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!