Historian A. J. Angulo examines the history of for-profit colleges and universities and how many of the problems surrounding these institutions aren't new, but rooted in a past that goes back to the colonial era.
Early last month I started reading Maria Konnikova’s The Confidence Game: Why We Fall for It … Every Time (Viking) but had to put the book aside under the pressure of other matters -- only to have the expression “con artist” hit the headlines in short order. And in the context of electoral politics, no less, with one Republican presidential candidate applying it to another. (No names! Otherwise people with a Google News alerts for them will just flood into the comments section to rail and vent.)
My notes from a few weeks ago show no inkling that the book might be topical. Instead, I listed movies about the confidence game (the most theatrical of crimes) and dredged up recollections of David W. Maurer’s The Big Con: The Story of the Confidence Man, first published in 1940. A reviewer of one of Maurer’s later books said that while he was “retired as an active professor of English at the University of Louisville” as of 1972, he was “the foremost student of the argots and subcultures in various precincts of the Wild Side … whose easy authority and unerring judgment brought the language and culture of the American underworld to the attention of scholars.” The tribute still stands, although Maurer’s studies of the slang of drug addicts, prostitutes, forgers and pickpockets (many available in JSTOR) are now period pieces: the scholarly equivalent of vintage pulp fiction.
Parts of The Big Con have a Depression-era flavor, but it is the author’s masterpiece and, if not the last word on the subject, certainly the definitive one. Other, lesser criminal subcultures generate argots, but for Maurer the confidence men are the professional elite of the underworld, and their specialized lingo is the concentrated expression of a well-tested understanding of human psychology. Mastery of it distinguishes those qualified for “the long con” (sustained and intricate operations extracting large sums from victims) from, e.g., small-timers running the three-card monte scam on a street corner.
The long con, as depicted on screen, is a marvel to witness. David Mamet wrote and directed the two best movies in this area: House of Games (1987) and The Spanish Prisoner (1997). The latter film takes its name from the quintessential long con, still viable after centuries of use. The contrast between short and long cons is blended into the Oedipal shenanigans of The Grifters (1990), adapted from the novel by pulp-noir virtuoso Jim Thompson, who I suspect read Maurer’s book somewhere along the way. And in a considerably lighter vein there is Dirty Rotten Scoundrels (1988) with Michael Caine as a smooth long-con artist and Steve Martin as the short-con operator who becomes both his nemesis and protégé.
Looking up those dates, I’m struck by the absence from the list of any more recent entry. What we have instead, it seems, is a string of movies such as Boiler Room (2000), The Wolf of Wall Street (2013) and The Big Short (2015), which treat the world of high finance as a racket. The most recent film’s title sounds like a nod to Maurer, and his monograph does cover a classic long con called “the rag,” which involves a phony stockbroker’s office. (There, investors have the chance to get rich through insider trading, or so they think until the office vanishes, along with the suckers’ money.)
“If confidence men operate outside the law, it must be remembered that they are not much further outside than many pillars of our society who go under names less sinister,” Maurer said in a passage that Maria Konnikova, a New Yorker contributor, quotes in The Confidence Game. She moves quickly to give recent evidence for the point, such as the U.S. Department of Justice’s suit against USIS, which she describes as “the contractor that used to supply two-thirds of the security clearances for much of the [U.S.] intelligence community.” The DOJ found that “the company had faked well over half a million background checks between 2008 and 2012 -- or 40 percent of total background checks.” Corruption on that scale lies beyond the most ambitious con’s dreams of success.
Konnikova’s basic argument -- developed through a mixture of anecdotes and behavioral-science findings, after the manner associated with journalist and author Malcolm Gladwell -- is that both the grifter’s manipulative skills and the victim’s susceptibility are matters of human neurobiology and everyday social psychology. She cites an investigation organized by “Charles Bond, a psychologist at Texas Christian University who has studied lying since the 1980s,” who, in 2006, gathered information on beliefs about lying held by dozens of countries in 43 languages. Three-quarters of the responses in one phase of the study identified “gaze aversion” as a signal that someone was lying, while “two-thirds noted a shift in posture, another two-thirds that liars scratch and touch themselves more, and 62 percent said that [liars] tell longer stories. The answers spanned sixty-three countries.” But other studies show that these beliefs -- while cross-cultural, if not universal -- are poor guides to assessing a stranger’s truthfulness. Someone delivering a carefully worded lie while holding a steady gaze and not fidgeting is, in effect, already halfway to being believed (or elected, as the case may be).
