“Deaning” in the “New Normal”

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I confess something approaching hatred for too clever terms such as “new normal” or “the wrong side of history”. But here I am giving in and using that language because we are in the unsettled process of an evolving “new normal” for most law schools, for traditional law faculty, and for members of the legal profession. It can even be that they are finding themselves on “the wrong side of history”. Ugh! I said it.

My focus in this analysis is on the kinds of skills and capabilities law deans need if they are seeking to guide law schools through this messy period. A recent report indicated that the median tenure of a law dean in a US law school had fallen to an all-time low of 2.78 years.   There are various ways to interpret what is going on with law deans.  The Rosenblatt Report indicates the average tenure of serving law deans is 4.51 years and the median tenure 3.11.  TaxProf reports on a March 2015 National Jurist analysis stating that in 2012 32 deans left the position, and another 26 in 2013.  A quick Googling of dean departures in 2014 indicated 17 more resignations for a total of at least 75 deans leaving this critical law school position in a three-year period.  These numbers are unprecedented.

While the law dean resignations are unprecedented this is entirely unsurprising given the complex, challenging and often thankless job of the law dean in a period of fundamental change, slumping enrollments, plummeting finances and the “double whammy” of a saturated job market caused by the overproduction of law graduates and the reduction of traditional labor intensive law jobs as a response to technological efficiencies over the past 15 to 20 years. These factors create a highly unstable situation in which many law schools remain in a troubled state.

The increasingly abbreviated tenure of the typical law dean means that many schools are forced to expend significant financial and psychological resources in seeking new deans with a disturbing degree of regularity in what can be described as a “musical chairs” environment in which a new dean discovers the job isn’t something he or she enjoys or is fit to do or having launched “reforms” that sound good on paper takes off to greener pastures at another law school before the successes or failures of the action become manifest. Just as with corporate CEOs who often leave for another company within three years for administrators trying to “move up the food chain” it is important to do so before one’s “warts” become obvious.

The continual turnover of law deans and subordinate elements of the “decanal team” means that many law schools are essentially rudderless as they “bump” from one set of leaders to another Even within the limited average lifespan of a dean’s administration in the “new normal” the first six months or more are spent in learning the system and personalities and during the last six months to a year the dean who is often seen as “abandoning” the institution is a “lame duck” with diminished power. The intermediate period of a dean’s tenure is sometimes spent finding out such things as the faculty lied to you (or vice versa) during the dean search, they really did not want dramatic action, and will aggressively oppose any change that threatens their “turf” or changes the favorable conditions in which they are most comfortable. In considering the skills and personality characteristics most desirable in a new dean we should be honest about the fact that the ability to achieve important change in a law school in any matter of consequence is limited by faculty self-interest and intrinsic traditionalism. Being an effective law dean in this period of fundamental change is therefore one of the most difficult challenges an administrator can imagine.

If we apply the apparently declining deans’ tenure to this situation it seems to mean that in many instances a law dean who begins the job filled with the desire to lead a faculty and to achieve innovative results finds out rather quickly that the job is not all that enjoyable. A law dean also discovers that the politics and agendas of law faculties and university administrators are often incompatible. But a major obstacle to change are the members of law faculties themselves due to their strong resistance to anything but cosmetic or superficial change. This inherent resistance has been made even worse as the student populations from which revenues are derived and rankings sustained just keep falling, and as new categories of law teachers have entered the institutions and demand a professional status equal to traditional tenure track teachers including pay, perks and job security. The “bottom line” in all this for quite a few is the discovery that it “ain’t all that fun to be a dean”.

The “Boom Times” Are Far Behind Us

Prior to 2010, during the lengthy era of rapid law school expansion, high volume applicant levels, the ability to raise tuition and salaries, hire added faculty and develop new programs almost anyone could be a law dean. It was hard for a dean to “mess up” because the dollars just kept flowing in and this kept faculties happy to the extent it is possible for law professors to be actually satisfied. Since 2010 law schools’ operational conditions have changed so dramatically that deans are now forced to deal with attempting to develop and implement intelligent strategies in an environment of fear, loathing and resentment. If a person has the need to feel loved and appreciated then being a law dean probably is not the best career choice.

