Tuesday, April 10, 2007


I had not heard of the term Profscam until my pal Amy Mashburn -- currently finishing a drop dead excellent piece that, in part, defends the Socartic method -- called me the other day to read a passage from a 1989 article by Arthur Austin (1989 Duke L. J. 495). He writes, "The faculty in law schools rely on the Socratic method as a source of profscams. Faculty and publishers work together to exploit a captive market by . . . [selling materials] at supra competitive prices. Shirkers exploit the casebook and instruction manual to minimize class preparation and reserve time to read the Village voice and play squash."

The term Profscam evidently comes from a 1988 book, C. Sykes, Professors and the Demise of Higher Education, which I have not read but have ordered from Amazon for 9 cents -- foregoing the temptation to buy the 10 cent offering.

Now fast forward to 2003 and Don Weidner's article, "Academic Freedom and the Obligation to Earn It," 32 J. L. & E. 445. He refers to the same book and notes that it reflected a movement to hold professors more accountable. A movement that he says still exists, although at 9 cents on the used market, I am not sure I agree. It's a very interesting article. Weidner points out that faculty often do not produce enough scholarship to justify their low teaching loads and that administrators do not have the courage to hold faculty accountable.

Although I had never heard of Profscam my own take on this was my 2005 offering, "Faculty Ethics in Law School: Shirking, Capture, and the Matrix," 82 Detroit Mercy L.Rev. 397. On my own faculty only three people approached me with positive comments about the piece. Those three were easily our most respected law teaching veterans. ("Were" because sadly Frank Allen recently passed away.) (They also ask why it ended in Detroit Mercy and I say I am proud to have it there.) Admittedly, a number of other people on my faculty, I am happy to say, have approached me privately to express their agreement with one or more of my Moneylaw postings which have a definite profscam flavor. (Agreeing with me publicly can be dangerous.)

What I have found since writing my 2005 is that privately and publicly many in our profession seem to agree with the theme of Profscam if not with my specific examples. I do not know if it is a critical mass yet.

The one my mind is on right now is the teaching Profscam. For example, here we have 9 hour teaching loads. So, say I do 4 or 5 hours each semester. Let's take the 5 hour semester and assume I prepare 2 hours for each class. That's 15 hours. Let's say I spend another 3 hours talking to students so we are up to 18 hours -- not quite a half time job. Throw in a committee meeting or two. No matter how you cut it, that leaves about 20 hours for writing yet, to me at least, it just does not seem like all faculty produce as though they are half time researchers.

I have over the past several months described a number of other Profscams and I will not repeat the list here. Let's just say that people in the private sector are fired or in jail for similar self-serving uses of money not their own. Why do law faculty get a pass? It reminds me of one of my colleages, generally regarded as very principled, relating to me how he copies the music tapes of his friend without a molecule of recognition that he was engaged in the white collar version shop-lifting.

If, as I think I have learned over the past three years, the is a broader recognition of Profscam than I suspected, there are three possible explanations for not cleaning up our act. The first is gutlessness of which law teaching has an enormous amount. These are the Making Nice, Knowing Better, Doing Nothing People. Another is a sense of entitlement that means even common sense rules of fairness to others do not compute. Finally, there is the idea that being on the take is the norm for professionals (not just law professors but politicians, physicians, attorneys, accountants, corporate officers, etc.) and why buck the norm.

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