Category: Education


Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

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Overlong Resumes, Redux: What Would Alex Kozinski Do?

By way of seconding Gerard’s comments regarding resume (and CV) creep and its baneful effects, let me share with you the rather short resume of an incredibly well-accomplished person: Alex Kozinski, circa 1984, as he was applying for a position on the United States Court of Appeals for the Ninth Circuit.

Note that Judge Kozinski’s resume back then (as taken from the files of the Reagan Library) was all of two pages long, and that he didn’t go on and on explaining precisely what he did as a clerk for Chief Justice Burger, Judge Kennedy, or even as a judge on the Court of Claims. He didn’t even mention that he was once a contestant on “The Dating Game.”

Given that it’s interviewing season, this also might provide a good opportunity for me to offer a couple of resume tips to law students. I enjoy reviewing students’ resumes, and see a number of recurring errors along with what I consider to be poor judgment calls. I’ll offer a few suggestions, for what they’re worth, after the jump.

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School Rankings and the Diversity Penalty II

A couple of weeks ago I wrote about how my colleague Tim Glynn and I recently examined elementary and high school rankings in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states. Our analysis, available here, demonstrates how rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.

My prior post explained that because most ranking metrics fail to account for the achievement gap, wealthier and Whiter schools will almost always outrank diverse schools.  The post also hypothesized about how the choices parents make based on these ratings help fuel neighborhood and school segregation.  Now I want to discuss how alternative rankings could dampen the diversity penalty’s damaging effects.

People are drawn to the bottom-line assessment of quality that rankings provide, which means that rankings are not going to just disappear.  But there is plenty of room to improve how school rankings and ratings are calculated.  And herein lies a powerful opportunity to counteract the diversity penalty.  As research by Michael Saunder and Wendy Nelson Espeland demonstrates, one way to mitigate the harm caused by influential ranking systems is to offer competing rankings.  When a marketplace is crowded with multiple ratings, it is too loud for any single rating system to carry the day.  No single ranking system will appear authoritative because each just offers information that conflicts with that offered by others.

Right now readers are probably thinking that they can’t swing a dead cat without hitting a school ranking.  There are national ranking entities like SchoolDigger and GreatSchools, local magazines with “Best Schools” issues, and even some state department of education websites that provide ordinal ranks or allow users to compare one school to another.  The problem, however, is that almost all of these ranking systems use metrics that ignore the achievement gap. The marketplace thus becomes an echo chamber in which wealthier and Whiter schools are rewarded and diverse schools are penalized.

The key, then, is for states to develop truly alternative rankings—ones that are sensitive to the socioeconomic and racial composition of schools.  These rankings would neither penalize nor reward demographic diversity.  Instead, they would measure a school’s overall quality by comparing the performance of each of its students against the average performance of the student’s demographic peers across the state.  Indeed, New Mexico has already started down this road by including a variant of this methodology in its school assessments.

You can read more about this sort of methodology in our article.  To be clear, however, these alternative rankings would not freeze expectations for any subgroup of a school’s population.  On the contrary, a school’s ranking would benefit from better outcomes for students on both sides of the achievement gap, as well as from outperforming other schools in narrowing the gap.   These competing rankings would encourage parents to dig deeper to determine whether a school is right for their children.  That analysis would benefit students, schools, and communities alike.


School Rankings and the Diversity Penalty

Those in legal education are familiar with the deleterious effects of the U.S. News rankings, but have not paid much attention to similar popular rankings of elementary, middle, and high schools.  Because perceptions of public school quality often dictate where parents of school-aged children choose to live, these rankings are tremendously important.

My colleague Tim Glynn and I have recently examined rankings by private entities of schools in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states.  Our analysis, available here, demonstrates that school rankings are neither accurate nor neutral measures of quality.  Instead, rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.