Many Deans Have to “Swim Upstream” Against Their Faculties and Universities

As a result of the changed post-2010 conditions the skill sets possessed by many law deans in this “new normal”—whether the individual is new or a carryover dean–bear little resemblance to what is needed to lead an institution. This is compounded by the fact that law faculties are generally unwilling to confront the need for serious adaptation, and here I am including traditional doctrinal faculty, clinicians and legal writing teachers. Part of the problem is created by the unreal world in which law professors exist, but a significant element is generated by the fact that most law teachers at least tacitly understand that they will never be able to have a job better than that of the law teacher and that in this shrinking “down market” for lawyers they are no longer employable on terms bearing any resemblance to what they already have.

In that highly charged context what are the skills needed to be a law dean in the non-elite law schools that make up a majority of the nation’s educational institutions by which lawyers are granted the degrees that allow us to practice law? My goal here is to suggest some of the most vital abilities required for “new” law deans serving as the Chief Executive Officers (CEOs) of American law schools in this period of transformational change. Of course not all law deans are subject to the worst of the transformational pressures. For some law schools and deans the “crisis” will prove to be an opportunity rather than a catastrophe. This is because for law schools ranked at or near the top of the “pecking order” the best credentialed students will still apply, their graduates will still obtain decent employment, revenues will still flow into their coffers, and their hold on the upper rungs of the prestige “ladder” will become even stronger because they are seen as offering the best “bang for the buck”.

The “new” version of the law dean therefore isn’t needed at Harvard, Yale, Stanford, Chicago and the like. The “new dean” is essential at law schools such as Hastings, Cleveland State, Chicago-Kent, Pittsburgh, Catholic, Penn State, Northern Kentucky, Akron, Case Western Reserve, Memphis, Wayne, Detroit, Washington & Lee, Duquesne, Michigan State, Toledo, American, Valparaiso, Drake, St. Louis, Hofstra, Barry, Indianapolis and many other “intermediate” and lower ranked law schools located in highly competitive areas and/or geographic territories where the lawyer population is mainly or entirely saturated.

The managerial and leadership skills are ones needed to lead a law school under stressful conditions in which all decisions of consequence (including even trivial proposals) are likely to make significant numbers of people unhappy. Many law school deans are increasingly finding themselves in a no-win contest due to the stresses their institutions are experiencing and will continue to experience. One of the most serious problems is that deans, and even the collective of the law faculty, have surprisingly little power to alter the negative “fundamentals” of this situation including lack of applicant volume, decline in applicant quality, beleaguered parent universities unaccustomed to subsidizing their law schools, saturated lawyer markets in their primary competitive areas and the rapidly changing nature of many “law jobs” by which the demand for additional law graduates is being further curtailed.

In such a context quite a few law schools require a highly skilled professional manager with capabilities beyond those possessed by most law school faculty members who have little or no experience in running complex organizations. This is particularly so in situations where the law dean must create and implement a new programmatic and institutional vision, and work effectively but not subserviently with university officials who are also faced with hard choices about priority programs and the allocation of increasingly limited resources. The law dean must also be able to forge strong relationships with a variety of external interests that have the ability to help sustain the law school, as well as developing new markets and programs in a period of rapid transformation.

The irony in all this is that the “crisis” in America’s law schools is only one from the perspective of an institution’s faculty, staff and alumni. What is going on in legal education is of little consequence to general society. There are already more than enough lawyers to serve the needs of paying clients. There are also considerably more law schools than make sense. Cutting the output of law schools by fifty percent or more will have no negative effects on the overall system. Educating lawyers to provide legal services to underrepresented and unrepresented people is something that could provide a positive benefit but it is extremely unlikely that our society is willing to fund such unmet needs and at present the cost of obtaining a law degree coupled with the expenses of a law practice are too high to allow law graduates to fill this niche. The result is that the artificially “hyped” costs associated with becoming a lawyer have priced law graduates out of the “underrepresented and unrepresented people” markets. Unless there is a redefinition of the nature of the educational experience, cost, and length of study a law graduate willing to serve these markets must complete we are stuck with the current format and terms of legal education.