Konnikova pays tribute to Maurer’s classic by linking each of her chapters to one of the phases or components of a long con, as itemized in the grifter’s lexicon. The first stage, called “the put-up,” is perhaps the most intuitive: the con artist identifies a mark (victim) by picking up signals of the individual’s interests, personality traits and self-perceptions, and then begins to cultivate casual familiarity or trust. “There’s nothing a con artist likes to do more than make us feel powerful and in control,” she writes. “We are the ones calling the shots, making the choices, doing the thinking. They are merely there to do our bidding. And so as we throw off ever more clues, we are becoming increasingly blind to the clues being thrown off by others.”
Here, the author overstates things, since the talented grifter is also busy creating signals. In a later chapter, she describes a fellow who arrives at a charity event in London, acting a bit drunk and overfriendly and seemingly unaware that he didn’t shave that morning. His mark is woman of the world who knows the type: one of those would-be charming playboys, feckless but harmless, getting by on an allowance from his aristocratic relations. (Suffice to say that she takes a check from him and lives to regret it.)
With the dramatis personae in place, “the play” (the con itself) gets underway. Other characters may have walk-on parts, such as the “secretaries” and “brokers” in a phony stock-market game who get a cut of the criminal profits. The mark is made privy to whatever circumstances the con involves (e.g., a long-forgotten wine cellar full of rare and expensive vintages, an amazing real-estate deal, the chance to get in on the next big invention) and drawn into the secrets and moments of exhilaration that go with this once-in-a-lifetime opportunity.
But the most fascinating and disturbing aspect of a long con is how the con artist manages and redirects any anxieties or misgivings the victim may feel. After the “blowoff” -- when the victim is left with a case of bad wine with fancy labels, ownership of swampland, etc. -- a really well-executed con will leave the mark too embarrassed to complain. (Erving Goffman's classic paper "On Cooling the Mark Out" uses a late phase of the con game as a key to understanding how society at large reconciles the ordinary person to the disappointing realities of life.)
The lab experiments and social-scientific inquiries that Konnikova describes offer plausible (if seldom especially surprising) analyses of the cognitive and emotional forces at work. People prefer to think of themselves as smart, helpful, good judges of character and destined for lives better than the one they’ve settled for, thus far. And someone appealing to those feelings can end up with all of your money and no known forwarding address. Perhaps the most interesting and memorable thing about The Confidence Game is not that researchers can now explain the roots of our vulnerability, but rather the way it confirms something Maurer implied in his book 75 years ago: there’s no one better able to understand the individual human psyche than someone prepared to exploit it, undistracted by the slightest remorse.
In case you missed this trend (we'll admit we did), adult coloring books are a thing. (See here and here.) Now Indiana University Press is entering the market with a "Color Your Campus" series with five coloring books for adults. They will feature the campuses of Indiana, Harvard, Louisiana State and Stanford Universities and the University of Notre Dame. The announcement by the press said that "illustrators will consist of locals and university graduates -- those who are able to encapsulate the spirit of the university through their own personal experiences." The first releases will be this summer.
Nearly a month has passed since the release of “The Costs of Publishing Monographs: Toward a Transparent Methodology,” a document prepared by the consulting and research division of Ithaka S+R. (Ithaka is also associated with JSTOR, the scholarly journals repository.) The report seems not to have drawn much attention outside the ranks of the Association of American University Presses, which seems odd. It ought to be of some interest to the larger constituency of those who buy, read and/or write scholarly books.
