Category: Featured

Legal Scholarship, Citations, and the Rankings Obsession

I have not thought much about legal scholarship lately but a few months ago my elitist and ratings-obsessed former dean send out a memo to the faculty promoting the idea of writing things that will be cited. The reason — think about it. It is in the air that USNews rankings may soon use citations as one of the measures in determining rankings.

This brought to mind an empirical work my coauthor, Amy Mashburn, and I did a couple of years ago. Citations were correlated at statistically significant levels with the ranking of the school from which you graduated, the ranking of the school at which you teach, and the ranking of the law review where your article was published. Why is this? Likely because law students making publication decisions know they do not know much about law and rely on institutional authority. In fact, it is a common practice when a manuscript arrives to check where the author has published before and their citations.

This means that citations have almost nothing to do with the quality of the work. Yet, in the rankings-obsessed world of my former dean, (who I am told also vetoes any entry level candidate who does not come from a ivy league school) quality is irrelevant.

But maybe it does not matter that quality is all but irrelevant because law professors rarely engage in scholarship. By that I mean actually trying to discover something that advances our understand of anything. Instead they write OP-ED pieces or legal briefs that are devoted to one side of the story. That is what they were trained to do in law school.

But the whole citation based on where you went to school or are teaching gets worse — much worse. When Mashburn and I did our study we examined what a citation really meant. Did it mean that the cite work was thought provoking, engaging, controversial, or whatever. No. Citations were almost always just for some fact the cited work cited mentioned whether or not the cited work was also just citing another work that had cited another work, none of which had actually done any legitimate research. In other words, rarely did one law professor give a hoot about what another one said.

What this means is that professors at less than top 20 schools should probably be devoting more time to teaching and less to writing. It also means, when and if USNews starts counting citations, the ranking will not change. But, don’t be surprised if raises and promotions for law professors become dependent on number of citations.

As an aside, Malcolm Gladwell, in his series of podcasts now has 2 devoted to the rankings. He notes that in the 70s when there was a battle between Time, Newsweek, and US News which US News was losing badly, the whole ranking thing that new rules higher education was a marking gimmick.

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August 12, 2021
Joint Statement by the U.S. Department of State & the U.S. Department of Education of Principles in Support of International Education

Joint Statement by the U.S. Department of State & the U.S. Department of Education of Principles in Support of International Education – Reengaging the World to Make the United States Stronger at Home, A Renewed U.S. Commitment to International Education. Issued July 26, 2021 at https://bit.ly/3y8nNmn

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July 26, 2021
U.S. Secretary of State & U.S. Secretary of Education to Address 12th Annual EducationUSA Forum on July 26, 2021

U.S. Secretary of State Antony Blinken to highlight value of International Education at the Department’s 12th Annual EducationUSA Forum on July 26th. U.S. Secretary of Education Dr. Miguel Cardona will also address the Forum. Media Note via the Office of the Spokesperson [July 23, 2021] available at https://bit.ly/3kU7c1J

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July 23, 2021
Cutting In Line for Faculty Appointments

Cutting in Line

You
might think that law professors are sticklers for following the rules. In fact,
the opposite is true. They do not regard rules, and especially University
Regulations as applying to them. I have seen this applied to tenure standards
and the composition of committees. I’d have to say in fairness to law professors, it is clear that Universities
ignore their own rules and even state law when it suits them.

There
are many example, but one that stands out is hiring spouses. Under state and
federal law as well as university regulation when a position is open it must be
publicly advertised. This is in part to make sure there is no favoritism and so
that people of all genders and races have a chance to apply.

The
usual hiring season takes place in the fall and winter. So it was with some
surprise that Dean Bob came to the faculty with a candidate for an
environmental law position in the Spring. He said the University President wanted us to hire
her. She had not gone through the usual
recruitment process, we did not need a teacher in the area, and we had not
given public notice of the availability of a position. The faculty resisted so
to some extent and the Dean explained that the medical school wanted to hire
her husband and part of the deal was that we hire his wife. When asked what the
consequences were if we did not hire her his answer was “catastrophic.” The
faculty voted to make an offer although no one knew what catastrophic meant.
She accepted the offer, basically saying to other would be applicants “Get the fuck out of my way? Don’t you know who I sleep with?” and  with the understanding most or all of her salary would
be paid by the central administration and the med school. In effect, a job for
her was part of the salary of the hot shot med school hire. No way around this.