What Are We Looking for in a New Law Dean?

1. Resilience in the face of opposition and inevitable disappointments. One of the largest barriers facing any law dean at this point is that decisions need to be made in a climate of fear and uncertainty. If they were private businesses many law schools would be bankrupt or on the verge of bankruptcy as applicant demands for their services (the “input”) falls sharply as does the demand for their graduates as “output.” A key factor is that law schools largely lack control over critical factors such as applicant appeal, available jobs for their graduates, and the ongoing transformation of the legal profession. Along with these considerations are increases in alternative means for accessing “law knowledge” by non-lawyers, rapid technological labor-saving innovations that are reducing the need for lawyers by lawyers, and the fixed costs and increasingly unsustainable model of legal education as it has been done for more than a century. To these factors can be added the significant costs of an expanded administrative staff in law schools as the schools find themselves needing to deal with federal requirements, financial aid counseling, IT staff, bar preparation programs, placement staffs, applicant recruiting and public relations costs, fundraising, expensive clinical and other specialized programs, alumni relations etc. While law faculties often lament the expanded administration costs the reality is that the functions are necessary and even growing.

2. Strategic capability, including the ability to persuade others to support what is proposed and the wisdom to understand how to implement the vision. In a law school this is far more difficult than most other locales because law professors’ main skill is that of critiquing and challenging rather than designing, synthesizing and creating. It took my old law school nearly a year just to negotiate a largely meaningless single paragraph “vision statement” that no one could even come close to reciting at this point.

3. The ability to see the “Big Picture”.

4. Putting the “Scholar Dean” to rest. By this I do not mean a dean cannot have “done” scholarship but that it can’t be the central focus of selecting the “new” dean at a majority of law schools. For a variety of reasons, including the potential for over-valuing the importance and effects of legal scholarship, a law dean has to provide support for scholarly work but be realistic about its quality and scope, as well as its influence. Some legal scholars have had vital roles in influencing the system of law, lawyers and justice through their publications, although I suspect that number is slighter than might be hoped. It is far more likely that the influence of legal scholars has come through other avenues than their scholarship. In any event, most law schools need to come to grips with the fact that very few people read what their scholars write, that there are few if any universal knowledge breakthroughs contributed by legal scholars, and that hardly anyone reads our “stuff” anyway. This has become increasingly problematic over the past 15 to 20 years because there has been an explosion in scholarship that faculty write for the approval of other law faculty who already share their views. The output of much of legal scholarship is little more than “preaching to the choir”. Rather than being a positive development for a dean this means that a considerable amount of legal scholarship is basically lengthy “op-ed” essays voicing political opinions and agendas as opposed to serious analytical work. The challenge is that a dean lacks the power and ability to influence this system without offending the thin-skinned and politicized “scholars” engaged in such activity. This is an easy way to make lifelong enemies who will never forget or forgive.

5. A grasp of internal and external business dynamics along with financial “savvy”. This allows the dean to understand the needs of specific systems and how downturns can be mitigated or avoided and the opportunities seized. Without such experience even highly intelligent people lack the detailed knowledge required to lead the way to institutional adaptations needed to reposition the law school in the most effective ways. Of course, having experience in management in no way means that an individual is capable of coping with the unique political system operating in US law schools. It takes a very special skill set to achieve what is needed.

6. Awareness of trends before they become crises. One of my main areas of specialization is strategy. In that connection it never fails to amaze me how most people and institutions appear to only be able to deal with crises after they have emerged even though their likelihood has been obvious for a considerable time. Law schools are not alone in that regard as Congress demonstrates by the day, but law schools are one of the worst examples of failing or refusing to recognize clear trends and ignoring reasonable options for action that would allow an institution to take advantage of opportunities or mitigate the negative impact of challenges. A law dean needs to be a strategist in that regard with “early detection” abilities but must possess the interactive and communication skills to persuade and manipulate other decision makers to recognize, contribute to and implement what is needed.

