More than eighty years ago, Carter G. Woodson—the historian-educator known as the “Father of Black History Month”—published his most enduring work, The Mis-Education of the Negro (1933). That book, among the most important education scholarship ever written, reveale
d with unassailable precision a fact that seems like pedestrian common sense when its evidence is laid out: The U.S. education system educates learners about much more than reading, writing, and arithmetic. Rather, in its structures, schedules of reinforcement, and other curricular choices, it determines an individual’s place and value in society and the understanding of that situation. Education—in all its forms—is a profoundly identity-constituting mechanism. Woodson was among the first to engage this epistemological and ontological power. With Better Bankers, Better Banks, Hill and Painter make this same type of invaluable contribution.
As a work of legal genealogy, historiography, psychology, sociology, diagnostics, etc. (the authors’ bricolage is impressive and enviable), the book offers wholly persuasive arguments and evidence (1) that the culture of banking and, at least some, bankers presents systemic problems in the industry that have economy-wide consequences and (2) that changes in the banking industry are at least partially implicated in the proliferation, persistence, and repetition of these problems. However, how all this happens remains locked in a black box Hill and Painter mark “culture,” “incentives,” “ethos.” But culture, incentive, and ethos are not formed by accident, happenstance, or default. Instead, they are part of the same type of curriculum Woodson charted in his work. The Mis-Education of the Negro revealed that school-based curricula shape students’ understandings of themselves and the society in which they live. As Woodson explained with respect to the implementation of social ordering of African Americans through schooling,“If you can control a man’s thinking you do not have to worry about his action. When you determine what a man shall think you do not have to concern yourself about what he will do. If you make a man feel that he is inferior, you do not have to compel him to accept an inferior status, for he will seek it himself. If you make a man think that he is justly an outcast, you do not have to order him to the back door. He will go without being told; and if there is no back door, his very nature will demand one.” In other words, the curriculum imparted will lead to predictable and self-sustaining results.
Elsewhere, I have suggested that law functions as a societal pedagogy. As John Dewey defined it, pedagogy is just a purposeful process that “shapes, forms, or molds” peoples’ behavior, activity, and thinking. This is what law does. Indeed, the evidence Hill and Painter offer powerfully illustrates that the same educative forces identified by Woodson are at play in the banking industry. The curriculum, obviously, is different than the one Woodson critiqued. But, centralize, say, risk-taking and winning (among core themes in the curriculum latent in the Hill-Painter banking narrative), and you will find problematic behavior in the banking industry.
Hill and Painter clearly show, that banking law (or the lack thereof) is part of an identity-forming process for bankers and that process is shaping problematic behavior, activity, and thinking within the industry. What is missing from Better Bankers, Better Banks, then, is a pedagogical account of the banking industry and the law that structures and regulates it. I want to know how the ethos, incentives, and culture are internalized. I want to understand the content, structure and form through which the ethos, incentives, and culture are imparted. These types of questions are explored in the academic field of education. And I want to read the curriculum of banking law.
Silence on the question of pedagogy is not surprising. A large body of socio-legal scholarship, for example, reveals the educative function of law, leaving the specific processes and mechanisms of the pedagogy unexamined. However, without a comprehensive pedagogy of banking, I am unable to determine whether the Hill-Painter “skin-in-the-game” covenant banking solution is as promising as it sounds. I am inclined to think that the limitations of the approach—readily acknowledged to exist by the authors—include pedagogical deficiencies that, were the model to be widely adopted, would result in our discussing Better Bankers, Better Banks 2.0 some years from now. That is, I intuit that, were it to be revealed, we would find a pedagogy of banking law steeped in the autonomy of limited regulation, the flexibility of contract, the security of economic interdependence, and the hegemony of certain ways of economic thinking. Such a pedagogy of “free market rule making insured by systemic safety nets” for for the privileged banking class—if it were identified as the problem—may be reinforced rather than undermined by covenant banking, which is predicated upon the institution of contracts (even in the sub-ideal regulatory version of covenant banking Hill and Painter address). This is not meant as an attempt to join the “vampire squid” school of banking analysis. Rather, I merely hope to emphasize that if we do not map more than the why and the what of modern banking culture to capture the how—to unveil its curriculum—we just don’t know what ideas will effect the change we seek…
My call for a pedagogy of banking is not a critique of Hill and Painter. Covenant banking is a proposal that actually looks at the problem in a nuanced fashion and proposes a nuanced solution that is responsive to the problem and not merely its symptoms. That is exciting. Moreover, as of today, there is no field called law and pedagogy on which they could have drawn to enrich their already robust work. So, I can offer no greater praise of their work than that it constitutes one of the best proofs of the value of the pedagogical analysis of law. Carter Woodson’s work spawned more than eighty years of constructive, proactive examination of and experimentation on the education of African Americans. I hope Better Bankers, Better Banks spurs the same for banks.