Panel I

Remarks of Martin Michaelson, Hogan & Hartson

Delivered at MIT, Cambridge, MA, March 29, 1999.

Sixteen years ago, when I began to do university legal work, the most useful and penetrating analyses of issues such as those we are addressing here were the essays in Derek Bok’s then-recent book, Beyond the Ivory Tower. President Bok’s title borrowed the famous metaphor of John Henry Cardinal Newman, who in the victorian classic, The Idea of a University, described the splendid isolation of the university as a gleaming ivory tower.

So much has happened in higher education, and especially in administration of the biological and physical sciences, over the past 16 years that the tower metaphor now seems attenuated to the point of potential irrelevance. Indeed, the idea of the impending university even as a physical place—an idea that only a wild-eyed Buck Rogers type would have questioned in 1983—is now doubted by such mainstream gurus as Peter Drucker, who recently predicted that the university as we know it will be obsolete in ten to 20 years.

When we consider Drucker’s prediction, which I hope is wrong, and others like it, probably our first thought is cyberspace and the engulfing information streams that will course through it at the speed of light, to any and every destination on earth that has an electrical plug attached to a personal computer. But the collaborative, interactive endeavors in cyberspace that are fast becoming an ever-larger part of university life are by no means the only development that is tearing down the university tower. Beneficiaries since World War II of gushers of Federal research money, and centers increasingly of commercially valuable technologies in research and development, American universities and their historic values are at risk as never before of eliding into businesses that fuel the economy. The seduction of academic science by capitalism has injected into these education institutions pressures, temptations, and—perish the thought—operating efficiences that until lately were their bane.

More and more these days we see, next door to, or in the next lab from, the externally unfunded scholar whose basic research is in some unappreciated field, the profesor who is an academic partner of hungry, adventurous investors who have lots of money to spend on the pill of the future. These two professors—one obscure, the other a reigning prince in the field—in one sense are close neighbors in the academy, but the external business entanglements of one of them are so consuming that collaboration or even substantial discourse with the other is out of the question.

More and more we see the career trajectories of scholars, especially of scientists, rise and fall not in relation to their intellectually-judged peer standing, but rather in relation to their skill at selling themselves to those, especially in the biomedical field, who have large sums of money to spend on a well-marketed promise of commercial viability. It is a kind of gold rush.

More and more we see incentives to hoard, not disseminate, new knowledge; to suppress, not publish, research results; to titillate prospective buyers, rather than to make full disclosure to academic colleagues.

And we see today, more than ever before, new science first—generally, very carefully, and thinly—described in the fine print of initial public offerings and SEC filings, rather than in the traditional, fuller loci of academic communication.

If I use the concept of seduction to describe these and related trends, it is not because the intersection of venture capital and academic science is pernicious at its core. After all, a central mission of the modern university is to facilitate the transfer of knowledge to practical public benefit. Nor is is because the secrecy which is a necessary incident of the friction of the great tectonic plates that are the university and commerce is inevitably bad. Some of it is indispensible. Nor is it due to a mere nostalgia for the slower and more pleasant pace of university life in times gone by.

Rather, seduction comes to mind because various features of seduction, as that concept long has been known to the law, are present in the commercialization of academic science today. There is enticement. There is the expectation of prior chastity. (Admittedly, the immortal remark of the movie mogul, Louis B. Mayer, about Doris Day comes to mind: "I knew her before she was a virgin.") There is the contrived, sometimes protracted persuasion. Indeed, practices resembling the seducer’s old-fashioned trickery and promise of marriage are increasingly conventional features. And, finally, there is the fact that the offense cannot often be proved, because corroborating evidence by a detached witness is necessary. Few of the witnesses to these transactions today can be said to be truly detached, for the financial emoluents usually flow to many interested university offices, professorial as well as administrative.

In the legal representation of universities across the country, I see how ill-prepared some of them are, and how unwilling some of them are, to take the very considerable effort required to design policies that ensure that the seduction is converted into a more benign romance. Nationally, for example, notwithstanding repeated attempts to shine a light on problems entailed in research-related faculty conflicts of interest, normative standards across the higher education community still have not emerged. Too, the institution is rare that is prepared to address carefully unexpectedly large proposed infusions of research money that has novel strings attached. Transaction reviews in such cases are too often ad hoc. Good manners understandably keep us from precipitously biting off a feeding hand, but the tendency to kiss that hand before carefully inspecting it seems greater now than before.

To some extent, universities are probably correct in fearing that if they don’t enter into these bargains there will be a brain dran away from the academy, with more of the best basic science being performed in the business setting. But as objects of seduction, the institutions if acting rationally must wonder whether the non-monetary as well as the monetary terms of consent are the best that could be extracted. Perhaps the most we can all reasonably demand is that those terms not be secretly adopted, even if the terms must authorize more secrecy than that to which those of us who wish to continue to live in the time-honored tower are accustomed.

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