Wednesday, March 16, 2005

Elites and Law School Capture

I recently completed an article discussing the vulnerability of law school to capture by the elites. Below is a small excerpt (A complete version can be found under my name at from: "Ethics at Law School: Shirking, Capture, and "The Matrix." This portion discusses the vulnerability of law schools to capture and the use of civility requirements as method of curbing dissent: B. Law School Vulnerability
The baseline requirement for shirking to take place is, like may things, that it results in more benefits than costs. This is not to say that everyone engages in a careful cost-benefit analysis of their actions but, for the most part, people shirk because it is better for them than the alternative. Drawing from the criminal law analogy, shirking is most likely to be beneficial when the expected negative consequences are low or negative.[1] Expected negative consequences are low when the shirking behavior is unlikely to be “detected” and the punishment is low. Conversely, shirking is low when accountability is high.[2] As an example, consider a cashier at a fast food restaurant who must account for all food sold and money in the cash register at the end of the day or lose his or her job. Here the probability of detection is high and the sanction is severe. Consequently, the incidence of shirking is low. In fact, employers often use sophisticated techniques to discover and discourage shirking. On the other hand, when shirking is hard to detect or even part of normal behavior and there is no punishment for the shirker, the incidence is likely to be high. Law schools fit this latter description.
One can understand the vulnerability of law schools to shirking by first thinking in terms of higher education generally. Without clear standards for performance, the expected consequences are low because it is exceedingly difficult to determine with precision whether shirking has occurred. In higher education generally, it is difficult to assess the quantity or quality of output. There are many imperfect measures like the number of graduates or expenditures per graduate or percentage placement. Ultimately, a faculty member’s contribution to the function of the institution is assessed in terms of teaching, research, and service. Of course, none of these is subject to an objective standard. The subjectivity involved in evaluation leaves huge gaps for interpretation by faculty committees and self-promotion by individual faculty.
Law schools, of course, are subject to this higher-education subjectivity and the lack of accountability that follows, but it goes further. Even at the level of the most fundamental activities – teaching and research – the detection of shirking is extremely difficult and the expected costs low. In the case of scholarship, most law faculty have professional degrees and have spent little time around professors engaged in scholarship. The socialization that takes place in virtually every other academic context is simply absent in law schools. In effect, scholarship is part of on-the-job training for law professors, and the process does not result in what most disciplines would regard as scholarship. Rather than adhere to the Scientific Method as a means of searching for “truths” and which would allow peer review of methodology, law professors are more likely to identify an ill in society and expose it or write to promote a particular political point of view. In effect, there are few objective standards that can be applied to the type of scholarship law professors produce.
As a substitute for objective standards, to a significant degree the perceived contribution of a faculty member is dependent on the ranking of the law review the scholarship is published in. These placement decisions are based, however, on the judgments of second and third year students. In addition, the huge number of reviews virtually assures that every article is published somewhere. This is in stark contrast to most other areas in which the demand for articles is considerably lower and the review process conducted by experts.
One argument is that the review process of law professors comes at the “back end” in the sense that peer review does take place at the time of the tenure and promotion decision. This is accurate in a sense but, at most, peer review of scholarship takes place one or twice in a law professor’s career, not with each article or book published. In addition, the peer review process of law professors is subject to bias and manipulation.[3] As already noted, law professors often write what amount to expanded briefs in support of one position or another. When these articles are reviewed by those sharing the views expressed by the author, it is very unusual to receive a negative review. When candidates or their friends on a faculty have a role in selecting reviewers, the probability of a disinterested review declines further.[4] Finally, the law teaching community is a relatively small one; when considered by specialty the communities are even smaller and often focus on social and political positions as opposed to traditional fields of research. This makes negative reviews even more difficult to write for a reviewer who is likely to cross paths with the person reviewed for years to come at conferences and meetings. In effect, there are few measures of scholarly productivity and little incentive (and actual disincentive) for peers to write pains-taking reviews.
This all can lead to an intensely incestuous process of which the following can occur. Professor A decides to contact several professors and ask them to write articles on a topic and they all do. There is no peer or even student review of the articles at any time before publication. One of the professors asked is a colleague of the professor forming up the project. The project is then executed and eventually the collection is printed as a symposium by a middle or lower ranked law review or university press. The organizer then congratulates the writer of the essay for having had the article published and, as likely as not, sits on a committee that determines whether the writer will be promoted.
The futility of establishing objective standards is exacerbated by the variety of ways law professors express themselves. Accepted forms of scholarship include articles, books, casebooks, treatises, edited books of essays by others and, sometimes, teaching materials. It is difficult enough to make qualitative assessments within each group and impossible to make reliable cross-category assessments.
In the area of teaching, objectivity is also difficult. The most basic quantitative measure – number of student times credit hours -- rewards those with large classes. But the ironic danger here is that a large class – if not required – may be a sign of a lack of rigor and possible shirking. Plus, small classes dealing with difficult material may take more preparation by the professor than large ones. Quantitative measures are also problematic. Class visitations by peers may mean the professor is seen infrequently and only on his or her best days. Student evaluations may measure effectiveness or popularity. With the possible exception of actually meeting class as schedule and posting regular office hours, there appear to be few ways to establish accountability in teaching.
Beyond the bedrock functions of teaching and research are activities that in many respects may be more important. Voting on hiring, retention, and curricular matters have greater potential for shirking than individual diligence with respect to teaching and research. A faculty that allows personal friendship to influence tenure votes is essentially doing the same thing an attorney using the client’s funds or a company director feathering his or her nest at the expense of shareholders. Yet, the law professor version of this type of shirking is immune to outside assessment. Similarly, faculty decisions to offer certain courses and not others, to promote a particular point of view, to discourage dissent, or to operate specific programs or centers that interest them but do not accrue to the benefit of tax or tuition payers are even less detectable than poor teaching and scholarship.
Having standards of performance and an ability to detect deviation is but one element of the consequence analysis. The other is the sanction itself. As a general matter, there are few meaningful sanctions for tenured faculty. Denying tenure is not realistic except for the most egregious conduct. Withholding pay raises could be an effective sanction if there were standards and sufficient salary increase potential to make a significant difference but, in fact, salary increase possibilities at most law schools are relatively modest.
The expected consequences of shirking at law school are low, but that may be only half the story. If shirking is the norm, then there actually may be sanctions for not shirking. Not shirking can take two forms. One is simply to attempt to make judgments about the use of law school resources that are consistent with the interests of shareholders, whether tax or tuition payers. In a zero-sum context, however, not engaging in advantage-taking behavior can render one worse off than they would be if surrounded by like-minded people.
Of greater concern is the plight of the non-shirker who believes there is a moral and professional obligation to alter the direction of the community.[5] For example, this person might speak up at a committee meeting on tenure and promotion in which favorable review letters have been purposely solicited. Similarly, he or she might challenge the legitimacy of programs that are not in the interest of stakeholders. No less than the whistle-blower in any other context, the law professor can expect his or her behavior to be sanctioned. This sanction can take a variety of forms. Social exclusion is one. Another is exclusion from law school programs like symposia and foreign teaching opportunities where there is a single person or a small group controlling the activity. In addition, the non-shirker in a context in which shirking is the norm may be the subject of negative reference letters that may hamper opportunities at other institutions.
The most pervasive of the sanctions is labeling the non-shirker “uncollegial.”[6] Civility standards in the sense of requiring “polite,” as opposed to honest or ethical, behavior, are rarely applied to people with whom someone else agrees. They do tend to be applied to faculty who do not place the institutional interests above those of a majority of the faculty[7] or who rebel against administrators who facilitate capture.[8] In effect, collegiality issues are often about the substance of speech as opposed to its manner. By claiming that the non-shirking person is uncollegial or a hot-head, the majority is able to rationalize ignoring the substance of the claims. Going outside a community that is a captive law school is regarded as particularly unacceptable[9] even though it may be the only way to achieve the type of scrutiny that can lead to protecting stakeholder interests. In effect, civility, collegiality and etiquette standards can be a way to silence dissenters and seal the institution against outside scrutiny.[10] Even well-meaning people who apply these standards tend to view the faculty as the institution and ignore those for whom the institution exists. These dangers are recognized by the American Association of Law Professor’s Committee on Academic Freedom and Tenure when it observes, “Historically, ‘collegiality’ has not infrequently been associated with ensuring homogeneity, and hence with practices that exclude persons on the basis of their difference from a perceived norm.”[11]
A lack of standards and the means of silencing those who disagree make law schools vulnerable to shirking and eventually capture. A further factor is the training of law professors. Most are trained in one form or another of advocacy. All are capable of interpreting rules and events in a wide variety of ways. In effect, just as they have used those skills to advocate the interests of clients before entering law teaching, they can begin to represent themselves in the context of the law school.
The lack of objective measures of success and the susceptibility of evaluative systems to manipulation might not lead to capture if there were some overriding authority that were willing and able to intervene. To the outside world, the idea of a law school dean suggests that this power exists in that office. Law professors and law school deans know the truth on this. Deans typically serve at the pleasure of the faculty, and a dean who attempts to identify meaningful standards or require adherence to fair processes is likely to be a short-term dean unless those norms already exist. Indeed, to the extent a dean sees his or her role as “serving the faculty” or as an “agent of the faculty” as opposed to an agent of the stakeholders, the principal-agent problem repeats itself and the dean becomes an instrument of capture. The need to be responsive to faculty goals is exacerbated by the fact that many deans are not significantly engaged in scholarship.[12] Obviously they are individuals who find administrative work more attractive than scholarship. For these individuals, the decision to take an administrative career path is not one that can be easily reversed. Thus, the most important goal, like that of elected politicians,[13] is to maintain the administrative post by pleasing those who can effectively dismiss an uncooperative dean.
[1] The analogy here is to punitive damages and criminal sanctions.

