Quiet man on campus

It's almost time for the NCAA men's basketball tournament, an event I've often milked for MoneyLaw material. I usually cheer against the Ivy League representative, because of and not in spite of my Harvard degree.

This year, though, I might make an exception if Cornell makes the field. Like Shane Battier, a professional player recently hailed on these pages, Cornell star Ryan Wittman plays for the name on the front of the jersey, not the name on the back:

To best explain Ryan Wittman’s productive yet humble basketball career at Cornell, Coach Steve Donahue points to Wittman’s socks.

When Donahue recruited Wittman, the son of Randy Wittman, a former N.B.A. coach and Indiana star, he worried about the locker room dynamic. Would the son of an N.B.A. lifer stand out? Would he wear all kinds of fancy gear? Would he act spoiled?

But as Wittman has emerged as a candidate for Ivy League player of the year, his career has evolved into a delightful paradox: he has stood out by blending in.

Wittman, a 6-foot-6 junior, never brings up his family’s basketball heritage unless he is asked. His teammates and coaches say they have never seen him wear N.B.A. gear, even those socks with the N.B.A. logo that are ubiquitous in college hoops. Instead, he epitomizes Donahue’s team-first ethos, which has turned Cornell, which is closing in on its second consecutive N.C.A.A. tournament bid, into an Ivy juggernaut.

The Caroline Kennedy rule

An otherwise obscure political confession forms the basis of a bedrock principle of academic governance. Witness this February 20, 2009, revelation by David A. Paterson, governor of New York:

For the first time, Gov. David A. Paterson acknowledged Friday that he personally ordered his staff to contest Caroline Kennedy’s version of events in the hours after she withdrew from consideration to be United States senator.

However, Mr. Paterson said that he was bewildered when his staffers subsequently unleashed harsh personal attacks against Ms. Kennedy, saying he merely wanted them to challenge the assertion from Ms. Kennedy’s camp that she had been his first choice to replace Hillary Rodham Clinton.

“The things said about Caroline I found despicable and shocking and very painful,” the governor said in a telephone interview, adding, “I never would have imagined removing the idea that this is my first choice meant a character assassination.”

The governor’s handling of the Senate selection process and his administration’s treatment of Ms. Kennedy drew intense criticism. Ms. Kennedy withdrew her name just after midnight Jan. 22, a development that embarrassed Mr. Paterson and set off fears in his inner circle that anyone he then selected would look like a second choice.

That afternoon, members of the administration called reporters, and, under cloak of anonymity, claimed that serious tax problems and issues with a domestic worker had emerged during the vetting of Ms. Kennedy, helping to derail her candidacy. Those claims were highly exaggerated, all sides now acknowledge; no serious or disqualifying issues had arisen.

The attack bewildered Democrats across the country, and Mr. Paterson’s poll numbers suffered significant declines in the subsequent weeks.

Mr. Paterson stressed in the interview that he had been acting only out of a desire to rebut the specific point that Ms. Kennedy had been his first choice.

He said he told his staff: “Let’s try to point out that we’re not indicating that anybody is the No. 1.”

“I understood we’d be pushing back for that,” he said, adding, “How that turned into what happened is something I have to take responsibility for.”

Indeed. Let's give two cheers for Governor Paterson. First, for all the political damage he has inflicted upon himself, David Paterson didn't so thoroughly muff his seventeenth amendment responsibilities that he needed to be removed from office. And if you think that besting Rod Blagojevich in political ethics is too modest an achievement to laud, then join me in thanking Governor Paterson for his part in inspiring a MoneyLaw principle that I'll call "the Caroline Kennedy rule."

Read the rest of this post . . . .Jobs are important things, whether they're seats in the United States Senate or appointments to the faculty or dean's office of a law school. Precisely because they are important and scarce and coveted, those vested with the responsibility to fill these positions should approach that task with the utmost care. More often than not, there will more candidates than open positions. Choose carefully.

