Author Archives: Stephen Diamond

Is the stock market “rigged”? Evidence from the NYSE – presented at NU Kellogg and Duke

My co-author Stanford-based economist Jenny Kuan and I each traveled to different parts of the country recently to present our research on the problematic changes in stock market structures. I presented the paper at the meetings of SASE held at Northwestern’s Kellogg School of Business and Jenny presented the paper at the ISNIE meetings at Duke. We got helpful comments from both events and are honing in on a new draft for submission to a peer reviewed finance journal. Here are the slides I used in Chicago.

What The New Yorker’s Louis Menand gets right and wrong about the Equal Rights Amendment

I sent The New Yorker the following letter recently in reply to a very interesting essay by Louis Menand on the complicated interaction between the battle over civil rights for women and minorities. They have not printed it so I thought I would share it with readers of the blog:

To the editor,

Louis Menand is to be commended for bringing to light certain aspects of what I and my co-author, the late Hal Draper, describe in our study of the ERA (The Hidden History of the Equal Rights Amendment) coincidentally just published in the last few weeks by the Center for Socialist History.

While Mr. Menand notes correctly the close ties between business interests and proponents of the ERA he leaves out of his account one key historical fact and misstates one key impact of the passage of Title VII. The two are related in an important way and together they act as a key to understanding the full story we set out in detail in our book.

The key historical fact is that there were, always and from the very earliest period following suffrage, two versions the ERA. Left and liberal activists (including, for example, the social feminist Florence Kelley and the liberal Eleanor Roosevelt) promoted a “labor” ERA that would, indeed, have extended the benefits of protective labor legislation to men workers. Yet at every turn this genuinely progressive alternative ERA was attacked and undermined by Alice Paul and her allies in the business community who backed what we term the “pure” version of the ERA. There is no surprise about this alliance nor was there ever any confusion – Paul herself was from an upper class background and was a natural ally of business and professional women who aspired to join their male business counterparts at the top of our socio-economic hierarchy. Paul and her colleagues in the National Woman’s Party were enthusiastic about ending expensive labor laws that protected working class women.

The related misstatement is Mr. Menand’s bald conclusion that “Labor-protection laws did not disappear, as many liberals had feared; they were written to cover both sexes.” Oddly this follows his correct statement that a federal court found such laws unconstitutional. The court opinion is accurately cited, his follow on conclusion has no basis. In state after state, in the immediate wake of the passage of Title VII, protective labor laws were stripped from the books and any chance of extending them to men workers was gone.

At least one of the authors cited by Mr. Menand clearly concurs. Jo Freeman wrote in her study of Title VII: “As a consequence [of the passage of Title VII] the federal courts voided state protective laws on the grounds that they were in conflict with the federal prohibition against sex discrimination …. These laws, which limited the hours women could work, the weights they could lift, often prohibited night work and entry into some occupations considered too dangerous for women, had been actively sought during the first half of the twentieth century by an earlier generation of women activists …. “[citations omitted]

We describe in detail this process in the book, including for example the bitter battle over these labor laws fought out in California between trade union women and the National Organization for Women.

Only when one puts these pieces of the ERA’s history together can one explain its ultimate failure during the ratification process, a step that Mr. Menand does not, understandably, attempt in his essay. By the time the amendment emerged from the Congress for ratification by the states, Title VII had already carried out the business side of the original Alice Paul/business agenda – elimination of protective labor laws. An attempt to extend the period for ratification of the ERA was defeated as the erstwhile allies of Alice Paul in Congress, such as Senator John Tower of Tennessee, backed away from her lifelong project.

Both working women and professional women still face significant discrimination in the workplace today and thus a full understanding of this history is crucial.

The hidden history of the Equal Rights Amendment – my newest book, better late than never

thThe Center for Socialist History has just published my book The Hidden History of the Equal Rights Amendment which I had the privilege of co-authoring with the late Hal Draper.

I drafted a new foreword for the book but it is otherwise unchanged from the original ms. which Hal and I finished in the late 1980′s in the wake of the defeat of the ERA. There has been some research on the Amendment since and certainly some important developments with respect to the rights of women but the publisher and I thought it important to retain the argument as it was completed then, more or less contemporaneously with the end of that era of the women’s movement. We did, of course, try to get it published then but ran into roadblocks which I describe briefly in the foreword.

