PrivilegeBall or MoneyBall

If I apply the idea of a MoneyBall baseball player to a MoneyLaw faculty hire I come up with a candidate who did not attend a prestige school, is not smooth in a “good old boy/girl” way, does not come from a background of privilege, radiates no sense of entitlement, did not practice for a big firm, does not whine or boast, and has done research and writing for the love if it as opposed to filling up lines on his or her resume at the instruction of a mentor whose name is instantly recognized in our incestuous world. Obviously, candidates who do not fit all of these characteristics can be just as productive and I added some of my own preferences for greater socioeconimic diversity. The point, however, is that the MoneyLaw candidate (however defined) is undervalued in the market.

Being undervalued is one thing but what if the undervaluation is not simply the result of market imperfections and self-referential, possibly narcissistic, hiring practices? I mean, is it possible that, just to make sure the undervalued MoneyLaw candidate stays that way, the privileged make a point to disparage the product.

I am ahead of myself here because the MoneyLaw candidate has to get interviewed in the first place and this is not easy. Sometimes a small committee that is not overloaded with elitists can be shamed into inviting a MoneyLaw candidate. Other times, quirky things happen that permit them to sneak in. One current professor at another school realized that he interviewed at the hiring convention with a school that did it as a courtesy after mistakenly scheduling him. He ended up getting an offer. In other instances, candidates who are otherwise MoneyLaw candidates are mistaken – because of a name, an entry on the resume, or a mix up – for a different type of candidate.

It is when the MoneyLaw candidate gets to campus that the devaluing occurs:
1. Why doesn’t she/he have other offers?
2. Why are his/her articles not in better journals?
3. I have not heard of those references.
4. Wasn’t she/he a legal writing professor?
5. I am not sure I have heard of that firm.
6. Wasn't she/he on the ten most wanted list? (O.K. maybe not this one.)

Devaluing someone who is already undervalued for no particular reason related law school productivity is not only cruel but is yet one more explanation for why PrivilegeBall trumps MoneyBall and stakeholders in law schools are worse off.

What About Ideological Diversity? Is the Lack of it the Problem?

A number of readers assume that my posts are always about my home School here in Gatorland. Yes, much of the time I am inspired by Gatorland events, but judging by what people at other schools tell me, their schools have the same basic anti-MoneyLaw tendencies. Based on statistics I have seen, one way my School clearly is not different is in the lack of interest in hiring to promote ideological diversity. The resulting lack diversity is hard on old fashion lefties like me and the smattering of conservatives who are on a faculty. (Here, I think, we have 1 conservative and no libertarians, but maybe some are in hiding.) Who are we supposed to argue with and how do we test our ideas? It makes for a very uninspiring environment. Writing for and talking to the choir is as boring as talking to a rabid pro-lifer about what constitutes a person – there is only one acceptable answer. I do not understand why this is tolerable to so many. The thrill of intellectual adventure seems lost. In addition, the lack of ideological diversity may be connected in a direct was to the lack of socioeconomic diversity.

I am not sure how we (I mean so many schools that have also dug this hole) got here. It’s way too easy to attribute it entirely to selective appointments committees. I just have not seen a concerted effort to exclude those with a different point of view. Then again, I have seen no effort to seek these people out nor any evidence of widespread believe that ideological diversity is a good thing.

I do not know the answer, but here are some possibilities:

1. Choir people are found in the AALS sheets in higher numbers than lefties, conservatives and libertarians.

2. There is some conscious and unconscious filtering of intellectuals with ideas that are contrary to those in control. These people are threatening.

3. Many areas of specialization only attract choir people. For example, is anyone with the view (not one I have) that a few zillion species are extinct and we have not noticed the difference likely to be attracted to environmental law? (On this read Julian Barnes’ The History of the World in Ten and a Half Chapters, where we learn what many of us had expected all along: that there were two Arks and one was lost in the flood and, for the most part, no one has given it a second thought.)

Maybe you disagree with my premise. That’s fine. This is one case where I want to be wrong. But if you agree, what is your explanation? What accounts of a lack of interest in ideological diversity? I think MoneyLaw rules require this type of diversity. I also think greater ideological diversity would lead to greater socioeconimic diversity.