If you mention the price of academic-press books to people who’ve never purchased one, the effect is akin to a cartoon character with eyeballs popping out and exclamation marks hovering in the air, with a thought balloon reading, “What a racket!” (On one occasion I heard it said aloud.) The dismay will usually cool off some as you explain how the specialist nature of scholarly publications tends to preclude economies of scale. A small audience means low press runs, yielding high per-unit costs. That’s not the whole story, of course, but it often suffices to explain why, say, a slender new book interpreting Moby Dick might cost five times as much as a Melville biography thick enough to serve as a doorstop -- and why no one in the family has purchased Aunt Louise’s book, even if they’re proud she got tenure for it.
The authors of the new Ithaka report mention a ballpark estimate of the expense to a press of preparing a scholarly book for publication (not printing, just getting it to that point) that has been bandied about over the past couple: $20,000. It’s problematic, but let’s imagine, for the sake of argument, that it costs that much to prepare and to print a monograph, and that every single one of its 400 copies is sold. In that case the absolute lowest wholesale price of a single volume has to be $50, just to break even. Many trade publishers would consider a print run 10 times that size to be small -- with each copy selling at a much lower price while still making a profit. It’s not that trade presses are models of efficiency that scholarly presses ought somehow to emulate -- not at all. They resemble one another about as much as an ostrich egg and a cannonball do, and the differences cannot be tinkered away.
Ithaka’s researchers collected information on the expenses involved in bringing out 382 books from the arts, humanities and social sciences published by 20 American university presses during their 2014 fiscal year. The data assembled were granular -- drawn from the sort of in-house bookkeeping each department (editorial, production, marketing, etc.) had to do while handling each title. Some expenses are more discretely defined than others. The cost of sending a manuscript out for copyediting, for example, is not too hard to determine; just look at the invoice. Calculating the fraction of an acquisition editor’s salary that went into a given book seems more difficult -- besides which there are the overhead expenses of clerical labor, rent, tech support and so on, some of them provided by the hosting university.
The 20 presses surveyed range from small presses (averaging roughly 11 employees publishing 46 titles per year, with an annual revenue from books of under $1.5 million) to powerhouses (circa 82 employees, 253 titles and more than $6 million annual revenue). They are segmented into four size categories, with five presses each, and with some effort made for geographical diversity and varying publishing foci (monographs, journals, regional titles).
In short, it must be one hell of a spreadsheet -- and the researchers establish three ways of defining cost per book to reflect the varying impacts of staff time, overhead expense and institutional support. One effect of the analysis is that the figure of $20,000 per book in preparation expenses goes right out the window: the study “yielded a wide range of costs per title, from a low of $15,140 to a high of $129,909, and the range of costs is wide both within and across groups.” Taking in the varying ways of assessing the expenses of almost 400 titles, the researchers find that the average cost per monograph is between $28,747 (using the minimal baseline) and not quite $40,000 (factoring in indirect overhead expenses). It bears repeating that this is not the final cost of publishing, printing, binding and warehousing monographs of the predigital sort would entail additional expense.
The Ithaka report focuses, rather, “on the costs of producing the first digital copy of ‘a high-quality digital monograph.’” For that to be the benchmark -- rather than the traditional hardback monograph -- is in keeping with the expectation that scholarship be made available in open-access form, as both federal mandates and the emerging academic ethos increasingly demand.
For scholarly publishing to meet the standards of quality established over the past century will require continued investment in the kinds of intensive, skilled labor that university presses foster. How to meet that demand while simultaneously developing ways of funding open-access publishing remains to be worked out. Ithaka S+R’s report doesn’t underestimate the difficulties; it just reminds us that the problem is on the agenda, or needs to be. Otherwise, the shape of things to come in scholarly publishing could get very messy -- and not in an especially creative way.
“One of the most profoundly exciting moments of my life,” Gertrude Stein recalled in a lecture at Columbia University in the mid-1930s, “was when at about 16 I suddenly concluded that I would not make all knowledge my province.” It is one of her more readily intelligible sentences, but I have never been able to imagine the sentiment it expresses. Why “profoundly exciting”? To me it sounds profoundly depressing, but then we’re all wired differently.