The history we examine in detail is very much in the news today as this essay by Louis Menand in a recent New Yorker suggests. Menand gets some important aspects of the story wrong, however. I have sent the magazine a short letter in response and will wait to see if they print it before laying out my comments here.

The revolutionary dynamic that explains the rise of ISIS

I posted this originally last August only when the MSM showed no interest in it as an op-ed. I wonder if they share my regrets about the accuracy of my prediction?

Officially, the Obama Administration is firmly behind Syria’s democratic revolution organized to oust the brutal authoritarian Assad regime. If that were indeed the case it could, under certain conditions, represent an important step to assuring a bright future for Syria. There reportedly remains, however, substantial opposition inside the Administration and in Congress to the intervention.

Some of these opponents of U.S. involvement are invoking the problematic policies of the Reagan era when the United States created and armed Nicaragua’s counter-revolutionaries, or contras, to overthrow the Sandinista Government there in the mid-1980s. This is a misleading and cynical maneuver. In fact, Nicaragua offers a very different lesson when it comes to Syria.

There is little doubt that the intervention of the world’s sole superpower into a complex national conflict is fraught with challenges. In the wake of a decade of war, few Americans are enthusiastic about yet another intervention in the Middle East. And there are, naturally, suspicions in the region about the actual goals of U.S. policy. To be successful the strategy that guides the United States in Syria must reflect our democratic values, both to engender domestic U.S. support and to insure a successful transition to post-revolution stability in Syria.

In the wake of the battle of Qusayr, it is clear the rebels face daunting odds. We must recall, though, the rebels did not ask for war. The movement began peacefully, yet another chapter of the rolling social process know as the “Arab Spring.” But the Syrian dictatorship knew that a peaceful “civil rights” style challenge undermined their legitimacy and it began a brutal crackdown that forced the opposition to take up arms. While they have been joined by some dissident military figures, these ordinary Syrians are also now competing for leadership of their revolution with hard-core Islamic fundamentalists, some of them mercenaries from surrounding states, who are well organized and well armed.

That competition is, in fact, reminiscent of the Nicaraguan experience, but not of the contra war of the 1980’s that failed to oust the Sandinistas. Rather, as I show in my recently published book Rights and Revolution: The Rise and Fall of Nicaragua’s Sandinista Movement, the situation is analogous to the earlier 1970’s insurrectionary period that led to the ouster of the brutal and authoritarian Somoza regime. In that insurrection, the United States took a largely hands off stance, only distancing itself from Somoza very late. As a result, a democratic mass movement of ordinary Nicaraguans was, as in Syria, pushed into armed conflict by a violent dictator. Then, as may happen in Syria, that same movement turned to the small but well armed and well-organized neo-Stalinist Sandinista Front, or FSLN, the only alternative leadership force available.

When the Somoza regime fell at great human and social cost it was those disciplined FSLN cadre who took the reins of the state. They promised to rule democratically, but then delayed elections and set up new authoritarian institutions, using the credibility that their leading role in the insurrection had won them. It took a brave population, which knew the revolution belonged to them, too, a decade to reemerge and oust the FSLN peacefully and democratically. The armed contra force organized by Somoza era figures backed by the United States actually worked to undermine and delay that peaceful effort. The FSLN was able, skillfully, to use this U.S. proxy war as an excuse to crack down on peaceful domestic opponents. It should be recalled that such regimes are artful at exploiting foreign intervention against their domestic opponents.

In other words, the Syrian situation is most similar to what happened in Nicaragua before the FSLN took power. That period offers a lesson about the risks of not intervening, instead allowing a well-armed and disciplined minority to hijack a democratic revolution. In such a case, the fervent authoritarianism of the Islamic forces works in their favor. After the FSLN took power, on the other hand, there was sufficient democratic space even at the peak of the FSLN’s power for the population to turn against it peacefully. The Nicaraguan contras had only limited support among the population. This is the opposite of the situation in Syria where the opposition clearly has no choice but to defend itself and its movement with arms.

