More on The Commons

A week or so ago I wrote about the willingness of those who make appeals to collegiality to behave in the least collegial fashion possible by heaping externalities on their colleagues. To some extent I was attempting to distinguish "facial collegiality" -- let's have lunch, how's your family, benign sounding emails -- from "substantive collegiality." I listed several sources of likely externalities and, substantive uncollegiality.

1. Refusals to teach in the summer. (If there is to be a program, others have to do it.)
2. Capping classes when not essential and, if it is, not teaching multiple sections. (X number of students need Y number of credits; someone will have to teach them.)
3. Demanding and getting reduced teaching loads. (As with number 2, more teaching for others)
4. Pre-Holiday class cancellation. (Pressure on those who do not.)
5. High grades. (Pressure on all to raise grades or suffer the wrath of the students.)
6. Demanding a specific teaching schedule. (Other fill in the remaining times and days.)
7. Demanding to teach highly specialized courses. (Others will have to teach the law courses.)
8. Gobbling up travel funds for whimsical trips. (Never fine but worse if there is limited money.)

There are others but you get the drift: Others in the law school help "pay" for these things.

One commentator wrote to ask why I was surprised. Mary Reilly wrote to tell about trying to explain the externalities of high grades at a faculty meeting and being discounted.

Their reactions and playing out the theme a bit further led to three thoughts:

1. How can people who teach so much about property rights, and identifying and reacting to externalities not understand the implications of those teachings in the context of the day to day life of a law school.? Is it another case of avoiding any analysis that creates dissonance? I see this all the time in scholarship so it makes sense that it is at work when assessing one's own behavior.

2. How far does the failure to internalize have to go before a law school begins to experience something like the “tragedy of the commons?” Here it is a bit tricky. It may not be that the “sheep” go out and find there is little to graze on. Instead the output is a bit different – students who are not as prepared for the bar exam or for practicing law as they should be and the amount and quality of scholarship declines. Plus, real as opposed to nominal collegiality falls.

3. To an economist, any cost imposed on another is an externality. On the other hand, it is only when law comes into the picture and defines rights that it has a practical meaning. This is because, in the absence of private contracts (hard to do with 30-60 people), or a solution to the prisoner’s dilemma (not solved on my faculty at least), clearly defined rights and enforcement are essential.

This is, of course, where deans come into the picture. Without clearly defined – not made up on an ad hoc basis – rules that everyone understands and which are backed by sanctions, the feeding frenzy is on and the commons is doomed.

This may sound like a tall order for administrators. Maybe, but shouldn’t the overall health of the law school be their highest priority? Ironically, consistent with my usual tendency, I have painted a relative positive a picture here. Rather than “rationalizers” of the commons by which I mean bringing order to the commons, many deans facilitate its destruction by avoiding controversy, rarely saying no to an externality producer, having no predictable standards, refusing to take responsibility for what happens under their watch, and taking actions that will pit one faculty member against another.

Interesting that the "nicest" administrators and faculty members may actually be the most destructive to the commons.