When Colleges Act Like Businesses: Is It Ethical?

by Barbara Hou

I recently came across an article that highlighted a troubling practice: In order to meet their enrollment and net revenue targets, some colleges are reaching out and offering more money to students who did not respond to their acceptance offers, after those students have already made decisions to enroll at other colleges and after the official decision deadline. Here I review what makes the practice unethical, and also present counterarguments that deserve to be considered.

1) Violates Published Deadlines. Colleges present themselves as nurturing good citizens, and good citizens play by generally agreed upon rules. Colleges that make representations about their deadlines are supposed to stand by them. By reaching out to students and changing their financial aid terms, these institutions change the rules of the game, manipulate students’ decisions, and entice students to renege on their commitments to other colleges.

2) Reopens a College Decision Process. Students are forced to revisit what can be an agonizing decision process. As one example, colleges may offer more money but not enough to make it affordable.

3) Makes Students Narrowly Money Minded. Importantly, the practice puts money front and center, making it a determining factor for why a student would choose one school over another, (I compare this to someone who takes a job solely for the salary without regard to the mission or methods of the employer.) Schools that dangle money likely are not a student’s first choice school, and students who accept such offers likely have compromised other possibly more valid considerations.

4) Turns Students into Commodities. Students literally become something that can be negotiated, haggled over, and bought. Colleges are supposed to offer an education, not be bazaars.

5) Takes Advantage of Students and Other Colleges. Finally, colleges that dangle money after the decision deadline engage in a bait and switch, if not a price-gouging scheme. By holding back funds until the last minute, these colleges can tactically collect as much tuition revenue as possible and in the process take advantage of other colleges who have played by the rules and locked in their commitments.

For these reasons, one might assert that if the college cannot make it ethically, it should go out of business. But are there reasons to think that the practice is not actually unethical?

1) Giving an Option. Looked at another way, these colleges do not force students to compromise on their values but give students a chance to re-evaluate them. Because the college has more unfilled seats than it expected, it now has the flexibility to offer stronger discounts to students. There may be nothing nefarious nor manipulative about this fact.  Indeed students also may be better able to take advantage of collegiate opportunities.

2) All Colleges Compete for Students. Colleges often compete for students based on less than ideal considerations, including beautiful landscaping or gleaming residential and gym amenities – unnecessary expenses that drive up the cost of college. Colleges also may match financial aid packages of a competitor, even if a student may have initiated the conversation.

3) Mission-Minded. Such tactics increase the likelihood that the campus can survive; offer an education that is worthy; and make an educational opportunity accessible to a broader swath of the population.

How can we reconcile these competing arguments? Having very briefly laid out some of the dimensions to this ethical issue, I suggest that colleges can be transparent about the role of money in their enterprises. For example, with regard to this specific issue, colleges can explicitly declare:

-Whether they will or won’t re-open financial aid considerations after the decision deadline. In that way, all players will know the situations they may confront; and

-Whether they allow students to make multiple deposits, and whether they actively rescind admission offers to students discovered to have made multiple deposits.

Going beyond the issue under discussion, colleges should also be candid about other less than ideal practices, such as: (i) whether they “gap” students by admitting students with aid that falls short of a student’s financial need, (ii) engage in “need-sensitive” admissions, (iii) give preferences to legacies, (iv) allow donations to influence offers of admissions, (v) offer merit aid to attract financial returns rather than to reward academic performance, or (vi) lower admission standards for athletes.

Such candor would allow us to open up a conversation about whether practices that may be appropriate in business are also suitable in higher education, and whether compromises in this regard align with the ethical fiber of higher education.

Barbara Hou is a doctoral student at the Harvard Graduate School of Education.

The Future of the Professoriate: Personal Reflections

In the fall of 2015, I launched this blog, The Professional Ethicist. There were two impetuses:

1. The “distal” impetus was the fact that, as part of the GoodWork Project, my colleagues and I had been studying the professions for many years. I have a particular interest in ethical quandaries that professionals regularly confront and address, with more or less success.

2. The “proximal” impetus was the publication, in 2016, of The Future of the Professions by Richard Susskind and Daniel Susskind—a thoughtful and thought-provoking examination of the likely disruption of major professions in the period ahead. Having developed my own views of the role of the professions, particularly in their handling of ethical issues, I decided to write a major essay… and then to contribute shorter blogs at approximately two week intervals.