Simply to acknowledge the gravity and difficulty of the selection process, however, is not to excuse the sordid misbehavior that decisionmakers, whether they are governors or law professors, often indulge in order to justify their choices. There is a universe of legitimate reasons to hire someone — or, for that matter, to pass over one candidate in favor of another. Pick one.

What happens all too often, though, is that the decisionmaker feels some twisted need to pile on. As though the legitimate reasons were not enough — or perhaps because the decisionmaker suspects, perhaps even knows, that she or he cannot marshal a convincing case on the merits — the decisionmaker wraps the rejected candidate in abuse. Caroline Kennedy, according to Governor Paterson's staff, was morally unfit to serve as Senator because she allegedly exploited her household help and dodged federal income tax. In retrospect, none of that was true, and neither Governor Paterson nor his staff have retained their dignity.

It would have been easy enough for Governor Paterson to say, straightforwardly and candidly, that he considered Kirsten Gillibrand a better choice than Caroline Kennedy to replace Hillary Clinton in the Senate. As a matter of actual political experience, as opposed to genealogy or name recognition, it would have been almost impossible to refute that basis for preferring Kirsten Gillibrand. Instead, David Paterson inflicted upon himself a gaping political wound.

Academia should learn from Governor Paterson's folly. It is very easy to reject any candidate for an academic appointment, at any rank from postgraduate research fellow to university president, on grounds of talent, experience, and/or "upside." Feeling the need to buttress the case against a particular candidate by trashing that person's character, at best, displays the decisionmaker's own moral failings. Though those shortcomings might arise from no more than personal insecurity about one's own capacity to decide, they reflect very poorly on those who trash. That is the legacy that the debacle over Caroline Kennedy's Senate candidacy leaves to academia. We would do well to take the lesson to heart.

Unexceptional

In what has become a de facto series, MoneyLaw has spotlighted some recent posts by Stanley Fish on academic freedom and the tendency of some professors to stretch that concept. Fish now helps us to think more clearly about academic freedom by offering this simple reminder: academics, far from being unique, much less entitled to unique legal protection, are simply unexceptional.

Once again Fish invokes a forthcoming book, Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009), in criticizing the commonplace but untenable "conviction that academic freedom confers on professors the right to order (or disorder) the workplace in any way they see fit, irrespective of the requirements of the university that employs them":

[Quoting Finkin and Post:] “[A]cademic freedom has in recent decades increasingly come to be conceived of as an individual right to be asserted against all forms of university regulation.” . . .

[There are those who argue] that a teacher’s responsibility is to the ideals of truth and justice and not to the parochial rules of an institution in thrall to intellectual, economic and political orthodoxies. . . . Academics, in this view, exercise freedom only when they subject the norms of the institution to a higher standard and act accordingly. [In other words,] the university may pay my salary, provide me with a platform, benefits, students, an office, secretarial help and societal status, but I retain my right to act in disregard of its interests; indeed I am obliged by academic freedom to do so.

It would be hard to imagine another field of endeavor in which employees believe that being attentive to their employer’s goals and wishes is tantamount to a moral crime But this is what many (not all) academics believe, and if pressed they will support their belief by invoking a form of academic exceptionalism, the idea that while colleges and universities may bear some of the marks of places of employment — work-days, promotions, salaries, vacations, meetings, etc. — they are really places in which something much more rarefied than a mere job goes on. . . .

One sees from this and similar statements that an understanding of academic freedom as a right unbound by the conditions of employment goes hand in hand with, and is indeed derived from, an understanding of higher education as something more than a job to be performed; rather it is a calling to be taken up and followed wherever it may lead, even if it leads to a flouting of the norms that happen to be in place in the bureaucratic spaces that house (but do not define) this exalted enterprise. . . .

The alternative is to understand academic freedom as a much more earthbound thing, as a freedom tailored to and constrained by the requirements of a particular job. And this would mean reasoning from the nature of the job to a specification of the degree of latitude those who are employed to do it can be said to enjoy. This is Finkin’s and Post’s position: “Academic freedom is not the freedom to speak or teach just as one wishes. It is the freedom to pursue the scholarly profession … according to the norms and standards of that profession.”