In these circumstances, the principles and conditions that accompany U.S. aid are crucial. Not the principles and conditions that we impose on the Syrians, rather those we impose on ourselves. We got it wrong not once but twice in Nicaragua. The lesson we should have learned is that the way in which we aid those fighting for freedom in other lands is critical to their success. We cannot let the fact of our aid be used propagandistically by either Assad or al Qaeda to undermine the Syrian democrats. That is what we did in Nicaragua and only the FSLN gained as a result.

The support we give should, therefore, be given openly not covertly and the process by which we do it should be transparent. Our engagement with the Syrian people should be open to monitoring on the ground by both Congress and representatives of our civil society, including labor, religious and community groups. It must be clear to all that our aid is aimed only at facilitating the success of a new Syrian democracy not at advancing a narrow self-interest. We must commit to long-term support because the country will require an extensive period to rebuild once peace is established.

The mistake we made in Nicaragua was to leave behind our own long-standing commitments to democracy, sustainable development and human rights. We ended up on the side, first, of a hated dictatorship, and, then, of death squads, as the Nicaraguan contra war spread throughout Central America. In Syria we have a chance to rewrite our past and help Syria write its future.

Michael Lewis is right about Wall Street and high frequency trading, Congress must act

This post is co-authored by Stephen Diamond and Jennifer Kuan. Jennifer is an economist based at the Stanford Institute for Economic Policy Research. The post is based in part on an event study we conducted on the impact of Reg. NMS. We will be presenting the paper at the meetings of both ISNIE (Duke) and SASE (Northwestern) this summer.

A firestorm erupted on Wall Street recently sparked by author Michael Lewis’ accusation that the stock markets are “rigged.” Mr. Lewis’ bases his claim on the allegedly manipulative behavior of so-called “high frequency traders,” or HFTs, in today’s financial markets.

Our own study of the changing structure of those markets over several years leads us to conclude Mr. Lewis is correct when he contends many investors trade at a disadvantage to HFTs. We found a significant widening of “spreads,” and therefore costs to investors, following rule changes by the SEC in 2007. Significant structural reform will be needed to restore transparency and fairness to our financial system.

While the issues at stake are complex, the heart of the matter is that HFTs have largely replaced stock exchange “specialists” as intermediaries between buyers and sellers of shares. HFTs trade large volumes of stock, so they claim to provide “liquidity” to the markets. This sounds reassuring to investors who think they can easily buy or sell at reliable and visible prices.

In fact, HFTs are largely free of the obligations and oversight once imposed on specialists by the New York Stock Exchange. HFTs are not mandated to maintain an orderly market like specialists and often disappear at the very moment they are so desperately needed. There is evidence this kind of behavior contributed to events like the “flash crash” of May 2010 as well as the failed IPO of Facebook in 2012.

Exchanges are now eager to profit from HFTs’ vast trading volumes so they help HFTs exploit advantages over other investors, allowing the use of complex and arguably manipulative order types as well as selling them access to data about other investors’ orders. Other enablers of HFTs include the telecommunications firms that allow the HFTs to engage in “fiber arbitrage” to gain privileged high-speed access to data and markets. HFTs use these advantages to move more quickly and flexibly than other investors and thus to trade ahead of ordinary investors at a profit.

The most important enabler, however, is the federal government itself. In 1975 Congress mandated the creation by the SEC of a “national market system.” Congress decided that if the SEC could create computer-based competition with the long dominant New York Stock Exchange’s manual trading floor then costs for the average investor would fall.

The SEC implemented a wave of new rules over the next thirty-five years that did, in fact, reduce trading costs. New electronic markets such as the Nasdaq now compete effectively with the NYSE. Smaller startup companies like Intel, Apple and Microsoft, which did not meet the stringent listing standards of the NYSE, were able to access investor capital on the Nasdaq.

But this was not enough for the SEC. Their goal was an end to the NYSE’s dominance of trading in blue chip firms listed on the NYSE. As the Charlie Sheen character Bud Fox would famously say in the film Wall Street, they were “going after the majors.” One backer of the new approach was Bernie Madoff, who led the automation of the Cincinnati Stock Exchange in the 1980s to draw trading volume away from the NYSE.

The NYSE and the large banks that dominated its board resisted these efforts for many years. But new demand for faster trades from institutional investors provided the political support the SEC needed to push through Regulation National Market System, or Reg. NMS, in 2007.

This was the straw that broke the camel’s back.

