Monday, February 16, 2009

Academic Freedom

Stanley Fish at the New York Times is arguing that university professors ought to be subjected to more stringent performance requirements, and should not be protected for reasons of academic freedom. He supports this contention by discussing the misbehavior of an a Canadian professor named Denis Rancourt.

Fish's column this week argues that there is no right to academic freedom that justifies such protections, and he cites court cases where judges have refused to find that there is a testimonial privilege for academics (similar to the privilege protecting attorney-client confidentiality, or the marital privilege). But professors like Rancourt are difficult to terminate because universities enter complicated employment agreements with academics that protect their positions.

Fish points out that there is no constitutional protection for academic behavior, and argues that professors ought not to have autonomy from the 'goals of the enterprise.'
But the degree of control a school has over its faculty is precisely the question that is answered by the existence of tenure.

Fish is right that tenure isn’t a constitutional right. But those professional norms are formalized in contractual agreements, and institutions enter those binding agreements voluntarily, at their discretion. Tenure is a special kind of employee benefit. Rancourt is difficult to dislodge from his position not because he has some kind of special Constitutional protection, but because the university has entered into a contract with him that makes him extremely difficult to fire.

Whether the needs of academic freedom require contractual protections so powerful that they make it impossible to dislodge a faculty member who goes insane is an interesting question, but even if they regret the terms of their agreement with Rancourt, they are bound nonetheless.

Universities are sophisticated negotiators, and their tenure review process provides for intense scrutiny of candidates for tenured positions. There’s no reason why their promises ought to be less binding than anyone else’s.

The tenured professor, similarly, is not beholden to the ‘goals of the enterprise,’ because he has not agreed to be. If that was what universities wanted from professors, they would negotiate different terms into their employment agreements.

The agreements presuppose that the ‘goals of the enterprise’ are suspect, and can be influenced in questionable ways by politically powerful actors. Professors accordingly negotiate for substantial autonomy and job security, and universities agree to grant it. They provide the secretary and the office space and the salary and the tenure protections as consideration in exchange for the professor’s affiliation with the university.

And there certainly is a place for academic freedom; for example, if a donor or a coalition of donors wanted to force a school’s biology department to provide equal time to creationism, tenure would protect biology professors who refused to teach junk science.

Monday, February 2, 2009

Philip K. Howard is wrong. Everybody needs lawyers.

Dahlia Lithwick at Slate has a review of a book called Life without Lawyers." The book seems to combine complaining about tort suits with advocating deregulation. Lithwick's review digresses into off-point complaining about the Bush administration's treatment of terror detainees.

Here's what I think about this guy's argument:

1) Frivolous lawsuits are very unusual

Frivolous lawsuits are terrific anecdotes for people who are intentionally trying to mislead. In fact, frivolous lawsuits are only borderline relevant to the issues surrounding personal injury torts, because they are infrequent and easily disposed of.

Lawyers who represent injured plaintiffs are paid contingent fees, which means that the lawyer doesn't get paid unless the client recovers money. This means that injury lawyers have a tremendous disincentive to represent clients in frivolous actions; when the case inevitably reaches an unfavorable resolution, the lawyer's work and expenses poured into it will be uncompensated. And in case that isn't disincentive enough, there are various sanctions that can be imposed on frivolous plaintiffs and their attorneys.

The legal system creates plenty of bizarre anecdotes, like the one about the man who sued his dry cleaner for $50 million over lost pants. The cases are generally disposed of quickly, and comprise a miniscule percentage of total tort litigation. Some unscrupulous advocates for reform try to cherry-pick a handful of the most egregious crazy lawsuits to make a point that society is overly litigious or that the legal system is sick in some way.

To assume, based on the existence of this single lawsuit, that courts are clogged with similar disputes is fallacious for the same reason it is incorrect to assume that shopping malls are full of naked dope fiends because a junkie took a nude walk in a mall once.

2) "Less law" or "less lawyers" won't really help

Howard quotes a bunch of random statistics; for example, the fact that Congress passed 70,000 pages of legislation. It appears he is insinuating that the volume of legislation has some sort of causal connection with the increase in tort litigation that Howard contends is occurring. He is lying.

Injury lawsuits and the volume of federal legislation have absolutely no relation to each other. There is a lot more to legislation than injury suits; those 70,000 pages are mostly about how to spend Federal money. Almost none of it is related to tort suit, and Congress certainly isn't rolling out lots of new torts to sue for.

Virtually all personal injury torts are based in state tort law; to imply to lay readers that Congress is spending its time inventing new ways to sue for frivolous personal injuries is a kind of intellectual fraud.

What Howard actually seems to be doing is using unusual anecdotes about tort suits and weird nostalgia for dangerous playground equipment to make a completely obsolete argument for deregulation.

The people who rolled back the regulatory restrictions on Wall Street assumed that more money could be made without burdensome laws getting in the way, and where investors and money managers were allowed to innovate with minimal government intrusion, accountability would take over. The opposite happened.

Hedge funds were allowed to run proprietary "black box" investment strategies because we assumed that the sophisticated (usually institutional) investors who were buying into them could conduct proper diligence and hold them accountable without needing the government looking over everyone's shoulder. That is how Madoff happened.

Deregulation advocates assumed that market incentives could steer participants into efficient decisions without government intervention. Instead, investors and managers took on too much leverage in pursuit of higher profits, and invested heavily and detrimentally in arcane and convoluted financial devices that nobody seems to have understood.

I'm sure Howard's book was written long before the collapse of Lehman, but, as it turns out, the roll-back of law doesn't result in a culture of accountability. It results in catastrophic failure and bailouts. Howard should be mildly embarrassed that his book contains a chapter titled "The Freedom to Take Risks."

Risk, we've learned, is not free. It will take a lot of pages of federal legislation and a lot of lawyers to untangle the mess lightly-regulated and ostensibly accountable people made.