After
she was hired, in order to “comply” with State, federal and university
regulations, a public notice of the job was issued. Twenty people applied. What
they did not know is that the School had
violated the law and already hired someone for the job opening they were just
hearing about. I raised the issue with several people in an effort to determine
who had made the decision to violate the law and the response was dead silence. Law schools are experts at the “coverup.” But this story has an even less happy ending. Within two years the hot shot med
school hired decided he hated it at the med school and the school was left with someone who would not
have been hired teaching in an area that was already covered. The last I heard
she had moved to who knows where with her husband but was still on the faculty
teaching remotely or occasionally.

When
the rules are bent to allow spouses to cut in line one question that comes up
is what to do if the couple splits up. Actually there is answer to that – you
do nothing. So, in many instances, the spouse cuts in line through some
unlawful act of the university or law school, is hired and then stays even
though the rationale for hiring him or her has long since disappeared. Remember
that the trailing spouse’s job was a form of income the person who was sought
after. Evidently, that income is retained even who the sought after person is
divorced, quits, or dies.

            Often when the spouse is hired he or
she is in a different department. This raises the question of what happens of
one spouse gets tenure and the other one does not. If one department really
wants to retain the performing spouse, then the standards have be lowered for
the other one.

            Maybe the most unusual spouse issue
I have seen involved a professor who was hired on the merits. His wife was hired to take the position as a
legal writing instructor which is lower paying job with no promise of eventual
tenure. The wife and husband desperately wanted for the wife to be elevated to
a regular faculty position. She wrote articles and applied through the normal
process. The husband was a decent teacher and good scholar but a bit of a jerk so
there was not going to be a free pass.
After going through the process and being interviewed, she was not made
an offer. It is entirely possibly that the collective hope was that if she were
rejected maybe the husband would leave. The problem was his jerkiness was
pretty widely known and he was not likely to be recruited. Personally, I liked
him because, in his own way, he too was an outsider and spoke truths no one wanted to hear.

            It is an understatement to say they
were bitter. It was a great example of the sense of entitlement of people who
graduate from elite schools have. She was very upset about being a lowly
writing instruction although their combined income was quite high. For some
reason and am not sure why, their
bitterness became aimed at each other. Their divorce would make most messy
divorces seem amicable. She eventually did get a regular teaching position at a
low ranking school.

            Remember those articles she wrote while
hoping for a job at her ex husbands school?

Well
shortly after the breakup he began listing them as having been “ghost written”
or ghost co-authored by himself. In short, he was now claimed that they had
dishonestly represented as her work he had done as her work. The raised a bit
of an ethical question. Were they both lying or just him when he claimed to
have written he article with her name on them. Always wishing to make a bad
situation worse, the battle between exes took to the internet when he sent an
email with the subject “ungrateful bitches.” That pretty much put an end to any
chance he had to move up through the law school ranks. In fact, when this all
happened it was rumored that he had a visiting offer from Harvard. That was
withdrawn.

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June 1, 2021
Now You’ve Read Those Things, Too | A Conversation with Arlene Wilner

I sat down with Dr. Arlene Wilner, Professor of English at Rider University, to discuss her new book Rethinking Reading in College: An Across-the-Curriculum Approach. Central to her approach is the idea of rhetorical reading: we ought to teach students, in any discipline, to approach texts not as freestanding and homogenous info blocks but as written by specific people in specific contexts for specific purposes and constructed such that the parts relate to the whole to support those purposes. In other words, to use terms Wilner borrows from John Bean’s Engaging Ideas, texts don’t just say things, they also do things. A sentence does something in a paragraph, something different than other sentences. A essay does something in a larger discussion, something different than other essays.

We also discussed the importance of background knowledge for reading comprehension. “It takes knowledge to learn,” she says. Now, I’ve long been wary of too great an emphasis on students gathering background knowledge, since, in my mind, that impulse can lead to a sort of teaching-as-coverage approach, where we spend all our time giving students background knowledge they never get around to actually applying to anything. But I’m coming around to Wilner’s point, which is supported by psychological studies on the matter (she cites, for instance, Daniel T. Willingham’s The Reading Mind: A Cognitive Approach to Understanding How the Mind Reads). The key seems to be timing and balance: it can’t be all content or all skills but both.