Most rankings use a student body’s overall performance on standardized proficiency tests to gauge school quality.  This ignores the achievement gap—the well-documented phenomenon that, on average, wealthier students outperform poorer students on these tests and Asian and White students outperform Black and Hispanic students. The achievement gap is not inevitable, and educators are working hard to close it.   But while the gap persists, wealthy and White schools will almost always have higher aggregate proficiency scores and thus outrank schools with a diverse mix of students.  And that’s true even if a particular school serves each subgroup of its student population better than the higher ranked schools do.

This diversity penalty exists across popular school ranking systems in all areas of the country. Consider the website SchoolDigger and its rankings of New Jersey and Illinois high schools.  Millburn High School—located in an affluent northern New Jersey town and often described in the media as one of the best high schools in the state—ranked 22 for tested year 2010.  (The top spots were held by magnet schools that pre-select their students based on academic achievement.)  The high school in neighboring South Orange-Maplewood—a far more socioeconomically and racially diverse community—ranked 179.  But isolating performance at these two schools by demographic subgroup creates a very different impression of relative school quality. For example, when the two schools are re-ranked based just on the test scores of White students, they are in a virtual dead heat.  The high school in Montclair, another nearby diverse community, performs comparably.  Similarly, in Illinois, New Trier Township High School—which draws students from several affluent Chicago suburbs—ranked fifth for tested year 2010.  Nearby Evanston High School—located in a far more diverse community—ranked 126.  But when the two schools are re-ranked in ways that account for the achievement gap, they are essentially tied.  Oak Park & River Forest High School, another diverse Chicago suburban school, is competitive as well.  This pattern repeats itself in different years and different states and for elementary schools as well as high schools.

Parents should care about more than just the performance of their child’s demographic peers.  But rankings that rely on aggregated scores are a misleading indicator for all demographic subgroups, including low-income students and historically-disadvantaged minorities.  The problem is not that disadvantaged subgroups drag down aggregated test scores.  Rather, by lumping all students together without regard for socioeconomic and racial differences, rankings reveal little about how a school actually serves its student population.

Because of the achievement gap, diverse schools in which both disadvantaged and advantaged students outperform their demographic peers will often still have lower aggregated proficiency scores—and hence lower rankings—than schools with mostly wealthy and White students. The rankings therefore penalize diversity and reward wealth and White racial homogeneity.  Parents who rely on rankings will conclude that wealthy and White schools are better, even when the statistics show their children would do just as well or better in a diverse school.

Many parents see the value of diversity and would happily opt for schools that are both diverse and academically strong.  And integrated learning environments benefit all students.  But popular school-ranking systems suggest, contrary to reality, that academic strength and diversity seldom co-exist.  When parents choose school districts based on rank, those with means will select away from diverse schools and the neighborhoods in which they are located.  This distortion of local housing markets contributes to school and neighborhood segregation and may help explain why highly diverse communities are so rare.

School report cards contain data about demographic subgroup performance, and some private ranking systems also make this information available.  But because the disaggregated data is usually buried beneath the headlines, many parents do not focus on it. Moreover, disaggregated data does not provide what many parents want—a bottom-line assessment of overall school quality.

Given their popularity, rankings are not going to disappear anytime soon.  The question, then, is how to dampen their damaging effects.  More on that in a later post.



Penn State Scandal: Could a Corporate Compliance Model Have Prevented It?

The Penn State scandal has become ever more shocking with each new revelation. My colleague Kathleen Boozang argues that it is time for higher ed to learn from other large enterprises about the importance of compliance:

It appears that even now, Penn State lacks a compliance program, the creation of which Special Investigative Counsel Freeh’s Report recommends. Previously limited to financial fraud and HR issues, a June 21, 2012 posting by Penn State’s internal auditor announces a poster redesign advertising its hotline number, to which any ethical or legal concerns can now be reported.  Important will be training throughout the university regarding the law’s protection of whistleblowers, about which, according to Freeh’s Report, top university leaders were unaware.