The Grading Problem: Are They All American Idols, or Where is Simon When You Need Him

A few days ago, without much success, I asked readers if there were different MoneyLaw rules for public and private schools. Now I have a different question for which I also do not have an answer: Is there a MoneyLaw approach to grading?

Grades are signals. First to students on how they did and, second, to employers on how the School evaluated the students. The problem of articulating a MoneyLaw approach is illustrated by two conversations I had recently.

Conversation one was by email. The registrar wrote to ask whether a student who had missed a month of contracts due to illness could return to class. My answer was: 1) I had no limit on excused absences, 2) Because of our curve (3.2) the student would like get a passing grade and 3) I could not promise the student would know much about contracts.

Conversation two was with a first year student who said she was anxious to get her grades to find out how she was doing. My response was to tell her that even after grades she would likely not know. With a 3.2 curve the pattern in a 110 person call is about 15 A’s, 10 C’s and all the rest are B’s or B+. In short she was likely to find she had the same grade as 40 others.

Apart from my view that current grading is a result the disastrous decisions of the 60s generation in which I fully participated. (At one time I consciously practiced affirmative action in giving grades and tutoring. Something I would not do now even if it were necessary, which it most certainly is not at my School.) It is also a response to the implicit bargain between professors and students that entails given high grades and then being viewed as fair or “a good guy” which then may show up as higher enrollments and teaching evaluations. Curves take out of play the “grade bribe” but do not take out of play the “less rigor bribe.” By the way, I do not think a great percentage of law professors fall prey to either of these but it only takes few to create the externalities to which others react.

So, do grading policies fall within MoneyLaw concerns?

Public and Private: Do the Rules Change?

My discussion with Orin Kerr leads to an issue that I think MoneyLawyers need to address: Are there different MoneyLaw rules for public and private law schools? Put differently, should there be different rules depending on whether students are paying full cost tuition or are enjoying taxpayer subsidization. If there are, the argument would be that the identity of the principal shifts and with it the programs, courses and opportunities a school might offer. In baseball terms, one could see it as whether the fans should vote on who is invited to the All-Star game. That decision – allowing the fans to vote – can be linked to a simple private sector desire to increase profit, not to a duty to present the highest quality play. Maybe private law schools should operate in a parallel fashion. Perhaps they already do. I concede that I have not done a comparison of public and private school offerings.

An argument that the rules should be the same and that student demand should not play a different role can be made by comparing law professors to any other professionals who are paid for their assessment of what is in the best interest of the client. Most physicians, do not just dispense whatever medication the patients think they need. One the other hand, could it be that private law schools should operate more like cosmetic surgeons and do more of what make students feel good? Is it even possible that the students know best?

I have already put my two-cent’s worth on this by saying that I do not see the rationale for public schools to offer a Tax LLM. I would add to the Tax LLM any relatively non public service oriented LLM unless the idea is to charge above cost tuition in order to cross-subsidize other programs. In fact, ideally, I would like all public law schools to vary tuition depending on a post graduation requirement of some form of public service. Yes, this means private law schools would have a better shot at relatively affluent students and that seems fine to me. This suggestion is impractical and not likely to happen but it illustrates the complexity of what it means to have fiduciary obligations in the context of public and private suppliers.

Personally Annoying

Orin writes in response to my turkey awards:

"Jeff, is "privilege protecting" some kind of MoneyLaw code-word for things that you find personally annoying?"

Not exactly, Orin. Just to stress the difference, here are things that I find "personally" annoying but have not included in the list of Top Turkeys:

1. Faculty and students talking on cell phones outside my office door.
2. Faculty who leave the board in the room I am going to teach in covered with their notes.
3. People who gossip carelessly without any thought to the damage caused.
4. Really awful art in law school public places.
5. People who take up two spots in the parking lot.

See, Orin, these are annoying things but they do not seem to me to have all that much impact on the capacity of a law school to give stakeholders a fair deal.

My theory is that being a law professor is a privilege largely enjoyed by children of privilege who have developed a sense of entitlement. This sense of entitlement results in a massive network of norms that have far more to do with protecting their privileged existences -- many of which are in my top ten list to which you responded-- than observing their fiduciary obligations to students, contributors, and the community.