Stressing background knowledge, Wilner acknowledges–especially the idea that the background knowledge most important for students tends to be common cultural knowledge–could be seen as supporting regressive notions about what “common cultural knowledge” is or ought to be (i.e., traditional notions of canon). But this doesn’t have to be the case. We can a diverse set of texts in common. As one example she shares: when her students read Martin Luther King’s Letter from “Birmingham Jail” and recognize allusions to Socrates and others texts, they get excited, knowing what he’s talking about. She tells them, “Well now you’re part of the conversation, because you’ve read those things too.”

Wilner wants more from and for students than merely connecting with and responding to the texts they read. Though that is meaningful, she wants them to go deeper, see layers, interrogate their immediate responses. It’s easy to “translate” texts “to something that’s comfortable and familiar to us,” she says, even if that translation misses what the text is actually saying. But it’s “respectful” of students and of their intellectual abilities to ask them to do more, to help them do more. Students ought not go into college thinking, “I’m going to have my existing feelings beliefs ratified” but instead, “I’m going to have them shaken up.’” Some hard, important, scaffolded reading offers a lot in that direction.

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May 27, 2021
Excerpt from In The Company of Thieves: Conferences and Vacation: Confercationing



Confercationing is  when law professors claim to be going to a conference on the law school’s dime but are really on a
one to 5 day vacation. The biggest on of these for law professors takes place
in early January when the Association of American Legal Schools meet. Not as
big but easily a bigger boondoggle is the Southeastern Association of Law Teachers Conference
which conveniently takes place in the summer in a family friendly location. Palm
Beach is a favorite destination as is Orlando. Since Universities pay for
transportation, meals, and lodging for faculty, the only cost to the vacationer and his or her family is transportation for the partner and kids and their meals. Pretty good deal for a week in Florida. I will say this about this meeting. There is very little hypocrisy. No one attending pretends to be doing anything other than vacationing on the school’s dime.

Three things characterize
these meetings. Since law professors are, by nature, climbers whenever you are
talking to someone at these meetings they are always looking over your shoulder to
see if there is someone more important in the room they could attempt to smooze
with. The second is a contest over who know the best ethic restaurant in town.
So people with gather in hyped up groups decided were to go eat. The discussion
invariable comes down to who know the hippest place to go that no one else has
discovered. Third, at these conferences members of a  panel present papers to groups ranging from 0 to 50. After the presentation people can
ask questions The questions rarely indicate something the questioner wants to
know but is for the questioner to impress the rest of the audience with how
much they should be reckoned with. It’s actually pretty easy to seem impressive
because the papers are almost always duds. The papers drawn from already published articles or
recycled from previous talks. The main idea is be able to put on your resume
that you presented a paper at such and such a meeting.

            These conferences are pretty much a waste in terms of
producing anything for the money spend but there is a even bigger sham than these two main conferences. These are the manufactured conferences, Someone gets the
idea to have a conference on British contract law or South American
Comparative. The law school provides a grant that could be used for almost
anything else that would be more useful.
The conferences always take place in exotic places; not some small retreat
where there is little to do but actually confer but in Rio, London, Amsterdam,
Geneva, Paris, etc.

Here is an example of one
of these manufactured conferences:

International
Conference on Latin American Issues

Rio de Janerio

June 10, 2015

Friday June 10

8:30 AM Coffee and
Pastries in the Lobby

9:30-10.30 AM Session 1. Evolution of the
Peruvian Constitution, Room 23

Co
Chairs: Eve St. John, Berta Hurns, Georgio Penata, Julio Peso, J.J. Fields

Presenters:

Coby
Claster: Early Peru

Sylvia
Macado: Peru After the Early Years

Paco
Smith: Peru in the 1930s: Penises

Joan
Streeter: Peru and Constitutional Reform

Miquel
Mendoza: Consolidation

Audience
comments and questions

10:40
– 11:40 Session 2. Brazilian
International Policy, Room 56

Co
Chairs: Zeke Palmer, Ted Crammer, Luigi Longo, Roberto Santos, Carmen Zips

Presenters:

Lonnie
Funk: Brazil and Slavery

Festus
Johan: Brazil and Argentina: History and Perspectives.

