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Gimme some money

[ 35 ] March 2, 2012 |

The most arresting thesis in Brian Tamanaha’s forthcoming book is captured by this quote: “Law schools have raised their tuition to obscene levels because they can.” What he means is that explanations for the rising cost of law school that focus on rising expenditures — more and higher-paid faculty, more and much higher paid administrators, more staff, more clinics, fancier facilities, more skimming of revenue by central administration, more (cross-subsidized) “scholarships,” and so forth, are confusing cause and effect. His argument is that to a great extent all these things have happened because tuition has gone up, not vice versa.

There’s a lot to be said for this argument. Tuition has gone up for a bunch of reasons that have nothing to do with what law school deans like to refer to as “the inherent cost of a first-rate legal education” (Apparently a first-rate legal education was not obtainable in the United States when most law school faculty were receiving theirs. 30 years ago Yale Law School charged a quarter of the tuition it does today, in constant, inflation-adjusted dollars). Read more…


I would hate to die on Leap Day

[ 109 ] February 29, 2012 |

Needless to say the creation of the Monkees — a completely artificial pop music group invented for the purposes of television, in the crassest possible attempt to cash in on Beatlemania — represented everything that was and is wrong with whatever the American version of Tin Pan Alley is called (Edit: oddly enough it’s called Tin Pan Alley Based on my knowledge of Kinks and Who records I assumed the original was in London).

But, much like the Hollywood Studio system, if enough talented people end up being involved in the creation of something, it’s almost impossible to avoid producing something worthwhile, despite everyone’s best efforts.

Scenes from the class struggle in Hyde Park and Westwood

[ 2 ] February 29, 2012 |


A particularly interesting section of Brian Tamanaha’s forthcoming book details the many ways in which less well-off law students end up subsidizing the education and eventually the careers of their better-off classmates. This is a function of the many ways the current structure of legal education in America reinforces and indeed intensifies class stratification. Consider: Read more…

Law Deans in Jail

[ 15 ] February 28, 2012 |

ken lay

“Law Deans in Jail” is a new paper by two Emory law professors. The abstract:

A most unlikely collection of suspects – law schools, their deans, U.S. News& World Report and its employees – may have committed felonies by publishing false information as part of U.S. News’ ranking of law schools. The possible federal felonies include mail and wire fraud,conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents’ crimes. Some law schools and their deans submitted false information about the schools’ expenditures and their students’ undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates’ employment rates and students’ undergraduate grades and LSAT scores. U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data’s accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

(It will be fascinating to discover what law review has the guts to publish this extraordinary article).

What Cloud and Shepard have done is quite simple: They have assembled a collection of by-now well known facts regarding the fraudulent practices — ranging from deeply misleading reporting methods to outright lies — employed by law schools, and have taken the radical step of assuming that these schools and their agents (deans and other employees) will be held accountable for their conduct under the law. Their conclusion is that, at a minimum, there’s a very good argument that a lot of people ought to go to jail. (The authors also make a strong argument that USNWR and its agents should also be subject to criminal liability for both encouraging and enabling these fraudulent practices).

Now on one level it’s “obvious” that Cloud and Shepard are not making a “serious argument.” By a serious argument I mean an argument that seems plausible to Very Serious People. But seriously, the conduct of law schools in general and law school deans in particular in recent years is an excellent example of the extent to which the American elites simply don’t believe that the laws actually apply to them. Even though we have 2.4 million people in prison and jail in this country on any given day (if you’re an African American male between the ages of 20 and 34 there’s an 11% chance that you’re behind bars this morning), the idea that Very Important People could go to jail for no better reason than that they broke the laws of this country is, from the perspective of those people, an almost literally unthinkable idea.

I mean we’re talking about people who went to The Best Schools and clerked for the United States Supreme Court, and have the personal cell phone numbers of Extraordinarily Important People — the next level up — in their IPhones. Surely Cloud and Shepard cannot be serious. Yes, it would appear that in a narrow “technical” sense, a bunch of felonies were committed (note the careful use of the passive voice), but surely there’s a broader legal principle at stake here.


Where’s Harvey Keitel when you really need him?

