Can Faculties Cure Themselves?

It’s a tough question especially if you share my view that legal education is largely captured and run for the benefit of the privileged. Not that there would be a problem if legal education were an individual’s trust fund. The problem is that the self-serving behavior is takes place with money of others. I have already noted the remarkable levels of externalities that faculties produce while clinging to outmoded notions of collegiality. Indeed it analogous to bank robbers being careful not to use four letter words while they clean out the bank’s safe and plot to rip each other off. But the question of self cure is a bit different.

The problem with faculties participating in the cure is two fold. The first is each person’s infinite capacity to rationalize. For example, in the last year I have raised issues with faculty and administrators on matters ranging from teaching only a handful of students to grading systems, courses untaught, low bar passage rates, and low scholarship levels (and many more in between.) I am not claiming I am right on all of the issues but in every single instance of asking whether the School could do better the answers were 1)if it was a faculty member, an elaborate explanation for why this was actually good for the school 2) if it was an administrator, the administrative equivalent of a shrug. In short, the first step in faculty cures is an acceptance of the possibility of fallibility. I know this sounds a bit like getting an alcoholic to admit they have a problem but it is not quite an addiction unless self-interest is a kind of addiction. Instead, the person responding to the question knows that the implication of accepting responsibility is that one may be asked to work harder.

The other problem is what is called the “chicken game.” This concept comes up in the case of free riding and public goods. You want a fence across your back yard and so does your backyard neighbor. You both recognize the need and both hope your counterpart will do it. One possibility is that the fence is never built. In some sense there is a poetic justice here in that those suffering are the one’s who are greedy. In law teaching it is very different. Those who suffer are law school stakeholders. So, let’s suppose we get by problem one – infinite rationalization, now the issue is whether anything happens. For example, does anyone give up teaching a handful of students to teach a much needed higher enrollment course? Does anyone step forward to offer a course in a pathetic summer program? Each person hopes that someone else will do it. Getting to this point is, however, a good thing. My hunch is that most individual faculty never get to the point of accepting that there are problems and that he or she could solve the problem by being a little less self interested. I guess this brings me back to counter-preferential choice.