Until 2007, despite the earlier rule changes by the SEC, the NYSE still handled more than 80% of the trading volume of companies listed there. The NYSE was a monopoly but it stabilized price changes with narrow spreads using a self-regulatory framework crafted over its 200-year history.

Two features were key to that framework. First, because large underwriting firms wielded significant influence at the non-profit member-owned NYSE, they could and did impose stringent standards on firms that wanted to list their shares on the Exchange. Second, to attract investors to trade on the Exchange those same underwriters insured that floor brokers and specialists behaved fairly. The result was good quality information about listing firms as well as orderly pricing facilitated by specialists in both bull and bear markets.

But Reg. NMS uprooted that system. Brokers could now route their clients’ trades to any electronic venue even if it meant that the client did not get a better price available on the NYSE floor. As a result, the volume of NYSE shares traded off the NYSE exploded. The motivation to own the Exchange in order to attract investors with orderly prices was gone and the underwriters quickly sold the Exchange to public investors.

With stock prices no longer kept in check by the NYSE’s longstanding rules, our study found that spreads widened, volatility increased and the cost to the average investor went up. Congress had a useful idea in 1975 when it helped create a market for risky technology start-ups and other small firms. They need to step in again to deal with the unintended consequences of that important innovation.

 

Pied piper of law school reform crowd is lost once again

imagesIn a response to my remarks about the relatively thoughtful though narrow comments of Justice Scalia on the future of the legal academy, the leader of the dwindling law school reform crowd  throws up his hands. He just cannot explain the difference between “hyper elite” School A (let’s call it Stanford) and “strong regional” School B (let’s call it Colorado). Nor can he find any reason to justify the increased expenditures at both schools.

And this despite the fact that he actually admits the key variable: the salaries of Stanford graduates have increased.

He does not say how much but since I graduated from a similar school to Stanford I recall starting salaries on Wall Street in the mid-90s to be $85,000. Today they are $160,000. With no disrespect intended towards Colorado I think we can safely assume that their median is substantially lower than that, perhaps 100-120K. In other words, Stanford salaries, at least, have kept pace with the increase of expenditure – both of which have roughly doubled in the same time frame.

Perhaps more importantly what does that salary differential tell us about the per capita expenditure differential between the schools?

Simply that over a career it is more likely that Stanford grads will earn substantially more than Colorado grads. And that makes it far more likely that Stanford will earn back substantially more from those grads than Colorado. That means from the standpoint of the Stanford board of trustees – who have a fiduciary obligation to the institution – it is perfectly rational to spend twice per capita at their law school than they do at Colorado. Anecdotal information suggests their calculation makes perfect sense – it’s why they have one brand new building named after alum William Neukom, former Microsoft general counsel, and another named after Charlie Munger, business partner of Warren Buffet and father of a Stanford Law School alum, while Colorado struggled for years – to the brink of putting their accreditation at risk – to come up with the funds for a new building. (Granted, when they got it built it was pretty spectacular.)

It strikes me as odd that someone once feted at the Cato Institute as the “bad cop” of law school reform (do his colleagues at the allegedly left wing site Lawyers Guns and Money care where he spends his spare time?) seems to have a very weak grasp on the nature of capitalism but there you have it. Stanford makes money from its law school. It does not lose money. It invests in its physical plant and in its human resources calculated against the potential of making money off of that investment. Of course Stanford is an educational institution, a non-profit entity, so it does not and should not look for ways to merely maximize its earnings. But it certainly is not going to engage in activities that throw away the tuition dollars and donations it receives.

In a world of Stanfords, Harvards and Yales, is it any wonder that places like Texas, Virginia and Colorado look for ways to keep up?

And yes even at lower ranked schools like mine this has become essential. We maintained a view that resisted that kind of competition for many years, proudly proclaiming that we were the anti-Stanford (a hang over from the days when Kingsfield ruled the roost). No matter one’s views of the values inherent in this approach (and many felt and still feel they were more appropriate to the practice of law than those at major law schools) it was no longer tenable, particularly when we were located in a setting like Silicon Valley. We may all delight in railing against the rankings but at some level they do reflect market reality and pretending we could live in a world where they do not count only further hurt our reputation.

