On a more serious note, here’s yet more unsatisfactory advice from the NYT Magazine Sunday “Ethicist”.
Our university’s faculty club gives members a $2 discount on lunches. A colleague, not a member, habitually cheats the system by claiming the discount. He is now up for tenure. Based on our department’s criteria, he is indisputably qualified, yet I’m inclined to vote against him because of his dishonesty and its potential extension to his research. May I reject him professionally because of his lunch behavior? Anonymous, California
The Ethicist’s Answer:
If you’re eager to respond disproportionally to a colleague’s petty transgression, why not just go over to his house and shoot him? That’ll teach him to cadge a $2 discount.
I realize that his repeated paltry swindles must rankle, and they do add up. Under the circumstances, you may deny this fellow your friendship, but you may not deny him his job.
There’s more I haven’t quoted, but even in full I find this answer very unhelpful. (For example, if the advice is to tattle to the faculty club management, this seems quite likely to lead to the sort of stink that gets back to the administration and would likely have some effect on a tenure decision…)
I do think that fraud or theft, if proved beyond reasonable doubt, is a reason to deny someone tenure, especially in a law school; the only issue here for me is only whether there’s a de minimis exception. I’m not sure it makes any difference if the person were fiddling expense accounts or diddling the faculty club for a discount. Either way, doesn’t it suggest a lack of basic rectitude? And isn’t that relevant?
On the other hand, my instinct is that most non-work-related personal issues that don’t rise to the level of illegality are not relevant to a tenure vote. If the candidate had a messy divorce from a charming spouse, that’s none of our business. And even if the candidate were a serial adulterer, as long as it didn’t involve students, I think I would turn a blind eye during the tenure vote. (Or at least that I ought to.) However, were I ever to encounter job-related cruelty to students, staff, or even colleagues, I’d certainly take that into account.
So my questions to readers are:
1. Are my instincts on either of these questions wrong?
2. If my very much lower tolerance for law-breaking is the right standard, is it right generally, or is there a higher standard for law professors because of the nature of our enterprise? In other words, does it matter more if a teacher of tort is ethically elastic than it would in the cases of teachers of De Hooch, irregular verbs, Nietzsche, plate tectonics, Skinner boxes, statistics, or surgery?
[For debate over a somewhat related question, see the Yale Law Journal Debate Blog; there the question was whether to refuse to publish an otherwise worthy article due to qualms about offensive behavior by the author that had no direct connection to the article.]