Unfortunately, even in this period of rapid change many deans are more comfortable with the policy of “don’t make waves”. The result is that deans engaged in such “stress avoidance” quickly and irrevocably back their institutions into a corner by failing to take necessary actions on personnel and budget at a point in time when the action is still able to protect the integrity and ongoing sustainability of the system.  Understanding the “lag time” between decision and action is important because just as with massive oil tankers that require more than 20 miles to stop at sea even after the “brakes” have been applied a law school facing predictable financial crises at a point two or three years in the future has to “put on the budgetary brakes” early enough to protect the institution’s financial and staffing integrity.

Take for example a situation in which a law school has greatly expanded hiring of traditional, clinical and legal writing faculty during the years when the system of legal education was “flush”. Given the rules under which law schools operate, if an institution fails to understand the financial realities imposed by falling revenues due to significantly lower enrollments it will face a situation in which reducing or reallocating the staffing size and mix of teaching functions will require up to two years to accomplish in order to bring revenues into line with expenditures. This can produce a deficit situation that can alienate the university that is asked to subsidize the law school. If a law school has access to resources such as an endowment fund that is allowed to be used for operational costs then relying on that fund as a means to defer essential financial and staff decisions creates a situation in which the school ultimately hamstrings itself by cannibalizing critical flexible resources that are vital for innovative program adaptation. From a resource perspective such a school has painted itself into a corner and restricted or eliminated its ability to take creative and innovative action.

7. Innovative ability and the willingness to stimulate and facilitate innovative activities in others. These qualities cannot be separated when we are talking about a person responsible for leading a complex and too often smug institution such as is often found in a law school. Innovation goes nowhere unless it is part of a shared strategy to which the majority of an institution’s decision makers have “buy in”. Albert Einstein was an innovative genius but I’ll bet you he wouldn’t have succeeded as a law school dean.

8. The ability to “herd cats” and deal with the “academic personality”. I have heard the “herding cats” description was uttered by former Yale law dean Guido Calabresi. This could explain why he became a federal judge. I also heard another description comparing law school faculty members to largely brain-dead cats in a cemetery, unwilling to do anything other than what they saw as consistent with their own narrow interests.

9. Job security. The “right dean” has to know that there is sufficient time and support to achieve essential strategic plans. Without that support, including the law faculty’s awareness that the focus is on creating and implementing the solutions required in the specific situation, the dean will be continually beset by “brush fires” and sniping that undermines even the best leadership. This does not mean that avenues for resolving legitimate disputes should not be created but that the most effective leaders are often unpopular. Effectiveness is not synonymous with popularity or perceived “sensitivity” to all interests. The problem for the law dean is that the system operates according to “code words” that are used to label and undermine those who offend certain interests. For an academic to be labeled “insensitive” is a powerful condemnation that can have significant impact on a career. This is what a dean faces and it is extremely difficult to escape. If a law dean has hopes of moving to another law school or upward in a university’s administrative structure such labels can be disastrous. This can have a powerful and intimidating effect on a dean. This is also why a new dean must have the full support of the university or otherwise be rendered ineffective.

10. The ability to cope with some faculty members’ lethargy, apathy, productivity failures, extreme traditionalism and sense of entitlement. This seems self-explanatory. There really is some “deadwood” on any law faculty and it is not at all always located among longer-term faculty. In a tenured system how does a dean get rid of people who are mainly “free riders”. The problem is that scholars and university teachers are often among the most insecure people one could meet and in many instances feel that even the most unproductive of their colleagues should be protected either due to friendship or the fear they could be next.

11. The ability to work with diversity.

12. An orientation to the educational needs of students who are investing three years of their lives and an average of $100,000 in a display of good faith that you will provide them what they need to compete and excel in the practice of law.