[ 106 ] February 27, 2012 |

reservoir dogs

Chapter CCLXVI in Tales From the New Gilded Age:

A banker left a 1% tip in defiance of ‘the 99%’ at a Newport Beach restaurant the other week, according to his dining companion and underling who snapped a photo of the receipt and posted it to his blog, Future Ex Banker. (Update: the blog is now offline.)

In posting the photo, the employee gave some background on his boss and the receipt:

Mention the “99%” in my boss’ presence and feel his wrath. So proudly does he wear his 1% badge of honor that he tips exactly 1% every time he feels the server doesn’t sufficiently bow down to his Holiness. Oh, and he always makes sure to include a “tip” of his own.

The “tip” of his own in this case was to tell the server to “get a real job.” Pleasant.

The whistleblower’s Future Ex-Banker blog (now offline) included additional background on his boss, and some insight into why he would out his gross behavior, likely resulting in an employment status of current ex-banker:

I work in the corporate office of a major bank for a boss who represents everything wrong with the financial industry: blatant disregard and outright contempt for everyone and everything he deems beneath him. On top of that, he’s a complete and utter tool. At the same time, I’m still cashing paychecks, an admittedly willing—albeit reluctant—cog in the wheel of this increasingly ugly industry, so I’ve created this blog as a confessional of sorts. It won’t entirely clear my conscience, but hopefully it’ll help. I’m sure I’ll get fired eventually. Until then, enjoy


This is more proof, if any were needed, that tipping is an obnoxious social practice, whose primary purpose is to reinforce class differences. It reminds me of this passage from Homage to Catalonia:

This was in late December 1936, less than seven months ago as I write, and yet it is a period that has already receded into enormous distance. Later events have obliterated it much more completely than they have obliterated 1935, or 1905, for that matter. I had come to Spain with some notion of writing newspaper articles, but I had joined the militia almost immediately, because at that time and in that atmosphere it seemed the only conceivable thing to do. The Anarchists were still in virtual control of Catalonia and the revolution was still in full swing. To anyone who had been there since the beginning it probably seemed even in December or January that the revolutionary period was ending; but
when one came straight from England the aspect of Barcelona was something startling and overwhelming. It was the first time that I had ever been in a town where the working class was in the saddle.

Practically every building of any size had been seized by the workers and was draped with red flags or with the red and black flag of the Anarchists; every wall was scrawled with the hammer and sickle and with
the initials of the revolutionary parties; almost every church had been gutted and its images burnt. Churches here and there were being systematically demolished by gangs of workmen. Every shop and café had
an inscription saying that it had been collectivized; even the bootblacks had been collectivized and their boxes painted red and black. Waiters and shop-walkers looked you in the face and treated you as an
equal. Servile and even ceremonial forms of speech had temporarily disappeared. Nobody said ‘_Señor_’ or ‘_Don_’ or even ‘_Usted_’; everyone called everyone else ‘_Comrade_’ and ‘_Thou_’, and said ‘_Salud!_’ instead of ‘_Buenos días_’. Tipping was forbidden by law since the time of Primode Rivera; almost my first experience was receiving a lecture from a hotelmanager for trying to tip a lift-boy. There were no private motor-cars,they had all been commandeered, and all the trams and taxis and much of the other transport were painted red and black. The revolutionary posters were everywhere, flaming from the walls in clean reds and blues that made the few remaining advertisements look like daubs of mud. Down the Ramblas, the wide central artery of the town where crowds of peoplestreamed constantly to and fro, the loudspeakers were bellowing revolutionary songs all day and far into the night. And it was the aspect of the crowds that was the queerest thing of all. In outwardappearance it was a town in which the wealthy classes had practically
ceased to exist. Except for a small number of women and foreigners there were no ‘well-dressed’ people at all. Practically everyone wore rough working-class clothes, or blue overalls, or some variant of the militia
uniform. All this was queer and moving. There was much in it that I did not understand, in some ways I did not even like it, but I recognized it immediately as a state of affairs worth fighting for.

Update: It appears this incident didn’t actually take place. As penance, I will root for Real Madrid in the Champions League this season.