"Annoying" does not quite capture how I feel about those things. It is more like wondering what the distinction is, morally that is, between those privileged faculty and folks doing time for embezzlement.

There is an important qualifier. Even at failing law schools there are many, maybe a majority, of faculty who are not part of the problem in a direct sense. But the informally, but well organized, block sets the norms.

I hope that clears things up for you and others who have not followed the thread.

2006 BIGGEST TURKEY AWARDS

Yes, Turkey Day means turkeys and there are many to go around. So, the ten worse privilege protecting decisions, people, or programs for 2006:

1. The Sloan Foundation Grant Program designed to increase job flexibility for university professors. (Not kidding. It's like growth hormones for Yao Ming.) The is easily number 1.

2. Appointment Committees that pass on candidates who graduated in the top ten from non elite schools in favor of "honors" grads of elite law schools.

3. Initiating a summer program in a western European country. (The supply already exceeds any possible measure of demand by students.)

4. Publishing yet another symposium issue composed of members of one choir or another preaching to each other.

5. Initiating (or electing not to discontinue) an IP program or Review. That bandwagon is completely full.

6. Initiating another specialty journal that is not refereed. Why would you do this???

7. Any Dean who views him or herself as an "agent for the faculty."

8. Allowing anyone to teach a 9 hour or lower teaching load who is not publishing the equivalent of a major (and new, not recycled) article a year.

9. Allowing paranoid tenure candidates to influence or complain about the selection of their reviewers without being swatted. This does not mean that they should not be permitted to reply to unfair reviews (if any actually exist).

10. You, if you let personal gain or social considerations (positive or negative) influence your vote on anything taken up in a faculty meeting.

11. Tax and other non public interest LLM programs charging less than full cost tuition.

12. Choosing Dante over Drew. Ok, so there are 12 and this has nothing to do with legal education. Get used to it. In the "Law Professor and Law Dean Actual Code of Professional Conduct" it actually says: "Professors and Deans are entitled to 100 Truth Mulligans per year or as many as necessary which ever is higher." That's section 203.11 (or so).

Yum!!

Counter-Preferential Choice and Shirking: Deans and Other Administrators

This is the final installment of my series on the potential failures of law faculties to observe their fiduciary obligations to law school stakeholders – tuition payers, contributors, and the community. I say potential because I have only taught at two law schools long enough to have standing with respect to what goes on. Still, as I noted previously, the conditions are probably riper for widespread shirking in legal education than in any other context – academic or otherwise.

The last critical piece of the puzzle is the lack of any effective sanctions for shirking. When I have observed sanctions directed at fellow faculty members it has rarely centered on duties to students and those outside the school. Instead, it is usually about not adhering to group shirking norms.

The last possible source of sanctioning would come from oversight. That brings up the issue of law school deans. I cannot think of any circumstance in which a law school dean could “turn around” a failing law school without losing his or her job. I have elaborated on this before. The problems are both the near impossibility of the task and the generalized fear of deans to be involved in any controversy no matter how important the cause is. I have observed it repeatedly: deans arrive at a new law school with good instincts. Then they get a whiff of how the faculty will react and, all of a suddenly, they find they really prefer the money raising aspect of the job. In fact, they are so risk averse that they often pass on easy decisions that would not raise an eyebrow. But that begs the issue, doesn’t it? Should they be expected to do any of this? In virtually everyway they are ill-equipped to make a real difference at a law school that is in trouble.

But what if a dean with the right ideas were provided some backbone by a university president or provost? Maybe it happens. As I have said, my sample is small. But I have observed two things. First, a university president who has not had a legal background would prefer not to tangle with a law faculty. They are arrogance folks across campus who are simply tolerated. And, if they do not detract from the University, leave well-enough (no matter how bad) alone. Second, as one President recently told me: “The dean of the Law School is empowered to do what ever is best for the College.” It is hard to imagine a bigger misconception of how law schools work. Law school deans do what they are told by the faculty. Unless the dean is fortunate enough to have a faculty (and I think there are some) that acknowledges its obligation to shareholders, what is best for the College means what is best for the faculty. After all, some deans describe their jobs as “serving the faculty.” The outcome will be far cry from what is best for those the College and the University are obligated to serve.

