Sunday, January 26, 2014

Dean Frank Wu on Reducing Faculty Compensation

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

Critics of higher education ask from time to time why I don't simply reduce faculty compensation by, say, twenty percent. They are right to observe that the payroll is the primary portion of the budget. I am always willing to consider ideas offered in good faith. Here is how an across-the-board salary reduction for professors might play out.

The foreseeable reaction to my hypothetical decree likely would be the calling of a faculty meeting at which I would receive a no-confidence vote. Institutions of higher education practice democracy. The chief executive officer of a college -- one hesitates to even borrow that title from the corporate context -- is elected and can be unelected. Professors are my colleagues; I am not their boss.

Although the governing board is actually the authority that appoints me, a strong signal of disapproval from the faculty often, though not always, leads to the exit of the head of any campus. In rare instances, the board opposes the faculty and backs the leader. That in turn means a siege will set in, which has various outcomes, none especially happy.

I hasten to add that this isn't about self-interest. The point is not to protect my own job. The point is that a search for my successor will be convened sooner rather than later. The faculty will ensure that the most important selection criteria is whether the candidate will reverse my decision posthaste.

Thus it is not likely that a faculty salary reduction of any magnitude can be maintained permanently. It would merely swap out the person who presides over meetings.

Suppose though that I enjoyed sufficient popularity I could bring around a majority of my peers to accept this cut. No doubt there would be some who would do so begrudgingly or on the tacit understanding the situation was temporary.

Then the forces of the market would operate on us forthwith. Virtually all of our professors, capable and productive as they are, would look for opportunities elsewhere. The renowned scholars and the best teachers would be recruited away by our rivals.

The reputation of the institution would drop, perhaps irreversibly. The word on the street would be that the school was approaching its demise. (Blogs could be expected to encourage the speculation and exodus.)

Ironically, the group whom we imagine as benefiting from a reduction of faculty compensation -- the students -- would no longer be interested in attending. They would have no desire to be associated with a place that has such serious problems.

Collusion among schools on compensation is not legal and wouldn't be effective. It violates antitrust policies. But if it could be arranged, maybe by the state legislature as to the public system, there are enough well-endowed private schools that would take the opportunity to raid their competitors.

Finally, what if a magic reset were to occur. We wake up, and, by an intervention along the lines of the classical deus ex machina, faculty salaries ended up much lower.

The quality of the faculty would suffer, as people chose other pursuits: staying in the lucrative practice of law instead of joining the academy. Anyone a decent law school would consider hiring as a professor could, if she wished, make much more money at a prestigious law firm. Our tenured professors make less than a brand-new associate at such an enterprise.

Without delay, constituents would demand that each school compete against others in rankings, leading straightaway back into the same cycle as each bidder for a star tried to put together the best recruitment deal. Professors are human beings. They respond to the same incentives as anyone else.

Whenever we face difficult decisions, we wish for the cure-all. A moment's reflection on the consequences should suffice to dissuade us in this instance.

There are better alternatives. I admire the professors with whom I am privileged to be affiliated. They value both teaching and scholarship. Reducing compensation is not as good an option as increasing productivity. Our faculty already have agreed to increase their workload. Tenured professors are teaching more classes than their junior colleagues here and more than their peers at other leading institutions. They also are committed to increased counseling of students. Our strategic plan emphasizes engaged scholarship. The best research applies to the world around us. 

Together, but only together, we can change higher education.

January 26, 2014 | Permalink | Comments (0)

Thursday, January 23, 2014

In Support of Skills Training

At Ole Miss we just completed a two-week skills session, which is required for all students.

Information about the program can be found at: http://law.olemiss.edu/skill-session-success-made-possible-by-alumni/

I am really pleased with the success of this program, and the students have enthusiastically endorsed the idea of intensive, small-section professional skills courses. Every student will be required to take one of these classes each year of law school.

One of the great side-benefits of the program is that we bring together leading judges and lawyers who spend two weeks on campus. In addition to teaching their classes, these lawyers hold discussion panels on career and professional development. This experience convinces me even more that law schools should be expanding these opportunities for students.

