Monday, August 31, 2015

Would You Like My Job as a Law School Dean?

I had lunch today with someone who aspires to my job of heading an institution of higher education. That's terrific. I have encouraged him. He possesses the competencies and the interest; it is possible to have one without the other.

These are not easy roles. Every day, I read about a university system president, campus chancellor, or law school dean who has announced a resignation.

I have entered my sixth year of service as Chancellor & Dean of University of California Hastings College of the Law; my tenth with the decanal title. (I have an unusual position, because we are among the few "stand alone" law schools, meaning the institution offers only that single discipline of study.) 

Here is a bit of data that depresses me. Based on the numbers, I rank in the top third of my profession for seniority in my current office and top sixth for seniority cumulatively. 

That is not to praise myself; it's to deplore the turnover rate. Recently, the tenure of law school deans reached a record low. The median hit 2.78 years — less time than it takes one of our students to graduate with the J.D. (To be precise, as one should with statistics, this is the median rather than the mean, which likely is a better representation of longevity; it also presents a moment in time, not the length of service when it ends, which would be greater.)

It is unlikely that any leader, however competent, can bring about positive change in that short a time. Even if they come from inside the place and have performed similar functions, they would barely have established themselves and figured out what had to be done.

There are various reasons for this instability. Law schools are an extreme example. But what is true of law schools also is true to a significant extent of liberal arts colleges and of almost all other segments of higher education. Most of what a comprehensive campus enrolling 25,000 must do, a “special focus” school enrolling 1000 also must do. The same norms are applied across the board.

Higher education brings together multiple constituencies with conflicting goals. Students, faculty, alumni, staff, and the many members of the public who regard themselves as stakeholders have dissimilar notions of what a school should be doing. Some perceive its purpose of the advancement of knowledge in a classic, timeless sense. Others see it as a credentialing authority, a job placement agency, the freedom of moving away from home, a parent in absentia, a child care provider, an employer, a landlord, an investor, a neighbor, and a public space.

Even within a constituency, the expectations are contradictory and rising. Schools are to do more for less, either receiving a decreased state subsidy or holding constant tuition. They are to feature renowned faculty whose scholarship has the best reputation, without being involved in controversy. They are to have winning athletic teams on television, while graduating significant numbers of players and avoiding abuse of them or by them. They are charged with enforcing laws about immigration and new norms of sexual conduct, responding to regulations and improving in rankings. 

Yet schools also have relatively high fixed costs. There are few incentives to offer for performance (and limited disincentives for the lack of it). Competition has become significant even as differentiation has become more difficult.

These causes tend to ratchet. That is, they make themselves worse. The more churning in the executive suite, the more uncertainty throughout; the more uncertainty throughout, the greater the risk to performance measures; the greater the risk to performance measures, the more likely churning in the executive suite.

When I left the practice of law and entered academe, I had no aspiration toward administration. I thought it would mean giving up the opportunity to develop my own ideas and train students as advocates. That was the point of pursuing an academic career. It was all about thinking. Very few of us are paid to think for a living, much less to think about what we want to think about, and, furthermore, to tell people what we have thought.

I had the privilege, however, of serving as Trustee at Gallaudet University, the school for the deaf and hard-of-hearing. I saw what a great college president, Dr. I. King Jordan, whose selection was the culmination of the "Deaf President Now!" civil rights movement, could do to transform a community.

I was inspired. My goal is to improve higher education, to ensure it continues to be the engine of the American Dream. I would not be here, in a literal sense, if it were not for higher education in America. My parents came as scholarship students, and they were able to do what so many have done: to better their own lot in life even as they contributed as productive citizens in our diverse democracy.

We once believed in higher education as a public good. It benefited society as a whole and deserved support, even from individuals and families who might not attend any particular school. 

Now, whatever our politics, the consensus has shifted toward higher education as a private good. It is for the person who desires it, as a consumer good to be marketed, sold, and in turn bought. Then, essentially, it can be resold in the form of a worker who has the requisite stamp of approval. That person bears the burden of paying for it, typically through debt financing. (Given this scheme, I do not for a moment begrudge our students. Paying the tuition they are charged, of course they call themselves “consumers.” In a forthcoming post, I will offer an alternative conception of the relationship that would serve their interests better.)

