Saturday, October 08, 2011

We are What We Measure: Constructing and Managing Institutions, Law and Law Schools

We are becoming only what we measure.

(From You are what you measure, Sam, May 26, 2010 ("I came across this great article from Harvard Business Review. It was short thought provoking and to the point. “If we want to change what they care about, we should change what we measure.” “What you measure is what you will get. Period”"))

That is not mere sloganeering, but an indication of the substantial changes in the methodologies of behavior management that is rapidly replacing statutes and regulations as the most effective method of asserting public power.  But it is more than that.  It suggests the power of technologies to make it possible to embody abstractions, that is to make abstract concepts real, and also the basis for governance of these "persons." Dan Ariely provided an example in the context of managing markets for executive compensation:
 Any number of things can motivate CEOs—peer recognition, for example, and even a desire to change the world. In fact, CEOs usually have all the money they need. Why then does it seem that they care more about stock value and the compensation it produces than those other forms of motivation?
The answer is almost uncomfortably simple: CEOs care about stock value because that’s how we measure them. If we want to change what they care about, we should change what we measure.
It can’t be that simple, you might argue— but psychologists and economists will tell you it is. Human beings adjust behavior based on the metrics they’re held against. Anything you measure will impel a person to optimize his score on that metric. What you measure is what you’ll get. Period.
This phenomenon plays out time and again in research studies. Give someone frequent flyer miles, and he’ll fly in absurd ways to optimize his miles. (From Dan Ariely, Column: You Are What You Measure, Harvard Business Review, June 2010)

The technologies are those that make it possible to measure and assess.  The incarnated abstractions are anything subject to measure.  Lawyers, the masters of the use of law as a management technique, are becoming the masters of the use of the new techniques of governance.   Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007.


A recent article suggests the extent to which measurement has replaced law and regulation as both  command and instrument of managing behavior, and the role of lawyers in their development.   Debra Cassens Weiss, Law Firms Announce Plans to Sue 15 More Law Schools over Job Stats, ABA, Oct 5, 2011 11:37 AM CDT

Updated: The litigation against law schools over employment statistics may be expanding.

Two law firms announced Wednesday that they plan to sue 15 more law schools in seven different states, according to Law School Transparency, which posted the press release. The suits will challenge the schools’ reported employment rates for law graduates.

Prior suits against Cooley Law School, New York Law School and Thomas Jefferson School of Law in California have claimed law students were misled by job statistics that didn't specify whether jobs obtained by grads were in the legal field.

In a conference call with reporters, lawyer Jesse Strauss of Strauss Law said the 15 new schools were targeted either because alumni approached the law firms, the schools were in markets saturated with lawyers, or the schools released implausible statistics. According to the press release, the average debt for 2009 graduates of the 15 schools is more than $108,000.

“We are ready, willing and able to sue these schools,” Strauss said, but the law firms need alumni to come forward to join in the lawsuits. The Law Offices of David Anziska, which will be filing the suits with Strauss Law, lists the schools on its website and asks graduates to contact his firm. The firms won't file suit against any particular school until they find at least three plaintiffs.

“With these lawsuits,” Law School Transparency says, “nearly 10 percent of all ABA-approved law schools across eight states will be accused of tortiously misrepresenting job placement statistics and violating state consumer protection laws.”

Strauss and Anziska are representing plaintiffs in the suits against Cooley and New York Law School. Strauss was previously a name partner at Kurzon Strauss, but it has since dissolved, Above the Law reports. Strauss told the blog his former partner, Jeff Kurzon, will be working on the law school cases "in an adjunct capacity."

A day after the announcement of future lawsuits, U.S. Sen. Barbara Boxer, D-Calif., sent a letter to the ABA pressing for quick collection and dissemination of more detailed job statistics. The ABA Section of Legal Education and Admissions to the Bar is adding several new questions to law school questionnaires about jobs held by 2011 graduates nine months after graduation. Boxer wanted the section to collect the information for 2010 grads as well.

Prior coverage: “Grads Sue New York Law School and Cooley Law, Saying They Inflated Job and Salary Stats” “Cooley Sues Law Firm and Bloggers, Says Law School Falsely Accused of Misstating Grads’ Success”

Michel Foucault explained nearly thirty years ago the profound consequences of the application of the then new technologies of measurement metrics made it possible to "see" population--the masses and mass society.  Michel Foucault, Security, Territory, Population, Lectures at the Collège de France 1977-1978. Graham Burchell, trans. New York: Picador Palgrove Macmillan, 2007; pp. 87-110; 103-120.

But we can also say that it is thanks to thew perception of the specific problems of the population, and thanks to the isolation of the level of reality we call the economy, that it was possible to think, reflect, and calculate the problem of government outside the juridical framework of sovereignty.  And the same statistics, which, within the framework of mercantilism, had only ever been able to function within, and in a way, for the benefit of a monarchical administration that itself functioned according to the form of sovereignty, now become the main technical factor, or one of the main technical factors, in ublocking the art of government.
In fact, statistics, which had heretofore functioned within administrative frameworks, and so in terms of the functioning of sovereignty, now discovers and gradually reveals that the population possesses its own regularities: its death rate, its incidence of disease, its regularities of accidents.  Statistics also shows that the population also involves specific, aggregate effects, and that these phenomena are irreducible.  (Ibid., 104).

 (From Twenty Questions for Leaders to Ask: What Will We Measure, How Will We Measure It, and What Will We Consider a Success?, Slide 15, illustration by David Foster, Bloomburg Business Week, Sept, 2009))

The gradual emergence of the notion of population, from an abstract concept, to an aggregation that exhibits  its own characteristics that can be managed is made possible only by advances in the science of measurement. The same can be said for the incarnation of stakeholding in the business of corporations and other economic actors, also grounded in the institutionalization of measurement metrics and the connection between measurement (as a means of describing an abstraction) and metrics (as a means of enforcement of norms).  Backer, Larry Catá, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations. Georgetown Journal of International Law, Vol. 39, 2008.

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