 

January 23, 2014 | Permalink | Comments (0)

Sunday, January 19, 2014

Dean Frank Wu on The Truth About Law Professors

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

Law professors are facing criticism. They are accustomed to being on the other side of the podium. In the tradition of Professor Kingsfield of Paper Chase fame, they are depicted as engaging students in Socratic dialogue that puts the future advocates' analytic abilities to the test, constitutes hazing, or both. Now they are accused of profiting from those whom they are training. Although legal education ought to be subjected to scrutiny, if people want to be angry then they should be angry for the right reason.

Contrary to what people assume, the job of a professor is not easy.

When I entered academe, my former colleagues in practice seemed to believe I would spend the afternoons napping and the summers frolicking. Before I became a teacher, I spent time in what since has been dubbed "BigLaw."

I didn't just spend time at a firm; I spent lots of time there. I billed between 2500 and 2700 hours per year; I had a few 300 hour months. That was respectable back in the day. It likely would pass muster even as standards have changed.

These numbers do not describe well the workload if you have not billed time in six-minute increments. If you work the conventional 40 hours per week, 50 weeks per year, you would have worked 2000 hours total.

That's only if you managed to bill a client for each of those minutes. No ethical lawyer could claim to do that. You'd lose at least an hour per day to lunch, bathroom breaks, hallway chatter. That means you would need to work another hour each day to make those numbers.

Consider what it means to bill another 700 hours on top of that. Let's make the math simple by running through the figures with the hyper-efficient lawyer who realizes every moment of those 700 hours with no loss. You could work another full day, which brings you to seven days per week, and you would have put in more than half of that additional amount: eight hours for that extra day multiplied by fifty weeks equals 400 hours. To gain the final 300 hours, you could work another hour each day from Monday through Saturday.

Let's summarize how we reach that total of 2700 hours per year. It's Monday through Saturday, 9 am to 7 pm, plus Sunday, 9 am to 5 pm.

Even lawyers who love their job cannot keep up that pace. They need a few breaks. So you could work Monday through Saturday, 9 am to 8:20 pm, freeing up a day of rest.

The point of this exercise is that I can attest that I worked harder as a professor than I did as a practicing lawyer. The main difference is that when I was a professor, most of what I thought about I would have thought about even if I weren't being paid to do so. When I was a practicing lawyer, most of what I thought about I would not have thought about without being paid to do so.

For that matter, I am middling in my productivity as a professor. I have colleagues whose publication lists are much more impressive. The work required to write a law review article is underestimated by those who have not pursued tenure.

Any law professor who wants to be successful must be highly self-motivated. There are neither clients nor supervisors who will monitor their progress. There are only peers who check up on them once per year.

The legal academy deserves challenges, and it is receiving more than its share of them. There are various reasons to take to task its members, but laziness should not appear on the list.

 

January 19, 2014 | Permalink | Comments (0)

Friday, January 17, 2014

UF Dean Candidates Clarification

After my post yesterday I read UF Professor Jeff Harrison's comment on the Faculty Lounge:

http://www.thefacultylounge.org/2014/01/battling-to-keep-the-florida-law-dean-search-open.html#comments

Professor Harrison has granted me permission to quote his comment, which gives a clear understanding of why the disclosure of the UF Dean candidates was necessary. I think he  demonstrates why it is important for each search committee to be selected in an open and inclusive way. Furthermore, it is essential that the law school community have an opportunity to endorse the criteria for the next dean of the school, before the search begins.

Professor Harrison points out that neither of these took place:

...[I]t might be useful to know that the law faculty has had virtually no input to this point. The search was conducted by a private firm which I assume largely recycled the same list created for other schools. The search committee is composed largely of non law school people and, I think law professors, are a minority on the committee but I do no recall off hand. We are still weeks away from the law faculty having any significant input.

He also said that the list was going to be made public shortly, and that each candidate was aware of that impending disclosure.

It seems that the whole issue could have been avoided with more law school buy in on the front-end.

For schools beginning a dean search, I highly recommend Larry Dessem's (former dean at Missouri and Mercer) wonderful essay "Unsolicited Advice to Law School Dean Search Committees." http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1118&context=facpubs

January 17, 2014 | Permalink | Comments (0)

Thursday, January 16, 2014

UF Dean Candidates

As reported by our friend Dan Filler of the Faculty Lounge http://www.thefacultylounge.org/2014/01/battling-to-keep-the-florida-law-dean-search-open.html the University of Florida has disclosed a list of candidates for the deanship there:

http://fora.aa.ufl.edu/Provost/Pages/Search-Committee-Dean-UF-Law/Candidates

I am not sure that disclosure at this stage of a search is helpful, and it might make the job of the search committee that much more difficult.  I fully respect the Florida Open Meeting law, and its intended purposes, and think that the committee should be required to be open about its processes, and criteria for candidate review. Most importantly, the process for selecting the members of the search committee must be transparent and inclusive.

