I week or so ago I took the position that public law schools should operate under a fairness doctrine. (I'd like to say there was a controversy but, since only one person agreed, that would be incorrect.) The idea is that professors have subsidized soap boxes -- privileged positions so to speak. It's actually a double privilege. Since many, if not most, arrive in at their law prof jobs because they are children of privilege, the privilege is racheted up by their use of state money to voice their views. Because of who your parents are there is a special trust fund for you.
I'll stick to my rule even though, in that case, I supported the side that was being promoted and the people from my faculty who were promoting it were, in my eyes, good people.
But that is the way it is with procedure. You either buy in or you do not. If you buy in, you follow the rules regardless of who is affected at that moment. The option, if you do not, is majority rule. Sometime this is more like mob rule only quite civil.
I think the substantive rule that should guide all procedure -- including a procedure for determining the use of state funding -- is that people are treated equally unless there is a good reason not to. I realize this probably has some Kantian/Rawlsian tie in.
My experience is that law profs (some, most, who knows?) go by three rules when it comes to procedure:
1. Procedure is obstacle to be worked around. Avoid it! (I witness this repeatedly.)
2. If you are forced to create procedure, make sure you know in advance who the winners and losers will be. (I can't think of a worse approach.)
3. Make the procedure as vague as possible. (They would say "flexible.") This means it can be effectively ignored.
Why do law profs dislike procedure and regard those who support it as a threat ? Think about it. If you have an elite background or are trying to pretend, that means you know people who are similar or are trying to curry their favor. They can be law professors at a fancy school, a politicians, your dad's pals, etc. Those people grease the wheels for you and not for others. And, if you are in the majority, why have a procedure that might stand in the way of your goals? In the eyes of the privileged, procedure just gums up the works.
Working class people typically do not know anyone of influence or have the money with which to influence decision-makers. Thus, they are more likely to prefer rules that equalize opportunities. (In fact, some have written that they are better of in a court room than using one version or another of ADR.) In fact, it was not that long ago that the lack of procedure was a critical part of the exclusion of minorities from the profession. People could be eliminated from consideration for unarticulated reasons and a different majority ruled. In fact, the next best thing to having a procedure that expressly discriminated against the less privileged was to have no procedure at all or a very vague one.
As with most things there is a tiny silver lining. Since there is little or no procedure, when decisions are made and challenged, the makers are left to constuct one. They rack their brains inventing the procedure they followed. Watching that can be fun.
So it goes, I think, at law schools.
One more thing. Ironically, the part of my Law School that seems to embrace a fairness doctrine approach is the Federalist Society which routinely asks for faculty comments on the views of their mostly right-leaning speakers. Of course, I assume if they were in the majority, fairness would be less important.
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