members know something about, e.g., budgeting and planning because they have to use that type of knowledge to run their own lives).

To critique your analogy, presidents aren't janitors with keys to the building; they're more like the principals, with duties to make sure that the school runs well and stays (gets?) funded appropriately. They're both managers and leaders (which is one of the reasons that it's such a hard job--very few people are good at both managing and leading).

I think that, unless faculty members want to spend the enormous amount of time that presidents spend in meetings, talking with constituents (trustees/regents, faculty, staff, students, donors, etc.), appearing at events, and coordinating the countless administrative departments that keep the university running, there are certain types of decisions to which faculty members should defer, even after providing input.

I wouldn't want some provost or president telling me what to research, what to teach, how to teach, where to publish, when to hold office hours, etc. (although such input is always, well, interesting to hear), because I know more about my field than most presidents and provost do, and because supervising my research and teaching is not the president's or provost's job. I think it's fair to accord the president and provost the same respect in terms of his or her own job duties.

Of course, if a president or provost (or dean) is failing at his or her job duties (and no, I don't think that gaming the rankings is in either job description), then the university's constituencies can go about -- in a reasoned and procedurally fair way -- suggesting that it's time for that person to leave his or her post.

For what it's worth, I also believe that faculty members can provide input but shouldn't micromanage how other staff members (for example, career services, admissions, PR, staff assistants, etc.) do their jobs unless they have the time to understand everything that the staff member is doing and in learning what the staff member already knows about the limitations and possibilities of the job. This reminds me of a comment that I heard in a movie once about having a sense of humor (most people think that they have one, but most people don't). Too many professors think that they understand what a staff member does (or should be doing), but they don't really understand (and probably don't want to take the time to learn).

When I was an administrator, I often got the feeling that professors thought that my job was easy and theirs was difficult. In fact, both types of jobs are difficult, but in very different ways. I just wish that both administrators and faculty could see those differences and respect them.

Does my response answer your question about what I meant?

Mazel tov, Alan!

Over at the Legal Professions blog, Jeff Lipshaw has announced that Alan Childress has just been named the Meyer Professor of Civil Procedure at Tulane. That's great news all around, so congrats are due to Alan and to Tulane!

Why should faculty defer to university presidents? (A post from Tony D'Amato)

Hi, all: Tony tried to comment on my post on the NYT story about university presidents, but the intricacies of Blogger are such that neither he nor I could figure out how to make his comment work, so I'm posting it here for him, below. And now, to his post:

Universities got started when various scholars, tutoring pupils, began living close to each other so that students could cut down the travel time going from one professor to another. Then the faculty, out of the fees they collected from the students, built a central building. They got donations. They hired janitors to upkeep the building.

The head janitor is now the president of the university, deemed to be someone with greater knowledge than any faculty member or, given Arrow's theorem, smarter than all of them put together. He hires hordes of sycophants, called vice-presidents, who make more than the professors because they, too, are what the university is really all about. Profs are fungible, but a CEO walks on water?

And you want us to defer to these administrators? Are we talking Animal Farm here?

Anthony D'Amato
Leighton Professor of Law
Northwestern University

And while I'm on the subject of funny videos....

This one--of Jon Stewart interviewing Steve Carell on The Daily Show--demonstrates modern comedic timing at its best.

If you teach business associations or antitrust....

For those of you who fall asleep before The Daily Show and The Colbert Report air at night, here's a clip that I saw a couple of nights ago. Stephen Colbert decides to do a market report, a la Mad Money w/Jim Cramer, and he covers (1) Cramer himself, (2) why oil is a good buy these days, and (3) how AT&T evolved into at&t (this last bit starts at 3:40, and I marvel at the graphics). Worth viewing.

The fundamental misunderstanding about shared governance

I don't know how many of you saw the New York Times piece on university governance: At Universities, Plum Post at Top Is Now Shaky. One comment in particular gave me an "aha" moment. The comment by Dr. Krauss at Case Western—that Case’s then-president was “ultimately a colleague”—demonstrates the widely held but fundamental misunderstanding of a university president’s role vis-à-vis the faculty.

Faculty members are fond of saying that a department chair, a dean, or a president is simply “first among equals.” That phrase connotes the sense that any other colleague on the faculty can second-guess the president’s decisions, even without the same access to information that a president might have. The phrase also connotes the idea that a group of professors should ask the president to stand down when his or her decisions become unpopular.

