Money's power to shape ideas and opinions

by Darryl K. Brown

American universities have always had closer connections with industry and business than their European counterparts. The mission of land-grant colleges, for example, was to train students for agriculture and industry. Law schools, the training ground for professional lawyers, have also always had a clear goal of preparing students for traditional practice rather than transforming a flawed legal system. But business-university linkages are transforming many sectors of the academy once again, particularly in the sciences, as research leads to patentable products and processes with potentially huge commercial potential. Increasingly, in exchange for funding and even shares of the profits, professors and schools enter partnerships with industry, such as agreements not to share research results, that compromise critical parts of the university teaching and research tradition.

Compared to the sciences, law schools face relatively few of those sorts of blatant temptations. Legal analysis and arguments can have considerable value, but they cannot be patented, nor are they marketable in the usual sense. But law schools face temptations of corporate influence and threats to academic integrity of a different sort. Interestingly, it is a threat that bears strong resemblance to the current hot topic of campaign finance, because both problems hinge on how money subtly shapes ideas and opinions short of outright bribery. And both of those problems echo the lessons of the Gospels on the dangers that wealth poses to the Christian heart.

Law professors often have opportunities to work for the private sector. Maintaining some modest involvement in law practice and related endeavors can be beneficial for teacher, student and school, because the faculty member's teaching will remain informed by the experience of practice that she is training students to enter. While the most lucrative of those sorts of opportunities go to professors whose skills can benefit profit-making companies, there are also plenty of examples of law teachers who engage in some form public service practice as well. It is important to balance the former with the latter, for the direct benefit of the service and the example it sets. Such practice can influence a professor's thinking more broadly, and thus affect the teaching mission and law school structure -- experience, after all, is key to shaping perspectives. Although The American Association of Law Schools discourages excessive private practice by full-time faculty members (so faculty don't short-change their teaching duties for more lucrative practice opportunities), it actively encourages pro bono activities. Still, a recent survey by the association found a third of law school deans lamented their faculties' inadequate commitment to pro bono service, and half could not say that "many of [my] faculty provide good role models to the students by engaging in uncompensated public service work themselves" -- and that's only the deans willing to speak ill of their colleagues in a survey.

Corporate funding incentives seem to explain why we now have a large body of empirical studies and theoretical arguments critical of punitive damages -- which corporate interests worry about and fund research on -- but a paucity of information about an array of topics critical to social justice that don't interest corporations, such as studies on the harms caused to poor families due to lack of access to legal services.

The currency of lawyers is ultimately ideas and analysis: Lawyers can argue how current laws ought to be interpreted and applied and how they ought to be changed. Underlying those arguments are analyses of how the world is working under current rules -- whether the worthy people and causes are being helped or hurt. One way that currency gets spent on behalf of monied interests is through consulting and lobbying fees paid to law professors who work for corporate interests.

An example is that of GAF Corporation, which formerly produced asbestos and now faces liability from workers and others who suffered cancer and other injuries from asbestos exposure, the workers having not been informed of the risks. GAF hired Harvard law professor Christopher Edley to draft legislation the firm pushed in Congress, which would drastically reduce its liability to asbestos claimants -- in other words, limit the ability of asbestos victims to recover from the firm in court. GAF also hired Cardozo law school dean Paul Verkuil to testify before Congress about the benefits of the legislation; GAF's CEO donated $1 million to Verkuil's law school, which then named a Center for Corporate Governance after him.

On a smaller scale, corporate interests aim their resources directly at students. For example, the International Association of Defense Counsel annually sponsors a writing contest for law students. IADC entices students to engage in sympathetic research with prizes up to $2,000 for winning essays. Essays must be "on a subject of practical concern to lawyers engaged in the defense or management of civil litigation," that is, to IADC members, who represent corporations and their insurers. In this way, groups like IADC can influence the development of ideas that support their interests. Students writing on an IADC topic will not be spending scarce law school time studying other topics. If understanding tends often to breed empathy, students researching such topics will likely develop some sympathy for the interests of IADC's client base which is, in the end, often in conflict with the interests of tort victims.

Less blatantly -- but sometimes only slightly so -- corporations and corporate-oriented foundations fund research on issues in which they have particular interest. Here law schools face similar risks to scientific research. Corporate funding at least provides a strong incentive to define research agendas. Scholars choosing among several possible research topics are naturally tempted by the option for which someone is offering a large research grant. In this way, some topics get addressed and enter the public policy debate while others are overlooked. The most prominent example of a funder's effort to influence research agendas is the John M. Olin Foundation, a politically conservative firm that funds "law and economics" programs at most top law schools and many others. Another example is Harvard law professor Kip Vicusi, who has turned much of his attention in recent years to punitive damages in tort law (which includes products liability), and in many prominent articles he turned out to be a strong opponent of punitive damages. Vicusi has received substantial sponsorship of his research from corporations such as Exxon.