In the course of this maiden exercise in blogging, I have had occasion to write about many professions—ranging from prototypical professions, like medicine and law, to aspiring professions, like philanthropy and journalism. And yet, perhaps surprisingly, I have not written much about my own professional expertise—as a scholar and as a professor. I intend to correct that record in the period ahead.

Suspending The Professional Ethicist, at least for a while, I am launching a blog on education on my website HowardGardner.com. This new blog is titled “Life-Long Learning: A Blog in Education.” Initially, the blog will be far-ranging and its contents (at least to me) unpredictable. Over time, the blog will focus increasingly on higher education—the sector of education that I know best and the one that my colleagues and I have been studying intensively since 2013. You can follow me on Twitter @DrHowardGardner for all of the latest announcements.

Context for This Entry: A Scholarly Meeting

When I first read The Future of the Professions, and, indeed, when I first wrote about it, I did not know the Susskinds personally. But as sometimes happens, my writing came to their attention, and we arranged to meet—over brunch in our home. My wife Ellen and I enjoyed the encounter very much and invited Richard and Daniel (father and son) to speak to the American Philosophical Society, a membership organization in which speakers deliver papers on a wide range of topics.

From their home base in England, the Susskinds traveled to Philadelphia at the end of April 2017 and introduced their innovative ideas to the gathered scholars. As is typical of meetings of the Society, the program included a wide range of topics—from climate change to the 2016 election to the evolution of Indo-European languages. Indeed, on the afternoon when the Susskinds spoke, the first paper was by Naomi Zemon Davis, a humanist; the second paper was by David Spergel, an astrophysicist; and the joint paper by Richard and Daniel can be described as a contribution from the social sciences (law and economics, respectively).

In their presentation, the Susskinds talked about the emergence, over the last few decades, of extremely powerful computational approaches (hereafter, CA). In many cases, these CA accomplish the tasks that in earlier times would have been carried out by trained professionals—and these new approaches typically execute the procedures more quickly, more accurately, and at a fraction of the cost. As examples, sixty million disputes arise each year among users of eBay, and most of them are settled quickly and amicably. At the University of California at San Francisco, a single robot completes over two million prescriptions each year; and half the doctors in the United States use Epocrates, a resource that indicates how different drugs interact. In 2014, in the United States, almost 48 million taxpayers filed their returns without an accountant, using online systems provided by TurboTax and H&RBlock at home.

The availability of these and many other CA permit far more individuals-in-need to obtain high quality services—as opposed to the current situation where most of the population cannot afford the extremely high fees charged by professionals. And the success of these CA raises questions about whether there remain important tasks and challenges that only human beings can carry out—hence preserving the professions in recognizable form—or whether the professions will be decisively disrupted and, if so, which groups and institutions, if any, might emerge in their stead.

The Susskinds recognize that computational delivery of hitherto professional services raises significant questions—for example, who is responsible if an application causes unanticipated destruction; what happens when complex moral or ethical issues arise; what kind of training is appropriate for para-professionals and professionals in a computational society; who designs the applications and how one decides among those that are available. The Susskinds rightly point out that at present the professions are themselves struggling with these issues—and, indeed, once-hallowed professions have become more like businesses and less like undertakings that are deliberately carried out at some remove from the marketplace. As the Susskinds might put it, once we define what problem(s) the professional is trying to solve, we can then determine to what extent, and in what way, that problem can be solved satisfactorily in the absence of, or with minimal involvement of, the trained professional.

A Continuing Place for Scholarly Work?

In the question-and-answer session directly following the presentation by the Susskinds, and in the considerable discussion among attendees in the aftermath of the meeting, one issue kept emerging. And given that the American Philosophical Society is composed primarily of academic scholars, that question is not surprising. To put it succinctly: in the world that has been described, is there a place for scholarly work, and, if so, what is that place and how does that work get carried out?

It is appropriate that this question arose at APS. The society was founded by Benjamin Franklin in 1743, while America was still very much a British colony. APS followed the example of the Royal Society of London (the Society that many of us associate with Sir Isaac Newton), founded in 1660. At these organizations, scholars presented ideas—typically in the form of brief papers or reports—and then other scholars, some from the same field, many from other fields of scholarship, made comments and criticisms, raised questions, and sometimes suggested new lines of work. In the intervening centuries, many other scholarly organizations have of course arisen, but the general approach of paper delivery and commentary has proved remarkably robust.