So the question is whether faculty have internalized the values of stakeholders or are at least capable of counter-preferential choices. I have seen law faculty who do one or the other. I have seen many more that know what is right but are gutless. And, even more who have such a powerful sense of entitlement that they cannot help but equate what is in their personal interest with what is “right.”

You cannot play MoneyLaw without MoneyLaw players.

Happy Thanksgiving!

Redistribution in Favor of Status Quo

To say Jim Chen has stolen my thunder would be an understatement. But since I have already penned this, here goes. In a response to my blog identifying state-subsidized LLM in Tax programs as hard to defend, on another blog Professor Scott Schumacher writes: “why single out tax programs? . . . Are competent tax attorneys any less valuable to society than the competent contract attorneys that Harrison apparently believes are worthy of the public's largess? When you get right down to it, I doubt many citizens are happy to support any programs in the law schools.”

I will attempt to respond but first, a number of caveats. To begin with, Professor Schumacher has hinted at the harder question: Why subsidize legal education at all? I guess I would put it a little differently and say why subsidize without a guaranteed return on the public investment in the form of required public service? Second, I question the subsidization of the teaching of LLM students but not of the scholarship of their professors. Those who write about tax policy – both broadly and narrowly defined – may be producing the most important legal scholarship. Third, Professor Schmacher does not seem to defend an LLM program as much as say “what is the difference?” That is what I will take a crack at. Fourth, my comments are about law schools. I am similarly baffled by public subsidization of MBA programs and numerous others in which the students are likely fully to internalize the benefits of whatever they produce. Finally, this is an empirical question and I concede I do not know for sure. What I am also sure of is that responding with an example does not advance the discussion.

So, to the question: Is a tax LLM different? First, look at what law schools do. One thing is that they redistribute wealth or income from the public at large to people who jump through a series of hoops and make it into law school and to their professors. Now, unless someone thinks the redistribution itself is producing a "good" there has to be more.

The obvious "more" is that law schools should produce legal services that have value but which the market does not produce in sufficient quantities. First, this could mean that they produce legal services that are affected by market imperfections, including free-riding. Among the market imperfections, and contrary to what I think some economists would say, I include services to protect “goods” that are not subject to monetization – civil rights, environmental protection, etc. Second, to the extent we believe that all people have a right to effective representation, we operate to depress lawyer fees by making sure the supply of attorney services is high. (An inefficient way to achieve that outcome to be sure.)

I am not convinced that subsidizing post-LLM tax study contributes to the first objective. My hunch is that we could stop the subsidization of post-JD degree tax education today and there would be little or no unmet demand for the tax advice LLM graduates offer. The value of most tax advice would be fully monetized. I can think of few, if any, free-rider problems. Regardless of how the courses are taught, I think what is learned by most is Retaining Wealth I, Retaining Wealth II, and so on. Thus, the only justification for subsidization would be to depress the cost of tax advice. Maybe this is a defensible goal. If that were the goal we would have to revamp most of what is taught in an LLM tax program and include courses like “Tax Advice for the Poor and Working Poor.” But that is covered in the basic JD course. So whatever wage-depressing rationale may exist can hardly be traced to an advanced tax course. In any case, that’s my story and I’m sticking to it.

Counter-Preferential Choice, Shirking, and Moneylaw:Part 2&3:Law Professors as Agents

In previous posts I suggested that a number of factors account for the ability, of law professors to shirk from their obligations to law school stakeholders. This begs the qustions of who the stakeholders are and what law professors owe them, if anything. The stakeholders are tuition payers, contributors, and citizens. When tuition payers are subsidized by tax payers, as they are in varying degrees in state schools, a balance must be struck. The obligation shifts more toward citizens. This could change if subsidized students were required to practice some form of public interest law for a period of time after graduation but, as far as I know, they are not. Faculty are stakeholders only to the extent they are coincidentially members of the other groups. This means the check out person at the nearest convenience store -- you know the one, taking the bus to work because he has to and without health insurance -- is owed more by a law school than any faculty member. I do not mean the Kevin Smith "Clerks."