Managing a college means being a generalist and being practical. A college encompasses its core academic functions, but it also has to perform well in everything from labor relations and information technology to marketing and fundraising to student health and housing. When I was a professor, I did not need to be concerned about any of that. Now there isn't any single person at the school other than me, who has to have a hand in or at least keep an eye on the complete range of issues. I have had to acquire practical knowledge and skills, even as I strive to delegate appropriately and effectively. The challenge surpasses any scholarly project I have undertaken.

For my colleague who wanted to know more about how he should prepare for this job, I have been as open as possible.

I wish him luck. He needs it less in applying than he will once he has been hired.

This essay originally appeared at Linked In through the Influencer program.

August 31, 2015 | Permalink | Comments (0)

How to Start Law School: 'I Know Kung Fu'

I love to welcome students to law school. There is such enthusiasm this time of the year. Here is what I shared with our incoming 1Ls at UC Hastings.

When I was a kid growing up in Detroit in the 1970s, I was a stutterer. Back then, the treatment for a stammer included forcing you to do speech and debate.

That explains how I ended up in law school. But if I can stand in front of an audience, then anybody can. There are always moments of anxiety and self-doubt in an intense experience such as what you have signed up for. It's important to know that others have done fine and made it through.

Law professors usually make three points.

First, you are joining a profession. It is customary to say that happens when you matriculate, not when you graduate. But there is another aspect that was not once uttered to me when I was a student, twenty-five years ago. It's about the nature of the profession.

Law is a service profession. You serve others. That's the meaning of representation. You act on behalf of your clients and not yourself.

You also are an officer of the court. That requires that you advance justice.

I always thought when I finished my education, I would be an expert: I would be entitled to tell people what to do.

As soon as I was working as a lawyer, I was disabused of that notion; it's the other way around. Someone else's interests are always above your own self-interest.

There are no hermit lawyers.

You are joining a community. That is what makes a law school great. More than the research and the teaching, it is the sense of belonging. Look to your right, look to your left. These are future clients, law partners, the judges before whom you will appear. For some, the individual seated there is your future spouse or partner.

Second, you get out of this what you put into it. Education requires engagement, It is not a product to be purchased, but a process to participate in.

When I work out -- you heard I'm preparing for another half-marathon -- I always end up a bit more lackadaisical than I intended when I requested a session at the gym. As the trainer tells me, I need to exert effort on my own initiative. She is there to encourage. But it has to be me expending energy.

Third, I will say what I say every year. Students always ask for advice. Here is what I will say: "Sell your television."

When I started teaching -- to my chagrin, I am no longer mistaken for a student -- it was enough to say that. Now, I have to add due to technological change, cancel your streaming services, digital subscriptions, and so on: Netflix, Hulu Premium, however you receive video content.

I say that not because I dislike television. Just the opposite. I'm waiting, like many around the world, to binge watch the next season of Sherlock. That's why.

It's too tempting to have a program running in the background. It'll distract you. My suggestion is a test of your commitment. I'm not talking about giving up your favorite show forever -- it'll still be there when the semester is over. My colleagues point out the need for balance; I agree -- I just recommend what is active rather than passive.

I envy new law students. I am reminded of the 1999 blockbuster The Matrix. (Never mind the sequels.) When Mr. Anderson becomes Neo, he sees the code that makes up the reality around him. That's what law school will do. You'll wake up and say, "I know kung fu." You will perceive the law that constitutes society around you.

If you have ever enjoyed arguing, there is nothing like the exhilaration of starting law school.

For the benefit of first-year law students, I have written a series of blog entries on starting to think like a lawyer, the "trick" to law school, how to answer any legal question, the concept of "meta," and why numbers matter.

This essay originally appeared on Huffington Post.

August 31, 2015 | Permalink | Comments (0)

Why a Law School Should Teach Public Policy

We recently hired a professor to teach public policy advocacy at our law school. This is a great example of the value of expanding the conception of what a lawyer does. UC Hastings is unusual, because it is a "stand alone" law school. Although affiliated with the world-class UC system, our campus offers exclusively legal training. In the "Carnegie classification" of institutions of higher education, we are designated as special focus. 

Even though we are more concentrated on law, we have been reaching out as much as possible to promote interdisciplinary training. We have partnerships with business schools and medical schools.