What conditions prompt the creation of such learned societies, with their scheduled meetings and predictable program of papers and discussion? One needs individuals (or groups) who work in one or another scholarly tradition—perhaps as broad as history or physics, or much narrower, such as early medieval history or string theory. These individuals probe an issue or problem or paradox that has intrigued them; they have mastered the relevant research; they have thought long and hard about the puzzle and if possible collected relevant data; they probably have drafted some notes and run them by informed colleagues; and then they have submitted the paper to a committee which decides whether they should be invited to make a formal presentation at a scholarly meeting.

Enter the Professoriate, with its Two Branches

The practice I’ve described is presumably carried out nowadays in most developed countries, particularly ones with universities, research centers, or laboratories. I see the practice as relatively new (centuries old, not millennia) and one closely tied with the emergence and growth of a profession that can loosely be described as the professoriate.

Originally, the professoriate focused on the sharing of knowledge and writings that had been deemed worthy by appropriate authorities (Aristotle being the prototypical authority). The European universities of the Middle Ages and the early Renaissance were primary entities that transmitted knowledge. Even today, a large part of the profession of the professoriate is devoted to the dissemination of knowledge, especially that knowledge which is considered to be consensual within the disciplines.

Only on the eve of the Enlightenment, about the time that the Royal Society was founded, did the professoriate broaden its portfolio to include the creation and dissemination of new knowledge, from various disciplinary perspectives. And only at this time did the role of teacher/disseminator gradually enlarge, so that its practitioners saw themselves as contributing new knowledge—whether it is adding a single brick to an already existing edifice (what Thomas Kuhn calls “paradigmatic” scholarship) or, less often, opening up a new branch of knowledge (launching a new paradigm).

Rightly or hyperbolically, those who attend such scholarly meetings think of themselves as individuals who are creating new knowledge and sharing it with informed and interested peers. In effect, here is the question that attendees at the APS were posing to the Susskinds: Computational approaches can carry out many, if not most or all of the work of a professional practitioner, but are such approaches capable as well of creating new questions, coming up with new ways of approaching them, and adding significantly to human knowledge? Indeed, in the future, will there be the need for scholarly societies, and, if so, will they be attended by human beings, by robots, or some amalgam thereof?

I don’t know how the Susskinds would respond to this question. When asked a similar question with respect to the arts, Richard Susskind replied that even if computational approaches can produce works of art that are powerful, we will still admire those works of art produced by a human being—just as we appreciate a great chess player, even if she loses a match to IBM’s Watson, or a great runner, even if the average gazelle can run more rapidly. And, with respect to societies like the APS, the Susskinds added that individuals will similar interests will continue to congregate and converse, as the group gathered in Philadelphia has done for centuries.

Returning to the Professoriate

I can readily see a time when much of teaching, particularly of certain subjects to individuals who are no longer young, can be handled more proficiently and at much less cost by star teachers whom students encounter online or by well-designed programs which do not feature human teachers at all. In that case, there will be little reason for each institution of higher learning to have its own faculty. (I am less confident that young persons can or should be taught by individuals or programs with whom the youth have no personal ties.)

But if the time comes when computational devices can both come up with the kinds of questions that trained art historians or microbiologists are able to formulate, and then provide answers that are judged adequate (by humans or robots), then the need for and the place of the professoriate will surely be challenged. And even if human beings still gather at scholarly meetings, the robots that now control the scholarly agenda will smile benignly at the human beings… and then plan the agenda for the gathering of their own far more innovative Robotic Philosophical Society.

Educating the Heart: Creating Open Minds Through Service and Leadership

By Christine Henke Mueller

When our dynamic world is in flux, it is easy to allow challenges to overwhelm us, causing us to turn away from finding solutions. It is also easy to allow opposing views over social and economic issues to divide us.

What happens to children growing up in this increasingly complex world? A look at recent accounts of intolerance and even violence in our schools demonstrates the trickle-down impact of these stresses on young people. Yet as teachers, we combat these trends. Opening hearts and minds is what we are called to do. We shed light on darkness and cannot turn away. We must build our students’ skills so that they can move into the future with humility, optimism, and the ability to problem-solve.