Umberto Eco, who died last week at the age of 84, once defined the polymath as someone “interested in everything, and nothing else.” (Now that’s more like it!) The formulation is paradoxical, or almost: the twist comes from taking “nothing else” to mean “nothing more.” It would be clearer to say that polymaths are “interested in everything, and nothing less,” but also duller. Besides, the slight flavor of contradiction is appropriate -- for Eco is describing an attitude of mind condemned to tireless curiosity and endless dissatisfaction, first of all with its own limits.
Eco’s work has been a model and an inspiration for this column for almost 30 years now, which is about 20 more than I’ve been writing it. The seed was planted by Travels in Hyperreality, the first volume of his newspaper and magazine writings to appear in English. Last year “Intellectual Affairs” celebrated the long-overdue translation of Eco’s book of sage advice on writing a thesis. An earlier essay considered the public dialogues that he and Jürgen Habermas were carrying on with figures from the Vatican. And now -- as if to make a trilogy of it -- saying farewell to Eco seems like an occasion to discuss perhaps the most characteristic quality of Eco’s mind: its rare and distinctive omnivorousness.
Eco himself evidently restricted his own comments on polymathy to that one terse definition. I must be garrulous by contrast but will try to make only two fairly brief points.
(1) As his exchange of open letters with Cardinal Carlo Maria Martini, the former archbishop of Milan, indicated, Eco was a lapsed but not entirely ex-Catholic: one who no longer believed but -- for reasons of personal background and of scholarly expertise as a medievalist -- still carried much of the church’s cultural legacy inside himself. His first book, published in 1956, was a study of St. Thomas Aquinas’s aesthetics that began as a thesis written “in the spirit of the religious worldview” of its subject. And the encyclopedic range and dialectical intricacies of the Angelic Doctor’s Summa Theologica never lost their hold on Eco’s imagination.
“Within Thomas's theological architecture,” Eco wrote in an essay in 1986, “you understand why man knows things, why his body is made in a certain way, why he has to examine facts and opinions to make a decision, and resolve contradictions without concealing them, trying to reconcile them openly …. He aligned the divergent opinions [of established philosophers and theologians], clarified the meaning of each, questioned everything, even the revealed datum, enumerated the possible objections, and essayed the final mediation.”
Eco regarded the Summa’s transformation into an authoritative statement of religious doctrine as nothing less than a disaster. In the hands of his successors, “Thomas's constructive eagerness for a new system” degenerated into “the conservative vigilance of an untouchable system.” Eco was -- like Étienne Gilson and Alasdair MacIntyre, among others -- part of the 20th-century rediscovery of Aquinas as the builder of a dynamo rather than the framer of a dogma. And there’s no question but that the medieval theologian exemplified “an interest in everything, and nothing else.”
(2) In the early 1960s, Eco was invited to participate in an interdisciplinary symposium on “demythicization and image” in Rome, along with an impressive array of philosophers, theologians, historians and classical scholars. Among them would be Jesuit and Dominican monks. He felt an understandable twinge of anxiety. “What was I going to say to them?” he recalled thinking. Remembering his enormous collection of comic books, Eco had a flash of inspiration:
“Basically [Superman] is a myth of our time, the expression not of a religion but of an ideology …. So I arrive in Rome and began my paper with a pile of Superman comics on the table in front of me. What will they do, throw me out? No sirree, half the comic books disappeared; would you believe it, with all the air of wishing to examine them, the monks with their wide sleeves spirited them away ….”
The anecdote might be used as an example of Eco’s interest in semiotics: the direction his work took after establishing himself as a medievalist. Comic books, Leonardo da Vinci paintings, treatises in Latin on demonology …. all collections of signs in systems, and all potentially analyzable. Nor was his conference presentation on Superman the end of it. Not much later, Eco published an essay about the world of Charlie Brown called "On 'Krazy Kat' and 'Peanuts.'"
But in fact those two papers were written before Eco’s turn to semiotics -- or semiology, if you prefer -- in the late 1960s. (The one on Peanuts reads as being influenced by Sartre, as much as anyone else.) Eco’s attitude towards mass media and popular culture was never one either of slumming or of populist celebration. Nor was it a matter of showing off the power and sharpness of cool new theoretical tools by carving up otherwise neglected specimens. He took it as a given that cartoons, movies and the crappy books issued by Italy’s vanity-publishing racket were -- like theological speculation or political conflict -- things that merited analysis and critique or that could become so, given interesting questions about them.
