Balkinization  

Tuesday, November 16, 2010

My "Dean's Vision" Speech

Brian Tamanaha

The average length of a deanship is around 3-4 years (it’s a tough job!), so every year a sizable number of law schools are engaged in a dean search. I am regularly reminded of this when head-hunters contact me to ask if I might be interested in an opening. (I am on a list of potential candidates, I suppose, because I survived an interim deanship a dozen years ago.) To help interested schools determine whether I am suitable, I thought I would post my “Dean’s Vision” speech:

Faculty Members,

If I am given the privilege to be your dean, I assure you that our law school has a bright future ahead. But the path to that future will not be an easy one.

In the past decade, dean candidates typically have promised to build a law school by increasing the size and quality of the faculty, which would lead to more scholarship, and by increasing the credentials of the incoming students. Candidates have promised to raise more money from alumni, who would give generously to enhance the prestige of their alma mater; candidates have acknowledged that tuition increases, keeping pace with competitor institutions, would be necessary to fund this ascent to excellence.

My pitch to you is different. I promise to hold down the size of the faculty while maintaining, and perhaps improving, student credentials. I will hold the line on tuition increases. My pitch to the alumni will be that, with their help and with the help of the faculty, we can solidify our position, while other law schools, those that continue to follow the old model, find themselves squeezed in a vise of their own making.

One jaw of the vise is the relentless upward march of tuition. From 1988 to 1998, median tuition at private law schools increased by $10,000; from 1998 to 2008, tuition went up another $15,000—that’s an average increase of $25,000 in just 20 years. Median annual tuition at private law schools now exceeds $35,000. A number of schools have already hit $50,000. This rate of increase cannot continue. Three major factors have fueled this spectacular rise. From 1998 to 2008 alone (as reported in National Jurist): 1) law faculties expanded in size by 40%; 2) pay for full professors increased by an average 45%, and benefits by 25%; and 3) scholarships increased by 300%.

The other jaw of the vise is an ongoing structural change in the legal market, which promises to extend beyond the current legal recession. There are many indications that, even after a bounce back in legal business, corporate law firms will rely more heavily than before on outsourcing, temporary employees, contract workers, and the like; and their corporate clients will insist on substantially reduced billing rates for new associates. This suggests that the market for new hires in the corporate law sector will be constricted going forward and law firms will be more restrained in setting salary levels for new associates.

The prospect of securing high paying corporate law jobs upon graduation was a major reason why so many prospective law students have been willing to take on massive debt to attend law school. (The average debt of private law school graduates today exceeds $90,000). Economic logic suggests that as price goes up and expected return goes down, at some point, when costs exceed expected benefits, fewer people will choose to invest in a law degree. Applications will decrease or yield will decrease.

No one knows when the crunch will happen—and it won’t happen at the same time or in the same way for every law school—but happen it will. The schools trapped in this crunch will be those that have embarked on substantial expansions of their faculty. Faculty is the biggest expense on the budget—and tenure makes it difficult to trim this expense. To pay the bills, these schools will be forced to take more students from a declining pool of applicants (leading to a reduction in student credentials), and they will be forced to take greater numbers of transfers from schools of much lower standing. Those lower down schools, in turn, will suffer a serious revenue drain from the departure of a significant proportion of their upper level students.

If I am the dean of your law school, and if you support me in this collective endeavor, we will be well positioned to weather this crunch. My plan is simple.

Even under the most optimistic projection, we cannot expect that donations and income from the endowment will cover move than a small fraction of operating expenses. Nor can we reduce the amount expended on scholarships because this is essential to maintaining the credentials of our incoming students.

If we cannot generate more revenue, we must trim costs. These reductions will come in several painful ways, mostly focused on the faculty—directed at compensation and work load.

During my full first term as your dean, I will not award a raise to any faculty member who currently earns in excess of $180,000. Faculty members who earn between $160,000 and $180,000 may receive merit based raises in flat amounts (not percentages), not exceeding $2000 annually. Those who earn between $140,000 and $160,000 will be eligible for merit-based raises of up to $3,000. To supplement these restricted raises, each year I will award several $1,000-$3,000 bonuses to faculty members who have made outstanding contributions to the school. Faculty who earn below $140,000 will be eligible for more generous raises.