Transformation in Action

In 2009, I began with colleagues at The Prairie School in Racine, Wisconsin, a program we called C.L.A.S.S. (Character, Leadership, Accountability, Service, and Sustainability) to explicitly address the skills needed to create more sustainable relationships socially, economically, and ecologically. I wanted to help children move from acceptance of problems to living lives of action through service. More than 100 students have participated in C.L.A.S.S. over the years, many more than once, and have experienced the transformative power of service to others.

Thus, the purpose of C.L.A.S.S. is to create opportunities for children to connect to the issues that concern them in positive ways and to build skills needed to address the unknown. It guides them to step outside their own lives and consider not only what it might be like to live in another’s shoes but to respond to that person’s life in a way that serves their needs. It also builds the reflective skills necessary to develop critical thinking. Student directed, C.L.A.S.S. has connected with students in Afghanistan, with students at a local public school, with immigrant workers, and with people experiencing homelessness.

This year, we looked to build a more explicit understanding of how leaders intentionally develop the social skills needed to persevere and meet their goals. The students’ goal was to build a stronger relationship with the residents of our local homeless shelter. We volunteered, visited, raised money, and last year incorporated the cooking and serving of a meal. The students, however, realized that if they were to form a relationship with the people living there, as our mission stated, we needed to spend more time together in a meaningful way. I began to look for leadership and personal development materials that would facilitate the mindset necessary for building relationships between the students and the homeless shelter residents. The Good Project’s work on Good Work was my starting point.

Responsibility, Character, Values

Using the Concentric Circles of Responsibility as a pre-assessment, twenty six students ages 10 to18 submitted their reflection as an application and formed small multi-age cohorts to learn about the crisis of homelessness in our city and country. Everyone’s starting point was different. Some students were new to this experience and listed only “family, friends, and school” in their rings, while others saw their relationship to others as one of charitable service.

Middle school student application

Each monthly C.L.A.S.S. day consisted of two parts: at school and at the shelter. At school, we studied aspects of the situation and learned about our own character, values, and the importance good work, and at the shelter we put our learning into action. The reflection that followed each meeting allowed students to synthesize their learning with their experience, connecting the mind and the heart. “Today helped me build character and enhance my own story by being able to talk and relate to people I never would have had the chance to meet. It helped me improve my leadership by taking care of and advising younger students,” reflected one Junior student.

At the first C.L.A.S.S. meeting, we assessed and analyzed our own character strengths. We formed teams based on those strengths and headed off the shelter. Students were excited, but also uncertain. They wanted to be engaged, but didn’t know how to initiate. They looked to me for direction and stood separated from the residents. I wanted them to find direction from inside themselves.

Excellence, Ethics, and Engagement

My response was to explore with the students how to connect values and actions. What does it mean to engage? How do our values help us make ethical decisions? We used one C.L.A.S.S. session to explore how others pursued good work, and students overcame their uncertainties. We went back to the shelter and put our individually-stated goals into action. What I saw was transformation. Coats were off, names learned, games played, and crafts made. More so, plans were initiated by the students for our future meetings.

During the winter months, we joined in with the rest of our community to raise funds for the shelter by participating in Empty Bowls, a grassroots effort that raises both money and awareness in the fight to end hunger. Students also worked to bring to fruition their desire to once again serve dinner at the shelter. They raised funds for the ingredients, contacted local businesses for donations, and organized work teams for cooking and making decorations. Because our Little Free Library was in need of books, requests were sent out for donations. (Little Free Library is a book exchange project that inspires a love of reading, builds community, and sparks creativity by fostering literacy with free books. C.L.A.S.S. sponsors and maintains two libraries in our community.) By lending our support for these community programs, more and more the students took charge of their work.

The Family Dinner

I had concerns about returning to the shelter to serve dinner. Would we “serve” and the shelter residents “eat” as had been done in the past? Learning needed to accompany our serving. Sitting down to eat together is an intimate and vulnerable act. If we really valued the relationship we had developed with the residents, it was necessary that we take a risk and open not just our minds but also our hearts to the people at the shelter.

I turned to The Family Dinner Project for inspiration. Before heading into the kitchen, students shared their own meal-time experiences and worked together to study the research around the benefits of eating dinner together. They learned and reported back to each other about the effects of sharing a meal on our social and emotional well-being. We considered the implications that these facts might have for our friends living in the shelter and made a commitment to ourselves and each other to create a family-centered meal. This meal was different from the previous year; students stepped out of their comfort zone, sat down, and ate and talked with the families. The day ended with laughter, Snap-chat exchanges, baby smiles, hugs, and full bellies.