Statements like this are likely to provoke the objection that “Academe should not be a Business or a Corporation” . . . . But that is a fake issue. Saying that higher education has a job to do (and that the norms and standards of that job should control professorial behavior) is not the same as saying that its job is business. It is just to say that it is a job and not a sacred vocation, and that while it may differ in many ways from other jobs — there is no discernible product and projects may remain uncompleted for years without negative consequences for researchers — its configurations can still be ascertained (it is not something ineffable) and serve as the basis of both expectations and discipline. . . .

Once again we see that the argument for academic freedom as a right rather than as a desirable feature of professional life rests on the assertion of academic exceptionalism. . . . [W]hile academic work is different — it’s not business, it’s not medicine, it’s not politics — and while the difference should be valued, academic work should not be put into a category so special that any constraints on it, whether issuing from university administrators or from the state as an employer, are regarded as sins against morality, truth and the American Way.

Rocket man

One of MoneyLaw's recurring themes is the search for gritty, unglamorous faculty members who elevate an entire school's performance. In the context of teaching, we laud the utility law teacher. In the never-ending quest to neutralize destructive faculty members — Arschlöcher habt Ihr immer bei Euch — we've also turned to plus-minus, a crude but revealing hockey statistic.

Michael Lewis, of Moneyball fame, has now added one more story to MoneyLaw's repertoire of narratives highlighting the value of good teamwork. His latest contribution, The No-Stats All-Star, sheds light on the "basketball mystery" called Shane Battier, a player who "is widely regarded inside the NBA as, at best, a replaceable cog in a machine driven by superstars," yet confers upon "every team he has ever played on . . . some magical ability to win."

Click here to read the rest of this post . . . .Basketball has evidently caught "[t]he virus that infected professional baseball in the 1990s, the use of statistics to find new and better ways to value players and strategies." According to Lewis, "every major sport . . . . now supports a subculture of smart people who view it not just as a game to be played but as a problem to be solved." These new thinkers seek "new statistics" and exhibit an "intense interest in measuring the impact of every little thing a player does on his team’s chances of winning." The difference is that basketball "happens to be the sport that is most like life":

There is a tension, peculiar to basketball, between the interests of the team and the interests of the individual. The game continually tempts the people who play it to do things that are not in the interest of the group. On the baseball field, it would be hard for a player to sacrifice his team’s interest for his own. Baseball is an individual sport masquerading as a team one: by doing what’s best for himself, the player nearly always also does what is best for his team. . . . In football the coach has so much control over who gets the ball that selfishness winds up being self-defeating. The players most famous for being selfish — the Dallas Cowboys’ wide receiver Terrell Owens, for instance — are usually not so much selfish as attention seeking. Their sins tend to occur off the field.

It is in basketball where the problems are most likely to be in the game — where the player, in his play, faces choices between maximizing his own perceived self-interest and winning. The choices are sufficiently complex that there is a fair chance he doesn’t fully grasp that he is making them.

Taking a bad shot when you don’t need to is only the most obvious example. A point guard might selfishly give up an open shot for an assist. You can see it happen every night, when he’s racing down court for an open layup, and instead of taking it, he passes it back to a trailing teammate. The teammate usually finishes with some sensational dunk, but the likelihood of scoring nevertheless declined.

Shane Battier, a forward playing for the Houston Rockets, may be "the most abnormally unselfish basketball player." Lewis calls him "the player who seems one step ahead of the analysts, helping the team in all sorts of subtle, hard-to-measure ways that appear to violate his own personal interests." He is valuable not because of his raw athleticism, but in spite of his physical limits:

It was, and is, far easier to spot what Battier doesn’t do than what he does. His conventional statistics are unremarkable: he doesn’t score many points, snag many rebounds, block many shots, steal many balls or dish out many assists. On top of that, it is easy to see what he can never do . . . . “He can’t dribble, he’s slow and hasn’t got much body control.” . . .