The school started to change. Not to toot our own horn, as we have a ways to go and we are a Jesuit-affiliated institution after all, but we now have one of the nation’s leading intellectual property programs, recently put in place a startup law clinic that is in great demand from students, and at the university level there are plans afoot for a new STEM center as well as new programs that will link up the law school and business school more closely.

I think one problem the law school critics seem to have is an expectation that all who enter here shall succeed. That has never been the case in professional schools and certainly is not the case in today’s hyper-competitive and highly stratified society.

This new reality is reflected in the battle that occurred at the University of Virginia a couple of years ago. Their board of trustees panicked when they saw the kind of innovation underway at Harvard, MIT and Stanford. They tried, unceremoniously, to fire a very popular (some would say too popular) campus president. The campus erupted and the president was reinstated.

But I have little doubt that concerns remain there and elsewhere that the emerging “Stanford model” (which I wrote a bit more about here) is causing a new division within higher education – and that is a challenge across the board to either keep up or come up with a viable alternative.

I am not happy, for example, about the administrative bloat the model seems to entail. One is reminded of the prescient work of Cornelius Castoriadis on the inevitable and apparently unstoppable bureaucratization of capitalism. But normative considerations should not get in the way of recognizing reality.

It has been said that at Stanford when you are hired as a junior professor in the sciences they don’t care whether you stay to get tenured or leave to found a new biotech firm. The school is happy with either path – every entering professor gets a base salary, a lab and shared ownership of their future IP. It’s an incubator model. In fact, their current President, John Hennessy, sits on the board of Google and Cisco and himself founded a highly successful and path breaking technology company while on sabbatical.

(There are, of course, alternatives to the Stanford approach – at least in California. Prospective lawyers need not attend law school and need not attend an ABA accredited school. Many choose not to do so, taking advantage of the lower cost teaching-dominant model that many law school critics espouse yet seem not to believe really exists. They need to get out more.)

This culture has spread widely. A friend who was a graduate student in computer science at an east coast Ivy had trouble finding a dissertation advisor because each faculty member told him his dissertation topic had to be the basis of a new startup (upon whose board the professor would sit) or else they were not interested. He left but many others stayed and are no doubt building new companies as we speak.

How shocked can we profess to be that Stanford is happy to continue subsidizing its law students to the tune of 100K per capita (when sticker tuition is 50K) in the happy prospect that every few years a Peter Thiel (a founder of PayPal and early lead investor in Facebook) will emerge from their graduating class? It is analogous to the model they use in the hard sciences – in fact they likely hope that their law students will become counsel to the graduates of their hard science programs. Or even more compelling – find ways for their students to start their own alternative legal firms incorporating technology from across the campus.

Personally I think this approach is both exciting and has serious longer term potential pitfalls. It is, in many ways, a symptom of what I call an emerging new era of “insider capitalism.” But there is little doubt about its impact and importance.

Perhaps it is time for young JDs to consider alternatives to their whistling muse.

 

Justice Scalia throws red meat to law school critics

Relying heavily on some of the more data challenged members of the law school critics’ camp (see here and here) and ignoring the only serious study of the long term economic value add of a JD, conservative Justice Antonin Scalia made headlines this week for a relatively moderate law school commencement speech. Frankly, it came across as closing the barn door after the horses had escaped.

One of the two main themes of the speech was his view that a two year JD does not make sense. Quite sensibly he points out that the three years is critical to preparing young people for a lifelong profession. While reasonable minds can differ on his view that the curriculum has become too diverse, he is certainly on to something when he suggests that we think carefully about sacrificing “legal learning” for other reforms driven by short term market considerations. As someone who teaches bread and butter corporate law courses like securities regulation and corporate finance, I certainly wonder how these can be taught if students must use up their only time in law school to take bar tested courses.

In other words, it is a mistake to think narrowly about complex economic considerations. That means, of course, that universities have an obligation to step up and defend the place of law schools as part of their institutions when they are under economic pressure. As it is only sensible to conclude that the current downturn is cyclical not structural that view also happens, happily, to coincide with the economic rationale of law schools.

That important point is lost on the critics of course, and, unfortunately, seems to have eluded the Justice as well who makes the high cost of law school the second theme of his remarks. The critics do not seem to realize that it is expensive to create an effective modern law school. The actual cost of doing it right is vastly underestimated. At HYS for example sticker tuition is now north of 50K per year but that is, as far as I can tell from publicly available information, about one third of the actual cost spent per student each year. Other lower ranked schools have to try to get the job done with far less, of course, and most are effective in doing so. But it is no surprise, is it, that the schools with the most resources continue to dominate in the rankings?