Chester
Bores: Brazil and Acai: The Importance of the Smoothy

Constance
Vaya: Brazil in 2024

Pepe
Vargus: Looking Forward

Audience
Comments

11:40
– 1:00 Lunch: Box Lunches Provided in the Lobby

[there
are also two afternoon sessions, a time for a reception and then dinner at a
posh restaurant]

            This looks pretty good, right? Maybe
even interesting. But let’s take a closer look. Notice the location. Rio! Who
does not want to go to Rio. Since the airfare is the same if you stay one day
or two weeks, no one in his right mind would only be going to the conference.
So this has convercationing all over it.

            You may also notice the number of co
chairs of each session. A Chair is someone who contacts and schedules the
panels. Having 5 co chairs is a sure sign of a boondoggle. Each co chair can
list on his or her resume that they were a co chair without revealing that they did
next to nothing and also justify the law school footing the bill. Perhaps
their duties involved making one phone call to ask something else if he or she
too could be a co chair.

            Now look at each session. They have
5 speakers. The session is an hour long. Take some time for introductions and
then some time for audience questions and the speakers are left with about 40
minutes to present their “papers.” That’s 8 minutes each. So let’s say the
airfare is about $1200. Two nights at a Rio hotel is $400 and meals, say, $100 a
day. Is an 8 minute talk or listening to other 8 minute talks worth $1700. Put
it another way. Each session has a total of 10 people involved and there are 4
sessions for the one day conference. That comes out to 40 people at $1700 each
or $108,000 for participants costs only not counting any charge for the rooms
and meals. There actually may also be a fee to attend.

            You will notice that there is time
for audience participation. What audience? There is actually no audience other than the people who are participating on other sessions who may or may not show up for anything other than their own 8 minutes, It’s not like a show for
the purpose of advancing the understanding of anything by anybody. In fact, I
personally have been a panelists when there was no audience at all. But the
school still paid for my confercation. Thanks, taxpayers!

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May 7, 2021
CLASS BIAS AND RANDOM THINGS LAW REVIEW: Excerpt from In the Company of Thieves: The Senator’s Visit

The
Senator

[This is an an excerpt from the diary of one of
my more elitist colleagues. (Reprinted with Permission) The particulars of the story were generally well
know by every one including me but I
will let him tell it in his own words. [I have changed the name of the Senator involved because I cannot guarantee all the facts.]

At Nine couple of weeks ago, I received the following
from Dean Bob:

Memorandum

To: Professor Harris

From: Dean Bob

Date: February 7, 2007

Re: Visit of Senator Faceworth

As you are aware [I was not aware]
the Law School has invited Senator Jerry Faceworth to guest lecture for two
weeks on the subject of Labor Law. I would like to you to serve as his host
during this time. I know you have many commitments [actually I don’t] but we
need to put our best foot forward given that Senator Faceworth has recently
announced his candidacy for President of the United States.

Please advise me of your availability
as soon as it is convenient. Senator Faceworth arrives on February 15th.

I
responded right away feeling kind of honored. Playing host to an honest to
goodness presidential candidate sounded like it would be fun.

So let’s start with Senator Faceworth. First you should know that I read in the Times
that in response to some questions about his private life he dared reporters to
follow him around. “You will regret it. The boredom will be
intolerable.”

He
arrived by private jet. A squadron of reporters arrived soon thereafter and
more were waiting at the hotel when I took him there at about 8 P.M. I gave him
my cell number and the phone rang a midnight just as I was dozing off.
“Let’s have a drink,” he said. “I’ll be at the service ramp. Be
here in 15 minutes” I was and found him, a knit cap pulled low and
wrap-around sun glasses. He was very direct about wanting to go to a student
“club.” I had no idea where to take him but drove him to a part of
town with student bars. We parked and went into something called the
“Music Store.” Average age 21. By now, if you know Senator Faceworth,
you know what happened. After 30 minutes he found me. He wanted to go back to
his room. “Of course,” I said, not realizing that the two coeds – one
on each arm – were to accompany him. So, at 1:00 A.M. I left him as he and his
new playmates quickly scrambled from the car and darted for the service
elevator. This cannot be good. And, he is here for three weeks.
       The
next night the same midnight call and it was off to the same bar. This time he
emerged with two more pals. The next day Dean Bob picked up the Senator in the hotel lobby – again was the ever
present swarm of reporters– and took him to school. My assignment? Go to
the service entrance and pick up his two companions from the previous night —
Heather and Misty. They piled in the car and immediately said. “Jeffy, Gar-Gar told us you
would take us to breakfast and for tanning.” And I did. What could I do? I
wore dark glasses but I was a little nervous about the car that seemed to be
following.