Money for nothing

[ 24 ] February 21, 2012 |

Via Paul Caron comes this article (free registration required), detailing the grotesque and amusing spectacle in Austin, where former dean of the law school Larry Sager got fired recently for paying himself $500,000 not to quit his job. (This is unfair. It would be more accurate to say that he got fired for failing to pay off enough faculty to keep the fact that he was paying himself a half million bucks to remain “loyal” to his institution sufficiently on the down low to avoid a public scandal).

There’s a lot here, as litigators say, and I’ll try to touch on some of it without losing what at this hour is still a hypothetical breakfast.

(1) The sums involved are rather startling. One nice thing about lawsuits is that they can reveal all sorts of fascinating pieces of information. According to the available public records, the salaries of the 25 highest-paid members of the UT law faculty last year ran from $272K to $217K. This turns out to be a significant understatement: per the documentation that emerged as a consequence of Linda Mullenix’s suit and the subsequent Sager imbroglio, the actual compensation for this group ran from $352K to $281K. And it’s unclear whether these fairly stupendous figures include the pro-rated annual share of the 22 “forgivable loans” totaling $4.65 million handed out by Sager to himself and others between 2007 and 2010 (A university-wide salary freeze was implemented at UT smack in the middle of this frenzy, but as many a baseball free agent has reminded us over the years, a man’s got to feed his family). So it’s quite possible that the real figures here actually go north of $400K. Update: I have been reliably informed by someone who has seen the reference documents that the quoted figures represent only base salary and summer grant money, and do not include the “forgivable loans” — meaning that UT Law is effectively paying much of its senior faculty between $320K and $410K per year.

I imagine what’s going on here is that the law school manages to hide a large piece of its faculty compensation from public scrutiny by jamming it into “research stipends” and whatnot, in addition to these remarkably generous forgivable loans. Speaking of which . . .

(2) I can’t imagine what purpose “forgivable loans” have other than hiding actual levels of compensation from (a) faculty who aren’t getting them; and (b) the ever-inquisitive public at large. Such loans are taxable as ordinary income, and, as a legal matter, they aren’t enforceable as quasi-retention bonuses, since per Sager’s own description the loans were given out in return for “a moral commitment” not to leave UT for at least five years. A “moral commitment” is obviously not the same thing as a legally enforceable commitment. Update: It turns out the “moral commitment” language is purely for tax purposes, to avoid having the payment treated as an employment bonus, which would subject the lump sum to an immediate income tax liability. The “loans” would in fact have to be repaid if those getting them left voluntarily during the term of the loan.

(3) I have no basis for making any judgment regarding the merits of Mullenix’s sex discrimination suit, other than to note that the fact that the overall level of compensation for UT law faculty — and indeed for law faculty in general — is absurdly and unjustly high does not mean that people such as Mullenix don’t necessarily have a valid complaint when they point out apparent inequities within that system. In other words, that Mullinex is grotesquely overpaid relative to American university professors, or American teachers, or Americans in general, or inhabitants of the planet, does not mean that she wasn’t underpaid relative to her colleagues on the UT law faculty.

In the end the significance of this kind of thing is how it reveals the extent to which legal academia is giving itself over to sheer self-dealing. Over the last seven years the UT law school’s resident tuition has gone from less than $14K a year to more than $32K, while non-resident tuition has gone from 25K to $47.5K. The ultimate justification for this explosion in the cost of getting a law degree is that you have to pay your faculty literally twice as much, in real terms, as what the school’s faculty was making 25 years ago (while at the same time cutting their teaching loads etc etc), in order to keep up with the Joneses. That shall we say less than compelling argument will remain tolerable to the people paying the freight (the school’s students, and to a far lesser extent the state’s taxpayers at public schools like UT) to the extent that they’re actually getting something like a decent return on the investment they have to make to become lawyers.

But when the gap between what the professors and their graduates are getting paid gets to be too much, even law students will eventually rebel against this preposterous system.

The best Simpsons episodes

[ 104 ] February 16, 2012 |

In honor of the show’s 500th episode, the Guardian conducted a reader poll to pick the top ten, all of which not surprisingly came from the program’s first decade (yes I too haven’t seen an episode in many years).