Public policy is a natural addition, because it is so closely related to law. It is indistinguishable in many respects, as the United States becomes increasingly a system of statutory law, from its roots in English common law. A lawyer who wishes to be as much as possible a conventional lawyer needs to know how the law is made. Whenever Congress or a state legislature promulgates a new policy, it does so by passing a statute. It creates "positive" law.

A lawyer also is expected to be able to advance a cause through multiple means. The best lawyer understands that for the typical client, law is a means to an end rather than an end in itself. The lawyer competes with accountants, financial advisors, business consultants, and even other authority figures such as social scientists or clergy, in giving advice and counsel and resolving disputes. A person who retains a lawyer for a project wants the tasks done, done well, and, presumably, done in an appropriate manner — but most people would accept another type of professional if she could offer the same capabilities and deliver similar results.

The most thoughtful lawyers also realize their own self-interest is bound up with public policy. Whole areas of law are created and destroyed by public policy: an executive order, a bill, or even an administrative agency "dear colleague" letter can ruin a lawyer's living or open up altogether new possibilities or both.

Trial lawyers, for example, have always been aware of these risks. They are the most lawyerly of lawyers. They do what laypeople rightly perceive as the crux of what a member of the bar does — appearing in court. Prosecutors, criminal defense lawyers, and every other type of litigator have associations to ensure access to the courts.

That means they educate the public and lobby government officials. They have no choice. They want to protect their vocation. It is highly regulated. (For that matter, I encourage business schools, medical schools, and every other type of professional school to consider bringing on someone expert in law and public policy.)

The more we improve law schools, the better we will prepare law students to be leaders. That is what service is all about.

August 31, 2015 | Permalink | Comments (0)

Sunday, August 30, 2015

More on tuition discounting

In a post last week, Dean Yellen acutely raises the important issue of tuition discounting in law schools.  It is an extraordinarily important issue in the modern law school world, even as it flies somewhat under the radar screen in the current debates about law school economics, student debt, and educational strategy. 

Let's first be clear about what we don't know:  Law schools are not required to distribute exact discount rates nor scholarship distribution across credential levels (or, for that matter, other student profile data).  So, while we have, through ABA reporting requirements and such, data about student debt levels and (more or less) overall financial aid, we do not have readily available the kind of information that would truly enable to get to the heart of the issues Yellen raises: what is the impact of tuition discounting on student debt?  How is it distributed across students, across schools, across time?  And what does it tell us about the prospects and progress of law schools in tackling the "cost" issue.

That all said, my intuition is much the same as Yellen's and that is that tuition discounting has skyrocketed in recent years.  Law schools have put significant resources into aid for students at the high LSAT/GPA levels -- "merit" aid versus "need" -- this in an effort to protect their LSAT/GPA medians in a period of applicant decline.  No compulsion underlies these choices; these are deliberate choices made by deans & admissions officers at the margin.  Yet, from the perspective of the law schools writ large (or, perhaps more accurately, law schools in particular competitive cohorts), there is a rather sharp collective action problem at the heart of the strategy.  It would very much be in the interest of competitor law schools to limit such aid, but hardly anyone has the incentive to unilaterally disarm.

I want to explore this important topic in future posts, but, for now, just three quick observations:

First, as Dean Yellen notes, it is obvious that this expanded tuition discounting benefits students by reducing aggregate student debt.  From this perspective, the tension is between the economic well-being of the law school qua law school and the interest of the students in paying less than the sticker price -- and, in some cases, much less so.

Second, less clear is the distributional impact of this discounting across the student profile spectrum.  Tuition discounting in the modern law school world is mostly, I might say almost entirely, about merit aid.  Merit aid goes to the high-end applicants; the strategy of law schools who can and will significantly discount tuition is to pull these applicants from higher stature law schools with the promise of money.  The best available evidence suggests that these students will do well in these schools and will thereby have comparatively better job opportunities.  All told, we are using merit aid to assist students who are less in need of aid than the the students who are paying sticker price.  The rich get richer, as the saying goes.  So, there is a distributional issue at the heart of this phenomenon and one that raises some difficult ethical issues.  (In this regard, tuition discounting in law schools raises some rather different issues than the move toward need-blind or need-aware admissions in well-resourced undergraduate students, a key part of the driver toward high rates of discounting in that space).

