Sunday, November 05, 2006

Making Nice, Knowing Better, Doing Nothing

I appreciate the opportunity to write about capture and the self-dealing in legal education. There is one part of the system that I have not addressed directly. Every law school, or so I believe, has faculty members who know better and who are productive enough to have the legitimacy to influence their colleagues to put self interest aside and behave more ethically. By ethical I mean, as Dale Whitman has defined it, “[doing] the right thing even when it is contrary to our perceived self-interest.”

If there are excellent and potentially influential people at every school who know better, how does capture persist? I have already noted that lack of objective standards, weak deans, and appeals to “civility” play a role. Still, why don’t productive scholars and teachers overcome the inertia at their schools? I think a combination of two factors contribute to what is ultimately an institutional shirking problem.

First, being excellent as a scholar and teacher is not the same as having a backbone or any sense of obligation to anyone other than oneself. I believe this is called the independent contractor mentality. Law schools are full of them. You know them and you may be one of them. They go to a class visitation and privately concede that the person they observed was terrible but when their report appears the candidate was “a terrific teacher.” Or, they privately reveal that they read a tenure piece and it was not very good. Then at the tenure and promotion meeting they are silent. Or, they are appointed to a committee to assess the value of various pet programs. Privately they express concern that a great law school is not built by creating multiple tangential programs that have little value and reduce scholarship. But when it is time to actually have an impact, they are most likely to be found hiding under a desk.The world is full of brilliant and gutless people, but it is just possible that legal education attracts them in disproportionate numbers.

Second, speaking out at a school that has not already internalized a common commitment to excellence is met with sanctions. So even if the productive and potentially influential person has some sense of obligation other than to him or herself, there may be a price to pay. (Of course, isn’t the baseline measure of ethical conduct the willingness to pay that price?) One is the threat that the faculty member will be described as “not a good colleague” when higher-ranked schools express interest. This has always been the black ball for decanal candidates, but it seems to be the black ball for faculty hires as well. The result is very “careful” people. In fact, good advice for an ambitious scholar is to avoid controversy – even if on the side of righting an injustice – at any cost. The second sanction is internal social exclusion.

The productive but weak must respond to these sanctions or forget about moving up or being invited to the latest faculty cocktail party. Many professors I have observed who could have influence just cannot do it when anything is on the line that may get in the way of personal, professional and social ambitions.

There is an ironic twist to this. If a higher-ranked school actually is thinking about hiring a promising scholar or a dean, what are they getting if the candidate has pleased or even attempted to please everyone at his or her captured, mediocre, self-dealing, and underachieving school?


Blogger Unknown said...

So many interesting points here.... First off, I don't think that the issue is one of "weak deans," because deans really have very few options in dealing with faculty members who behave in ways that the dean doesn't like. Deans have to be VERY careful about actions that look like "chilling speech." Peer-to-peer communication with faculty colleagues, in any event, will probably prove more effective than will dean-to-professor communications (and there's less risk of the--ostensibly--private dean-to-professor communication being misquoted by the professor-recipient of that communication). So I agree w/you, Jeff, that senior, influential people on a faculty must speak up if they want to mold their community's behavior.
I just disagree with you about whether deans, by themselves, can do anything about too-collegial OR not-collegial-enough behavior.

More after I do a little work tonight....

11/04/2006 7:59 PM  
Blogger Jeffrey Harrison said...

I will have to defer to Nancy on the difficulties deans face although I may have more to say later. I do not believe, however, that they have the ability to change an entire culture – far from it. My observations (of 7 deans at mid level schools) is that most exert far less influence than they could. Maybe I have just been unlucky, but most of the deans I have observed were facilitators of faculty capture. Positions changed with the wind and the goal seem to be to please as many people as possible no matter what they were doing.

11/05/2006 8:35 PM  
Blogger Unknown said...

Deans who try to please everybody end up pleasing no one over the long term. I think that Ann's right that certain decisions can signal the dean's priorities. One of the nuances about signals, though, is that often those decisions that count as "signals" (1) come about after getting input from others, (2) may be made by people to whom the dean has delegated authority (e.g., associate deans), and (3) may not be interpreted the way that the dean intended. But that's part of life as a dean, and we get used to being misinterpreted. If our colleagues remember that we're making decisions with less than perfect information and that we're not trying to ruin the place, then they'll forgive some big, boneheaded mistakes.

But I _am_ looking forward to seeing what I can do as a senior professor at UNLV to support its culture of collegiality. I think that senior professors lead by example as much as the dean does.

11/06/2006 8:33 AM  
Blogger Doreen Boxer said...

Well, it starts off with the pretty critical error of mistaking
"price" for "cost," which makes some of the arguments pretty

Doreen Boxer - Attorney at Law

2/07/2012 10:58 AM  

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