While it is stunning that, even now, Penn State has not advanced further in setting up these protective measures, it is fair to say that much of higher ed has been slow to adopt compliance best practices common to the healthcare sector and most business entities.

In related news, the Institute of Internal Auditors met in Boston last week. It looks like they will need to play an increasing role in the higher education setting, especially if internal compliance methods are not mere “rituals of verification.”


In Favor of Long Views Over “Win” Cultures

Thinking a bit more about recent UVA events, I think that a deep problem with current approaches to education is not just market myopia but a distaste for any long-term project. We live in a quick-fix, I know the answer, will give results, and obtain a “win” culture. It has its arrogance just as academia has its arrogances. The “win” culture wants the rush of snark and deliverables already known. Whether they wish to admit it, some academics play into this model. Vaidhyanathan’s points about dwindling funding are dead on correct. Private and public funding is in peril. The world looks to the U.S. for models of public education while we eviscerate it. The business mentality and newspeak have no place for the work that plods, tests, fails, but in aggregate discovers new things, nurtures counter views, and happens to train people how to think beyond three bullet points. Recent works by Julie Cohen and Brett Frischmann lay the foundation to show how and why thinking beyond simplistic market models leads to outcomes we want. I think part of what they are reacting to is a failure to have a vocabulary beyond markets. In some cases it may be as simple as looking beyond one notion of the market. In others scholars are developing ways to understand what lies beyond our current thinking. In both cases, people are offering new metrics to evaluate and appreciate what is important for society and individuals but is not captured in market-speak.

A question that lurks here is why. Why are we having to remind people about the importance of education, how public institutions feed society at large, and the needs of humans as they develop? Saying that we are not getting what we want from current approaches is not a good answer. It tells us that something is broken. But turning to systems that may be excellent for some things but quite poor at others speaks of a desire to do anything for the sake of action without thinking through options. In business, the quick outcome and need for speed may be real (although there are many examples of rapid deployment that fall on their faces). In our public and personal lives, a little patience would help. There are many reasons to be suspicious about government, corporations, academia, and any group. That has been and is our world since at least the start of our country. For public institutions and a better civic life, we need to show people why truths we hold self-evident are ones others do too. Right now, a bunch of people lamenting and decrying failures does little to change things.

For example, all citizens who think that public education is something that should be free, need to explain who pays. And they need to realize that by voting to cut funds from education (yes mucking with taxes and not voting for increases means you failed to pay for your community goods), they drive to a world where they may not have access to the resources they need. Saying we will not fund until we get what we want is useless. Saying these are the hard outcomes and needs we see for education is a place where educators can and should engage. For those who think that education will undergo some mild re-tooling and continue as before, I direct you to this article “The Prospect of Western Europe Collapsing Like Eastern Europe.”

Put differently, I don’t think civic goods are a luxury. I think we are treating them that way. Society’s interest in self-congratulatory, near-term “wins” is part of and fuels the shift to business-style myopia. There is a literature from scenario planning that explains how that approach is not great for companies either. Yet, companies struggle with that information and research. I think most of us would prefer a society that has a shot at long-term success over short-term satisfaction. Then again it took some dreams and Joseph to have the ancients think about planning and cycles. As we are not in an age of dream interpretation, it is up to us to remember and to explain why should be planning for the long haul. As always, let the games begin.


Did you miss it? The power of curiosity and schoolboy naivety

I have been traveling and storing up some blog material. So I apologize if you have seen some of these stories, but in case not; here goes the first one. According to the Ottowa Citizen “An Indian-born teenager has won a research award for solving a mathematical problem first posed by Sir Isaac Newton more than 300 years ago that has baffled mathematicians ever since.” The problem was “to calculate exactly the path of a projectile under gravity and subject to air resistance.” The student’s response to there was no solution was “well. there’s no harm in trying.” Man, I love that reply. It probably did not hurt that he learned calculus at 6. To me, however, I think the attitude is a big part of the success. It reminds me of tinkering. In story or research it is the willingness to say “What if” and see where it takes you. There are of course times when those who came before can tell you with good reason not to pursue something. But the cases where the question is known but no one has figured out how to solve it, the will to say let me give it try is hugely important. Even if you don’t succeed, what you discover along the way may be fruitful. Anyway, I rather liked the breakthrough and that youthful inquisitiveness won the day.


