Those who follow the higher education story closely will want to have a careful look at the recent article in Fordham Law Review by a judge who rides the Second United States Circuit, José Cabranes. Under the headline “Myth and Reality of University Trusteeship in the Post-Enron Era,” Judge Cabranes, who has served as a trustee of Fordham, Yale, Colgate, and Columbia for a combined total of more than 30 years and was general counsel of Yale, makes the case that, contrary to the impression of omnipotence, modern university trustees actually don’t have much power at all.

If trustees “ever actually turned down a candidate for an academic appointment (say, on the basis of articulable institutional concerns), the university likely would be thrown into turmoil,” the judge writes. He pointedly mentions a former provost of Columbia, Jonathan Cole, who is “apparently under the impression that harsh criticism of outspoken faculty members by outsiders constitutes a threat to academic freedom, even when there is no possible effect within the university.”

Judge Cabranes also offers a view into how universities deal with the Reserve Officers Training Corps. “The usual playbook is this: Trustees are informed by presidents that, for a variety of political or academic reasons, the faculty would find the return of ROTC intolerable and that any action to the contrary by trustees would make the president’s own position within the university untenable.”

Governing boards of universities, the judge writes, do not really govern. They “exercise very little authority other than their power to hire and fire presidents and their power to raise money and prudently manage the university’s endowment — in support of activities over which they have little or no influence.”

Judge Cabranes offers some suggestions for turning the situation around. Trustees should meet at least once a year “to evaluate top executives and set their salaries.” He suggests that if the trustees themselves can’t do that, “then perhaps Congress or the state legislatures should impose the requirement by statute.”

“Benefactors who hold a view of higher education that is at odds with the prevailing views of the faculty need not face a Hobson’s choice either to give faculties a carte blanche with their donations or to abandon their college altogether. Rather, they can and should carefully target their donations to programs they admire and which can be reviewed from time to time,” the judge writes, calling “philanthropy with strings” a “good thing” for “keeping skeptical benefactors usefully engaged with their university.”

Finally, Judge Cabranes suggests “legislatures might be well-advised to modify their nonprofit corporation statutes to provide private rights of action for donors to enforce the terms of their gifts where they have explicitly reserved the right to do so.” The judge certainly has the standing and time in grade to make these suggestions, but whether the solution to the university problem is more litigation we’re not so sure. We are sure that the judge’s essay illuminates, without directly treating the topic of the scandal in Mideast studies at Columbia, why Columbia’s trustees — whose photos we once published on page one of this newspaper to accompany an editorial about how they should provide more oversight — failed to act. In so doing the judge Judge Cabranes has taken a lead worth following.