Third, tuition discounting will be more fruitful and durable as an economic strategy for those law schools who can look in large part to non-tuition sources of revenue to foot this bill.  Alum giving that is targeted to such spending strategies is at least a stopgap; depending upon the magnitude, it is a terrific fix.  But it is, of course, less "terrific" for those law schools whose fundraising portfolio is more modest or, in any event, is being deployed in directions (clinics? need-based scholarship? space enhancements? public interest fellowships?) other than the hand-to-hand combat over high-end students. 

I simply highlight these issues to show that the phenomenon of tuition discounting, accelerating and ubiquitous, raises important issues as we think hard about law school economics and educational outcomes.

August 30, 2015 | Permalink | Comments (0)

Wednesday, August 26, 2015

Tuition Discounting on the Rise and its Impact on Law Schools

According to this new survey, tuition discounting at private colleges and universities reached an average of 48% for freshman last year.  That is up from 38% in 2004.

How does this compare to what has been happening in legal education?  Back around 2004 I surveyed a range of private schools and the average discount rate was around 20%, about half of what it was then at colleges.  This year, based on what I know about my school and a handful of others, the average private law school discount rate is close to the college rate of 48%, maybe even somewhat higher.  This enormous increase reflects the intense competition for a much smaller number of applicants.  Most of this increased spending has occurred since 2010.  Nominal tuition rates have gone up during this time, but for many schools the rate of increase is smaller than in the past and much lower than the increase in scholarship spending.  Put these factors together, and it reveals the massive hits our budgets have taken.  

Of course there is good news for students in these numbers.  Lower enrollment means a better match between graduates and jobs.  And larger scholarships, perverse as our system of merit based aid is, means less debt.  In fact, I won't be surprised if debt loads at graduation soon start to decline.


August 26, 2015 | Permalink | Comments (0)

Tuesday, August 25, 2015

What I Miss, and Don't Miss, About Being a Dean

I was very fortunate to serve as dean of the University of Mississippi School of Law from July 1, 2010 until June 30 of this year. I appreciate that my co-bloggers on this blog are allowing me to continue to post, even though I am no longer a member of their ranks.

There are  things I miss about being a dean, among them is the opportunity to spend time with  US Supreme Court Justices, and other dignitaries.  I will also miss working directly with alumni who care about the law school, and give generously of their time and talent, while asking for very little in return. Maybe what I will miss the most is the close working relationship I had with the other university deans and administrators, and the law school administrators and staff. I really enjoyed those daily interactions. I am not sure that most faculty members understand how much law school associate deans, administrators, and staff do every day. As a dean, I knew I could have never survived without their collective dedication, support, and sense of humor.

 On the other hand, after 13 years as a dean at three law schools, there are things I definitely won't miss, now that I am teaching full-time, again. My colleagues here have all said I look happier, and even a little younger, now that I have stepped down. I must admit it feels great to be able to have a much more regular work-out routine. Exercise has been my go to drug for most of my adult life, and being a dean makes regular exercise much more difficult, because of the demands of time and travel. 

I truly like every member of the Ole Miss Law faculty, and being a dean means that it is hard to have lunch with colleagues or to socialize with them on a daily basis. There is a natural separation between deans and faculty members that I will not miss. Similarly, being in the classroom regularly allows me to get to know our wonderful students much better, and in a different capacity.

Additionally, I  am happy not to be the person conducting faculty meetings, and I certainly like the way my email inbox has thinned out. It is also nice not to have to deal with personnel issues, or all of the administrative paper work and e-forms that fill up so much of any day. 

Maybe the best part of not being dean is not having to deal with the "Don't You Know Who I Am" and "I Will Never Give Another Penny to this Law School" attitude I encountered on occasion. For example, one alum wrote me a nasty email because I had invited Congressman John Lewis to speak at our law graduation in 2014 (his speech was fantastic, by the way). The alum said that he would never give a penny to the law school, because of my choice of speaker. Of course, I checked his giving history since he graduated decades ago, and he has never donated one cent to the law school. As dean, I had to spend far too much time dealing with negative people like that, and had to do so diplomatically.






August 25, 2015 | Permalink | Comments (0)

Deans v. Clinicians?

As California considers whether to require 15 credit hours of experiential learning prior to admission to the bar, the  executive committee of the AALS Section of Clinical Legal Education and the AALS’s Deans Steering Committee have lined up on opposite sides of the issue.