A Little History of Academic Funding and Freedom

When powerful individuals muck with professors or deans are they that different in the 21st century from the 19th? I don’t think so, but Siva Vaidhyanathan uses that contrast to critique recent events at UVA. Throw in recent efforts by Rep. Jeff Flake (R-Ariz.) “to prohibit the National Science Foundation from funding political science research” and it turns out that people love to pick on academia at various levels. The Flake issue focused on what he called “meritless” research such as “‘$700,000 to develop a new model for international climate change analysis’ and the ‘$600,000 to try to figure out if policymakers actually do what citizens want them to do.'” That these turns have problems is correct. To me, however, the problem may be that universities have been preaching to the choir. We have faith. Many do not. These problems are old. Our solutions may need updating.

Siva starts with:

In the 19th century, robber barons started their own private universities when they were not satisfied with those already available. But Leland Stanford never assumed his university should be run like his railroad empire. Andrew Carnegie did not design his institute in Pittsburgh to resemble his steel company. The University of Chicago, John D. Rockefeller’s dream come true, assumed neither his stern Baptist values nor his monopolistic strategies. That’s because for all their faults, Stanford, Carnegie, and Rockefeller knew what they didn’t know.

In fact, the tenure system traces its routes in part to Stanford, as in Leland, and a fight over what was good work. In 1998 tenure was under scrutiny as the economy was shrinking and many things were up for grabs. The Stanford Today wrote about tenure there and admitted:

An unpleasant chapter in Stanford history played a key role in the history of tenure. In 1900, sociology professor E. A. Ross was forced from Stanford after upsetting university co-founder Jane Stanford with public speeches against Chinese immigration and the supposed sins of corporations. Seven other professors later resigned in protest, and the incident fueled a national coalition that wrote the so-called Declaration of 1915.

Vaidhyanathan is correct that treating educational institutions like businesses is a mistake, but this pattern of questioning academics and education has a long history. The 1998 article from the Stanford Today hits the same notes about the difference between long term and short term goals, how business is different than education, and the need to “buffer [researchers] from political and administrative pressure.” The tenure process itself traces to fights over what is good research. So how do we explain why education matters and especially academic freedom? Siva, others, and I have called out the way education is different. My fear is that most don’t care about these points and that like debates in cyberlaw, saying “keep it open” is not that compelling. Patrick O’Donell’s comment to Frank’s post offers great resources to understand the problem, but whether any but the converted will read or care is the problem for me. The project may need to be a deeper look at what education does and why it should be funded for reasons beyond market metrics. Explaining education in ways that make sense to folks outside academia is probably necessary too.

The Corporate University: Recent Developments

There are many memorable images in Rob Nixon’s book Slow Violence and the Environmentalism of the Poor. Describing the “risk relocation” that is a prime function of the global economy, he offers this vision of Nigeria:

Often, as a community contends with attritional assaults on its ecological networks, it isn’t granted equitable access (or any access at all) to modernity’s basic infrastructural networks . . . . Like those Niger Delta villages where children for decades had no access to electricity for studying at night, while above their communities Shell’s gas flares created toxic nocturnal illumination. Too dark for education, too bright for sleep: modernity’s false dawn. (42)

Exxon is now “a corporation so large and powerful — operating in some 200 nations and territories — that it really has its own foreign policy.” As Steve Coll observes, the US “gives Chad only a few millions dollars a year in aid, while Exxon’s taxes and royalties can be worth as much as $500 million.” Had Exxon directed only 10% of its 2008 profits to political expenditures that year, it would have spent “more than every candidate for President and every candidate for Senate spent at the last election.” In a surprising number of contexts, corporations enjoy far more freedom of action, and secrecy, than states.