A few personal favorites:

Tree house of Horror VII:

Kodos: It’s true, we are aliens. But what are you going to do about it? It’s a two-party system. You have to vote for one of us.
Man 1: He’s right, this is a two-party system.
Man 2: Well I believe I’ll vote for a third-party candidate.
Kang: Go ahead, throw your vote away.

Bart Sells His Soul

Lisa: Hmmm, Pablo Neruda said “Laughter is the language of the soul.”
Bart [obviously offended]: I am familiar with the works of Pablo Neruda.

Mr. Burns Runs For Mayor

Mr. Burns: This anonymous clan of slack-jawed troglodytes has cost me the election, and yet if I were to have them killed, I would be the one to go to jail. That’s democracy for you.
Smithers: You are noble and poetic in defeat, sir.

Lisa’s Rival

Dr. Taylor: Hi Lisa. I’m Alison’s father, Professor Taylor. I’ve heard great things about you.
Lisa: Oh really? I…
Dr. Taylor: Oh, don’t be modest. I’m glad we have someone who can join us in our anagram game.
Alison Taylor: We take proper names and rearrange the letters to form a description of that person.
Dr. Taylor: Like, er… oh, I don’t know, uh… Alec Guinness.
Alison Taylor: [thinking] Genuine class.
Dr. Taylor: Ho ho, very good. Alright Lisa, um… Jeremy Irons.
Lisa: [looks worried] Jeremy’s… iron.
Dr. Taylor: Mm hmm, well, that’s… very good… for a first try. You know what? I have a ball. Perhaps you’d like to bounce it?

Homer v. the 18th Amendment:

Homer: To alcohol . . . the cause of, and solution to, all of life’s problems.

Shary Bobbins: (basically the whole episode)

Shary: If there’s a task that must be done,
Don’t turn your tail and run,
Don’t pout, don’t sob,
Just do a half-assed job!

If… you… cut every corner
It is really not so bad,
Everybody does it,
Even mom and dad.
If nobody sees it,
Then nobody gets mad,
Bart: It’s the American way!

Shary: The policeman on the beat
Needs some time to rest his feet.
Wiggum: Fighting crime is not my cup of tea!
Shary: And the clerk who runs the store
Can charge a little more
For meat!
Apu: For meat!
Shary: And milk!
Apu: And milk!
Both: From 1984!

Shary: If… you… cut every corner,
You’ll have more time for play,
Shary & OFF: It’s the American waaaaay!

You Only Move Twice:

4th Grade Teacher: [On Bart’s first day in his new school the teacher discovers he can’t read cursive handwriting] So, you never learned cursive?
Bart: Well, I know “hell” and “damn” and “get ben…”
4th Grade Teacher: No, no! Cursive handwriting! Script! Do you know multiplication tables? Long division?
Bart: I know *of* them.
4th Grade Teacher: [Unimpressed] Hmm.

Lisa the Vegetarian

Lisa: When will all those fools learn that you can be perfectly healthy simply eating vegetables, fruits, grains and cheese.
Apu: Oh, cheese!
Lisa: You don’t eat cheese, Apu?
Apu: No I don’t eat any food that comes from an animal.
Lisa: Ohh, then you must think I’m a monster!
Apu: Yes indeed I do think that. But, I learned long ago Lisa to tolerate others rather than forcing my beliefs on them. You know you can influence people without badgering them always.

And of course “Meat and You” (from the educational film series “Resistance is Futile”):

Which schools give you a better chance to become POTUS than to play in an NBA game?

[ 34 ] February 15, 2012 |



Clearly, Harvard qualifes.

Even if we only count graduating from Harvard College, and not the law and business schools, we’ve got John Q. Adams, Hayes, (whoops, he actually went to Kenyon and then HLS), the two Roosevelts, and JFK.


