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?