Battier’s game is a weird combination of obvious weaknesses and nearly invisible strengths. When he is on the court, his teammates get better, often a lot better, and his opponents get worse — often a lot worse. He may not grab huge numbers of rebounds, but he has an uncanny ability to improve his teammates’ rebounding. He doesn’t shoot much, but when he does, he takes only the most efficient shots. He also has a knack for getting the ball to teammates who are in a position to do the same, and he commits few turnovers. On defense, although he routinely guards the NBA’s most prolific scorers, he significantly ­reduces their shooting percentages. At the same time he somehow improves the defensive efficiency of his teammates — probably . . . by helping them out in all sorts of subtle ways. “I call him Lego,” [Daryl] Morey says. “When he’s on the court, all the pieces start to fit together. And everything that leads to winning that you can get to through intellect instead of innate ability, Shane excels in. I’ll bet he’s in the hundredth percentile of every category.”

It's hard to overstate Battier's value to the Houston Rockets. That team's payroll having been committed, "for many years to come, to two superstars: Tracy ­McGrady and Yao Ming," management needed to seek undervalued, underpaid players. “That’s the scarce resource in the NBA. . . . Not the superstar but the undervalued player.”

"One well-known statistic the Rockets’ front office pays attention to," says Lewis, "is plus-minus, which simply measures what happens to the score when any given player is on the court." The Rockets have evidently refined plus-minus from its crudest form into a powerful evaluative tool. Battier rates a plus 6. “It’s the difference between 41 wins and 60 wins.” In even starker terms, this year's Houston Rockets “have been a championship team with him and a bubble playoff team without him.”

Here in academia, I remain convinced that some version of plus-minus would significantly improve the evaluation of faculty performance. If Battier's story sheds any light on this process, it is this: the single factor that makes a great team player is the mirror image of the single factor that turns even the most productive scholar into a toxic Arschloch: selfishness. Battier has almost none of that trait, and his teamwork makes him the greatest basketball player that no casual fan can name.

You like me

You like me! You really, really like me!

Jeff Harrison's recent post, Ready, set, punt, has all the hallmarks of a MoneyLaw classic. It exposes one of the abiding pitfalls in academic governance: the tendency to approach faculty hiring with criteria better suited to choosing a partner for a drink after school hours. I agree with Jeff that the drinking buddy test is "a disaster for the stakeholders of a law school."

Yet I find at least some superficial tension with my own post, Talent versus character. By no means am I endorsing — or have endorsed or would ever endorse — the use of the drinking buddy test in hiring. But I do believe that severe character flaws, especially the selfish arrogance typified by the tenured Arschloch who treats his school as a personal expense account, are so inimical to the academic enterprise that I would trade that Arschloch and his entire portfolio for a quiet, thoughtful colleague whose congeniality is as genuine as his output is modest.

Comes now The Chronicle of Higher Education to the rescue. The Chronicle's On Hiring blog recently commented on Ready, set, punt. The seventh comment to that post, by an unnamed "humanities doctoral candidate," is so insightful that I will reprint it here in its entirety. As for the author of that comment, I hereby issue this invitation. Ms. or Mr. Humanities Doctoral Candidate, if you will write me at chen@jurisdynamics.org, I will issue you a hall pass to MoneyLaw. We could use your wisdom here.

As a graduate student, I’ve spent the last six years at lectures and conferences, watching older scholars like a hawk. And one thing that I noticed early on, and has been consistently true throughout my graduate experience, is that the best scholars are also the nicest people.

Perhaps it’s not true everywhere, and I know this will sound very young and idealistic . . . but I’m at a big scary Ivy, and I’ve had a lot of opportunities to see some pretty famous (and some pretty notorious) people.

Nancy Lloyd, First Effort, Plus Time (n.d.)

The really good scholars are self-confident, and that confidence allows them to treat everyone else with respect and kindness. They are excited about ideas, and they are willing to share. Most of all, they are willing to collaborate — they are the ones organizing symposia, inviting guest speakers, cultivating graduate students, and just generally creating the kind of atmosphere where good work flourishes and everyone benefits.

