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CLEs for Physiological and Psychological Wellbeing? Something to Consider.

In Law on August 15, 2018 at 6:45 am

This piece originally appeared here in The Addendum, the newsletter of the Alabama State Bar.

Many attorneys suffer from depression, anxiety, stress, and drug and alcohol abuse.[1] Technology has changed client expectations, pressuring lawyers to be available at all hours through constant, instant communication.[2]

Lawyers may feel burned out or fatigued by the demands of their profession, namely “the extreme value placed on competition, self-sufficiency, and abnegating individual emotional needs; the isolated work conditions characteristic of most law practices; and the effect of the adversarial system on all spheres of professional and personal life.”[3] Lawyers experience mental-health problems at rates higher than those in other professions.[4]

Speaking to the Alabama State Bar Leadership Forum in March, Dr. Steve Walton of the Goizueta Business School at Emory University discussed the effects of stress, anxiety, and poor health on workplace productivity. High levels of stress, he said, make people less effective on the job, impacting their ability to pay attention, plan ahead, handle large volumes of work, empathize, and process information.

Dr. Walton explained that stress and anxiety can lead to serious, long-term health conditions: obesity, diabetes, cancer, high cholesterol, chronic pain, and more. The wellness habits of lawyers, he concluded, directly affect the lives of their clients, who depend on lawyers for competent and professional representation.

Something must be done to reverse what appears to be a systemic health issue in the legal community. I propose broadening continuing legal education (CLE) offerings to include fitness and wellness programs. If regular exercise and healthy eating can make you a better lawyer, shouldn’t lawyers be incentivizing such activity? Couldn’t CLEs be used to nurture our physical and mental wellness, to meet our physiological and psychological needs?

Minnesota was the first state to require CLES, and other states began instituting them during the 1980s, 1990s, and 2000s.[5] They were intended to address complex, ongoing changes in the legal system and to cultivate professionalism and competence among lawyers.[6] Whether they have succeeded in these goals is a matter of debate.[7]

Many lawyers probably view CLEs as just another stressful mandate, a time-consuming responsibility in a field in which time is precious and mechanistically measured. It could be that CLEs compound stress and further impair our ability to perform optimally as counselors and advisers to clients.

CLE hours compete with other hours that could be spent on fulfilling activity: dinner with family, religious services, little-league games, weddings, funerals, reunions, and so forth. When our responsibilities are so numerous that they become unmanageable, the last thing we need is another task to manage.

Imagine if you could satisfy at least a portion of your CLE requirements by enrolling in a six-month program with a personal trainer at a reputable gym, or by participating in a dietary program monitored by a reputable nutritionist. Evidence suggests that workplace health promotion programs work[8] and even generate savings on healthcare.[9] Why not try them in our profession?

If you can’t take care of yourself, you’ll have trouble taking care of others. If you can’t meet your own needs, you’re less likely to meet the needs of others. I’ll leave it to experts to determine what a health and wellness CLE program would look like, but the need for one seems plain.

 

[1] See generally Patrick Krill, Ryan Johnson, and Linda Albert. “The Prevalence of Substance Use and Other Mental Health Concerns Among Attorneys.” 10 J. Addiction Med. 46-52 (2016).

[2] Jon M. Garon. “The Once and Future Profession: Autonomy, Intellectualism, and Obligation.” 48 U. Tol. L. Rev. 253, 259 (2017).

[3] Lee Norton, Jennifer Johnson, and George Woods. “Burnout and Compassion Fatigue: What Lawyers Need to Know.” 84 UMKC L. Rev. 987 (2016).

[4] Pamela Bucy Pierson, Ashley Hamilton, Michael Pepper, Megan Root. “Stress Hardiness and Lawyers.” 42 J. Legal Prof. 1, 11-12 (2017).

[5] Cheri A. Harris. “MCLE: The Perils, Pitfalls, and Promise of Regulation.” Val. U. L. Rev. 361-62 (2006).