Setting aside the merits of the argument, it is good to see the Steering Committee weighing in on a policy question affecting law schools.  Deans have previously been unable to organize in a way that allows us to have a collective voice in the ABA accreditation process, AALS policies, state bar issues, etc.  Clinical faculty have been admirably diligent about monitoring and expressing views about these matters.  Deans are an important voice on legal education issues, and should be heard.  Even where there is not widespread agreement among deans on important questions, policy makers should be informed about what deans think and why.  More on this later.

August 25, 2015 | Permalink | Comments (0)

Thursday, August 20, 2015

What do you think about Limited License Legal Technicians?

Washington State has now licensed its first LLLT's.  After meeting a variety of educational and training requirements, these individuals will now be able to deliver certain family law services.  Other practice areas, and other states, are likely to follow.  The Illinois Bar Journal has published a good article featuring voices in support of, and opposing, the LLLT concept.

I first studied this concept while serving on the ABA's Task Force on the Future of Legal Education (Paula Littlewood, who is featured in the IBJ story, was also on the Task Force).  I tend to think that authorizing some form of limited licence practitioners is a positive way to extend legal services to those who cannot afford them, much as nurse practitioners function in the medical field.  However, I am not convinced that Washington has required enough training of LLLT's (far less than nurse practitioners receive).  

note:  I have edited this post to remove an inaccurate statement about Washington's LLLT requirements and to include a link to that program.  Thanks to Andrew Perlman.

August 20, 2015 | Permalink | Comments (2)

Wednesday, August 19, 2015

Assessing Student Learning Outcomes

As legal education moves into the world of requiring schools to assess student learning outcomes, here and here are two interesting and differing opinions about the value of assessment.  During my time on the ABA's Standards Review Committee, I moved from skeptical opposition to skeptical acceptance of requiring schools to identify and assess learning outcomes.  The new ABA standards are quite flexible and it will be fascinating to see how schools implement the new requirements.

August 19, 2015 | Permalink | Comments (0)

Thursday, August 13, 2015

TRO Against Charleston School of Law and Its Remaining Owners

Following up on an earlier post here, the TRO against the Charleston School of Law, along with owners Bob Carr and George Kosko, has now been published on the Charleston County Public Records site.  [You may have to do a separate search to retrieve the document, but you simply search for Nancy Zisk as the plaintiff. ]

The judge's order supports the importance of tenure, and also confirms that the owners have the burden of showing financial exigency. It is not enough for the owners to simply declare exigency, as was the case in this lawsuit.

My understanding is that Professor Zisk plans to post the required bond, today. Once she does so, the school has been ordered to reinstate her. We should see her name listed as a faculty member on the law school's website by tomorrow, if the owners comply with the order. Also, classes start at CSOL on Monday, August 17. It will be interesting to see if Professor Zisk is back in the classroom, where she belongs.

August 13, 2015 | Permalink | Comments (0)

Wednesday, August 12, 2015

Correlations in Transfers-in and Law-School-Funded Employment

Organjerry[by Rick Bales]

Jerry Organ (St. Thomas (MN) Law) notes at The Legal Whiteboard that law schools accepting a significant number of transfers-in also tend to be the ones hiring the largest numbers of their own grads into law-school-funded positions. He raises good points about the implications for those schools' prospective first-year and transfer students.


August 12, 2015 | Permalink | Comments (0)

Wednesday, August 5, 2015

Call for Nominations for the AALS Section on Women in Legal Education 2016 Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2016 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg, in 2014 the award honored Catharine A. MacKinnon, and the 2015 award honored Herma Hill Kay.  All of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.
The purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years.  The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.
The Section is now seeking nominations for this most prestigious awardOnly individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award.  As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2016 AALS Annual Meeting. 
Please submit your nomination by filling out this electronic form​ by August 31, 2015Please note that only nominations submitted via the electronic form by the deadline will be accepted.

August 5, 2015 | Permalink | Comments (0)

Monday, August 3, 2015

Judge Grants TRO Reinstating Fired Professor

A judge in Charleston, SC has granted a Charleston School of Law  faculty member's motion for a temporary injunction against the school and its remaining owners. Professor Nancy L. Zisk was one of seven tenured faculty members fired by the law school. 

These type of temporary injunctions are rarely granted in employment cases, and the plaintiff would have to show irreparable harm, and a likelihood of success at trial.  

August 3, 2015 | Permalink | Comments (0)