At the end of his remarks on Aquinas 30 years ago, Eco tried to imagine how the author might conduct himself if suddenly returned to life. Of course there’s no way to judge the accuracy of such a thought experiment’s results, but Eco’s conclusion seems like a personal creed: “He would realize that one cannot and must not work out a definitive, concluded system, like a piece of architecture, but a sort of mobile system, a loose-leaf Summa, because in his encyclopedia of the sciences the notion of historical temporariness would have entered …. I know for sure that he would take part in celebrations of his work only to remind us that it is not a question of deciding how still to use what he thought, but to think new things.”
And, Eco might have added, how to avoid settling for less than everything your mind might drive itself to understand.
In October 1985 -- not quite a year before Antonin Scalia took his seat on the U.S. Supreme Court -- the California Law Review published a paper by Fred R. Shapiro called “The Most-Cited Law Review Articles.” Nothing by Scalia was mentioned, and no surprise. He had published a bit of legal scholarship, of course (including a paper in The Supreme Court Review in 1978) but overall his paper trail was fairly thin and unexceptional, which proved a definite advantage in getting the nominee through the Senate hearings without drama.
As for Shapiro's article, it reflected the arrival of a new quantification mind-set about assessing legal scholarship. Culling data concerning some 180 journals, Shapiro (now an associate librarian and lecturer in legal research at the Yale Law School) tabulated and ranked the 50 most influential law review articles published between 1947 and 1985. Or, at least, the 50 most often cited in other law review articles, since he did not count citations in judicial opinions or interdisciplinary journals. At the time, Shapiro described the effort as “somewhere between historiography and parlor game,” but it established him as, in the words of a later law review article, “the founding father of a new and peculiar discipline: ‘legal citology.’”
Shapiro revisited the project in 1996 with a paper that was broader in scope (it included the interdisciplinary “law and ____” journals) and also more fine grained, listing the top 100 “Most-Cited Law Review Articles of All Time” but also identifying the most-cited articles published in each year between 1982 and 1991. The second time around, he stressed the historiographic significance of his findings over any parlor-game aspect. “The great legal iconoclast and footnote-hater, Fred Rodell, missed the point,” wrote Shapiro. “Yes, footnotes are abominations destroying the readability of legal writing, but they proliferate and become discursive because they are where the action is.”
In the meantime, Scalia gave a lecture at Harvard University in early 1989 that appeared in the fall in the University of Chicago Law Review. It had a definite impact. By 1996, Shapiro included Scalia’s “The Rule of Law as a Law of Rules” in the list of the most-cited articles from 1989. It was in fourth place -- flanked, a bit incongruously, by Richard Delgado’s “Storytelling for Oppositionists and Others: A Plea for Narrative” (third) and Joan C. Williams’s “Deconstructing Gender” (fifth). Updating the study once more in 2012, Shapiro and his co-author Michelle Pearse placed Scalia’s “The Rule of Law as a Law of Rules” on its list of the most-cited law-review articles of all time, at number 36. By then, Delgado’s paper was in 68th place, while Williams was not on the list at all.
So much for the late justice’s place in the annals of legal citology. (Wouldn’t it make more sense to call this sort of thing “citistics”?) Turning to “The Rule of Law as a Law of Rules” itself, it soon becomes clear that its impact derives at least as much from the author's name as from the force of Scalia's argument. If written by someone not sitting in the highest court in the land, it would probably have joined countless other papers of its era in the usual uncited oblivion. That said, it is also easy to see why the paper has been of long-term interest, since it is a succinct, lucid and remarkably uncombative statement of basic principles by the figure responsible for some of the Supreme Court’s most vigorous and pungent dissents.
Scalia takes his bearings from a dichotomy he finds expressed in Aristotle’s Politics: “Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.”