       So you get the drift. The
man who said people would be bored if they following him was and absolute hound
for college girls. And this went on non stop. Well non stop until some rapidly
unfolded events.

The
Senator is off to Bimini for the week end and I am sleeping.

Senator
Faceworth evidently came back late last night, having taken Monday off. Judging
by his sun burn, the trip to Bimini was a success. Now he is followed by a
caravan of pink faced reporters. The cocktail party in is honor is this
Thursday. He has not thanked me for the selection of single malt scotches in
his office. I am beginning to look forward to his departure. I have had
way too many Heathers and Jennifers to escort back to their apartments or
dorms.

Two
more midnight calls from Faceworth and four more Gingers or Kimberlys — who
knows, who cares. Even though I pick him up at the loading dock of the hotel
and he has his stocking cap pulled low, it is not always fool proof. Last night
at what has become his favorite bar I spotted a pink-faced reporter who I
recognized from the caravan of cars that following us each day. He definitely
saw Faceworth and then left hurriedly.

Faceworth
finally made his break back to Bimini for the weekend. This time he took two
Jennifers who were on the same flight to Miami. I took all three to the airport
but dropped them at different places. At one point we were almost spotted by
reporters and Faceworth hit the floor while the Jennifers giggled and did other
unmentionable things.

I am not cut out for this!! Word has leaked
out among the faculty and today someone accused me of “pimping” for
Gerard.

You know the routine. A
midnight run and two Jennifers each night.
I find it very annoying that on our trips to the clubs the Senator sits in the
back seat and rarely speaks to me. On the way back, he is in the back with his
pals.
Faceworth  left Thursday late for Binimi, too early the see the following article in
today’s Ivyville Sun. First you should know that that there is big photo on Faceworth on the front page leaving his regular bar at 1:00 with two Jennifers,
miniskirts and cowboy boots. I am in the photo just barely. The caption:
Senator Gerard Faceworth parties with friends and an unidentified law
professor.

The article:

“Senator Gerard Faceworth, a
visiting professor at the Ivyville Law School, has been photographed with two
companions leaving the Campus Buzz, a popular late night gather place for
Ivyville singles. Senator Faceworth only recently challenged reporters to
follow him around after rumor emerged that he is something of a
“womanizer.” According the regulars at the Buzz, Senator Faceworth
has been in the club several nights, usually escorted by a law professor. The
routine is that he arrives soon after midnight and leaves by 1:00 A.M. with one
or two college aged women. The hotel management where the Senator is staying
declined comment. The identity of his law professor host is currently being
examined.”

       I am happy to report that Faceworth called in Monday morning to say that he would be unable to finish his
three week teaching assignment here. The Ivyville Sun article about his late
night activities — as surely you know — has gone national, even
international.
       Reporters are everywhere wanting to know the details and trying to identify his
mysterious law professor escort. So far no one on the faculty had identified
me.

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May 3, 2021
Grade Appeals to Law Professors

Grade
Appeals

To
understand my stories is useful to know that law faculties, like most others,
are assigned to committees. There are committees assigned to propose
candidates to be hired, committees to approve new courses, committees to review
candidates for tenure and promotion. Some committees make long range plans,
some study how to increase publications. The one I am on this year is called
Academic standards. We typically handle appeals from students when something
has been declined by an administrator. For example, a student can take a course
at another law school and transfer the credit as long as they got a C. Those
who get a D or lower, which takes more
effort than making a B, invariable appeal to Academic Standards to have the
grade transferred.

Today
the committee met and had two appeals I
had never encountered before. One was from a student who had just finished the
first year of school and had received and A in Contract Law. She complained
that the A grade, the highest you could get, was unfairly granted. Her story
was that in the class she had become friendly with the teacher Ed Freddy, who
we all refer to a Mr. Freddy. The friendliness led to lunch which led to dinner
(all without the knowledge of Mrs. Freddy) and well you can guess where this is
going.