The obligations of the law school are:
1. Tuition payers are given the type of instruction that prepares them for the bar exam and, as much as possible, prepares them to provide competent legal services. In addition, they should be able to assist in bringing about legal reform.
2. Contributors are difficult to catagorize except in one very important respect. I have never heard of a contributor whose interest lay in helping a faculty member improve his or her quality of life unless that improvement increased the faculty member's ability to serve tuition payers and citizens.
3. Citizens deserve to expect a law school to produce competent attorneys who will be accessable and play a role in improving the overall welfare of the community. How else can we justify requiring them to subsidize faculty salaries?

I am sure this is obvious to most, if not all. Here is where it gets tougher. The decision to be made reminds me of something I tell my contracts students about exam-taking. I say, "Imagine I am walking through the classroom while you are answering the questions. Periodically I stop and point to a paragraph you are writing and ask 'Exactly what is the connection between this paragraph and the answer to what I have asked?'"

So, now someone wanders through your law school today and says, while identifying a program, a course, a building project, a desk, a trip, a photocopy, policy, coffee pot, library book, etc. ,"Could you tell me how that serves the tuition payers, contributors, or citizens?

Here are some things that could not pass the test at my school. (I assume you will keep them to yourself.) I'd like to hear about the ones at your school that fail the test, if you dare.

1. Operating an L.L.M progam in tax that is subsidized by citizens. Precisely what is the public good rationale here? Do you think there is any chance that many if any of these students are likely to be anxious to do public service work? Why not full-cost tuition for a program so obviously aimed at people who will internalize of the benefit of the State's investment in them?
2. Using the money from the check out person at the nearest convenience store to send a group of faculty to Poland to teach Polish students.
3. Building a $20 million classroom building that is vacant 1/3 of the time and always will be.
4. Flying in speakers for 30 minute lunch-time talks that barely scratch the surface, because if they were flown in for afternoon presentations that ran longer and included the expectation that the presenters' papers would be read ahead of time, attendance would be minimal.
5. Allowing a faculty member to teach on as few days as possible so he can have the maximum days free regardless of the impact on tuition payers and availability.

Okay, as you attempt to connect these practices to the stakeholders, assume you are dealing with a hard grader. Please no rational relationship explanation. Better yet, explain to the convenience store worker or tuition payer why you are taking their money and what the return is to what truly is their investment.

Counter-Preferential Choice, Shirking, and Moneylaw: Part 2: Us

My theory that many law schools will have a hard time adopting MoneyLaw strategies is based on the idea that some law professors shirk from their duties to law school stakeholders. When the shirkers reach a critical mass, MoneyLaw is sunk. It's not that the professors start out looking for ways to shirk, but a variety of factors come into pay to make it hard to resist. For example:
1. Many law professors try not to lead an "academic lifestyle." They do not fit the book- wormy, egghead, Napolean Dynamite profile. No way they would support Jose for President. Instead, they have material aspirations that exceed most others on campus. Instead of thinking how lucky they are to be earning tens of thousands of dollars more than the average history professor, they think in terms of how much people in practice (or at the Med School) earn. They feel relatively deprived compared to these reference groups. A sense of duty to others is the first thing to go when personal "needs" become pressing. Big houses, expensive travels, tasteful but expensive cars, fine fabrics, the latest computer, and lots of leisure time do not leave much time to fret about the little people.

2. In a fascinating study, Tracey George found that full-time law professors who were appointed to the bench were, in fact, more ideological than non-law professor appointees. You should read the article to understand what she means, but a short and simple version is that they were more likely to decide cases in a way that was inconsistent with precedent but consistent with the ideology of the President appointing them. This could actually be good if it means improving things. Law professors may actually "know best" in the sense that they may have a broader vision of and a greater appreciation for the subtle theoretical underpinnings of the law. The problem is that the propensity to vote more ideologically than non-academic judges was not found just among liberal or just among conservative appointees. Both did it. Thus, the “knows best” explanation for their decisions only works if law professor/judges know best about everything including things on which they disagree. Unless there are two "bests" this does not work. This suggests, to me at least, that some law professors are not only not inclined to begin the analysis of an issue from an unbiased perspective, they are also too arrogant to care. I can think of no reason why this would not play out in hiring and faculty governance matters.