Our final meetings for this school year will bring us full circle as we look back on our Concentric Circles of Responsibility, reflect on our own development, and make plans for next year. It is my hope that the C.L.A.S.S. experiences will have expanded these rings and created children with a better understanding of how to live lives based on values, reflection, and good work that builds character. There are many difficulties that face us in this world, but the skills C.L.A.S.S. students learn and practice help them to address these difficulties with open minds and hearts.

Commenting on “Why Philanthropy Is Not a Profession?”

My recent column “Why Philanthropy Is Not a Profession,” published by The Chronicle of Philanthropy, elicited a number of very helpful comments, clarifications and critiques.

In this brief response, I’ve found it illuminating to take into account historical, organizational and career considerations of the philanthropic sector.

Historical Considerations

Foundations, the first organized form of philanthropy in the United States, have existed for something over a century. When first launched, the foundations associated with John D. Rockefeller, Andrew Carnegie, and Henry Ford foregrounded the particular agendas of each wealthy philanthropist—either exercised directly or through executives whose assignment was to carry out the will of the philanthropist. With the passing of the original generation, foundations became far more bureaucratic; and they often deviated quite significantly from the ethos of the founder. Also, of significance, many of the foundations deliberately kept low public profiles: they wanted to support “good work” but not necessarily to have their names, or the names of their executives, strewn across the newspaper.

Times change. In some ways, the present era seems a throwback to the founding generation. Individuals of enormous wealth launch foundations (or comparable vehicles, over which they can exert even more control); they often have a clear agenda that they would like to pursue; and they take more of a hands-on approach than did the founding generation. Across the sector, favorable publicity is sought for both the foundation and its leaders—many employ public relations specialists. Worth noting, there are also far more philanthropies of significant size emerging in other countries, with each country having its own legislative purview and distinctions. Perhaps the biggest difference from earlier eras is the trend toward “sunsetting.” Many wealthy individuals plan deliberately for their foundations to close shortly after their own death.

It’s much too early to know whether these trends will continue, reverse, or move in yet other directions.

Organizational Considerations

My original column failed to distinguish adequately among three different roles: 1) the original philanthropist, the person or family whose assets fund the dispersing entity; 2) the executive of the foundation, who has a great deal of power and latitude, as long as the founder and /or his family are not on the scene and as long as the executive has the support of the board; 3) program officers (whom I called “philanthropoids”), who solicit and judge applications, typically have personal contacts with recipients, and are answerable to the executive and the board.

Both the original funder and the chief of the organization are public figures; they have the advantage and assume the burden of being in the public eye. As one foundation executive wrote, they have an amazing set of tools available, if they choose to use them, and at least until now, very little public scrutiny or second-guessing of their decisions.

In contrast, the philanthropoids are typically not known to the outside world. And within the world of funding, they are hard-pressed to get honest feedback on what and how they are doing. One shrewd foundation executive put it this way: “They are always in the never-never land of aspiring grantees who treat them with exaggerated respect and admiration, while their immediate superior in the philanthropic organization is often hesitant to be the only one who offers criticism of their performance.”

In a paper published a decade ago, Laura Horn and I described these philanthropoids as members of “a lonely profession”: while they are seen by grantseekers as powerful and worthy of deference, they typically do not know where they stand—what they have done well, and where they have made mistakes. And once they leave the funding agency, they are unlikely to be remembered fondly by the numerous individuals whom they have not funded… and fortunate if their former grantees send them an annual holiday greeting.

Career Trajectory

Unlike other vocations, the career trajectory for those in philanthropy is unclear and perhaps unknowable in advance. Leaders of philanthropic organizations rarely come from within that particular organization or indeed from other foundations (Susan Beresford of Ford is a well-known exception); typically, in the past, they came from academe, often former college presidents, and perhaps in the future, they are more likely to come from the ranks of higher corporate management. Until now, presidency of a foundation is likely to be the individual’s last job; only rarely does the former leader of a foundation take a major job elsewhere, and almost never at another foundation.