[6] See generally Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association, Continuing Legal Education for Professional Competence and Responsibility: The Report on the Arden House Conference (1959).

[7] See generally Deborah L. Rhode and Lucy Buford Ricca. “Revisiting MCLE: Is Compulsory Passive Learning Building Better Lawyers?” 22 No. 2. Prof. Law. 2 (2014).

[8] Ron Z. Goetzel, Rachel Mosher Henke, Maryham Tabrizi et al. “Do Workplace Health Promotion (Wellness) Programs Work?” 56 J. Occupational and Envtl. Med. 927 (2014).

[9] See generally Katherine Baicker, David Cutler, and Zirui Song. “Workplace Wellness Programs Can Generate Savings.” 29 Health Affairs 1 (2010).

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Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

Richard Bulliet on The Americas, the Atlantic, and Africa, 1530-1770

In Academia, Arts & Letters, Historicism, History, Humanities, liberal arts, Pedagogy, Scholarship, Teaching on August 1, 2018 at 6:45 am

In the following lecture, Richard Bulliet discusses the Americas, the Atlantic, and Africa during the period of 1530-1170:

A Better Sort of Constitutional Learning: James McClellan’s Liberty, Order, and Justice

In American History, Arts & Letters, Books, Britain, History, Humanities, Law, Philosophy, Scholarship on July 25, 2018 at 6:45 am

This piece originally appeared here in Law & Liberty.

Attorney General Jeff Sessions not long ago characterized the office of sheriff as a “critical part of the Anglo-American heritage of law enforcement.” This plain statement of an incontrovertible fact should not have been controversial. Yet with clockwork predictability, social media activists began excoriating Sessions for his ethnocentrism.

Even those who should have known better—Bernice King (daughter of Martin Luther King, Jr.), the NAACP, college-educated personalities in the Twittersphere—piled on the criticism, accusing Sessions of racism and suggesting the term “Anglo-American” was a dog whistle for white nationalists and the alt-Right. It was another sign of how uninformed many in our society have become, and of how name-calling and crude labeling have replaced constructive dialogue and civil conversation in the political sphere.

Fortunately, there’s a good, levelheaded primer for understanding the basic framework of American government that teachers and other leaders should recommend and assign to our ignorant masses: James McClellan’s Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government, which the Liberty Fund published in 2000.

McClellan, who passed away in 2005, was a proud Virginian who taught at several universities, including the University of Virginia, and was, among other things, the James Bryce Visiting Fellow in American Studies at the Institute of United States Studies (University of London) and president of the Center for Judicial Studies at Claremont McKenna College in California. He was also for a time a senior resident scholar at Liberty Fund.

Liberty, Order, and Justice is McClellan’s best known work. It maps the history and philosophy that shaped the U.S. Constitution and its amendments and is separated into seven parts, each appended with primary sources that are reproduced in full or in part: Magna Carta, the Petition of Right, the English Bill of Rights, the Mayflower Compact, the Declaration of Independence, the Virginia Bill of Rights, the Federalist Papers, the Virginia Plan, the New Jersey Plan, the Northwest Ordinance, and many others.

As a straightforward overview of the seminal concepts that characterize American government—separation of powers, republicanism, federalism, checks and balances, rule of law—this volume could serve, and probably has served, as the principal textbook for a high school or college course. The “Suggested Reading” lists at the end of each of its sections provide more than enough supplemental material to round out a semester of comprehensive study.

A work of such breadth and scope is impossible to summarize. McClellan begins with British history, in particular the emergence of Parliament, the evolution of the common law, and the development of legal doctrines and principles that responded to changing circumstances. He discusses the differences between the French and American Revolutions, and their respective effects upon the imaginations of Americans who were alive at the time. He devotes an entire section to the Philadelphia Convention, which he says, perhaps overstating, was “often more like a gathering of polite friends than an assemblage of angry political zealots.”