This cold economic reality has not stopped the critics from seizing on the few morsels the good Justice threw out to the parents who have already spent significant sums on their childrens’ educations. He suggests that cost cutting may have to lead to lower salaries for law faculty. There is little in depth analysis here, however. And that may be because even critics acknowledge that cutting faculty salaries would have little more than symbolic impact on the cost picture.

Far more important in the cost structure has been the riskier bureaucratic trend found across academia of beefing up the hiring of all sorts of “academic staff” who help lower faculty-student ratios and boost per capita student spending but may be doing very little to improve educational outcomes. At the same time these efforts dilute heavily the academic and policy impact of traditional tenure track faculty. This is great for deans and provosts and presidents who like to have chess pieces they can move around – something of a challenge when it comes to tenure track faculty. But the value to the profession of law is very much more in doubt.

Scalia ignores as well the logic of the faculty labor market. Critics love to claim that faculty salaries can be lowered because current faculty are not as mobile as is sometimes thought. But that focuses on the wrong issue. Indeed as any experienced faculty member can tell you (and as some of the law school critics no doubt know themselves) the only leverage you have with a dean or provost is the threat to leave for a competing school. When I was engaged in negotiations to become the CEO of a large non-profit some years ago (at a salary more than 3x my faculty salary) I certainly was not operating under the illusion my University would try to match it.

What will keep current faculty salaries relatively stable and motivate movement in the direction of other cost cutting measures to deal with the downturn – and in fact already has at many schools – is that universities have longer term concerns. They may not have to be too anxious about keeping current faculty unless a competitor comes calling, but they do have to think about future recruitment. At some tipping point it will be more attractive for top tier faculty candidates to stay in the private sector. The fall off in top tier law school applicants noticed recently suggests this may already be an operative factor.

A second consideration for universities is that once the current cycle is complete, as has happened several times in the last thirty years (recall the prior cycles associated with the real estate crisis of the early 90s and the dot com crash in 2000-01), law schools will once again generate significant net earnings for their campuses. That comes both in the form of current tuition flows as well as future donations. The per capita dollar value of a member of a professional school will always be far higher than that of the English department (of course, it must be granted that indirectly that is not a completely fair view as it is helpful if students come to law school knowing how to read and write). That is one reason why even while they are an expensive investment it remains rational for universities to have professional schools.

It is also worth noting that Justice Scalia, a captive perhaps of the beltway, ignores the structure of one of the country’s largest legal markets – California. We already have here a multi-tier legal education market with faculty salaries that match. And, in fact, aspiring lawyers are free in this state to not attend law school at all, thus not helping pay any faculty salaries. They can – and some do – apprentice and then sit for the bar exam. And we allow JDs who do not attend ABA accredited schools to also sit for the bar. The interesting result of this experiment is that most of those students with the highest test scores and grades still flock to the highest ranked schools with – wait for it – the highest faculty salaries!

Certainly that suggests that one lesson of this tempest in a teacup that we have called the law school crisis debate is that aspiring JD’s are far more thoughtful about what choices they are making than we give them credit for. Getting caught in a 100 year economic storm was not something they had counted on, of course. That is why it would have been a far better expenditure of the critics’ time to agitate for debt relief and innovative training programs to bridge the gap between the graduation dates of recent JDs and an economic recovery.

Given all of this, I do wish Justice Scalia had cast his intellectual net a bit wider than friends of the Cato Institute when crafting his recent remarks. Well, at least he kept it short.

ABA does the right thing in keeping tenure standard for law schools

At a weekend meeting the ABA’s Council of the Section of Legal Education and Admissions to the Bar voted (pay wall) to retain tenure as a condition of becoming an ABA accredited law school. In light of an earlier call by a majority of the Council’s members to change that requirement, this is a significant victory for academic freedom and quality at the nation’s most important law schools.

The decision is being justly celebrated, as well, by the American Association of University Professors (AAUP), which helped create the modern interlocking institutions of academic freedom, tenure and shared governance. The AAUP commented on the proposed cutback to tenure and helped law faculty weigh in in defense of tenure.