It’s amazing to me how many times I’ve seen people — “established” scholars and younger students alike — give absolutely terrible papers, and then walk around snubbing everyone around them. Insecurity leads to intellectual isolation; people become greedy, self-centered, and unwilling to share. When they do present things, they are often incoherent because they don’t care a whit about sharing their thoughts with the community; indeed sometimes it seems like they try to intentionally make their arguments confusing in order to make themselves seem smarter. It backfires — they end up sounding pompous and priggish, but they don’t end up sparking fresh ideas or adding anything new to the discourse.

Scholarship matters; publications matter; teaching matters. In my department, it’s astonishing that the people who do all these things best — the ones with MacArthur Prizes, the ones with famous books, the ones who attract droves of students — they are also incredibly warm, kind, and friendly. Maybe this isn’t true everywhere, but every day I walk home from school and thank the stars that it’s been absolutely true in my experience.

PS: I should also add that one of our younger faculty members was awarded tenure last month — and yep, he is a brilliant scholar with two good books to his name, but he is also a genuinely nice person and universally loved among us lowly students. I know I will be accused of being very naive for writing all this, but I was the student representative at our faculty meetings for two years and my faith was continually rewarded: my department is full of big-name stars, and it’s amazing to see how beautifully they all get along.

But Will You Love Me Tomorrow?

This is rightly a comment but Jim's post below was so thought provoking that I used my Moneylaw hall pass to elevate it to a post. But you should read Jim's first.

I think the possible tension between what the humanities professor wrote, what I wrote, and possibly Jim is thinking is actually pretty thin.

First, like Jim, I am a sucker for character. Tell the truth, do your work, act on behalf of the stakeholders, don't gossip, don't use the School as a base for your jaunts to one conference or another, or push your political agenda too much and we'll get along fine. (The opposite of this is when, as happened to me once on a appointments committee, we were considering a visitor and someone raised the issue of whether he had been making passes (if that phrase is still in use) at students and the Dean, who was sitting in on the meeting, asked if we could move on to the substance of the issue which was whether to hire him.)

Second, like the humanities professor it does seem to me that the most accommodating people are often the most famous. Whether they were that way on the way up is another question as is whether that trait explained their rise. And it certainly is unrelated to what the young emailer in Ready, Set, Punt was referring to when she observed her faculty's appointments meeting. I do not mean to diminish being cooperative and friendly. In fact, I love it but did you ever notice that there is much more of it when people interact with those they do not view as rivals. My most recent post on classbias discusses how this has been found to exist to some extent even with body language. On this point I do have one qualification especially when it comes to niceness extending to organizing symposia. In those instances the cooperation-- especially in law -- often extends to those who are ideologically compatible.

Which bring me to niceness. I am sure the young professor who communicated with me and is quoted in "Ready, Set, Punt" did not mean niceness as in would you kick a dog or drown a hamster. Surely every reader must know that "niceness" is the code for "are you someone with whom I will be socially and politically comfortable." Geez, even George Bush probably thinks Dick Cheney is "nice." Nice in a faculty meeting is only slightly connection to morality, selflessness, or charity. And when it is used it is not so much a comment on the other person in the abstract but how that person makes the speaker feel. Consequently as the young law professor observed (by they way, I did not make up that email) evaluations seemed to shaped by the desire avoid personal political or social discomfort. Some, most, a majority (who knows) are looking for their own Dick Cheneys. And, unlike Bono, they generally find what they are looking for.

So, going back to the football analogy. If personal social and political comfort are critical in determining who gets an offer to join your faculty, it's like a team thinking more about getting drunk together than winning games.

Rankings and discipline: A two-part MoneyLaw series

The road to hell is paved with good intentions

Do the U.S. News & World Report rankings hurt law schools? Yes, according to Michael Sauder and Wendy Nelson Espeland, The Discipline of Rankings: Tight Coupling and Organizational Change, American Sociological Review (February 2009):

Using a case study of law schools, we explain why rankings have permeated law schools so extensively and why these organizations have been unable to buffer these institutional pressures. * * * Rankings create a benchmark for excellence in legal education from which to evaluate how each school measures up. This arbitrary yardstick imposes a metric of comparison that obscures the different purposes law schools serve and generates enormous pressure to improve ranking statistics.