On the other hand, publicizing the names of the candidates, when a large majority of them will not be invited to campus for on-campus interviews, can do more harm than good. Strong candidates might decide to withdraw, if they were not expecting their applications to be public at this point.

Furthermore, the committee might be subjected to undue external pressure in favor of, or against a particular person.  This might be detrimental to the work of a committee tasked with holistic review of every candidate. The committee should be free to decide which candidates best fit the law school's goals as defined by the law school community and the university. The finalists chosen as a result of that process will, of course, be vetted in the open.

It will be interesting to see the impact, if any, of publishing the names of applicants at this stage in the UF search.

January 16, 2014 | Permalink | Comments (0)

Monday, January 13, 2014

Luke Bierman Named Dean of Elon University School of Law

Elon School of Law has just announced that Luke Bierman will be its dean effective June 1, succeeding George Johnson, who is stepping down as dean after five years of service.

 Bierman is currently associate dean for experiential education and distinguished professor of practice of law at Northeastern University School of Law.  The full press release can be found at:

http://www.elon.edu/e-web/law/about/dean-designate/default.xhtml

January 13, 2014 | Permalink | Comments (0)

Sunday, January 12, 2014

Dean Frank Wu: "The Press Will Turn on You, Sherlock"

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

My wife has taken to warning me, "The press will turn on you, Sherlock."

That's a line from the nonpareil BBC Sherlock Holmes series. I recently binge watched this updated version of the detective stories, set in modern London. Holmes true to form appears to be vaguely uncomfortable around people, perhaps because of Asperger's syndrome. Watson has returned from a tour of duty as a medical doctor in Afghanistan, as in the original canon. People sometimes mistake the duo for a gay couple.

In the cliffhanger last installment to be broadcast -- the series has been on hiatus for some time, as happens with English television -- Holmes has become famous thanks to Watson's writing (in the very up-to-date form of blogging).

Watson tells Holmes, "The press will turn, Sherlock. They always turn. And they'll turn on you."

In the past year, I have been flattered to receive accolades from various media sources. It's enough to make my wife worry. During this time, it seems a day has not passed without another article lambasting legal educators in general. It's hard to keep up with the accusations.

At my law school, we've been working on profound structural changes. These reforms include reducing the class size significantly and launching high-quality on-line courses. We've started Lawyers for America, which places third-year students into a hands-on externship with a public agency and then guarantees them a post-graduation paid fellowship in the same office. We've also accepted students into a Master's degree program that trains them to blend law with other disciplines, to prepare them for leadership in their current careers, not to become practicing attorneys.

We are not alone. Other institutions have adapted to the marketplace as well. They have used their own strategic advantages. Clinical training and international perspectives are among the innovations.

The aura of deceit, though, that has descended on law deans makes the challenges all that much more formidable. I look at the reporting on these improvements, the blogging, and, most especially, the various comments that are posted on the internet.

They are a blend of distrustful and welcoming. Some assert we are acting out of self-interest. Others allege that we care only about rankings or revenue.

Truth is, I would be a skeptic as well. Even as the economy recovers, there is a sense -- based on a reasonable rationale -- that the American Dream has lost its luster. Families face the real threat of downward mobility. We must become reconciled to competition nationally and personally, such that the minimum levels of credentials and skill sets ratchet upward.

The legal profession, and legal education by extension, are only an example of the problem. Law happens to be an especially troubling case. Law is the foundation for everything else in a democracy. Higher education is the engine of the American Dream of upward mobility.

Being admitted to law school, with the expectation of becoming a lawyer, symbolized acceptance of not only an individual but also a community. It promised access to the justice system; equality in public life; and, perhaps for the most ambitious and the most idealistic, the ability to change the world. The expectations were set so high that disillusionment was inevitable, in hindsight.

Yet I continue to have confidence. Our nation has an openness to immigrants and ideas. We have a system that allows both to flourish, a system structured through law.

There will always be a need for lawyers -- the right number of lawyers, not the excessive quantity that have been produced lately. There also is increasing need for legal professionals who are not lawyers, but who work alongside lawyers in areas such as compliance, human resources, and criminal justice.

