In Praise of Incivility: Priss and Circumstance, . . . and Neville Chamberlain

Obviously, a Moneylaw approach to administering a law school scares the hell out of people, especially if they are comfortable being a Devil Ray, Royal, or Rocky. But it's also likely to worry those at higher-ranked schools when the conversation turns to ignoring credentials and other symbols of institutional authority, conducting serious and substantive post-tenure reviews, or auditing pet programs.

Let’s face facts and not about the Miami Dolphins. Most law faculties are clubs. Once you’re in, it’s for life and as a tenured colleague on my faculty recently told an untenured colleague, “it’s not enough to be colleagues, you really need to at least act like you are a friend.” (Civility-speak for "kiss butt kid or you are out of here.")

Appeals to civility are critical as means of perpetuating the club and heading off a Moneylaw approach. Civility standards are, after all, invariably “drafted” to protect the positions and status of those in power.

In the prissy world of law professors-- the world of the velvet mob -- it’s nice to think civility is about respect and the form of discourse. That is a fantasy. It is just as likely to be about disrespect and anti-intellectualism. When questions of civility are raised, it is rarely about form. Instead, it is a means of defining the topics of discourse and even the positions expressed. It does this in two ways. An unpopular view expressed civilly can be ignored because no one in the club need pay any attention. The same view expressed loudly and aggressively is obviously to be ignored since it comes from a person who is behaving unacceptably.

If the quietly expressed view seems to be gaining traction at all, the response will be "I am offended!!” or “That is inappropriate”(the latest most overused word which actually means "I do not like what I am hearing"). Those charges, along with the threat of being labeled a racist, are brick wall discourse stoppers exactly at the point at which the discourse gets interesting -- most likely when something substantive is said that could have an actual impact on the club.

Let me give an example. At my school for years faculty had family members in their classes and generally the family members got A’s. It was evidently an accepted benefit of being a club member. (Think of it as a discounted green fee at the country club.) Trying to begin a conversation about whether this was a good practice – no matter how politely -- could quickly be met with “I am offended, you are accusing me of being dishonest.” Eventually, agitation embarrassed the faculty to take action and forbid the practice but appeals to civility retarded the action for several years.

Now think about the prospects for having a civil conversation about whether tenured faculty have been sufficiently productive or whether a program should be discontinued. It this really going to be carried on in carefully measured tones with appeals to reason? Or, is the very topic likely to raise the hackles of those threatened to the point that there are “friends” and “enemies” and “offense” is taken? Those threatened will be the first to raise the shield of civility. Behind that shield are some very nasty goings-on and the velvet-gloved mob. Civility is like a giant thumb on the scale in favor of the status quo.

And now for those unschooled in civility here are some translations:

1.The civil version: Your analysis is incredibly astute and I had a small concern about one little passage and I am only worried that someone else might bring it up.

Actual meaning: I don’t think your analysis is correct.

2. The civil version: You are one of our most productive people. Lately I find myself uncomfortable with what I must have done that is preventing you from doing what you love -- scholarship.

Actual meaning: One article every two years is not enough for someone making that much money.

3.The civil version: Do you think we really have a chance at hiring your son in law? Wow, being on the faculty with someone as productive as you could really put some pressure on him.

Actual meaning: I think it is a bad idea to hire your son in law until we have conducted a search for the best candidate.