I recognize that the high earners among you, many of whom are accomplished senior scholars, will be dismayed by my proposal. Let me say just two quick points in defense. Law professors often remark that we have sacrificed income to become professors since we could have earned more as lawyers (this rationalization justifies the fact that we earn upward of a third more than professors in other university departments except for the medical school). It’s a terrific deal for us. We exchanged money for freedom of time and thought, and quality of life. To be paid two hundred thousand dollars a year is a handsome sum for what we do. The particular salary cut-offs I have identified are arbitrary and open to discussion. But the essential point is that salary increases must be sharply reduced.

As it turns out, furthermore, most senior professors (mid-50s and older) on law faculties today are the lucky beneficiaries of a sweet spot in timing. When senior professors went to law school, tuition was relatively cheap—typically under $3,000 at even the most expensive schools; yet they have enjoyed the boost in professor pay that was made possible by the subsequent leap in tuition. Their total debt from law school was small and quickly paid off with low monthly payments.

Now consider the less fortunate situation of our younger colleagues, for example, those who graduated in 2000, when annual tuition averaged nearly $22,000. The average debt of a private law school graduate in 2000 was close to $70,000. Hence many young professors on law faculties carry a substantial debt burden that senior colleagues never had to bear. Their earnings must go up—consequently senior colleagues must take less.

Dean pay has also gone up spectacularly during this period, of course. So I pledge to accept a salary 25% lower than that of the outgoing dean, and I will not accept raises during my first term.

A possible adverse consequence of my proposal is that highly productive members of the faculty might leave to teach at law schools that promise to pay them more. Besides losing strong members of the faculty, there is a risk that the law school’s academic reputation in US News will fall as a result. But we should not exaggerate this risk. A lateral offer is not easy to secure, and will become more difficult after the crunch. Moreover, the academic reputation of a law school is exceedingly sticky, with little movement up or down—the key to preserving academic reputation is to keep up student credentials.

There is a silver lining to losing senior scholars: their departure, while a loss, will benefit the law school’s financial bottom line because they are expensive. Highly productive younger scholars will also threaten to leave, but the school cannot afford a bidding war to keep them. Every professor who departs can be replaced with a highly capable new professor at substantially lower cost. That might sound like a cold way of looking at the departure of valuable faculty colleagues, but remember that the future of the law school is at stake—a future that depends upon fiscal discipline. The professors who remain will have a long term commitment to the institution.

Limiting raises is only a part of the solution. We must look at ways to trim the administrative staff and the faculty portion of the budget. More specifically, the size and activities of the faculty must change.

The most direct way to increase faculty productivity is through teaching loads. Thirty years ago many law professors taught five courses a year; the norm then became four courses, and many schools have since moved to three courses. The justification for the reduction in course load is to free up professors to engage in more scholarship. When individual professors teach fewer courses, more professors are required overall to achieve the same course coverage. Thus the reduction in course load—in combination with expansions in clinical offerings—largely explains the 40% increase in faculty size from 1998 to 2008. There is a way to reverse this expansion without dramatic changes.

The norm if I am your dean will be a teaching load of four courses a year. That provides ample time for scholarship, while also getting a full slate of teaching from each professor. My innovation will be to implement what I call the “alternative contribution system.” Under this system, professors who do not engage in substantial scholarship will be asked to teach five courses a year. The fifth course can be anything: a substantive course, legal writing, trial advocacy, supervising a clinic, etc. This is not a penalty for professors who don’t write, but instead it is an opportunity for those professors to make a contribution commensurate with a full time position (teaching two courses a semester does not fill forty hours a week).