3. As a result of their education and practice, law professors understand better than most people the substantive implications of process and are skillful at manipulating process to achieve specific outcomes. I have very rarely, if ever, witnessed a discussion among law professors about what would be a “fair process” without a significant number there calculating “what does this mean for me and my institiute or center or career?” Just a touch of this in a faculty can mean that everyone follows suit and factions are formed.

4. Having been trained in the arts of advocacy law professors internalize the ethic of advocacy so thoroughly that it affects them even subconsciously. This means a virtually infinite capacity to rationalize why things that are favorable to them are also “right.” I have one quick and harmless example of this that amazed me as a young professor. I was on the appointments committee. Early in the year the Dean met with the committee and stressed the need to hire someone to teach trusts and estates. A colleague and I were assigned to a subcommittee to find qualified candidates. We blew it off. Several months later the Dean expressed disappointment to the committee about not finding someone to cover the course. I felt sheepish and was stunned when my colleague started speaking. He was red-faced and trembling with anger. "I'll have you know," he informed the Dean, "we have conducted a nation-wide search. Based on that search there were simply no qualified candidates in this field that we had a chance of attracting." After the meeting, I quickly asked him what we had done. He reminded me that when we received resumes that were mailed in by candidates, we had looked to see if any of them taught trusts and estates. He meant it! He could have passed a polygraph test administered by God. No problem. “National search” or rationalization? Or just scary?

Is there a critical mass of people on your faculty that fit any of these descriptions? If so, you are not off to a promising MoneyLaw start.

Deans as Agents

In my Post, "Counter-Preferential Choice, Shirking, and Moneylaw: Part 1," I listed a number of issues I plan to address over the next several weeks. The first question is whether law professors are different from others in terms of a propensity to shirk.

Nancy Rapaport and Jim Chen have responded with comments about a question that is further down on the list and one for which I am at an extreme disadvantage when it comes to commentary. I have never been a dean at any level (although I secretly – at least until typing the immediately preceding three words – harbored a hope to be appointed as a dean for two hours and then to be led away with a police escort and a new identity).
In my life as a law professor I have served with seven deans. One expressly regarded himself as an “agent for the faculty.” Another viewed his job as “serving the faculty.” “Serving” meant, in some instances, that staff heads rolled if a temperamental, whiny faculty member became upset. Two others behaved that way but never expressed it so bluntly. With one exception, the idea that any dean is an agent of the faculty concerns me (please consult the civility dictionary for what "concerns" actually means outside the world of law professors). Agency seems to slip into doing what you are told and when deans do what they are told by faculty – a persistent behavioral characteristic – it is often inconsistent with serving what I think are rightfully viewed as the stakeholders (another question to be addressed later but, generally, students, tuition-payers, the community) in a law school. Nowhere in the mix do I see faculty as stakeholders. They are a means to an end similar to the library, well-designed classrooms, and access to legal data bases. Sure, they need maintenence and special attention from time to time like other inputs, but it is in the interest of providing the best for the stakeholders. I noted the possibility of one exception. That exception would be when faculty themselves have internalized the values that advance the interests of the stakeholders. Then the dean and the faculty become a team.

As harsh as this sounds, I do not want to judge these deans too severely. The problem, as Nancy alluded to in her early posts about deans, is that deans, especially at mid- level and lower schools, must act as agents for the faculty if they want to last very long. I say mid-level schools because, first, in general, I think top schools may have faculties that include people whose self-interests are consistent with activities that make the school better. Second, deanships at mid-level schools are often attractive to people who have soured on scholarship and want to move to what is, in reality, a different profession at a higher-ranked school than he or she could achieve as an academic.The job description for those folks is “do what the faculty tell you to do or hit the road.” Why someone would take a job that includes a requirement of complicity in faculty shirking in order to keep the position is beyond me. The short tenure of deans as a general matter suggests they too find it intolerable. In fact, all other factors being equal, we might begin to judge a dean's character by the shortness of his or her tenure, at least at some schools.

In short, at a mid-level school, a dean must act as an agent of the faculty to keep his or her job. Yet the interests of many of those self-declared principals may have little to do with the interests of the relatively silent and powerless stakeholders. One more thing: in this untenable mix, where are the Provosts and Presidents of universities?