U.S. News has agreed as much. Bob Morse of U.S. News doesn't contest Sauder and Espeland's conclusions: "Sauder and Espeland found that the vast majority of law schools have implemented policies to manage their positions in the rankings. They contend that in the face of intense competition with other schools, many law schools devote extensive resources to manipulating rankings, spending heavily to maintain their rank."

In the face of legal education's constrained and declining resources, this is a terrible result.

Again, the magazine agrees:

It's inevitable that the U.S. News & World Report's Law School rankings would have an impact on law school academics and how law schools are managed, but the fact is that this effect couldn't be further from our intent. The main purpose of the rankings is to provide prospective law school students with much-needed — and clearly desired — comparative information to help them make decisions on where to apply and enroll. In today's legal job market a student's choice of law school plays a considerable role in getting that all-important first legal job. That job is particularly important since some new law school graduates have accumulated over $150,000 in debt just to get their J.D. degree and many need to start paying off their student loans.

U.S. News protests that it never meant to warp the managerial incentives of law schools and their deans, but that is precisely what that magazine's rankings have done. The road to hell is indeed paved with good intentions.

In its own defense and to its credit, U.S. News declares that it "is always willing to work with law school deans and other legal educators to improve the rankings." Very well then. In my capacity as the founder and principal writer of MoneyLaw, I'll accept Bob Morse's invitation. In the second half of this series, I will suggest a few ways to structure law school rankings so that they might provide sound rather than perverse managerial incentives.

Ready, Set, Punt

From time to time a law professor at another school writes to me rather than comment on a post. Here is part of an email from what I assumed to be a first or second year law professor. He or she had just come from an appointments meeting at which a number of candidates were discussed.

"I assumed that the hiring meeting would show me that people took the hiring process seriously. While this was certainly true of a number of people on my faculty (I suspect a majority), others really surprised me. Lessons that I learned from the faculty meeting (based on oral comments at the meeting rather than the vote itself):

1. scholarship matters except for when you like a person

2. the job talk matters except when you like a person

3. when you don't like a person, you say it indirectly ("something does not seem right about them" without explaining what it is)

4. scholarship matters except when you don't like the person

5. written faculty comments on the visit matter except for when they do not

6. we arbitrarily either count or discount practice experience based on how much we like the candidate."

Note that "like" a person plays a role in 5 of the 6 rules. I wonder how the rules might apply to selecting members of a football team.

1. Wide receiver speed matters except when you like the receiver.
2. The punter's hang time matters except when you like a person.
3. When you do not like a lineman say it indirectly. ("Something about his stance just does not seem quite right.")
4. The quarterback's accuracy matters except when you don't like the person
5. What the experts think matters except for when they don't.
6. Yards per carry for a running back either count or are discounted based on how much the candidate is liked.

Pretty crazy way to pick a football team right? The team would lose every game. Is there any reason to think the "like" factor is different for law faculty success. At least in football there will be an objective measure of success and an opportunity to cut players. In law school hiring there are no measures and the initial hiring decisions are for lifetime jobs.

What the young law professor described at his school sounds like a great approach if you are deciding who you want to go down to the bar with after school for a drink -- which sadly may be the standard by which much hiring is done. It's a disaster for the stakeholders of a law school.

Moneyball: The Movie

Details here.

Better to reign in academia than serve in business

Hell . . . Hell is for students

Stanley Fish is on a roll, and MoneyLaw is making the most of it. Having just posted Fish's observations on a new book on academic freedom, I now have occasion to reprint the brilliant opening to Fish's latest column on this subject, The Two Languages of Academic Freedom:

Last week we came to the section on academic freedom in my course on the law of higher education and I posed this hypothetical to the students: Suppose you were a member of a law firm or a mid-level executive in a corporation and you skipped meetings or came late, blew off assignments or altered them according to your whims, abused your colleagues and were habitually rude to clients. What would happen to you?