While some law school critics argue that requirements like tenure are a barrier to affordable legal education, in fact, it is tenure that insures that law students get what they pay, sometimes dearly, for: quality faculty who must demonstrate to their peers over several years their ability to teach, engage in relevant scholarly research and give back to their universities and surrounding communities through various forms of service. In several states, of course, California included, it is possible for students to pick non-ABA law schools and still sit for the bar, thus offering lower cost alternatives.

It is an important sign as well that the ABA leadership listened to the many faculty from law school academia who spoke up in defense of tenure. A culture gap has long existed between practicing lawyers, who dominate the ABA, and the legal academy. Hopefully with this battle behind us, new constructive efforts to bridge that gap can be made. Our best and best known legal scholars should make a point of being available on a regular basis to the bar for discussion of their work.

Legal academics can listen and learn from the practicing bar as well. In one of my fields, business law, it is almost not possible to tackle complex research problems without being close to the experience of the practicing bar but no doubt even there we could do a better job.

State bars, together with law school deans, could take the lead in developing such relationships. It can potentially benefit all constituencies that make up the broader legal community. As an example, I recently wrote an article on insider trading and the startup world of Silicon Valley. It was first written for a California state bar audience and then was seen by a leading corporate law scholar and I revised it for inclusion in an academic collection that scholar edited. Both the academic world and the practice world benefited, presumably, as did I by working through the issues first for that real world audience and then for a more academic audience.

AAUP national elections: why I am voting to re-elect the “Organizing for Change” slate

National elections for the American Association of University Professors are now underway. An incumbent slate called Organizing for Change is being challenged by the Unity slate which is led by AAUP figures who used to be in power. I am voting to re-elect the Organizing for Change slate and I think if you are an AAUP member in good standing you should do the same.

The reason I support OFC is straightforward. The challenges facing faculty across all sectors of higher education are dramatic and are taking on a momentum that we have probably never experienced in this country. We need a national advocacy group that wants to respond to those challenges aggressively and with creativity. Most importantly we need the AAUP to have real meaning and impact on the ground where it really counts. I think that is the basic goal of OFC and it represents an important and relevant shift in the orientation of the organization. I think for the first time in many years (I have been an AAUP member since I joined my faculty as a junior professor in 1999) the AAUP feels like a real presence not just in Washington but on our campuses where it counts.

Part of what OFC is trying to do is strengthen the collective bargaining arm of the organization. That likely creates some tension in the AAUP because it means a shift in culture and even resources. There is a suggestion by some that this means giving less attention to academic freedom, the issue for which AAUP is best known historically. In reality these two efforts are two sides of the same coin.

This does not mean that collective bargaining is always the right approach or even necessary but it must be a viable part of what we do if we take academic freedom seriously. Why? Because the greatest challenge we face in academia today, whether at the junior college level, or at Berkeley and Harvard, is the change in organizational structure of the university.

A permanent new administrative, if not bureaucratic, caste is taking hold of managerial authority in the universities. Instead of an experienced faculty member spending a few years as a dean or even provost or president and then returning to the teaching faculty, today individuals who take on  those positions have almost uniformly left teaching and research behind forever.

Inevitably, these individuals develop a skill set and outlook that matches that of the corporate executives who now control most university boards of trustees. In turn the trustees and administration increasingly treat faculty not as partners in the governance of an academic institution but as employees of a giant corporation. And indeed as government funding for higher education has receded corporate and foundation spending has ramped up making it appear as if we do work for corporations. Corporate executives, of course, feel more comfortable with deans, provosts and presidents who can talk their language and that often means reassuring the trustees that they can get their faculty “under control.” That has led to a wide range of conflicts with faculty as well as to developments like the widespread use of contingent faculty and the waning of the tenure track.

This turn of events is not healthy for the fundamental purpose of our system of higher education: to generate knowledge in order to help solve social problems while preparing young people to join our society prepared to confront those same problems. Employees or, worse, automatons are not good at original thinking. Control and creativity rarely go well together.