Education returns value. Young people with only a liberal arts undergraduate degree, or without any bachelor's at all, have much worse prospects than those with advanced levels of higher education.

t's never easy to restore faith. But doing so always requires cooperation. The most important skill of a law professor is knowing the questions to ask, even if one does not know the answers to give. It is imperative to me that I ask the questions, and I have confidence that together we will find the answers.

For our students, I tell them that the economy is not good, recovering slowly, and likely to be dynamic. I strive to show them, however, that we are on their side. I don't know that I always succeed, but it does not serve their interests to end up adversarial to those who are able to help their cause.

In the Sherlock Holmes reboot, the "Reichenbach Fall" episode ends with Holmes suspected of being nothing more than a fraud. Fans know he will be vindicated in due course.

January 12, 2014 | Permalink | Comments (0)

Thursday, January 9, 2014

Law Schools and Tenure

Taxprof has posted a link to Karen Sloan’s article in the National Law Journal describing a panel discussion at the AALS Annual Meeting. The discussion, which drew a huge crowd, was about  the ABA proposal to eliminate its tenure requirement for law schools. http://taxprof.typepad.com/taxprof_blog/2014/01/law-profs-oppose.html

I was there, and was impressed that so many speakers were applauded for their stance that tenure should remain in the ABA Standards for Approval of Law Schools.

Currently, Standards 405(a) and (b) require:

(a)   A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

(b)   A law school shall have an established and announced policy with respect to academic freedom and tenure...

I did not speak that day, and probably would not have gotten any applause if I did. I do not think that accreditation standards should require a specific type of job security, and I believe that the ABA’s proposed changes should have very little impact, if any, on existing tenure systems. It is important to note that academic freedom and tenure are separate in the Standards, because they are separate things. Tenure is simply a contractual relationship between the institution and the faculty member. It does not guarantee academic freedom, and can mean different things at different schools. A private religious institution, or a for-profit law school, might define “cause for revocation of tenure” in a much more expansive way than a state university would.

Since law schools can and do define tenure in different ways, why should tenure itself be required in the Standards? Academic freedom for faculty is clearly a more important consideration, and the ABA will continue to require schools to have policies regarding academic freedom.

Furthermore, the proposed Standards do not prohibit tenure; they simply do not require tenure as the only way to create stability and security for faculty members. My university has no plans to move away from a tenure system, and I would bet that is the case for the vast majority of universities with law schools.

Maybe the real key to the discussion is Standard 405(a), which requires the school to create conditions to recruit and retain a competent faculty. When I was founding dean at the Charleston School of Law, my governing board did not want to have tenure. We were a stand-alone school, and they reasoned that they should be able to contract with our faculty in a way that best suited the goals of our institution. They argued that the Standards only required an announced policy regarding academic freedom and tenure, and that they could meet that Standard without actually granting tenure.  

I fought hard to have a tenure system. It was the biggest fight I had with the board in my time there. Aside from the 405(b) considerations, my primary concern was that it was going to be extremely difficult to attract good faculty members if we did not have plans to offer tenure. In fact, before we came up for ABA approval we lost a great faculty member (who is now a dean), because the founding board said it did not want a tenure system. In the end, the board approved a tenure-track that is very much like the tenure-track at most law schools.

That being said, if a school can attract and retain competent faculty members, and it offers job security and academic freedom, why should it be required to offer tenure as a matter of accreditation? We talk a great deal about innovation in our profession. Why are we so resistant to allowing other schools to try new ways of doing things, even if we would not choose the same path for our own schools? The proposed Standards simply allow that opportunity.

January 9, 2014 | Permalink | Comments (0)

Sunday, January 5, 2014

Dean Frank Wu on Reinventing Legal Education: The Cost of Change

This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.

Law schools have changed. I know, I know: not fast enough. Law school deans are taking a beating in the popular culture. We're alleged to be con artists who, leading some sort of bizarre crew of hyper-theoretical professors, are enticing consumers to purchase a worthless product that ruins their lives.

Law schools must continue to change. Our technology-based culture has proven again and again and again that the only true constant is change. At the same time that Twitter, founded seven years ago, set up its headquarters a few blocks from our campus, the United States Postal Service, which predates the United States, announced it could no longer sustain Saturday service as a business proposition.