13. The ability to work with faculty, employers, alumni and others to construct a legitimate and substantive message that attracts the kinds and numbers of applicants essential to maintaining the selected model of legal education being implemented at the particular institution.

14. The ability to understand the opportunities and limits of the specific competitive and territorial context in which the law school in question operates.

15. The ability to work with and develop strong and productive links with other university faculty, departments, programs, and administrators.

16. The ability to design effective administrative systems, manage support staff and delegate power and responsibility.

17. The ability to work closely with the “employment communities” that hire law graduates.

18. The ability to develop strong relationships with alumni to sustain graduates’ placement, political connections, up to date input on what is needed in graduates, and financial support.

19. The ability to attract outside funds in a time of economic difficulty and stress within the legal profession. This will never be enough to run a law school but it can fund special programs and provide budgetary flexibility as well as heighten the morale of the most talented and productive law faculty members.

20. The willingness and ability to work with other law schools when the situation exists to create positive and complementary programs.

21. The ability to make hard decisions that will inevitably offend vested interests and cause difficulties for people with whom you work.

22. The compassion to “soften” and mitigate the effects of hard decisions.

23. Protecting the “deep intellectual core” of the educational process. I know that law schools must adapt, and some are seeking to do so. I have long criticized legal education for its deficiencies. But there are very important intellectual elements of its traditional educational mission that must be protected because, after all, lawyers and judges run the system we call the Rule of Law. Assuming that the sole controlling responsibility of legal education is to produce technically competent graduates offends the system of law and justice we have worked so hard to create. Law graduates’ quality of thought, their commitment to the deep principles of the system and understanding of its most critical and powerful core values must remain at the heart of legal education. Otherwise it is nothing more than a technical training academy. Any “leader” of a law school needs a true commitment to this ideal.

Is the “New Normal” Law Dean an “Impossible Dream”?

So what does this all come down to in determining what might be looked for in a “new normal” law dean? First of all I don’t think there are many people out there who can provide the range of skills suggested above. Choosing a dean from within an existing faculty is problematic in many instances due to pre-existing relationships that influence the ability of the individual to make the kinds of decisions required because they would have an impact on friends or enemies. I have seen this at work in more than one instance and it undermines the integrity of the law school and poisons the morale. Choosing a dean from another law school means that you have to rely on a “vetting” process and given what people don’t say about a dean candidate or the misinformation floated when someone wants to get rid of someone they don’t like makes the process highly unreliable. I personally am aware of instances where someone praised a dean candidate profusely because they wanted the person to leave their own law school. Since anyone with experience understands that law professors are incapable of keeping a secret it is actually a high risk situation deciding whether to be honest about a law dean candidate when someone from another school’s search committee calls and seeks your opinion. What you say is going to get out.

One way to approach the situation is to hire an outside consulting firm but it remains unclear whether such firms really understands how to recruit and review candidates for the right situations. Being a manager elsewhere, such as in a large law firm or company, does not mean an individual is capable of understanding, managing or tolerating the unique political climate of law schools where there are little or no consequences for being an unproductive teacher or scholar as long as you have tenure. Ridding an institution of someone who is not “doing the job” is guaranteed to be an expensive and unrewarding action that inevitably creates “fear and loathing” on the part of other faculty due to friendships or the apprehension that “they are next”.

The bottom line in all this is that generally speaking deans with the skills needed to truly lead law schools in this period are few and far between and really smart and skilled people probably don’t want to be a dean due to all the reasons listed above. Given the politics of law schools and the wide range of hidden agendas underlying faculty choices of deans the dismal reality is that it is a political “popularity contest” in which faculty are trying to protect their own “turf” and will opt for individuals they think will let them go on “doing their thing”. This is not good news for law schools but as I indicated above it really doesn’t matter all that much to the general society if law schools shrink, founder or even go to the “law school graveyard”. There will still be more than enough to go around.

 

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