In contrast, program officers have far less illustrious pasts—rarely are they known outside the particular billet in which they worked. Moreover, as mentioned, because of the nature of their work, they deliberately maintain a low profile. Almost all who study or lead philanthropic organizations believe that program officers should have clear term limits; but for collegial reasons (and in its collegiality, philanthropy has the trappings of a genuine profession), it is difficult to enforce this preference. When, for whatever reason, the time or the term is “up,” there is no obvious next step. Perhaps in this way, more so than any other, philanthropy differs from other aspiring professions—the skills are difficult to define, and what might elsewhere count as an asset (having mastered certain skills) does not readily translate into an upward career trajectory, either within the present place of employment or at another philanthropic organization. It’s rarely desirable to “have been” a philanthropoid.

Now, of course, all of this could change. In a critical comment on my column, one writer enthusiastically described the professional training that she tries to give to program officers at foundations. I have no doubt that one can be helped to be a better philanthropoid. And perhaps in a changing landscape, more individuals who have worked in one philanthropy will transition to another philanthropic organization, perhaps even at a higher rank. But unless one can confidently answer the question “And what will your next job be?”, the career trajectory of philanthropoids will differ from trajectories associated with the traditional professions.

Closing Comment

As for my basic contrast between two approaches to philanthropy—“accountability” and “taste”— commentators acknowledged its usefulness. Sara Lawrence-Lightfoot wrote that her goal as a board chair has been to “bring together artistic value laden approaches and evidence based procedures.” Instead of worrying whether philanthropy is a profession, she declares “what matters is that we engage(d) in good works.” Foundation president Michael McPherson comments, “I’ve come to think that the role is part ‘curation’ and part something like strategic philanthropy. Thus, our fellowship programs are goal oriented and their effectiveness can be measured in ways that make sense. It would be very hard to apply that kind of frame to our field-initiated programs, where curation is a better model.” But Stanley Katz, a leading scholar of philanthropy, is not sanguine. He laments that for many leaders of the sector, “philanthropy is simply the business of giving, and … good works can be objectively and systematically evaluated in the same manner as the production of widgets. The objection that you report yourself making is one that fewer and fewer in the field would understand these days. It is a tremendous concern, especially with so few making so many decisions about such tremendous sums of money.”

In my view, if the price of gaining professional status is the embracing of a strict “business accountability” stance, it is a price that is not worth paying. Philanthropy is one of the few remaining fields where one can use human judgement and taste and where one does not need either to raise money or to follow strict legal guidelines. Rather than cutting off one of its limbs, I’d prefer if philanthropy were to help other sectors generate a broader vision of the means at their disposal.

My profound thanks to Michael Bohnen, Angela Covert, Patricia Graham, Stanley Katz, Raquel Marti, Michael McPherson, Sara Lawrence-Lightfoot and Lee Shulman for their thoughtful comments and suggestions.

Reference

Gardner, H. and Horn, L. (2006). The lonely profession. In W. Damon and S. Verducci (eds.). Taking philanthropy seriously. Bloomington, IN: Indiana University Press, pp. 77-93.

The Professions in America a Century Ago: Views of Louis Brandeis

Although this blog was launched because of my concerns about the “future” of the professions, it’s always useful to have a historical perspective. A few weeks ago, I reported my surprise that, five centuries ago, the French essayist Michel de Montaigne characterized the professions of his day in ways that are readily recognizable to our contemporary minds. Now I’d like to consider views and insights put forth a century ago by lawyer Louis Brandeis. These views highlight the ways in which today’s professional landscape resembles and differs from that in the early 20th century.

Louis Dembitz Brandeis is one of the great success stories of American history. The child of immigrants, raised in Louisville, Kentucky, in modest circumstances, Brandeis was an outstanding student at the Harvard Law School—receiving the highest grades ever achieved. He went on to become a highly successful attorney in Boston; and once he had established his own professional standing—often serving as attorney to wealthy businesspersons—he became a strong advocate for the rights of the less wealthy and less powerful. Indeed his decidedly progressive politics were a factor in President Woodrow Wilson’s decision to nominate Brandeis to the Supreme Court in 1916. Partly because of his political leanings and partly because he was the first Jewish person nominated to the Court, Brandeis’ confirmation hearings were unusually contentious. Brandeis went on to serve with distinction on the Court for over twenty years. He has now been honored in a variety of institutions—perhaps notably as the “patron saint” for the University in suburban Boston that bears his name.

