May 18, 2010
Harrison on Law Faculty Ethics and Capture.
Recently a colleague shared with me Jeffrey L. Harrison's "Faculty Ethics in Law School: Shirking, Capture, and "The Matrix" in the University of Detroit Mercy Law Review, 2005.
for most law schools to be governed for the benefit of the faculty at
the expense of the welfare of students and others (stakeholders) [FN3]
who expect to be served by the law school. If this practice is
sufficiently broad that it becomes a component of the institution's
norms, two concepts from administrative law become relevant. One is
"self-regulation" and the other is "capture." The analysis is presented
in four steps. In the following section, the concepts of shirking and
capture are explained more fully. Since no employees, including law
professors, are expected to devote 100% of their energy to the
institution, one issue that must be addressed is *398 what constitutes
shirking. This section also suggests that faculty shirking, if it
occurs, stems primarily from a lack of respect for those whom the law
Section II addresses the second step. Having described shirking and
capture in the law school context, the issue is whether law schools are
susceptible to this behavior. An argument is made that law schools are
uniquely vulnerable to shirking and capture. In Section III, anecdotal
[FN4] as well as some empirical evidence is offered suggesting that
shirking and capture are not merely possible, but do occur. In fact,
law schools have entered into an era of expensive self-promotion which
is itself shirking, encourages faculty shirking, and may conceal
institution-wide shirking. In many respects, this behavior may be
consistent with evolving social trends in which image is more valued
than reality. Finally, a proposal is made to increase the
accountability and transparency of law school decision-making by
exposing it to what I identify as "stakeholders."
I'm posting this partly because many of this blog's readers are law professors, but also because this concept of shirking seems to me to apply equally in local politics, including land use matters. Sometimes it seems necessary to avoid pushing good governance when it is necessary to maintain a relationship over time with political actors at a local level. This is an issue for all of my clients, whether they be governing officials, staff, or stakeholders. It's an interesting issue to raise with students when trying to formulate policy that will actually be adopted and implemented.
Jamie Baker Roskie
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