In re Santorum

[ 79 ] February 13, 2012 |


I confess to having paid almost no attention to the GOP “race,” in part because my two favorite prognosticators of such things have been saying for quite some time that there was no longer as a practical matter any question about the outcome. This, however, makes me wonder a bit. If Santorum is leading Romney by more than 2 to 1 among Republicans in Romney’s home state (a state in which Romney’s father was elected governor once upon a time on the Socialist Worker’s Party ticket) does this suggest it’s time to rethink his inevitability (assuming Gingrich drops out soon I suppose)?

Stigma and Silence

[ 9 ] February 2, 2012 |

In his book Stigma: Notes on the Management of Spoiled Identity, the sociologist Erving Goffman makes a distinction between virtual social identity and actual social identity. A person’s virtual social identity is made up of those attributes which are assumed by others to be a normal part of one’s make-up, given who one is supposed to be. When a gap between one’s virtual and actual social identity becomes known to others, and this gap is socially discrediting, the person in such a situation is stigmatized by the “normals” — that is, by those who do not suffer from a gap between their virtual and actual social identities. A stigmatized person has a spoiled identity: that is, he or she suffers the consequences that follow from the disclosure of the gap between what society expects that person to be, and what the person actually is. Read more…

The empty idea of private property

[ 73 ] February 1, 2012 |


I suppose very few non-lawyers have ever heard of Shelley v. Kraemer, and more than a few lawyers would need to be reminded about the case’s substance as well. Shelley involved a racially restrictive private real estate covenant (a contractual promise between a buyer and seller of land which also binds successors of the buyer), that limited ownership of a residential property to people not of “the Negro or Mongolian race.” JUSTICE GRAMSCI ruled that:

In granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand.

This decision essentially ignored the state action doctrine: the doctrinal principle that constitutional rights only protect people against government, rather than private, action. If the state action doctrine were to be interpreted to apply to the enforcement of “private” rights generally, this would would mean that, as a practical matter, there would be no state action doctrine. In this sense Shelley can be interpreted as a remarkably radical ruling. Extending its logic generally would mean that any time a private party tried to use the power of the state to do something that the state itself would be barred from doing — such as, for example, ejecting a person from a premises because of his race — the state would be barred from doing so.

Shelley was never extended in that way, and it remains an outlier ruling, that can’t be integrated with the standard state action doctrine. But the principle at its base — that the enforcement of “private” rights by state violence, i.e., the law — is ultimately a form of government action, is a potentially powerful one.

In this regard, consider Gov. Chris Christie’s remarks about how civil rights activists would have been happy to have state-wide referenda on civil rights issues in the South in the 1950s and 1960s. I have a piece here about the apparent historical ignorance that underlies the evident absurdity of that claim. I think it’s useful to remember that the patron saints of the modern conservative movement, Ronald Reagan and Barry Goldwater, fiercely opposed the Civil Rights Act of 1964, not only or even primarily on the basis of states’ rights arguments, but more particularly on the basis of arguments about the sanctity of private property.

Such arguments are a good example of a peculiar blindness to which many libertarians are prone. After all, in a context such as the Jim Crow South, “private” property meant the right to use the power of the state to enforce a state-sanctioned racial caste system. In this crucial sense, there was nothing “private” about it. “Liberty,” in this context, meant the liberty to use state violence to enforce the existing racial hierarchy. Under such circumstances, it should be especially clear that the line between the “public” and the “private” spheres is in a crucial sense always something of an illusion.

Ideology and legitimation

[ 24 ] January 30, 2012 |

“Ideology” can mean a number of things. I’m using it here in the sense of the received consciousness of a particular social order, which legitimates that order and helps reproduce it. The lawyer and sociologist David Riesman aptly described how ideological modes of thought produce a kind of “sincere” mental state that allows someone to habitually believe his own propaganda. A dominant ideology generates a set of views that distort social reality in a particular way: in a way which advances the economic interests of the dominant group, without the members of the group becoming conscious of the fact that they believe what they believe because it is in their self-interest to believe it.

A simple example might be how the ideology of free enterprise capitalism in early 21st century America creates a sincere belief in the mind of a hedge fund manager that paying himself a salary of one billion dollars, which is then taxed at a lower rate than the salary of the average American full-time worker, is wealth maximizing for society as a whole, and therefore by definition a good thing. Read more…

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