In such a situation the AAUP needs to be a living, breathing organization that has a meaningful presence on campus. In my experience with the OFC leadership they have been successful at helping build that kind of presence. I teach at a relatively small and private institution. While collective bargaining might be helpful there it is not a likely outcome given the legal and political constraints we face. But there is a role for our chapter to raise that issue and even pursue it if our colleagues wish to do so. And a “union outlook” on issues is not a bad way to motivate fellow faculty and stir up discussion of important issues even shy of actual bargaining.

At a minimum AAUP chapters can play an advocacy role that makes issues clear and signals to the administration the limits of their ability to manage the institution without robust shared governance. Right now on our campus it is the only forum for just faculty members to assemble and discuss important issues independently of the administration. And the OFC leadership has been very helpful to me and my fellow AAUP chapter members in understanding how to play a constructive role in an ongoing governance crisis on the campus. They have been there when it counted several times in the last two years.

So, in sum, I think OFC has breathed new life into the AAUP. It does not have all the answers and I have a great deal of respect for the traditions of the organization. I hope that the Unity slate will continue to be an active force but for now I think OFC deserves more time to help  move us ahead as we confront the significant changes impacting higher education today.

 

The Crimean problem: Obama’s relativism comes home to roost

It was clear enough during the 2008 campaign but many ignored it. It became more clear as Obama took office and attempted to “engage” with authoritarian regimes all around the world. Even then the commentariat, particularly on the left, did not understand what was going on. One by one the left ignored the implications of Obama’s approach – in Tibet (snubbing the Dalai Lama, in Iran (snubbing the Green Revolution), in Venezuela (cozying up to Chavez), in Cuba (cozying up to Raul Castro), in Egypt (standing by the military), in Syria (erasing his own red line).

But now with the invasion of Ukraine by Putin the results of five years of Obama foreign policy are undeniably clear.

Obama has thought all along he could appease authoritarian regimes and lure them into a fantasy world of global trade and governance. The fact is that despite the end of the cold war more than 20 years ago authoritarian regimes persist and have shown incredible resiliency. China’s neo-stalinist model is working, for the party and its allies in the new entrepreneurial class. And in Iran, Syria and elsewhere, authoritarianism continues to draw widespread support. These authoritarians have no interest in neo-liberal fantasies about free trade and free markets. The volatility and instability of those markets, brought home to hundreds of millions when the western financial system collapsed in 2008, is fuel for the fires of the authoritarian alternative.

To this alternative Obama has no answer. He rode the wave of naive liberal left distaste for global war and politics to office and now that political capital has exhausted itself.

This is a huge problem for the American national security apparatus and for American global economic power as well. The country is led by someone who does not understand what is going on in the world and cannot craft a coherent response to it. He is wedded to a relativist outlook born in the pro-third world neo-stalinist rhetoric of the late 1960s that helped shape his early world view. He will not be able to shed that history or outlook and it is extremely difficult for the institutional apparatus of US power to act coherently when the White House is led by a team that is so intellectually and politically stunted.

But it is an equally large problem for the global left. This global left emerged in the late 1990s, a product too of the end of the Cold War. There was hope in the protests against the WTO and globalization that a new democratic alternative could emerge from below, linking the workers movements of Poland with those of Brazil, the environmental movements of the first world with the movements for agrarian reform in the third world. But since 9/11 that nascent left has spun this way and that completely disoriented by the continued health of authoritarian regimes. Thus the left has become largely only an anti-war left and sometimes worse, offering apologies for the behavior of regimes like those of Syria and Iran and no doubt now in defense of Putin. So much for the defenders of Pussy Riot.

The left must firmly declare its opposition to authoritarianism wherever it appears. To do so is not to give comfort to the war mongers on the right. Instead it will help establish the left as a credible alternative to US unilateralism. From that position the left must then begin to articulate a new foreign policy for the US based in our own deeply held democratic instincts and institutions. I began one such approach with the call for a new “Solidarity Doctrine” here.

The risks of the new era are now clear to all – the statist authoritarianism is in a clash to the death with western market fundamentalism. Neither can win but they can both destroy.

As I said in 2012:

“We have the technological and economic resources to solve these problems and build healthier alternatives. We know the institutional framework – democracy and freedom – that must be in place for those resources to be effective. Instead of developing a foreign policy that matches our resources with that institutional framework, we have instead used the crude tools of neo-conservative intervention or the dangerously naive relativism of spent late-60s ideology. A “Solidarity Doctrine” offers a new approach.”