The beauty of this proposal is that, in a sense, it gets something additional without asking for anything more. That is, professors who teach a fifth course will still only be asked to put in a full day’s work—no more—which is what they are paid for. If only four professors take up this option, the four extra courses we get will amount to having another full time professor on staff. These extra courses would allow us the flexibility to not replace professors who depart (assuming subject matter coverage is maintained), enabling us to gradually shrink faculty size.

Whatever savings we achieve from my restrictions on salary increases and reduction in faculty size will be allocated entirely to the scholarship budget. That way, when applications decline in the forthcoming crunch, and our competitors are forced to take more students from a declining applicant pool to pay for their large and expensive faculty, we will be able to compete more effectively by offering enhanced scholarships, and by shrinking the incoming class if necessary.

Members of the faculty,

I suffer no illusion that you will embrace my plan. The prospects of limited or zero raises and of perhaps teaching an additional course are not pleasant to contemplate. If I were in your position I would move on to the next dean candidate with alacrity and relief. I too want generous raises. I too want to teach no more than three courses a year and have lots of time to write.

I thank you for your time, and leave you with these closing observations. Average annual tuition at private law schools is poised to blow through $40,000 on its way to $50,000. Average indebtedness of law graduates will soon top $100,000. The financial burden of attending law school keeps going up as lawyer pay and employment opportunities stagnate. If you think things can continue along this path, then you have nothing to worry about.


Comments:

Shorter description:

"Creative destructionism of the legal academy."
 

Great post. I especially like your generational inequity point. The people who graduated law school in the last couple years and will be joining faculties a few years from now are even worse off. The average debt number of $90k is skewed by cheap state and lower-tier schools. The people who will be joining law faculties went to very expensive law schools.

The average debt of this cohort is more like $150k–$180k. And with Biglaw jobs more difficult to come by these days, even for distinguished graduates, more are finding it harder to pay off their loans.

I wonder how many supposedly egalitarian law professors would accept your pay structure proposal?
 

Excellent speech, Professor Tamahana.

It’s extremely reminiscent of an induction speech I heard President George H. W. Bush deliver upon the installation of a new university president, a position not known for providing its occupants with much in the way of job security. Said President Bush (41): “I admire your courage, Professor Rackman for taking this position. You know that university presidents begin their tenure the same way they usually end: Fired with enthusiasm.”

The simple fact is that as a new model of law firm is emerging in the Twenty-first century (http://kowalskiandassociatesblog.com/2010/10/31/the-law-firm-of-the-twenty-first-century/ ), law schools must take cognizance of that fact and adapt accordingly.

Bravo, again.

Jerry Kowalski
 

Brian, there is an important dimension to the law-school-cost problem that you aren't discussing: skills training and clinics. Most projections about the future of lawyering urge that law schools need to do a better job of training their students for real-world practice by giving them skills training, preferably accompanied by live-client practical experience. But that kind of legal instruction is very expensive, because it typically requires a student-faculty ratio of under 20-1, instead of the 80-1 possible for doctrinal courses. Every law school I know of has multiplied its clinics over the last two decades. How will law schools simultaneously cut costs and increase the skills training that the ABA and others are calling for?
 

Kirg,

As you say, skills training and clinics are important and costly. They are a part of the expansion of the faculty I cited.

My short response is that, beyond what we do already, law schools are inefficient at imparting such skills. If a complete overhaul was on the table (here I'm just setting out my dean's vision speech), I think law schools should be reduced to two years, and the current third year should be an apprenticeship. The best way to learn how to be a lawyer is on the job. That's how I learned, and how generations have learned. A law school setting cannot efficiently create this environment.

Brian
 

I agree with Brian's:

"The best way to learn how to be a lawyer is on the job. That's how I learned, and how generations have learned. A law school setting cannot efficiently create this environment."

But are mega-law firms the place to learn? How many can get into these firms? Back in my early days - mid 1950s - such mega-law firms did not exist. Some of us would apprentice with a solo practitioner or an association of attorneys or a small partnership and some of us did quite well as a result. While short money was involved with such apprenticeships, we did learn enough to start our our practices, usually solo or in a non-partnership expense sharing association.