McClellan’s chief concern is federalism, a principle that appears throughout. He highlights disagreements between the Federalists and the Anti-Federalists, warning that “we should not presume that the Anti-Federalists were wrong.” He adds: “The inquiring student, having examined the debates thoroughly and objectively, may well conclude that the Anti-Federalists were right about certain matters.”

Lest his readers get lost in the historical and conceptual details, McClellan prefaces each section with the heading “Points to Remember,” followed by numbered outlines of central facts and themes. This feature enables easy memorization and study—another reason the book is suited for the classroom. 

For the most part, McClellan recounts historical events dispassionately, and lays out influential concepts with no personal pique or ideological bent. Only occasionally is he tendentious, and then only subtly so. For instance, his judicial hermeneutics seek out authorial intent, thereby rejecting textualism and signing on to a now passé version of originalism. “The basic interpretive task,” he submits, “is to determine the intent of the Constitution, laws, and treatises, and to construe all instruments according to the sense of the terms and the intentions of the parties.”

This statement might have made Justice Antonin Scalia unhappy.

He’s also skeptical of natural law, stating:

It may well be that we are all governed by a higher, unwritten natural law, emanating from God; that certain rights are by nature indelibly impressed upon the hearts and minds of all mankind; and that the spirit of ’76 is incorporated into our fundamental law. The problem is that these concepts, whatever their merit and value, are not provided for in the Constitution, and there is no evidence that the Framers ever intended them to be.

This statement would have made Justice Scalia happy.

McClellan calls Sir William Blackstone’s Commentaries on the Laws of England a “great compendium of learning,” a term of endearment that applies equally to Liberty, Order, and Justice. The two have a similar aim: to synthesize disparate principles into a coherent treatise and to explain the origins and foundations of the current legal and political order. In a different age, when information wasn’t immediately available and students couldn’t google their way to quick answers, this book might well have become as important as the Commentaries.

Its cheerful conclusion, at any rate, seems naïve in our present moment: “What we have offered you in this book is the basic structure of America’s constitutional order. It is up to you to preserve and improve that structure; and you have a lifetime in which to work at it.” Were he alive today, McClellan might not be so optimistic.

Richard Bulliet on Transformations in Europe, 1500-1750

In Academia, Arts & Letters, History, Humanities, liberal arts, Pedagogy, Philosophy, Politics, Teaching, Western Civilization on July 18, 2018 at 6:45 am

In the following lecture, Professor Richard Bulliet discusses transformations in Europe during the period of 1500 – 1750:

Review of Bryan Caplan’s “The Case Against Education”

In Academia, Economics, Humanities, Scholarship on July 11, 2018 at 6:45 am

This review originally appeared here in Cato Journal.

Bryan Caplan is a professor of economics at George Mason University who has spent over 40 years in school. “The system has been good to me,” he confesses. “Very good. I have a dream job for life.”

He’s also a shameless traitor to his profession and guild, a critic of the system that’s afforded him a life of leisure and affluence. That’s a good thing. We need more honest critiques of the higher-education boondoggle from privileged insiders. As an economist, moreover, he argues from data and facts, not feelings or emotions. He’ll undermine his own best interests if statistics lead him inexorably to positions at odds with his personal welfare.

The Case Against Education: Why the Education System Is a Waste of Time and Money hits bookshelves amid reductions in government spending on universities due to budget shortfalls in the aftermath of the Great Recession. The chorus of complaints runs something like this: “Legislators don’t realize what goes on in the university; they don’t understand what it takes to teach and research; they don’t know what I do to earn my pay; they don’t appreciate how important education is to our state; they can’t competently assess my everyday work.”

But Caplan understands these things, having spent his entire career as a student or a professor at major research institutions. The argument against educational excess is more credible coming from an academic, like him, who’s complicit in its harms.

