Monday, November 13, 2006

Counter-Preferential Choice, Shirking, and Moneylaw: Part 2: Us

The theory that many law schools will have a hard time adopting MoneyLaw strategies is based on the idea that some law professors shirk from their duties to law school stakeholders. When the shirkers reach a critical mass, MoneyLaw is sunk. It's not that the professors start out looking for ways to shirk, but a variety of factors come into pay to make it hard to resist. For example:
1. Many law professors try not to lead an "academic lifestyle." They do not fit the book- wormy, egghead, Napolean Dynamite profile. No way they would support Jose for President. Instead, they have material aspirations that exceed most others on campus. Instead of thinking how lucky they are to be earning tens of thousands of dollars more than the average history professor, they think in terms of how much people in practice (or at the Med School) earn. They feel relatively deprived compared to these reference groups. A sense of duty to others is the first thing to go when personal "needs" become pressing. Big houses, expensive travels, tasteful but expensive cars, fine fabrics, the latest computer, and lots of leisure time do not leave much time to fret about the little people.

2. In a fascinating study, Tracey George found that full-time law professors who were appointed to the bench were, in fact, more ideological than non-law professor appointees. You should read the article to understand what she means, but a short and simple version is that they were more likely to decide cases in a way that was inconsistent with precedent but consistent with the ideology of the President appointing them. This could actually be good if it means improving things. Law professors may actually "know best" in the sense that they may have a broader vision of and a greater appreciation for the subtle theoretical underpinnings of the law. The problem is that the propensity to vote more ideologically than non-academic judges was not found just among liberal or just among conservative appointees. Both did it. Thus, the “knows best” explanation for their decisions only works if law professor/judges know best about everything including things on which they disagree. Unless there are two "bests" this does not work. This suggests, to me at least, that some law professors are not only not inclined to begin the analysis of an issue from an unbiased perspective, they are also too arrogant to care. I can think of no reason why this would not play out in hiring and faculty governance matters.

3. As a result of their education and practice, law professors understand better than most people the substantive implications of process and are skillful at manipulating process to achieve specific outcomes. I have very rarely, if ever, witnessed a discussion among law professors about what would be a “fair process” without a significant number there calculating “what does this mean for me and my institiute or center or career?” Just a touch of this in a faculty can mean that everyone follows suit and factions are formed.

4. Having been trained in the arts of advocacy law professors internalize the ethic of advocacy so thoroughly that it affects them even subconsciously. This means a virtually infinite capacity to rationalize why things that are favorable to them are also “right.” I have one quick and harmless example of this that amazed me as a young professor. I was on the appointments committee. Early in the year the Dean met with the committee and stressed the need to hire someone to teach trusts and estates. A colleague and I were assigned to a subcommittee to find qualified candidates. We blew it off. Several months later the Dean expressed disappointment to the committee about not finding someone to cover the course. I felt sheepish and was stunned when my colleague started speaking. He was red-faced and trembling with anger. "I'll have you know," he informed the Dean, "we have conducted a nation-wide search. Based on that search there were simply no qualified candidates in this field that we had a chance of attracting." After the meeting, I quickly asked him what we had done. He reminded me that when we received resumes that were mailed in by candidates, we had looked to see if any of them taught trusts and estates. He meant it! He could have passed a polygraph test administered by God. No problem. “National search” or rationalization? Or just scary?

Is there a critical mass of people on your faculty that fit any of these descriptions? If so, you are not off to a promising MoneyLaw start.


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