Thursday, September 20, 2012

Faculty Governance or Faculty Capture?

I have written repeatedly and evidently unconvincingly about faculty capture of law schools. What that means is that law schools are run by the faculty for their convenience. The law school exists for ends of faculty and everything else is a means or nothing.  Think of it as police officers deciding that their only job is protect their own safety. The pecking order is like this:

1. Faculty.
2. Faculty.
3. Faculty.

You get the idea. Nothing is in second place and this includes students and others who have a stake in the school. Faculty capture represents the corruption of the broader idea of faculty governance. Nothing about faculty governance means that capture must occur. I really depends on the ability of faculty to, from time to time, do something that is not in its self interest but which makes the institution better.  Saying no to yourself is difficult but not impossible.  I was thinking of a ten question test so you can determine if your faculty has captured the law school.

1. If you have a curriculum committee, can you point to 3 times in the past ten years in which it turned down a request by a professor to offer a new course?

2. When a new course is proposed to the faculty, can you point to three times in the past ten years in which the faculty voted no?

3. Has your faculty ever voted not to approve a new program -- foreign program, specialization?

4. Has your faculty ever discontinued a program the discontinuance of which was opposed  by at least one person.

5. Are most of your courses uncapped meaning limited in enrollment only by the size of the room.

6. In faculty meetings  is reasoning like "the students like it," "other schools are doing it" or "why do you want to punish me" rejected and the person using that reasoning sent to stand in a corner.

7. Over the past ten years, have faculty reviewers of the teaching of untenured faculty been anything but glowing more than once?

8.  Over the past ten years, have internal reviews of untenured faculty scholarship been negative more than once.

9. Are machine graded multiple choice exams rare?

10. Is it rare for faculty to teach 4 credit courses over two days in order to decrease the number of days they are in the classroom?

So, how did your school do?  If you answered no 7-10 times, your faculty has completely captured the school. They run it for their welfare and nothing else. If you said no less than 4 times, you have a principled, ethical and amazing faculty.  Your students should be thankful and so should you.

Wednesday, September 19, 2012

Corporate Wefare and the Complicity of Law Schools

It's a bit different from the lyrics of the song but it means the same --if you've got nothing, you've got nothing to protect.

My hunch is that this provides all the insight one needs to explain the existence of  publicly supported law schools.  That hunch is that if you had money and property back in the day you needed a lawyer. And what could be better than a lawyer you do not fully have to pay for because someone else has been required to train that lawyer.  Thus, the state law school -- almost certainly the creation of the privileged classes so they could tax the general population in order to train people to take care of their wealth. [Did any of them think a public service requirment might be appropriate?]  My definition of welfare would be paying for something at a price that does not reflect the costs of production. And, if you are a corporation hiring public law school graduates (at least from schools that still get public support), you are on the dole. Unlike private law firms that have to compete with the glut of young lawyers, you probably have not heard any corporations express concern. After all, supply increases, price goes down for an already subsidized input.  The subsidization always meant oil companies were collecting welfare but the glut makes it even better.

The new form of corporate welfare which my faculty (full of "liberals") adopted is the corporate extern. Goes like this. The school collects tuition from students who then work for corporations but then get credit from the school. And to make sure it works, the faculty get a kick back for all the externs they can hand out to corporations. According to one proponent "Other schools do it?" So what? Some also report false figures to the ABA.

And then the case is made that  "we are doing this for the students." Really, oh come on! I guess the $20,000 a faculty member makes for facilitating these handouts has no role in the process. After all, it is for the students but only as long as they pony up big bucks that find their way into faculty bank accounts. If it is for the students,  then hire specialists to do it and cut the costs of the entire effort by eliminating faculty payola. With the money saved maybe something could actually be done for the students.

Yes, greed is not limited to corporations.

Saturday, September 15, 2012

Anacronism: C'est Moi


I strongly oppose the corporate extern proposal for a variety of reasons that you can imagine a lefty dinosaur would come up with. I’ll save you all of that since, in the aftermath of Citizens United, I suppose there is no distinction to be made between public and private interests and rights. To me, we will be the instrument of corporate welfare in the sense of providing free labor, which means lower costs and, wow, more money to spend on greed, avoiding regulation, taxation, or  lobbying to downgrade environmental standards. Or maybe the little boost we will provide will go right to the Presidental Campaigns of the silver spoon twins. In fact, I think  we are neglecting our public interest duties (which I suppose dwindle as the State become less supportive) by giving credit to students who work for corporations.  Ok, so I am voted down 60-1 and do understand our financial reasons for doing this (although I have  never understood paying people based on externships supervised but not on the basis of how many students we teach. ) And, since it is not distinguishable I suppose the vote would be the same if the proposal were for a new Corporate Law Clinic. 

More realistically, I do wonder if it would be possible to request these corporate entities to pay the extern’s tuition that we now collect from the students for the credit we award them.

And I also wonder if there is a conflict of interest issue to be addressed. As it stands now, faculty are governed by a number of conflict of interest regulations. When we start arranging and supervising externships with for profit entities I am not sure I see how we distinguish, at least in principle, the conflict of interest issues. No matter how interpreted, the for profit externship mean a student pays us for credit and then lowers the costs of the corporation. In addition, the faulty member is paid to broker or make this subsidization possible.  In effect, a faculty member favors a particular profit making entity by arranging or supervising,  and it seems that is only proper if the faculty member has no financial connection to that entity.  I am not sure how to put this in law-professor-as-indirect-as-possible language but suppose Professor A does corporation B a favor because he has consulted with them in the past or hopes to in the future.  Or, he may be in the process of asking for a grant or would like to make a talk there. Maybe this is just mutual back scratching but it is also a process that clouds the faculty member’s judgment about a placement.

I suppose we could have sponsors of corporate externships sign something that prevents them from personally contracting with the corporation. Something that might get at it indirectly is not allowing corporate externship supervision to count toward the award we give those supervising externship.

Two final and most likely annoying points. In a principled context, faculty who stand to benefit from this program should recuse themselves.  But I know that kind of principle is just not part of our culture and that goes back much further than externships. Second, in terms of public interest I think a better case can be made for law firms some of whom from time to time may actually have a needy client as opposed to corporations.