Caplan’s chosen title (with subtitle) says it all: His target isn’t the acquisition of knowledge (it’s good for people to learn), but the wasteful, exorbitant system that in many cases impedes rather than facilitates the acquisition of knowledge. Five provocative words on the book’s opening page—“there’s way too much education”—are predicated on the proposition that learning and education are distinct, that garnering credentials does not correlate with increased erudition or competence.

It’s no secret that the costs of higher education have been rising steadily for decades. Universities have long been reallocating resources away from basic classroom instruction and towards amenities, administrative payrolls, athletic programs, student services, and construction projects. The ready availability of federal student loan money has enabled colleges to hike tuition and fees, forcing students to shoulder heavy, often unmanageable debt burdens. As a result, the artificially inflated price of a college degree is greater than the actual costs associated with teaching and research.

Caplan believes enough is enough. “The heralded social dividends of education,” he insists, “are largely illusory: rising education’s main fruit is not broad-based prosperity, but credential inflation.” He boldly submits that “the average college student shouldn’t go to college.”

Objections to these strong claims are predictable: don’t college graduates earn more money than those without a college degree? The answer, of course, is yes. But that’s not the full story.

Caplan explains that the primary value of a college degree is in its “signaling” power. That diploma on your wall doesn’t tell employers how much you know or what skills you have attained. Rather, it signals to them your tenacious character and work ethic. Finishing college proves you have the wherewithal and discipline to claw your way to the top. The problem, of course, is that an abundance of earned bachelor’s degrees diminishes their value while graduate degrees become the substitute marker of distinction. If you aren’t learning practical skills as you chase multiple degrees, you and the institutions funding your education (likely the government) are just dumping money to jumpstart or advance your career, in which case all this spending seems, well, inefficient and unnecessary.

Courses in college aren’t intrinsically valuable. You can spend months on YouTube watching recorded faculty instruction at Yale and Stanford, learning vast amounts of information, but no one will hire you for that effort. After all, you’ve gained no credential. On the other hand, you could sit through college classes that don’t interest you, excelling on exams but forgetting the tested material as soon as the class ends. You will be no wiser from this experience. Employers know that and don’t care. They don’t hire students for wisdom or knowledge. They hire students with a record of demonstrated success.

Caplan emphasizes the importance of “conformity” to the signaling model. Employers and teachers share a key preference: they generally favor cooperative and dutiful personalities over lazier and more disagreeable alternatives. The ability to fit in, to adapt to different social settings, tends to impress business leaders. College grades reveal temperaments, dispositions, traits, and priorities—they demonstrate whether a student conforms to expectations. Formal education isn’t the only way to demonstrate conformity, but, in Caplan’s words, it “signals a package of socially desirable strengths.” He adds, “If you want the labor market to recognize your strengths, and most of the people who share your strengths hold a credential, you’d better earn one too.”

Caplan sensibly advocates vocational training as an institutional corrective, but has little workable advice for people pursuing certain vocations. Someone who wants to be a teacher must earn the necessary credential; someone who wants to be a lawyer must attend law school. Whether these credentials are needed at all—that is, whether they are suitable prerequisites that adequately prepare students for the everyday practice of their desired vocation—is a significant question warranting extensive debate, but regrettably it falls outside the scope of Caplan’s project. His substantial case against education might leave you wondering, at any rate, why he thinks universities can effectively provide vocational training at all. If they’re so bad at what they do, why would they shine at this new task?

There’s also a “presentist’ element to Caplan’s thesis. Universities weren’t designed to prepare students for vocations outside of medicine, law, or the clergy. Until late in the 20th century, you didn’t need college to compete on the job market. Universities have a complex and chaotic history that makes undue emphasis on workforce training seem shortsighted. The number of students attending college to advance innovative research or otherwise contribute academically to the sum of knowledge remains low. The central purpose of the university isn’t served by the current form of higher education in which a premium is placed on employment outcomes. Caplan isn’t trying to remake higher education or return it to its medieval roots, but by inflaming passions at least he might redirect attention to the central mission of universities: to educate and spread knowledge.