Scalia assumes here that the reader or listener will know that Aristotle writes this in the context of a discussion of democracy, in which laws are created by those elected to “the court, and the senate, and the assembly” by the many, in keeping with a well-made constitution (rather than issued by monarchs, priests or tyrants). Official policy and decisions must, in turn, follow the body of established and “rightly constituted law.” Anything else would amount to an usurpation of power.
Aristotle’s point would apply to anyone in office, but Scalia is concerned with the authority of judges, in particular. For their part, upholding the law means restraint in determining how it is applied: judges should keep the exercise of their own discretion as minimal as possible. Aristotle allows, and Scalia concurs, that at times it is not clear just how a law ought to be applied. In that case a judge’s decision must be made “on the basis of what we have come to call the ‘totality of the circumstances’ test,” in Scalia’s words.
Sometimes it can't be helped, but Scalia implies that curbs are necessary, lest judges feel an incentive to discover gray areas requiring them to exercise their discretion. “To reach such a stage,” he writes, “is, in a way, a regrettable concession of defeat -- an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.” It is “effectively to conclude that uniformity is not a particularly important objective with respect to the legal question at issue.” And when a higher court reviews a lower one’s decision, Scalia treats appealing to the totality of circumstances as even less acceptable. An appellate decision should draw out and clarify the general principles embodied in the law that apply in the particular case.
“It is perhaps easier for me than it is for some judges to develop general rules,” Scalia writes, “because I am more inclined to adhere closely to the plain meaning of a text.”
What's striking about his formulation is not that Scalia takes a position in the debate between originalism and “living Constitution”-alism, but that he spells out an important assumption. Not only is the “plain meaning” of a law clearly decipherable from the words of its text (once we’ve looked up, if necessary, any unfamiliar expressions from the era when it was written) but so are the rules for determining its principles and for applying the law. The Constitution is like a cake mix with the instructions right there on the box. And if a given concept is not used or defined there --“privacy,” for instance, to name one that Scalia regarded as unconstitutional, or at least nonconstitutional -- then its use is ruled out.
“If a barn was not considered the curtilage of a house in 1791 or 1868,” Scalia writes, “and the Fourth Amendment did not cover it then, unlawful entry into a barn today may be a trespass, but not an unconstitutional search and seizure. It is more difficult, it seems to me, to derive such a categorical general rule from evolving notions of personal privacy.”
The distinction is clear and sharply drawn, however blunt the hermeneutic knife Scalia is wielding. But the example also displays one of the great weaknesses of this approach, spelled out by David A. Strauss in the University of Chicago Law Reviewsome years later: “Even if one can determine what the original understanding was, there is the problem of applying it to radically new conditions: Is a barn in the rural nation of 1791 to be treated as equivalent to, say, a garden shed in 21st-century exurbia?”
Furthermore, the clearly formulated principle in a law can be rendered null and void by those who want only the narrowest construction of “original intent.” In his magnum opus, Reading Law: The Interpretation of Legal Texts (2012), co-authored with Bryan A. Garner, Scalia quoted Joseph Story’s Commentaries on the Constitution of the United States (1833) on the value of preambles in understanding the significance and intended effect of a law: “The preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute.” As fellow Reagan judicial appointee Richard A. Posner pointed out when he reviewedReading Law, an obvious instance would be the Second Amendment: “A well regulated Militia, being necessary to the security of a free State …” The preamble spells out that the amendment is, in Posner’s words “not about personal self-defense, but about forbidding the federal government to disarm state militias.” If it matters that the Constitution never explicitly identifies a right to privacy, then the complete lack of any reference to a right to individual gun ownership seems at least as conspicuous a silence.
Posner notes that when Scalia did mention the preamble in one decision, it was dismissive. Sometimes you “adhere closely to the plain meaning of a text,” it seems, and sometimes you just wish it would go away.
The skyrocket ascent of Scalia’s paper is easy to understand: whatever you think of the ideas, they are clearly and at times forcefully expressed, and “The Rule of Law as a Law of Rules” provided a glimpse into at least part of that enigmatic entity known as “the mind of the Supreme Court.” Absent that, its interest is likely to be chiefly historical or biographical. Other cards will take its place in the parlor game of citation and influence.