[2] See N. Hamilton, “Professional Conduct” supra note 9, at 229. (“In order to maintain the social compact and its autonomy, a profession must develop clear principles of professional conduct and hold members of the profession accountable for meeting the principles.”)
[3] See text at notes , infra.

[4] See text at notes, infra.
[5] This has been termed “ethical activism.” Jonathan Knight & Carol J. Auster, “ Faculty Conduct: A Study of Ethical Activism,” 70 J. Higher Ed. 188 (1999).

[6] Ironically, one advocate of greater collegiality invokes the image of Nazis in describing those who he views as uncollegial faculty—a minority – that will not compromise with the ruling majority. Michael L. Seigel, “On Collegiality,” 54 J. Legal Educ. 406 (2004).

[7] Id. at 411.

[8] Id. at 413.

[9] Id. at 415.
[10] Amy R. Mashburn, “Professionalism as Class Ideology: Civility Codes and Bar Hierarchy,” 28 Val. U. L. Rev. 657 (1994).
[11] American Association of University Professors, “On Collegiality as a Criterion for Faculty Evaluation,”
[12] In order to test this assertion, I examined the scholarship of the deans of schools ranked 40-49 by U.S. News and World Report. Of these ten deans and putting aside forwards to symposia, in-memorial articles and the like, six had zero or one article listed in the past five years in Westlaw.

[13] Daryl J. Levinson, “Empire-Building Government in Constitutional Law,” 118 Harvard Law Review 915, 929 (2005).


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