Is it any wonder, then, that universities are beginning to shift allegiance, to pursue the agenda of corporate donors instead of public values? Conferences like EduFactory have chronicled the long history of the corporate university; Philip Mirowski has critiqued it in books and edited collections. But it feels like we are on the verge of a phase change, an irreversible acceleration of dynamics once muted and slowed by the ancient cultural identity of the university. Consider these developments:

1) Martha McCluskey has described “economics scholars simultaneously acting as academic experts on the public interest and as sellers of this expertise to the highest private bidder.” She has chronicled a number of troubling aspects of a recent report on fracking issued by the “Shale Resources and Society Institute” (SRSI) of SUNY Buffalo:
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An opening musing on legal education

Well, several days later than planned, here I am with my inaugural post as May’s guest blogger here at Concurring Opinions. Thanks to Gerard for the flattering invitation. This is my first venture as a blogger, so I’m not quite sure I’ll strike the right note. But here goes.
I’ve been thinking a good deal about the structure of American legal education lately. This bout of introspection has been prompted by the national mood of unease in the profession, and more personally, by Missouri’s three-year rollercoaster ride in the US News rankings — from 60-something to 100-something and now back up to 70-something — and by my work as chair of a curriculum committee debating whether we have to reinvent ourselves for our own and our students’ sakes.  Here, in short form suitable for the blogosphere, are some of my tentative conclusions:
1) So long as US News rankings remain the primary indicator of institutional quality in the eyes of student consumers, the top 20 or perhaps 30 law schools are at liberty to change or stand pat, as suits them. So long as they continue taking in and spending a lot of money per student on whatever it is they do, the combination of reputational inertia and a US News algorithm in which most of the supposed measures of educational quality are actually proxies for money, these schools will remain on top and free to deliver legal education however they like. Their high ranking will guarantee a constant stream of the statistically best students willing to pay top tuition dollar. The raw intellectual talent of their graduates (regardless of how well or badly they were educated) will guarantee employment of those graduates by the most elite employers. And so the cycle will continue, forever and ever. Amen.
2) This model cannot work for the rest of us. In a generally stagnant economy with a legal market offering fewer jobs at less pay, we cannot continue to compete with each other in what amounts to an endless race to drive up per-student costs. Legislatures will not fund perennial increases for state-supported schools like mine. For both public and private schools, philanthropic funding is not bottomless. And trying to fund our academic arms race with ever-rising tuition is neither economically sustainable nor, frankly, moral.
3) Exacerbating the stress on non-elite institutions is the emerging emphasis on producing more practice-ready graduates. I happen to favor this trend. Indeed, over thirty years ago I wrote my third-year paper at Harvard on how to restructure upper-division legal education to achieve this end. But any serious effort to enhance practice-readiness runs head-on into the economics and sociology of law schools:
      a) Increasing practice-readiness requires more training in the skills performed by actual lawyers. This in turn requires either more “experiential learning” (basically various forms of clinical education) or more in-house simulation-based skills training or some combination of both.
     b) Skills training, whether experiential or simulated, requires much lower teacher-student ratios than doctrinal courses. Therefore, at least if the law school is to maintain quality control and not simply farm the whole thing out to adjuncts, it is probably more expensive.
     c) I say that increasing skills training is “probably” more expensive if we conceive of the additional skills training capacity as an add-on to what we already do, and if we assume that the doctrinal faculty of law schools will continue to do what they now do in the same way they’ve grown accustomed to doing it. In other words, if law schools continue hiring the same number of doctrinal tenure-track faculty with the same set of entering qualifications, give them the same teaching loads, pay them in roughly the same way, and set the same standards for type and quantity of scholarship, then adding the staff and programs required to make graduates more practice-ready will necessarily increase the cost of legal education. And I’ve just argued that the vast majority of law schools can’t keep raising costs.
     d) There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty.
The first option is not crazy. One could fairly argue that law schools should never have gotten into the skills training business in the first place. What was good enough for Langdell should be good enough for us. Teach ’em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice. Or, less dogmatically, we’ve added a lot of skills training options over the last three decades (legal writing, clinics, trial advocacy) and what we have is enough.
But if you think we could and should do a better job of preparing our students for legal work, then that requires an uncomfortable self-analysis by the tenured and tenure-track class at the top of the law school hierarchy. As a conversation starter, let me suggest several changes in our comfortable lives that would make law schools better for our students, and for matter, for the legal communities of which law schools are a part:

