Are We Worse than Thieves? What Rents are Law Professors and Law Schools Seeking?

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.

Huh?

This is more properly a comment but since Moneylaw is close to dormant I decided to upgrade to an actual post. I read with interest the most recent posts about tax faculty rankings. I did this even though I have complained about drawing any inferences from the rankings other than SSRN may be pretty good at counting.

Beyond my usual concerns about the emails we all get that we have made the top 10 in one of SSRN's zillions of categories and its use of our works to sell advertising, I am also concerned about what those who post the lists believe they are communicating. I do not mean to pick just on the most recent tax listings because I have seen this with other listings.

I see two problems but maybe I am misunderstanding. As I understand it, a tax professor with, say, 10,000 downloads may have written a couple of tax articles that were moderately downloaded and then have 8000 downloads in other areas. In effect, the number of downloads, if it means anything, does not mean how widely downloaded (much less read or relied on) that author was as a tax professor. If you doubt this take a look at the downloads for the top two tax professors and see how many of the articles are actually tax articles. It would be possible to write one article on tax that was downloaded once and be ranking as at the top and, in fact, pull the entire tax department with you. I seems to me that any school wishing to move up could just ask its most downloaded scholar in any field to allow him or herself to be listed as a tax professor and added as a coauthor to one article. Am I wrong on this? By the way this is the charitable interpretation because I cannot tell whether to be considered one has to be a self-professed tax professor and have uploaded a tax article in the past year or just pass one of these tests. If it is the latter, any inferences to be drawn are even more sketchy.

The second problem is with the totals for schools. Isn't this somehow influenced by the size of the school and the number of people there who teach tax? Why not take the downloads of actual tax articles and divide by the number of tax faculty. And, of course, even this leaves out other types of works.

My sense is that if these SSRN rankings were subject to some kind of truth in advertising standards they would be found to be misleading because they seem to have so little to do with the actual tax productivity of a tax faculty or even the interest others have in that faculty's output. And, if the thought that goes into these postings were found in a scholarly article I doubt it would be publishable. In fact, the only place I have seen a similar willingness to stray from what would be acceptable care as a scholar is when academics perform as expert witnesses.

New Tax Faculty Rankings

• Graduate Tax Faculty Rankings (Michigan is #1)
• Tax Professor Rankings (Louis Kaplow & Reuven Avi-Yonah are #1)
• Tax Faculty Rankings (Michigan is #1)
• Tax Faculty Metropolitan Area Rankings (Los Angeles is #1)

66% of the Time, Every Time

When I began teaching economics something struck me during the first week. I knew a fair amount about economics -- much less than I thought -- but I had received not even a minute's worth of instruction on teaching. All I could think to do was read the book, more or less explain it in my own words using examples not in the book, and answer questions. There were no war stories for a first year teacher of microeconomic theory. One thing that gradually occurred to me is that a knowledge of economics, and then later of law, only accounted for about 66% of what I did as a teacher. And it also occurred me that while students see the professor while he or she is teaching, they only witness about 66% of what goes into teaching.

Other courses, common sense, and day to day experiences inform teaching yet their importance remains behind the scenes. One of the most useful courses I took was a required freshman level course in logic. I am not sure it is required or even offered any more but it did mean that I do not confuse causation and correlation. It also meant that I do my best to correct students who reason like this: "The professor does not need to take role because I attend regularly" Bizarre, right? But I have heard the very same "reasoning" from law professors. For example, "There is no need to have a rule requiring professors to take role because I already take role." I assume professors finding this acceptable also find it acceptable in class.

And then there was statistics. There I learned the difference between reliability and validity. Reliability means the tool you are using when applied to the same data gives you the same result. Validity means the tool is actually testing what you are intending to test. If you've got a tape measure that has been stretched it may consistently measure your waist at 32 inches even though is is 36 inches around. It's just not a valid test of your girth, although can surely be a source of great happiness.

The meaning of a normal distribution also came up and can be understood in the context of reasoning I have heard twice lately: "My method of testing is valid because it produced a normal distribution." I most recently heard this from someone administering a law exam to people with widely varying knowledge of English. The normal distribution means nothing about the validity of the test. My guess is that what she was testing was the ability to understand English. The normal distribution fixation is particularly odd. If the students in the class are normally distributed then, hopefully, the test result will reflect that. On the other hand, getting a normal distribution does not mean the same is true of the class itself. In fact, a normal distribution could just as easily cause concern about the test. Normal distributions are, however, convenient when grades must be assigned.

And now back to logic. Remember your high school math classes. Some teachers said to show your work and then gave you credit if you got everything thing right except, say, the final step. Others just machine graded.The problem is this. In most complex math problems there are many ways to get a wrong answer. Some reveal that the test taker did not have a clue. Some reveal that the test taker forgot to carry the one on the last step. The machine grader gives them the same credit although their knowledge and understanding are quite different. The teacher who requires the student to show his or her work makes a distinction because there is a distinction. Of course, the same is true in law where the issues are not simply complex but more nuanced.

This also relates to the point that students see only about 66% of what goes into teaching. Suppose you give a machine graded exam and there are 10 reasons that could explain a wrong answer. If most of the students are getting it wrong for the same reason, it suggests an opportunity to improve one's teaching the next term. (Unless, of course, the goal is not really to teach but to get a good distribution.) I assume the machine graded test givers just plow along without pin pointing the problem which may reflect their teaching as much as student diligence.

The all time prize for irrational testing actually goes to essay test givers who say something like "Answer 3 of the next 5 questions." There are many combinations of 3 out of 5 and each one represents a different test. In addition, a student could get an 80 of 100 on all five and do worse than a student who scores and 85 on three but would have scored a 60 on the other two. Pretty simple, right? This is, however, popular with the students and you know where that can lead.

I would not want to confuse causation and correlation but there is pattern. All of the reasoning that, at least to me, seems in error does make the lives of those making the errors easier. Could it be that reasoning is driven by convenience and self-interest?