As a student of legal history, Brandeis noted that the law held an especially important place in the United States. Not only was the United States heir to the English tradition of a government based on laws and not on men, with a long history of precedents and decisions on which to draw; but because the U.S. did not have a nobility or a rigid class system, and did have a written Constitution, lawyers were already recognized as especially important figures when Alexis de Toqueville visited the U.S. in the early 1830s. As Brandeis put it, “the lawyer has played so large a part in our political life in that his training fits him especially to grapple with the questions which are presented in a democracy.”

Brandeis went on to describe the traits for which lawyers were valued. Their training sharpened their memories and their reasoning faculties. But unlike pure logicians, the reasoning faculties of legal practitioners were always tested by experiences and invariably geared toward practical ends. Lawyers have to operate in real time—they cannot put off a decision until they have obtained “more data” or had more time to contemplate or consult.

Brandeis went on to describe the traits that were especially important—and especially desirable—for lawyers. They should be judicial in attitude, learn to see issues from various sides, and observe human beings even more keenly than they observe objects. Because of these skills and attitudes, they were best equipped to become advisers—and so naturally gravitated to positions of power and influence in their community and in the government. As he told a group of Harvard students in 1905, “It is as a rule …far more important how men (sic) pursue their occupation than what the occupation is.”

Brandeis came of age at the same time that America was becoming an industrial power on the world scene. Corporations and their leaders were assuming increasingly dominant roles in the society. Indeed, as a leading lawyer on the national scene, Brandeis knew many of these leaders personally, and this experience led Brandeis both to think about the risks to the role of the lawyer, and the opportunities that were afforded.

Having drawn on the insight of de Toqueville, an early visitor to America, Brandeis also cited James Bryce, an English observer who came to the United States in the 1880s and wrote an influential book called The American Commonwealth. Tracing de Toqueville’s own trajectory, Bryce noted, “Sixty years ago there were no great fortunes in America, few large portions, no poverty. Now there is some poverty… and a greater number of gigantic fortunes than in any other country of the world.” (p. 745) He went on to sound a warning: “Lawyers are now to a greater extent than formerly business men, as part of the great organized system of industrial and financial enterprise… And they do not seem to be so much of a distinct professional class.” Brandeis underscored this point: “Able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear too much of the ‘corporation lawyer’; and far too little of the ‘people’s lawyer.'”

Brandeis was clearly concerned by this state of affairs. But he also discerned an opportunity—both for business and for the law. As he described it, professions were characterized by three features: 1) the necessary training is intellectual in character, involving knowledge and learning, not just skill; 2) the work is pursued largely for others and not merely for oneself; and 3) amount of financial return is not the accepted measure of success. Brandeis called for a science of management, where the criterion for success is excellence in performance in the broadest sense—for employees, customers, and the broader surrounding community—not simply the making of money. And to make his case in a concrete manner, Brandeis describes an individual (shoe manufacturer William H. McElwain) and a family of merchants (the Filenes) who have “accepted and applied the principles of industrial democracy and of social justice.” Should these attitudes and behaviors become the norm, then “big business” will mean business
“big not in bulk of power, but great in service and grand in manner.”

Brandeis ended his analysis with a message to aspiring lawyers: “The next generation must witness a continuing and ever increasing contest between those who have and those who have not… Nothing can better fit you for taking part in the solution of these problems than the study and preeminently the practice of law.”

As is often the case when one turns to history, the themes put forth by Brandeis over a century ago have a surprisingly contemporary resonance. Our political system is filled with lawyers, but it is partly a revulsion against lawyers that has led to the election of a self-declared successful businessman. Donald Trump is highly dependent on the lawyers who have represented his personal and financial interests and yet he rarely misses an opportunity to castigate the judicial system. My friend Ben Heineman has written a timely and important book The Inside Counsel Revolution in which he describes the crucial position that is currently occupied by the lead lawyer(s) in global corporations.

Business still aspires to become a recognized profession, while the law struggles to retain its professional status. One cannot help wondering what form these discussions will take 600 years after Montaigne penned his insightful essay and 200 years after Brandeis delivered his trenchant and inspiring talks.

Brandeis References:

–The Opportunity in the Law, Phillip Brooks House, talk to Harvard Ethical Society, May 1905.
-Brown University Commencement Day, published in System, October 1912 .