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).


Here are first few paragraphs of an article dealing specifically with law school hiring practices:
Journal of Legal Education
March, 1992
Diversity Issue
Jeffrey L. Harrison [FNa1]
Copyright © 1992 by the Association of American Law Schools; Jeffrey L.
WESTLAW LAWPRAC INDEXLED--Law School & Continuing Legal EducationLHT--Hiring, Training & DevelopmentI telephoned an old friend the other day at another law school. "What's up?" I asked."Faculty retreat," he replied."Sorry to hear it. Any topic, or just a weekend of touchy-feely?""Serious business," he said. "The theme is 'Recruiting for Diversity.' One session on race, one on gender.""What about class--you know, poor and working-class candidates?""Are you kidding?" he responded. "Too important."This conversation and a recent article in which Duncan Kennedy writes that law schools, when hiring faculty, "should abide by the general democratic principle that people should be represented in institutions that have power over their lives" [FN1] explain the timing of this essay, but the idea is one I have thought about for years. The issue of faculty recruitment hits me and, I am sure, everyone else hardest in the fall when the AALS packets arrive. I go through the sketchy information on each form searching for candidates that would bring diversity to our faculty. I look for minorities, [FN2] but I also look for candidates with a solid blue-collar or working-class background. [FN3] I do this because I favor faculty diversity and believe it is defined too narrowly. Although I cannot support my claim with the sort of empirical evidence that would satisfy a social scientist (or those predisposed to disagree with the analysis that follows), [FN4] I have the distinct impression that people with working-class backgrounds are not found in our profession *120 in anything close to the same proportion as they are in society. [FN5] Further, current efforts to improve diversity are far too exclusionary to be responsive to what I believe to be a pervasive class bias. [FN6] Surely a truly diverse and representative faculty would include far more than a smattering of men and women who have grown up in a working-class culture.Those readers who have not rejected my position out of hand but remain skeptical may ask, "But what do those people offer?" I have two responses. First, this is the wrong question. It seems to have put things backwards. The burden of proof should be on those who favor the current deviation from democratic representation. The very question--"But what do those people offer?"--presupposes that those from privileged classes are somehow entitled to law teaching positions. Second, a great deal of evidence suggests that class has an impact on one's sense of justice, expectations, and self-esteem. [FN7] Class-based differences on matters of such fundamental importance offer tremendous potential for different perspectives in research and approaches to teaching. In many instances, an increase in class diversity would mean an increased likelihood that professors and students would have a common experiential base from which to work. [FN8] In addition, it would offer a "reality check" for law professors who have been sheltered from the wrong side of our lopsided economy. [FN9]The causes of the underrepresentation of this particular group in legal education include not only such societal filters as ignorant or indifferent teachers, parents, and guidance counselors, economic barriers, and a *121 learned lack of aspirations but also a faculty selection process that places no value on what working class people offer. [FN10] It is not that those who run our system of legal education have not read in their undergraduate textbooks about the impacts and injuries of class. They simply are unable or unwilling to consider this version of diversity as something that would enrich legal education.

Introduction to class and entitlement

Below is the first couple of pargraphs from one of my articles on class and entitlement. The cite is included for futher reading:

William and Mary Law Review
Winter, 1994
Jeffrey L. Harrison [FNa1]
Copyright © 1994 by the William and Mary Law Review; Jeffrey L. HarrisonAs soon as you're born they make you feel small By giving you no time instead of it all Till the pain is so big you feel nothing at all A working class hero is something to be. [FN1]
I. INTRODUCTIONMy thesis begins with the idea of "entitlement"--not a legal entitlement, but a "sense of entitlement." [FN2] That is, a sense of deserving*446 something. For most of us, it is important to feel that we have received that to which we are entitled. In the context of an exchange, it means that we want to feel we have been treated fairly or reached a state of "compensatory justice." [FN3] Part of my thesis is that this sense of entitlement is not evenly distributed among us. As an example, suppose that two individuals are hired as entry-level law professors. Before moving to their new locations, both inquire about their employer's willingness to pay moving expenses. The response to each is, "It is our policy to pay up to $3,000." One professor responds, "But that is not enough! I cannot possibly move my family for that amount." An argument ensues. The second professor simply processes this information and uses it in arranging her move. [FN4]The difference in the responses reflects a difference in their expectations and their senses of entitlement. This difference may be explained by something quite concrete. For example, the first professor may have seen a memorandum indicating that the school traditionally had paid moving expenses for new members of the faculty. But one's sense of entitlement may also, and generally does, arise from less direct and more subtle influences. As a child the first professor may have heard repeatedly how smart, clever or attractive he was and, thus, began to feel as though he was somehow more worthy than others. Or, he may have attended a prestigious school where he was "taught" that graduates of that school are *447 somehow special. [FN5] In contrast, the second faculty member may have been treated quite differently, that is, never taught that she is somehow special and more deserving.This sense of entitlement is the cornerstone of this Article, but there are two more components. The first is that social class [FN6] is an important determinant of one's sense of entitlement. The second component is that individuals with a higher general sense of entitlement require more of whatever is at stake in an exchange, in order to achieve a state that they regard as compensatorily just, than those with a lower sense of entitlement. Together, these propositions produce the general thesis that social class and the resulting sense of entitlement have an impact on the terms of private orderings. Because individuals from higher social classes have a greater sense of entitlement, the terms of exchanges between different classes typically will favor those individuals. More generally, this means that the private orderings of people who belong to a class-oriented society will passively, though relentlessly, reinforce the existing class structure. [FN7] In essence, the source of the continual *448 societal imbalances that flow from "freedom of contract" are largely the results of the damage that class stratification has already inflicted. [FN8]