The chorus of answers cascaded immediately: “I’d be fired.” Now, I continued, imagine the same scenario and the same set of behaviors, but this time you’re a tenured professor in a North American university. What then?

I answered this one myself: “You’d be celebrated as a brave nonconformist, a tilter against orthodoxies, a pedagogical visionary and an exemplar of academic freedom.”

Lest Fish's sarcasm elude this audience — MoneyLaw's readership is overwhelmingly academic, after all, and the members of our profession often have a hard time viewing themselves with honesty, let alone humor or humility — it's worth bearing in mind one judicial observation quoted with approval by Fish: “Academic freedom is not a doctrine to insulate a teacher from evaluation by the institution that employs him” (Carley v. Arizona, 1987).

Defining academic freedom

Although this item first appeared in the New York Times nearly three months ago, it warrants notice here and now. Stanley Fish praises a new book about academic freedom, Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009):

The authors’ most important conclusion is presented early on in their introduction: “We argue that the concept of Academic freedom . . . differs fundamentally from the individual First Amendment rights that present themselves so vividly to the contemporary mind.” The difference is that while free speech rights are grounded in the constitution, academic freedom rights are “grounded . . . in a substantive account of the purposes of higher education and in the special conditions necessary for faculty to fulfill those purposes.”

In short, academic freedom, rather than being a philosophical or moral imperative, is a piece of policy that makes practical sense in the context of the specific task academics are charged to perform. It follows that the scope of academic freedom is determined first by specifying what that task is and then by figuring out what degree of latitude those who are engaged in it require in order to do their jobs.

If the mission of the enterprise is, as Finkin and Post say, “to promote new knowledge and model independent thought,” the “special conditions” necessary to the realization of that mission must include protection from the forces and influences that would subvert newness and independence by either anointing or demonizing avenues of inquiry in advance. Those forces and influences would include trustees, parents, donors, legislatures and the general run of “public opinion,” and the device that provides the necessary protection is called academic freedom. . . .

It does not, however, protect faculty members from the censure or discipline that might follow upon the judgment of their peers that professional standards have either been ignored or violated. There is, Finkin and Post insist, “a fundamental distinction between holding faculty accountable to professional norms and holding them accountable to public opinion. The former exemplifies academic freedom: the latter undermines it.”

Holding faculty accountable to public opinion undermines academic freedom because it restricts teaching and research to what is already known or generally accepted.

Holding faculty accountable to professional norms exemplifies academic freedom because it highlights the narrow scope of that freedom, which does not include the right of faculty “to research and publish in any manner they personally see fit.”

Indeed, to emphasize the “personal” is to mistake the nature of academic freedom, which belongs, Finkin and Post declare, to the enterprise, not to the individual. If academic freedom were “reconceptualized as an individual right,” it would make no sense — why should workers in this enterprise have enlarged rights denied to others? — and support for it “would vanish” because that support, insofar as it exists, is for the project and its promise (the production of new knowledge) and not for those who labor within it. Academics do not have a general liberty, only “the liberty to practice the scholarly profession” and that liberty is hedged about by professional norms and responsibilities.

I find this all very congenial. Were Finkin and Post’s analysis internalized by all faculty members, the academic world would be a better place, if only because there would be fewer instances of irresponsible or overreaching teachers invoking academic freedom as a cover for their excesses.

The University of Louisville seeks visitors

The University of Louisville School of Law anticipates hiring visiting professors, both entry-level and experienced, for the 2009-10 academic year. Our curricular needs may include (but are not limited to) civil procedure, torts, trusts and estates, property, legal writing, and other subjects.

Please direct all Inquiries and applications to:

Jim Chen
Dean and Professor of Law
University of Louisville School of Law
2301 South Third Street
Louisville, KY 40292

jim.chen@louisville.edu
(502) 852-6879