It would be difficult to imagine someone outside of the academy referring to his boss as a colleague, to be criticized and possibly fired by his employees. But within the academy, some conceptions of shared governance—the principle that allocates jurisdiction over certain matters to the faculty and jurisdiction over other matters to the administration—often get confused with the idea that the roles of a president and a professor are roughly the same.

Make no mistake about it: the roles differ greatly. Many presidents now are on call 24 hours a day, 7 days a week, and they must work with multiple constituencies, including the board of trustees, the faculty, the rest of the administration, the students, the staff, the alumni, the donors, and any regulatory agencies. Their lives and their decisions are public. We professors, on the other hand, have the luxury of being able to work in places and at times that are most conducive to our own productivity, and when we are done for the day, we can put our work down until the next day. Moreover, if we make a bad policy decision, the buck doesn’t stop with us, especially if we have tenure. The buck, however, always stops with the president, even for decisions that are within the faculty’s jurisdiction.

I'm sure that some of the animosity between university administrators and faculty members lies with the pay discrepancy of the two types of positions. I'm not condoning high presidential pay packages just for the sake of presidential retention—that notion smacks too much of our current problems with CEO compensation—but faculty members should realize that the demands on a university president are different in kind from the demands on a professor.

In reality, a president can be a colleague before the presidency. A president can be a colleague after the presidency. But during the presidency, the president is not a colleague but a leader, with the benefits and the burdens of that role.

Blogger & BEPRESS

I've just added a BEPRESS page, having learned about this website at the AALS Annual Meeting. I use the BEPRESS page to describe my scholarship, and the links in BEPRESS are my SSRN links. The process of building a site takes about an hour or so, and it gives me a different way of presenting the information on my CV. The new Blogger makes it easy for a technology Luddite like me to build a web page, and I have a web-based document host site for the documents I want to upload (built on the free version of Microsoft Office Live).

For those of you who want to give it a try and who don't have easy access to the brains and talent of Jim Chen, the Blogger/BEPRESS combo is a handy way to start.

Over at MoneyLaw, some new factors for rating law schools

I just finished a post over at MoneyLaw on a new way of rating schools, focusing on the current black box that is between admissions statistics and graduation/placement rates. (Finally, some talk about rating the internal life of a school!)

If we examined whether a school is mentschlekhkeyt or unmentschlekhkeyt, maybe we'd give the school's potential students and potential faculty candidates a more useful picture of the place. Places like Ohio State would, I think, come out near the top. We could reward environments with high standards and nurturing environments--places that model the sorts of lawyer behavior that we want our students to learn. Schools that choose to create some standards for behavior (and those standards must be peer-created, not imposed from above) should, over time, move up in mentschlekhkeyt ratings.

And now for something completely different (ballroom dancing) ...

Some of you know that I took up ballroom and Latin dancing a few years ago, as a way of working out the stress of my then-job as dean. This weekend, as I was typing away on emails, ABC's weekend edition of Good Morning America (the link's at http://abcnews.go.com/Video/playerIndex?id=2776515, but when you click to it, you can't get back to this page, so you might want to open it in a new window) showed the dance studio that I attend in Houston, King's Dancing Center. (When I head out to Las Vegas, I'll also dance at SuperShag Vegas.)

I picked up ballroom dancing first in the Bay Area, fell in love with it there, and started competing seriously out of Sam Sodano's studio in Columbus, Ohio, when I started teaching at Ohio State. When I became an associate dean at OSU, I gave it up due to lack of time. Nine years later, I started from scratch here in Houston. If you've watched TLC's Ballroom Bootcamp, you've probably seen my teacher, Billy King, on TV.

So why dance? First off, it really is a way of reducing stress. When I was having a bad day at work, I could leave the stress behind for a bit while I was taking lessons. When I was frustrated at my dancing, I could take some comfort in the fact that I was enjoying my work. When neither part of my life was going well, I came home and savored my family (cats included) and friends.

Second, dancing gives me an outlet for my love of performing. It's one of the few ways to play "dress-up" as an adult, and it's great exercise. It's not inexpensive, and that's one of the many reasons I consult--to pay for my dancing habit.

Finally, I have a whole set of friends from dancing that I'd likely never have met outside of dancing. Amateur ballroom dancers (which is what I am) are generally friendly, not competitive in the mean sense, happy to encourage others, and interesting. Most of the pro teachers and coaches that I've met have been wonderful to me, and I'm learning a great deal from them. It takes a lot of intelligence to dance well (and more coordination than I have at times).