Such funding incentives seem to explain why we now have a large body of empirical studies and theoretical arguments critical of punitive damages -- which corporate interests worry about and fund research on -- but a paucity of information about an array of topics critical to social justice that don't interest corporations, such as studies on the harms caused to poor families due to lack of access to legal services, or the portion of convicted felons whose claims of innocence could have been tested with DNA analysis but weren't. The American Association of Law Schools is sufficiently concerned that it is urging a policy of legal scholars disclosing all funding sources and financial interests they have for their research.

My own suspicion is that blatant manipulation of data occurs relatively rarely, in large part because such things can be caught by other scholars who scrutinize the research. But much research, in law probably more than the sciences, requires interpretation of data and analysis based on value-laden premises and policy priorities; few important questions are easily answered objective ones. I suspect rather that corporate funding works much like corporate political contributions -- the money finds people who are already predisposed to a corporate agenda. Even without corporate funding, Vicusi would not likely have a pro-consumer, pro-tort plaintiff, pro-corporate-regulation perspective. Compare Kentucky Senator Mitch McConnell, the leading opponent of campaign finance reform and major recipient of corporate donations: His views on most issues probably would not change drastically if corporate money dried up. But well-healed "buyers" of research and political influence manage to find willing "sellers" of policy viewpoints that match their interests. With political campaign contributions, one can rarely identify a clear quid-pro-quo, a direct changing of one's views and votes in exchange for money. Yet we nonetheless have the strong sense that money corrupts politics. What corporate funding tends to influence the most, then, in law schools as elsewhere, is what issues get paid attention to, how many resources support attention to those issues, and how effectively and publicly research on these issues is spread. More subtly, it may affect individual scholars' views as they work on sponsored research and are influenced by others' sponsored research.

Peter Gomes, in his The Good Book: Reading the Bible with Mind and Heart, summarizes the New Testament's teaching on material riches in a way that is relevant to understanding the risks of corporate funding in academic research. For Christians, "wealth is not a sin," Gomes notes, "but it is a problem." The rich need not necessarily forsake their wealth to follow Christ; Jesus did not require Zaccheaus to give away all his wealth. Nonetheless, Jesus did ask the rich young ruler of Mark 10:17-27 to give away his worldly wealth despite his faithfulness to moral laws, a request the ruler was unable to meet. Here we learn "how hard it will be for those with riches to enter the kingdom of God," which is echoed in 1 Timothy 6:9-10, where we are warned "those who desire to be rich fall into temptation" that may lead to "ruin and destruction." Wealth itself is not a sin, but the temptations and distractions it poses from life choices in accord with Christian love and charity are formidable.

Gomes' reading of Christ's message about wealth applies as well to corporate funding for the academy. Accepting corporate funding doesn't necessarily mean one is corrupted by it, but it is a temptation whose strength is increased by its subtlety. Law schools, like the legal profession more broadly, continually face their own version of the tension between material wealth and charity or (much the same thing) pursuit of justice. Corporate funding with an implicit agenda of serving commercial interests can lead one's heart as well as use of talents from a commitment to and effort for justice in the legal system for those least likely to obtain it due to material wealth imbalances.

There are signs of hope. At the same school whose dean was hired by GAF Corporation as a lobbyist, the Innocence Project thrives in its work for the wrongfully convicted. A model of justice work in legal education, it has also proved to be prime mover in destabilizing death penalty support and in bringing high profile praise to the law school. Across the country, law schools are showing an incremental but real commitment to clinical education that engages students in specifically serving the needs of the poor. And there are some foundations that fund such social justice causes; George Soros' Open Society Institute is a good example.

Nonetheless, the temptations of private funding seem to be with us indefinitely. Law schools, especially the elite ones, are now in an almost perpetual mode of capital-campaign fund raising, and the competitive pressure is to use funds for institution-building rather than public-spirited projects like legal clinics, public-interest scholarships, and loan forgiveness for poverty lawyers. My alma mater, the University of Virginia, for example, recently exceeded its $100 million capital campaign goal and decided to keep on fund-raising; it now has a palatial set of buildings named for rich donors but still a paucity of law clinics. Harvard, which raises much more, declines to lend the aid of its fund-raising apparatus to the Appleseed Foundation, a group led by Harvard law alumni to support public interest legal practice. Those sorts of pressures will continually pose the challenge that wealth always poses for commitments to charity and justice.

Darryl K. Brown is on the faculty at Washington & Lee School of Law in Lexington, Va.