As the holder of a Ph.D. in English, I commend the colorful chapter “Nourishing Mother” to the skeptically inclined humanities professor who stands ready to accuse Caplan of prizing social and economic returns over the immeasurable effects of literary, aesthetic, philosophical, historical, or theological inquiry. The scholar of arts, society, and culture may be surprised to find a useful ally in Caplan, although his discussions of “high culture” and “taste” may irritate English professors, who will quickly recognize how little Caplan understands their discipline.

It’s obvious that higher education in its current manifestation is financially unsustainable. Something has to give. Skeptics should read The Case Against Education with an open mind and an eye toward the future. Caplan is heavy on issue-spotting but short on solutions, but he provokes difficult conversations that are long past due.

Session Twenty-Six: Richard Bulliet on the History of the World

In Arts & Letters, History, Humanities, liberal arts, Pedagogy, Teaching on July 4, 2018 at 6:45 am

Here, in the twenty-sixth lecture of his course, The History of the World, Richard Bulliet discusses conclusions regarding the History of the World to 1500 CE and presents themes for a forthcoming course regarding the History of the World after 1500 CE:

Carnegie Classifications—What’s All the Fuss?

In Academia, America, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Pedagogy, Scholarship on June 27, 2018 at 6:45 am

This article originally appeared here at the James G. Martin Center for Academic Renewal.

Dartmouth falls out of an exclusive group,” declared a 2016 headlinein The Washington Post just days after the Carnegie Classification of Institutions of Higher Education released its 2015 classifications that moved Dartmouth College from the R-1 (that is, Research 1) to the R-2 (Research 2) category. “A Key Survey Indicates that Dartmouth May Be Losing Its Elite Status,” reads another headline.

A school like Dartmouth hardly risks dropping out of “the elite,” but why would anyone say that?

Dartmouth’s response to the perceived downgrade was muted. “We don’t know what new algorithm they are using to classify institutions,” wrote Diana Lawrence, a university spokeswoman, “so we can’t replicate the data.” Lowered morale since the 2015 classification allegedly has resulted in the closing of Dartmouth’s Gender Research Institute.

Indiana University, which now runs the Carnegie Classifications, recently began reclassifying schools every three rather than every five years. The next round will appear later this year. University leaders have been silent about this development, but according to Doug Lederman, “the foundation’s sorting…sends some institutions into fits of anger or excitement over perceived insult or approval for how they are classified compared to their peers.”

As anxious university administrators await this release, it is worth asking what these classifications mean and why is the R-1 designation so coveted?

Carnegie classifies institutions by type: doctoral universities, master’s colleges and universities, baccalaureate colleges, baccalaureate/associate colleges, associate’s colleges, special focus institutions, and tribal colleges. The research designations everyone talks about (R-1, R-2, R-3) apply only to universities classified as doctoral universities. R-1 indicates “highest research activity,” R-2 “higher research activity,” and R-3 “moderate research activity.”

To be classified as a doctoral university, an institution must award at least 20 research-based doctoral degrees per year. Professional doctorates like a law degree do not count. Among the schools that meet this classification, research productivity is measured by two indices: the number of research doctorates awarded plus research staff, and the amount of research expenditures, scaled to the number of faculty.

Carnegie measures research and development expenditures in science and engineering (S&E), humanities, social science, STEM, business, education, public policy, and social work. These classifications are categorical rather than ordinal: they fit universities within certain descriptive categories but not in order of best to worst. The point of the classifications is not to grade but to group universities according to their program offerings and research expenditures.

Thus, administrators should not treat moves from R-1 to R-2 as demotions or devaluations. After all, quality of education and quality of research cannot be reduced to raw figures by totaling the number of faculty, the number of doctoral programs offered and doctoral degrees awarded, and the amount of money invested in research. These figures account principally for funding and size, not the amount of published material (in peer-reviewed journals or otherwise) and certainly not the excellence of scholarly research. Nor do they account for teacher quality or educational outcomes for students.

