Principals and principles

No, this isn't a snippy little post about legal solecisms. MoneyLaw typically leaves musings about language to the flagship blog. Instead, this is an extended response to Jeff Harrison's latest bombshell, Counter-Preferential Choice, Shirking, and MoneyLaw.

Jeff laments the apparent emergence of a "me-first" ethos among lawyers and especially law professors. He wonders whether this ethos undermines the very goal that MoneyLaw seeks to promote, that of overcoming structural barriers to academic excellence. Jeff summarizes his query by asking the following questions:

1. Are law professors different?
2. Do law professors have agency-like duties to "stakeholders"?
3. Who are the stakeholders?
4. Do deans have agency-like duties?
5. Are deans "agents of the faculty"?
6. Can a law school play MoneyLaw if the dean is an "agent of the faculty"?

Among those of us who write for MoneyLaw, I'd warrant that Nancy Rapoport is best positioned to answer these questions. Nancy's decanal experience exceeds that of the rest of the roster combined by a ratio that defies mathematical definition. (Translation: Nancy's been a dean -- at two law schools -- while the rest of us haven't been dean anywhere.) But I will offer some thoughts from my experience as an associate dean.

The most common prepositional phrases that qualifies the typical associate dean's title -- for academic affairs, for faculty, for research -- hint strongly that the educational administrator who is the "agent of the faculty" is not the dean of a law school, but rather the associate dean. "Academic affairs" and "research" refer to matters within the expertise of the faculty; the title associate dean for faculty declares an explicit agent/principal relationship. Expressio unius est exclusio alterius. The correct implication is that the dean must serve constituencies in addition to the faculty. The dean represents the faculty, to be sure, but students, alumni, the university, the local community, and the legal profession at large also have legitimate claims to representation.

I think it's misleading to describe deans or associate deans as agents of a faculty, let alone "servants" of a faculty. The label isn't false per se, but it invites abuse given the prevalence of certain fallacies. Herewith a nonexhaustive list:

• "What's good for me personally is necessarily good for the faculty."


• "Maximizing the happiness of a faculty -- or at least the tenured portion thereof -- is the goal of a law school."


• "Since we have tenure, what makes us happy is the definition of academic virtue."

Under ideal conditions, faculty satisfaction does correlate with the goals of MoneyLaw. We should be happy to devote ourselves to the pursuit of knowledge and its application to problems of human governance, social organization, and dispute avoidance and resolution. As Jeff has repeatedly stressed, however, many faculty members seek no such thing. It is a wonderful thing when the members of a faculty are willing to set aside personal pleasure in pursuit of the collective good. It is even more wonderful when faculty members realize how most of their students -- past, present, and future -- lead lives that bear little or no resemblance to the pure "life of the mind" that supposedly lured us into academia. Most wonderful of all, professors, associate deans, and deans sometimes internalize these public-regarding goals as their own, and they can align their personal preferences with the needs of their schools and their schools' broader constituencies. But these things are wonderful precisely because they are rare.

Ultimately, it comes down to recognizing the difference between principals and principles. Yes, faculty members, ranging from the rawest rookie to the dean, are principals in a narrow organizational sense. But we are also agents of a broader organization, something called "The Law School" or even "The Academy." And agents owe fiduciary responsibilities. Those responsibilities are hardest to uphold -- and most readily shirked -- precisely when they clash with our personal preferences as independent individuals. The highest principles of the academic calling therefore demand that we accept and discharge those responsibilities without flinching.

To those whom much has been given, much is and always will be expected. My fellow principals, this is a simple matter of principle.