So perhaps the mega-law firm model has to be seriously reconsidered as the training grounds for lawyers. There must be successful lawyers out there who were trained outside of the mega-law firm model. Perhaps they need to be heard from.

By the Bybee (#&%*@$), Brian's "speech" makes reference to faculty members giving up making more money in private practice presumably at mega-law firms. How might faculty members fare as solos or in a small partnership or in an expense sharing association? Clients want results, which puts pressure on their lawyers. This pressure, I submit, is not faced by law school faculties, which perhaps explains why some join such faculties, where the heavy lifting is in writing articles, not dealing with the demands of paying clients.
 

Brian, what you've written reminds me a bit of Mondale's platform in 1984 and his honesty about the need to raise taxes :) I wouldn't ever run for public office if I were you, unless your intention inj what you wrote was to ensure that no law school would ever give you a second look. If that was your aim, nice work!

Seriously, you make some very good points. I teach in a political science department (quarter system) and our teaching load is nine courses per year. My impression is that the move towards making law schools more (too?) research-oriented is part of the problem because you cannot give faculty members too heavy a teaching load and also expect them to be productive as scholars.

I also wonder how many good people wouldn't leave the private sector if positions in law schools weren't so alluring (relatively high pay plus tenure). The pay is still good --compared w/ what someone w/ Ph.D. makes who teaches at an undergraduate institution --and the quality of life is so much better, as you put it, because you have a much better work-life balance and much more time to write and research what you care about.

At some point do you think that law schools will respond to what's happening in the legal job market. How much longer will all of this go on?
 

A truly inspired way to avoid a Deanship. My favorite part was the pledge to cut your own salary by 25%.

Count me in.
 

Reminds me of nursing schools, where you can not take students unless you can provide them with the equivalent of internships where skills are taught in a supervised context.
 

Brian:

One could accurately view your post as a call to arms, a cry into the wilderness in a hope that we listen. I hear you, but I am not sure how many of our colleagues might agree with your assessment. It is a little like the old Harry Chapin song titled "The Rock." I guess I would also equate it to Chicken Little too. Just because it hasn't fallen before doesn't mean that the sky won't fall at some point in the future. Personally I see some cracks on the horizon that give me pause.

The discussion about skills education can be an interesting aside on multiple levels. I teach at a law school where we do a pretty good job of intertwining skills training, experiential learning and outside the law school experiences, but even we could do better. The economies of scale for clinical teaching positions makes them vulnerable if some of the predictions that you have made come to pass. It could also have a negative impact on those faculty members that focus on skills training. I personally believe there is a pedagogy and art to those classes that most of our tenured doctrinal peers could not meet if forced to try when all of the contract professors have been let go. The skills faculty at my school have the protection of tenure, but that is not the case at most places.

I think you are looking clearly at a challenging environment at a time when many of our colleagues are trying to wish it away by ignoring it. We all know what happens to the other end of the ostrich as it sticks its head deeper and deeper into the sand - another part rises. I don't know aboutyou, but I have seen an awful lot of tail feathers lately.

I don't know what the real solution is to these challenges, but I sometimes feel that the future of legal education might very well hinge upon how well we in academia begin to deal with our portion of these issues. Right now I just don't think we are even beginning to do a good job with it. Perhaps the first step might be to do what we do best, talk. Now that's a conversation that is worthing having.

Great post - keep up the good work.
 

Since the underlying problem is a glut of lawyers, it will be possible - indeed easy - for law schools to hire currently practising lawyers for the skills training. Best on a part-time basis, as is done by some art schools.

It´s noteworthy that Brian T assumes that his pretty obvious and not very radical survival strategy will not be adopted. The resulting system-wide crash will be spectacular. Am I right in thinking that tenure doesn´t protect you when the parent university closes the entire bankrupt law school?
 

Since the underlying problem is a glut of lawyers, it will be possible - indeed easy - for law schools to hire currently practising lawyers for the skills training. Best on a part-time basis, as is done by almost every other department in almost every institute of higher learning.

Edited for accuracy.
 

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