Nevertheless, schools moving from R-2 to R-1 celebrated the 2015 Carnegie classifications in press releases. For example, “It is no secret that Ole Miss is one of the top research schools in the south,” read a statement by the University of Mississippi, “but being recognized on a prestigious national level is a true achievement.”

Given the focus of the Carnegie classifications, one wonders why they command such attention. Could not universities game the system, so to speak, by hiring more faculty, throwing money at programs, and graduating more doctoral students in certain disciplines? The answer, of course, is yes—but that does not diminish the standing the Carnegie classifications enjoy.

The reason they are valued is because the Department of Education and U.S. News and World Report, among others, rely on them. (U.S. News explains its methodological reliance on the Carnegie Classifications here). Indirectly, then, the Carnegie classifications are used for rankings and grant eligibility.

Rather than coming up with its own categories, U.S. News relies on Carnegie classifications for its list of national universities, national liberal arts colleges, or regional universities. If, say, Furman University wanted to be ranked alongside Princeton, Harvard, Yale, and MIT, it must increase the number of research doctoral-degree programs it offers to account for Carnegie’s metrics.

 

The Problem with the Carnegie Classifications

The main problem with the Carnegie classifications is that they create the incentive for educational malinvestment on a grand scale. When a university’s administration seeks to move from R-3 to R-2 or R-2 to R-1, they churn out more doctorates and hire more faculty than the market demands.

That is most notable in the humanities. The number of humanities doctorates awarded has reached record highs while the job market for humanities professors has shrunk. Young people pursuing these doctorates often assume substantial debt only to find themselves with no university employment after graduation. Carnegie in effect rewards universities for conferring an excessive number of research doctorates, thereby contributing to the systemic problem of graduate-student debt and the dearth in faculty hiring, and possibly to the diminishing quality of humanities research.

The Carnegie classifications also fail to account for the quality of scholarly research, or for true faculty productivity. They measure aggregate numbers of people and investment but not the number of peer-reviewed papers published by members of a department or the value or effectiveness of those papers.

Therefore, the Carnegie classifications should really be considered funding categorizations, not research categorizations. Yet too many people treat them as indicators of the productivity of a university faculty or the worth and excellence of research content.

The Carnegie classifications are not per se bad or unhelpful. It is just that they are being misinterpreted and misused to the economic detriment of higher education writ large. Donors, administrators, journalists, university rankers and evaluators, and other stakeholders at universities should monitor the Carnegie classifications and use them as needed to shape the goals and identities of institutions. But these classifications should no longer be considered proxies for the measure of research quality.

Moreover, Carnegie should drop the phrases “highest research activity,” “higher research activity,” and “moderate research activity” that accompany the R-1, R-2, and R-3 label because they are misleading: the Carnegie rankings do not measure research activity but research expenditure. It could be that a university spends money on research without actually yielding research. That would be a poor investment that Carnegie seems, strangely, to value or reward.

 

The Role of Law Schools in the Classifications

My fellow law-school administrators can do little if anything to help their home institutions that are ranked as doctoral universities move from R-2 to R-1 or R-3 to R-2. (I work at Thomas Goode Jones School of Law, whose home institution, Faulkner University, is classified as a master’s college or university according to Carnegie.) J.D. degrees are not research degrees, although a few law schools (Yale or Berkeley among them) offer Ph.Ds in law, which do contribute to the sum of research degrees offered. No matter how productive a law faculty is, its research output will not affect the home institution’s Carnegie classification.

By and large, deans at law schools have not spent much time thinking about the Carnegie classifications. The future, however, may present different challenges and opportunities for law-school deans. “[W]e are planning a change that will reshape membership of the Doctoral Universities and Master’s Colleges and Universities categories,” Carnegie states on its website. “We are doing so to accommodate Doctor’s degree—professional practice within our methodology. These degrees . . . have previously not been considered as part of the Basic Classification Methodology.”