  • Reverse the trend toward competing for faculty by offering ever-lower teaching loads to tenure-track professors. I like working less for more money as well as the next guy, but paying law professors premium salaries in relation to virtually everyone else in the university for teaching 11 or 10 or 9 hours per year is increasingly hard to justify. In the Bizzarro World of US News rankings, this practice makes weird sense because reducing professors’ teaching loads requires hiring more of them, which reduces the student-teacher ratio and increases the overall expenditures per student, which raises a school’s ranking. If, however, one is trying to increase skills training without cripplingly raising costs, an obvious means of doing so is by covering the curriculum with fewer faculty and thus freeing budgetary space for the additional staff required for more skills training.
  • Rethink the constellation of preferred qualifications for entry-level tenure-track law professors. Right now, we tend to hire young people with high grades from a handful of elite law schools whose work experience consists of a judicial clerkship and a couple of years at a fancy big-city law firm. With all these youngsters’ potential, in practice, no sensible senior lawyer would entrust them with unsupervised responsibility for any matter of real importance. But law schools confer on them the mantle of wisdom that comes with the title “professor” and not only ask them to educate students about a world they themselves have barely experienced, but also to write authoritative “scholarship” about that world. Because they are surpassingly talented people, newby law professors figure out their jobs, teach well enough (and sometimes brilliantly), and churn out law review articles as required. In a Langdellian model of legal education, this approach to hiring works well enough since the core subject matters are legal doctrine and legal reasoning, subjects those in our hiring pool have self-evidently mastered. And if the legal scholarship produced by professorial rookies is not profound, well, no one is much hurt. But if law schools are reimagined as institutions devoted to producing practice-ready graduates, then the practical inexperience of most of the professoriate becomes a problem. Professors with little real-world experience are ill-suited either to teach skills-rich courses themselves or to supervise or assess the content of such courses taught by others. 
  • Reconsider the role of “legal scholarship” in American law schools. An immediate (and horrified) objection to the suggestion of increased teaching loads will surely be the decreased time available for scholarship. And the idea of hiring more tenure-track faculty with real practice experience will surely be rejected by those who view exposure to the law in action as an irremediable pollution of the mind of the young scholar. To which I say, “Fiddlesticks!” There is far too much “legal scholarship” now. Most of it is mediocre or worse. Much of its mediocrity stems from the naivete of inexperienced professorial authors. Even if it were far better than it is, the sheer number of law review articles spewed forth each year means that only the tiniest fraction of them will ever be read by anyone other than their author’s immediate relatives or P&T committees. In saying this, I cast no aspersions on the talents of my academic fellows. To the contrary, law schools are brimming with brilliant minds, but the odd conventions of our trade often force them to opine too soon about subjects of which they know relatively little and to channel much of their creative energies into the writing of law review articles — an exercise customarily equal in practical effect to shouting down a well. As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with.  If professors come to the academy without such familiarity, they should find ways to gain it.  This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.

In short, the move to restructure law schools so their graduates are better prepared to practice presents a fundamental challenge to the existing comfortable world of the tenure-track law professor. I think that is a good thing, one that would make our students and the legal profession a good deal better off. But I imagine others may differ…

Frank Bowman