I would like to take a moment to talk about what is different now compared to a couple of generations ago. The senior leaders of the bench and the bar were just graduating from law school. They emerged in the era circa 1973 of the anxiety of "stagflation," the economic combination of stagnation and inflation, and the drama of the Watergate investigation.

A firm with 50 lawyers back then would have been a leading institution; partners did not move over to a rival; and compensation was a private matter and much more modest. Of course, fancy firms had only just ceased to be identifiable as Protestant, Catholic, or Jewish; the only people of color working there probably cleaned the offices; and if there was a single woman attorney she likely did trusts and estates.

I'd also like to lay out the budgetary effects of change in the academy -- and the tuition consequences. As we face demands for revolution, while implementing reform, it would be useful to consider the costs. (I won't even mention that back then public schools received the bulk of their budget from public sources.)

The greatest change has been the embrace of clinical legal education. By "greatest," I mean the most sizable and the most worthwhile. Similar to the model of clinical medical education, clinical legal education is the best means by which we prepare students for practice. It has been so successful we as a profession might well be on the cusp of requiring it for every graduate. No med student graduates without examining a few actual patients.

The expense of clinical legal education can be calculated in straightforward terms. A professor in a doctrinal class, such as the first-year required curriculum of civil procedure, criminal law, property, contracts, and torts, can lecture to a hundred students at once. That is not ideal, but it is not uncommon. A professor in a clinical class, supervising student attorneys who are representing real people in real cases, cannot train more than ten students at once. That's if she cares about her responsibilities both as a teacher and a lawyer.

It happens that the "podium" professor as they are called likely makes more money than her clinical counterpart, though not by much. Thus the difference is more than an order of magnitude. Once you count the overhead required for an actual legal office, the clinical course requires ten times as much money. There are new technological advances that will alleviate some of that.

Pause for a moment on this math. If we want clinical legal education, we will need to spend much more to provide it. As curmudgeons tell the young, this is called a choice.

Likewise with the student experience. The expectations for legal education in general have become so much higher. Traditionally there wasn't even lip service paid to "the student experience." Until recently, legal education has been miserable -- ritualistically, proudly so.

My predecessors really did say at orientation, "Look to your right, look to your left. One of you won't be here next year." Some of them said "two of you," and then they ensured it came true. Whether they flunked out or dropped out, they were not missed.

I say when I meet the assembled matriculants, "Look to your right, look to your left. These are your future colleagues and clients, the judges before whom you will appear, and, for some of you, your future spouse or partner." They want us to create a genuine sense of community; we want to do that too, not solely for competitive advantage.

None of this makes me better than those before me. We belong to different periods in history.
Over time, we have added dozens, literally dozens, of professionals for student services that would have been scoffed at.

Law school stressing you out? Back in the day, the response would have been, "Well, perhaps law isn't for you." Need a job? Then, you scanned a bulletin board with some index cards tacked onto it advertising openings. Deaf? No interpreter unless you paid yourself.

Today, we have counselors for students and numerous organizations they form for everything from patent law to running, advisors on careers and placement, specialists for disability accommodations, medical personnel for serious issues, and public safety officers. Many of them hold a law degree themselves.

Most recently, we added an office to compile data and address accreditation requirements. Everyone wants us to be transparent, while lowering our costs. Those goals, as is true of many human desires we feel simultaneously, are not highly compatible. Like elegant product design, transparency turns out to be pricey. Specifically it requires that we build an apparatus to find the information, organize it, verify it, submit it, and then track the trends that are revealed.

The other day, I spent the lunch hour in our cafe to chat with students. A nice fellow, a first-year student, came by to meet me. The only subject he wished to bring up was ice cream. He wanted to know if the cafe could install a machine as he recalled from his undergraduate days elsewhere, so he could enjoy soft-serve ice cream.

As I explained to him, I have nothing against ice cream. If we can make a profit as the vendor, then we would be delighted to offer ice cream. But if we cannot do so, then our strategic plan does not call for ice cream.

Our strategic plan is about high-quality legal education. The definition of every aspect of that phrase, "high-quality," "legal," and "education" is dynamic, not the same as it was two generations ago. Improvements to each facet require we make expenditures. That forces us to ponder what it is exactly as a society based on the rule of law we want to pay for our principles.

January 5, 2014 | Permalink | Comments (0)