Therefore, by adopting Ph.D. or J.S.D. and S.J.D.  programs (which are research-based and require dissertations for completion), law schools can nudge their universities in the direction of a higher Carnegie research classification. That might seem an attractive inducement, but one that would be economically unsound for most schools. Law deans should resist going the way of the humanities.

Session Twenty-Five: Richard Bulliet on the History of the World

In Arts & Letters, Historicism, History, Humanities, liberal arts, Pedagogy, Teaching on June 20, 2018 at 6:45 am

Here, in the twenty-fifth lecture of his course, The History of the World, Richard Bulliet discusses the History of the World to 1500 CE, focusing on the Maritime Revolution:

Three Poems by James Hochtritt

In Arts & Letters, Creative Writing, Humanities, Poetry, Writing on June 13, 2018 at 6:45 am

James Hochtritt has been a featured reader of his poetry at venues in California and Oklahoma over the years. He holds a Ph.D. in History from the University of Oklahoma and is a full-time professor of history at Rose State College in Midwest City, Oklahoma. He lives and writes in Midwest City.

EXETER, CALIFORNIA

He monitors smudge pots,
Shadows illuminating his face,
Black smoke burning his eyes.
A pungent aroma of citrus mixes
With an acrid blend of chemicals
Whose names he cannot pronounce.
His thoughts drift in and out,
Recollect his youth in Zihuatanejo,
Christmas memories, novenas, orphans,
Focus on the antics of a spotted dog
That ambles beside him.

Looking up at stars he fondles a small cross
On a silver chain around his neck,
Brings it to his lips as a gesture of faith.
Wishes he was back in bed
And the soft breathing of his wife.
Inhaling the bite of the night frost,
He squints at ornaments and candy-colored lights
Strung like a necklace around a house,
Counts three blessings for each of his children.

Disconnected from the earth in December’s dark
He dreams of home and his father.
Prays for those
Who bleed and give birth in the fertile soil of the fields
Among the insects and the furrows.
Hates that he understands
That men like him are necessary,
Harnessed mules, machinery,
Hands that sow what others reap.
The puzzling chasm that lies between
That which is holy and merely human.

VOTIVE

Passer’s by and visitors, strangers, reporters,
Relatives fold paper flowers and mementos
Into the honeycomb of the cyclone fence.
Tie ribbons onto wire, tape poems to poles,
Paste locks of hair onto photographs
Wrapped in angels made of foil.
Morning, noon, and night the vigil evolves
The guilt-ridden who survived, tourists,
The inquisitive and curious,
Weak knees, helplessness, countenance transfixed,
Palms and faces pressed against the barrier,
Introspection above the hole.
Low whispers barely audible,
Prayers to the beloved, Eucharist
For the grieving, comfort for the anguish.
Our penitence an epitaph,
Speechlessness, invocation of the lost,
Liturgy of tears, consecration of rubble.
Without pause, the requiem,
The mournful eulogy continues,
Watery eyes like reflecting pools or grottos,
Blank stares articulating silence,
Inability of the living to sanctify with words
The blasphemy of the aftermath.

HOUSE

Apologies were never enough.
Words flew like sparks from her mouth,
Her arms flapping up and down
Like some apoplectic bird.

Fixed in the cross hairs
Of her cubist eyes,
Her smeared lipstick
Angled her face into a cockeyed shape.
It was advisable to not say a word
But bob and flinch, hunch and cower.
Grit the teeth
Amidst the knickknacks
Swept from their places,
The shattered glass,
Interminable silences
Simmering like steam.
Ride it out the best a child could
Within the confines of the cage,
Until rage flattened to tears
And the claws retracted.

Only then was it safe
To venture a breath,
Feign a posture of guilt
With a downward glance
And tip-toe past the beast
Through the rancor and the ashes,
Escape into the fields
And the kisses of the rain.

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