Counter-Preferential Choice, Shirking, and Moneylaw: Part 1

One of the most discouraging conversations I have had was with the vendor who restocks the newspaper machines around my university. This is the person who unloads the coins each day and hopes that the money matches up with the number of papers missing. I asked if she usually found that the coins inserted and papers missing matched up. Her answer, “It works out about right everywhere except with the machines at the law school. Over there, there are always far more papers taken than coins left.”

Sure, this is a small sample but I could not help but think about a number of things. First, why do we (my law school, some law schools, all law schools?) evidently attract students who think what they do is okay if they don't get caught? Or, put differently, why do we get so many football-rules people as opposed to golf-rules people? In football, breaking the rules is okay as long as you are not flagged for it; in golf it is not uncommon for players to report their own rule violations even though they are undetected by anyone else. Or, maybe this is the difference between “law and economics rules” and Rawlsian rules, but that is another story. Second, most of these students may become attorneys, judges, and law professors.

Third, although I did not think of it this way at the time, is it possible to succeed or even play a Moneylaw brand of “ball” if one plays by football rules? This leads to the question of whether people are ultimately and exclusively agents for themselves –kind of an Adam Smith world. If so, can they shirk from that “duty” to serve the interests of others? Or, in the terms of Amartya Sen, is “counter-preferential choice” possible?

So here are the issues:
1. Are law professors different?
2. Do law professors have agency-like duties to "stakeholders?"
3. Who are the stakeholders?
4. Do deans have agency-like duties?
5. Are deans "agents of the faculty?"
6. Can a law school play Moneylaw if the dean is an "agent of the faculty?"

Ethics Lite

Nothing could illustrate the pervasive unwillingness to face the hard ethical issues in legal education better than the three essays, written by three top ethicists, and published in the most recent issue of the Journal of Legal Education. Those essays tell us not to plagiarize, not to harass and humiliate students, and to be good citizens. To be fair, there is a bit more, but not much. For example, one author does concede that personal commitments may shape scholarly activities. Not surprisingly, the elephant in the room -- the shoplifting problem (or its moral equivalent) -- is ignored. The quality of the authors and their capacity to say more makes this missed opportunity especially disappointing.

What is missing (whether a result of avoidance or ignorance) is a full discussion of the fiduciary obligations of law professors. Yes, I am talking about spending the money of others but not on yourself. Let’s take a pure case of shirking/shoplifting. An elderly person places his or her life savings in your hands with the understanding that you will invest it to maximize the return. You are paid a nice salary, have a flexible schedule and pretty much do what you want when you want. For one reason or another, you decide to take a little money from the principal (inventory) and keep it for yourself. I trust everyone reading this would agree this is an ethical problem. And, although garden variety shoplifting is not exactly shirking, it really is not distinguishable in any other way from the agent who shaves a little off the top. When law professors spend the money of others for personal enjoyment and social comfort, or just take the money and do very little, this too is the moral equivalent of shoplifting. In fact, it may be worse. Many shoplifters actually need what they take. Rarely is this true for a law professor. In addition, when done by law professors, it is done with a level of arrogance that Wynona Ryder could not muster. It is shoplifting that says, “I dare you to suggest I am not acting honorably.” Very few take that dare (you might be labeled "uncollegial"), and the three most recent essayists on “academic ethics” steer well clear of it.

I’ll take an essay about the ethics of law professors seriously when the author has the courage to open up those oversized pockets possessed by many law professors and talk about what is in there. Things like:

1. Tenure votes influenced by social connections.
2. Teaching courses that are more interesting to the professor than they are useful to the students.
3. Being less rigorous in class because it might affect teaching evaluations (or because rigor requires greater preparation).
4. Writing tenure review letters that avoid pointing out weaknesses and ultimately say little.
5. Sending tenure review requests to professors who are known to be either friends of the candidate or sympathetic to the candidate’s political position.
6. Starting yet another foreign program that offers nothing that is not already offered (other than more free trips for oneself.)
7. Hanging out at home gardening and doing the Times crossword puzzle except for teaching days.

There is a lot more loot in those pockets, but why not start with these? And for the majority of law professors and deans who, I assume, do not avail themselves of the old five finger discount, that's great, but do you still look the other way when someone else does?