I visited with a friend recently who works so hard that there's no time for hobbies. I felt the same way for a while, but I learned that I need my hobbies to keep that part of my personality alive. So for me, thank goodness for dancing!

This year's AALS was different....

I'm back from this year's AALS meeting in DC, and I don't know whether it was the panel discussions, the reunions with old friends, the shockingly long timespan between my first conference in 1992 and this year, or my recent return to being a law professor--but I had a wonderful time.

If any of you went to the rankings workshop, I hope you came away with some new ideas. Don't forget to download Andy Morriss's & Bill Henderson's new article, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings. I keep thinking that there should be a Law Schools Rated Almanac, just like the old Places Rated Almanac, which took every population microcenter in the country and rated each one according to useful and verifiable categories (climate, health care, crime, recreation, educational institutions, etc.) Although it included a weighted score at the end, the organization of the book also allowed readers to consider their own priorities. (Doing a law school version of the Places Rated Almanac would be a lovely follow-up to my old article, Ratings, Not Rankings: Why U.S. News & World Report Shouldn't Want to Be Compared to Time and Newsweek--or the New Yorker.) The panelists all day, along with the leaders of the breakout sessions, did a great job. And for those of you who think that we should simply use SSRN downloads by author to rank law schools, just remember that Chris Fairman of Ohio State has cornered the market for all time--at least until six more people write articles with George Carlin's other famous words.

Last aside on SSRN for this post: I got one of those nice notes that start off with "Your Paper Makes SSRN Top Ten List." That, of course, led to a 45-minute search for exactly which two of LSN's journals were the journals with this particular list. The email referred to two lists: "IO: Firm Structure, Purpose, Organization & Contracting" and "Structure: Governance & Ownership (Topic)." If anyone knows how to locate the specific places to find those lists, please let me know.

I received that email just shortly before I went into the Section for the Law Dean's panel discussion on "What I Wished I'd Known Before." Not quite sure how far to go, given the context, I alluded to some of what I wish I'd known before, much of which referred to Not Quite "Them," Not Quite "Us": Why It's Difficult for Former Deans to Go Home Again.

My guess is that everyone on the panel came up with many, many more ideas after we'd finished the session. Here are some of mine for folks who are negotiating to become deans, all of which I forgot to say at the session:

1. Make sure that your faculty slot is already funded. When I was negotiating the first time around, I didn't realize that there was a chance that my own faculty slot was tentative, based on whether my predecessor dean (who's now the chancellor there) left UNL for other options. Make sure that the budget already includes your own faculty line, or you'll find yourself cobbling together a budget sufficient to pay for yourself, let alone any potential new hires.
2. There should be a mix, in the negotiation, of agreements on what your school needs (e.g., more lines, upgraded classrooms, different overhead charges, etc.) and what you and your loved ones will need. You should put your school's needs first, but so many of us (me included) are so excited to be serving as deans that we often forget to ask for what we will need as well. Which leads me to . . .
3. PLAN AN EXIT STRATEGY that includes not just what your salary and length of leave will be, but also (a) whether you'll have to pay the leave back if you want to go elsewhere (glad I addressed this one, since I'm off to UNLV after this semester), (b) where your office will be located and what secretarial help you'll get (my uncle did this when he became emeritus, and he was glad that he did, especially as administrators changed over time), (c) what kind of research and travel budget you'll have (Ray Nimmer has been great about this), and (d) what your title, post-deaning, will be (Alex Johnson, for example, has dean emeritus status at Minnesota). And don't forget to plan your days once you leave--this is true for all research leaves, not just leaves for former deans. Time can slip away quickly.

But I digress: back to the AALS. What made it different for me this year was, more than anything else, the healing power of reconnecting in person with good friends who have been part of my support system this last year in so many ways. I am truly touched by the outpouring of kindness, and I'm still very grateful.

When I was a wet-behind-the-ears law professor in 1992, I was intimidated by the sheer size of the AALS annual meeting, and I hung out mostly with the other two OSU new hires that year, Ned Foley and Kathy Northern. It took me years to get comfortable hanging out in section meetings, let alone to speak at them. Now AALS's annual meeting feels like a favorite shoe, not too worn-in, but not too new.