Thursday, November 09, 2006

Counter-Preferential Choice, Shirking, and Moneylaw: Part 1

One of the most discouraging conversations I have had was with the vendor who restocks the newspaper machines around my university. This is the person who unloads the coins each day and hopes that the money matches up with the number of papers missing. I asked if she usually found that the coins inserted and papers missing matched up. Her answer, “It works out about right everywhere except with the machines at the law school. Over there, there are always far more papers taken than coins left.”

Sure, this is a small sample but I could not help but think about a number of things. First, why do we (my law school, some law schools, all law schools?) evidently attract students who think what they do is okay if they don't get caught? Or, put differently, why do we get so many football-rules people as opposed to golf-rules people? In football, breaking the rules is okay as long as you are not flagged for it; in golf it is not uncommon for players to report their own rule violations even though they are undetected by anyone else. Or, maybe this is the difference between “law and economics rules” and Rawlsian rules, but that is another story. Second, most of these students may become attorneys, judges, and law professors.

Third, although I did not think of it this way at the time, is it possible to succeed or even play a Moneylaw brand of “ball” if one plays by football rules? This leads to the question of whether people are ultimately and exclusively agents for themselves –kind of an Adam Smith world. If so, can they shirk from that “duty” to serve the interests of others? Or, in the terms of Amartya Sen, is “counter-preferential choice” possible?

So here are the issues:

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?"


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