They had falling out somewhere near the end of the semester and their fling was
over. Then the final exam came. In law
school in most courses the final exam determines the grade for the entire
semester. She took the exam and received her grade which, as I mentioned was an
A. Her petition to us was that she only got and A because of the “services” she
supplied to Mr. Freddy and that rather be treated like a prostitute she wanted
a grade no higher than a B. We tabled this case until our next meeting to give
a chance to evaluate her final exam ourselves.

Our
second appeal today was equally bizarre. First you have to understand that law
schools and other University department hire visitors who teach for a semester
or a year are not on the permanent
faculty. Last year we hired Mary McCan to teach for a
semester.
She was young, an average teacher, ambitious, frumpy-looking, and lonely in our small college town. According to the petition on the last night
of finals she when out with a few students including the petitioner and she
brought one of them home with her. They
were evidently quite drunk. According to the student, when he got ready to leave she
blocked the door. In his words he then “obliged her as a courtesy”. The student
got a B in the course and complained he did not deserve a B. In his words he did
not know if he had “he’d fucked himself up from a C or down from an A.” He said
that neither was acceptable and he wanted us to read his paper to determine if
he deserved either and A or a C, which he was willing to accept.

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May 1, 2021
Thieves, Monopoly, Law Professors, and Law Schools

In his classic 1967 article on rent-seeking (which does not actually use the term because it had not been coined at that time) Gordon Tullock explained that the cost of theft was not that one person’s property was taken by another. In fact, that transaction in isolation may increase welfare. The social costs were the reactions of those attempting to avoid theft and those refining their skills. Richard Posner extended the analysis when he wrote about the costs of monopoly. Again, it was not that some became richer at the expense of others but that enormous sums were invested in bringing about the redistribution. In neither case do the rent seeking, social-cost-producing efforts create new wealth.

Still, in the case of Tullock and Posner the social costs were at least about something. There was a “there” there in the form of a chunk of wealth to bicker over. But now we come to law professors and law schools.

Law professor efforts to self-promote have exploded. Included are repeated visits to the Dean asking for one thing or another, resume padding, massive mailings of reprints, posting SSRN download rankings, or, even better, emailing 200 friends asking them to download a recently posted article, churning out small symposia articles because deans often want to see lines on resumes as opposed to substance, playing the law review placement game, and just plain old smoozing ranging from name dropping to butt kissing. Very little of this seems designed to produce new wealth. If fact, think of the actual welfare-producing activities that could be undertaken with the same levels of energy — smaller classes, more sections of needed courses, possibly even research into areas that are risky in terms of self promotion but could pay off big if something new or insightful were discovered or said. But this is the part that puzzles me. Whether the thief in Tullock’s case or monopolist in Posner’s, the prize is clear. What is the prize for law professors? Are these social costs expended to acquire rents that really do not exist or are only imagined? What are the rents law professors seek?

Law schools make the professors look like small potatoes when it comes to social costs. Aside from hiring their own graduates to up the employment level, they all employ squads of people whose jobs are to create social costs (of course, most lawyers do the same thing), produce huge glossy magazines that go straight to the trash, weasel around with who is a first year student as opposed to a transfer student or a part time student, select students with an eye to increasing one rating or another, and obsess over which stone is yet unturned in an effort to move up a notch. I don’t need to go through the whole list but the point is that there is no production — nothing socially beneficial happens. That’s fine. The same is true of Tullock’s thief and Posner’s monopolist. But again, and here is the rub. What is the rent the law schools seek? Where is the pie that they are less interested in making bigger than in just assuring they get the biggest slice possible? What is it made of?

At least thieves and monopolists fight over something that exists. And they often internalize the cost of that effort. Law professors and law schools, on the other hand, may be worse. They do not know what the prize actually is; they just know they should want more; and the costs are internalized by others.

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April 27, 2021
Research Subjects Needed for Research Study on Refugees and U.S. Higher Education

A research project on refugees and enrollment in U.S. higher education is underway. Any assistance in either completing the survey yourself, if you meet the criteria of course, or forwarding to and informing prospective research subjects would be great. Note that I am not involved in this research…just helping to spread the word. More information available at https://bit.ly/3gzHsWs

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April 23, 2021