Making Nice, Knowing Better, Doing Nothing

I appreciate the opportunity to write about capture and the self-dealing in legal education. There is one part of the system that I have not addressed directly. Every law school, or so I believe, has faculty members who know better and who are productive enough to have the legitimacy to influence their colleagues to put self interest aside and behave more ethically. By ethical I mean, as Dale Whitman has defined it, “[doing] the right thing even when it is contrary to our perceived self-interest.”

If there are excellent and potentially influential people at every school who know better, how does capture persist? I have already noted that lack of objective standards, weak deans, and appeals to “civility” play a role. Still, why don’t productive scholars and teachers overcome the inertia at their schools? I think a combination of two factors contribute to what is ultimately an institutional shirking problem.

First, being excellent as a scholar and teacher is not the same as having a backbone or any sense of obligation to anyone other than oneself. I believe this is called the independent contractor mentality. Law schools are full of them. You know them and you may be one of them. They go to a class visitation and privately concede that the person they observed was terrible but when their report appears the candidate was “a terrific teacher.” Or, they privately reveal that they read a tenure piece and it was not very good. Then at the tenure and promotion meeting they are silent. Or, they are appointed to a committee to assess the value of various pet programs. Privately they express concern that a great law school is not built by creating multiple tangential programs that have little value and reduce scholarship. But when it is time to actually have an impact, they are most likely to be found hiding under a desk.The world is full of brilliant and gutless people, but it is just possible that legal education attracts them in disproportionate numbers.

Second, speaking out at a school that has not already internalized a common commitment to excellence is met with sanctions. So even if the productive and potentially influential person has some sense of obligation other than to him or herself, there may be a price to pay. (Of course, isn’t the baseline measure of ethical conduct the willingness to pay that price?) One is the threat that the faculty member will be described as “not a good colleague” when higher-ranked schools express interest. This has always been the black ball for decanal candidates, but it seems to be the black ball for faculty hires as well. The result is very “careful” people. In fact, good advice for an ambitious scholar is to avoid controversy – even if on the side of righting an injustice – at any cost. The second sanction is internal social exclusion.

The productive but weak must respond to these sanctions or forget about moving up or being invited to the latest faculty cocktail party. Many professors I have observed who could have influence just cannot do it when anything is on the line that may get in the way of personal, professional and social ambitions.

There is an ironic twist to this. If a higher-ranked school actually is thinking about hiring a promising scholar or a dean, what are they getting if the candidate has pleased or even attempted to please everyone at his or her captured, mediocre, self-dealing, and underachieving school?

Thanks for Asking

In response to "Not Even Cake" Nancy Rapaport writes:

"Now, the hard question: how do we tell the difference between schools that are experimenting (something we want) and schools that are, um, engaged mostly in self-indulgence?"

I am grateful for this question. The truth is that I am not confident I know "the" answer. I do know that the hard questions about existing programs are very rarely asked.

That being said, the vanity press analogy is close to perfect and helps answer the question. There are at least three ways to make the distinction but I would modify the question and say it is not so much a school by school analysis but a program by program analysis.

1. Was there was a demand for the program before it was instituted. Or is it a case in which the supply came first? Even this might be OK if there was a vague unfocused demand that the supply helps focus. On the other hand, do there have to be huge promotional efforts every year -- for example, in the case of a foreign study program -- just to make sure students sign up. This would be a sign that the program, like a bad book or movie, does not have "legs" and that the experiment has failed.

2. Are there two or three faculty members responsible for the existence of the program who resist serious, objective, periodic review? If there are two or three who are the "but for" reasons for its existence, this leans toward it being a bad idea. An added element of this one is whether they make emotional and vague appeals to keep the program. Do they habitually understate the costs of the program? This ties to the civility issue. Do they send the message that questions about the program are somehow "personal" or "inappropriate?"

3. If the program had never existed, is it likely that a critical mass of the faculty would support starting it next year? This goes to the inertia issue. Suppose I had been going to France every year to teach American students American law. In the course of things I realized I like France and have friends plus it is really cool for people (outside of legal education) to know I spend my summers in France. I eventually come to honestly believe this is a good thing for the School. It is very hard to let go of something like this -- especially when someone else is paying the tab.

But in reality I think we all know which ones are right and which ones are vanity programs. In a log-rolling, captured faculty there is just no incentive to ask hard questions.