Monday, November 06, 2006

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?

5 Comments:

Anonymous Anonymous said...

The fact that you have to frame these problems as ethics problems is suggestive, both of the source of these problems and of their possible solution. What you lable ethical lapses would in other circles be called "shirking." While your solution is, apparantly, an exhortation to profs to shape up, others might argue that profs' incentives should be more carefully aligned by better employment contracts.

11/06/2006 11:17 PM  
Anonymous Anonymous said...

I don't get it: It's like stealing from your law school if you're not the best institutional citizen possible? It's like stealing if you don't write a candid tenure letter for a professor at another institution? Seems weird to me.

11/07/2006 12:22 AM  
Anonymous AM said...

As a student, I think the only thing wrong with law school professors is that they unable to distinguish between their subjective opinions and objective truth. While the latter is stable and useful in the real world, the former is only useful in their class, and when writing their exams. This is unlike professors in more intellectually honest fields like science and business.

The fact that you have the nerve to assert that your subjective, and useless, opinions are "ethical" makes you the poster child for the problem.

You attempt to give a list of things wrong with the profession:

1. Tenure votes influenced by social connections.

How do you know they were influenced by social connections? How do you know these social connections weren't created through respect for the person's work?
How do you distinguish good and bad tenure votes?

2. Teaching courses that are more interesting to the professor than they are useful to the students.

How do you know which courses the professor finds interesting and which are useful to the students?
You might want to consider the fact that students are not forced to enroll in law school classes. An objective mechanism, the marketplace, would take care of this problem if it existed.

3. Being less rigorous in class because it might affect teaching evaluations (or because rigor requires greater preparation).

How did you gain the ability to discern what is and isn't "rigorous?" How do you know that students give higher ratings to professors who aren't "rigorous?"

Did you, for one second, think that this could just be your opinion, and that it lacks any value outside of your mind?

For the rest of your list, see my comments above.

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.

11/07/2006 3:37 PM  
Blogger Jeff Harrison said...

To commentators 2 and 3, a more in depth discussion of these issues can be found at:
FACULTY ETHICS IN LAW SCHOOL: SHIRKING, CAPTURE, AND "THE MATRIX" 82 U. Det. Mercy L. Rev. 397

This addresses some of your concerns.

11/07/2006 4:49 PM  
Blogger Jeff Harrison said...

Special to student commentator:

I appreciate your passion but, sadly, I must tell you that most of the things I have listed are commonly known to go in the world of legal education. They are part of the system. That's just the way it is and if you become a law professor you will see it yourself. Having been in the profession for 28 years, I have seen the letters, talked to law professors about their motivations, and what they hope to accomplish. Most are honorable but many, including me, yield to the temptations. The problem is that when it happens it violates the trust placed in them by those whose money they spend. And, there is virtually no accountability

11/07/2006 10:28 PM  

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