A Causerie on Selecting Law Deans in an Age of Entrepreneurial Deaning

• Author: Jack M. Weiss
• Position: Chancellor and Professor of Law, LSU Paul M. Hebert Law Center; A.B. Yale University, 1968
• Pages: 923-944

Chancellor and Professor of Law, LSU Paul M. Hebert Law Center; A.B. Yale University, 1968; J.D. Harvard Law School, 1971. Within the framework of the Louisiana State University System, the Paul M. Hebert Law Center is a separate campus. The title of the chief executive of the Law Center, like that of the other LSU System campuses, is "Chancellor." The Chancellors report to the President of the LSU System and to the LSU Board of Supervisors. Notwithstanding these important structural features, the job of the Law Center Chancellor in many respects closely resembles those of other law school deans. For purposes of this Essay, I make no distinction between my responsibilities and those of law school "deaning" generally. The author thanks Erin Percy (Class of 2010) for her excellent research assistance and the Louisiana Law Review for soliciting this essay and the accompanying piece by Duke Law Dean David Levi.

Page 923

"Before I built a wall I'd ask to know

What I was walling in or walling out. . . ."¹

Imagine if you will a law school course intended to introduce future law teachers and would-be law school administrators to the issues they may face if they pursue a career in the legal academy. Imagine further that it is exam time, and one question on the final, in the time-honored tradition of law school exams, reads as follows:

You are a tenured professor of law at the Ames University Law School ("Ames Law"), a mid-sized (500 to 700 students) public law school ranked in the top 100 law schools by U.S. News and World Report. State funding for Ames Law has been cut by thirty percent in the last three years. Private contributions to Ames Law are down by twenty percent over the same period and the Ames Law endowment has declined twenty percent in value since August of 2008. Tuition at Ames Law has increased fifteen percent over the same period of time. The dean of Ames Law, who has served since 2005, has announced her retirement effective at the end of the 2010- 11 academic year.

The President of Ames University appoints you to the search committee to find a successor dean. At the initial meeting of the search committee in May 2010, the committee members decide that their first task should be to prepare a short memorandum in narrative form describing and briefly justifying the preferred qualifications for the next dean. Recognizing the analytical skills that you have acquired in Page 924 more than twenty years of law teaching and scholarship, and your familiarity with the role of the Ames Law dean, the search committee asks you to prepare a draft of the qualifications memorandum. Prepare the memorandum.

What follows is not that memorandum, but a series of admittedly non-comprehensive, personal reflections-a causerie²-on some of the salient qualifications for law school deaning circa 2010. Regrettably, the public law school described in the hypothetical exam is not so hypothetical; indeed, the barebones outline of its circumstances may seem all too familiar to many of my fellow deans of all stripes, public and private. My goal, likewise, is not too far removed from what was asked of the hypothetical law professor in the exam: to offer what I hope will be some relatively objective and familiarly analytical observations about the role of the modern law school dean. I offer these observations in the further hope that an actual search committee might want to consider them in the course of its work.³

In particular, my aim is to bring to light some of the principal roles of today's law school dean and to question whether the long prevalent bias in favor of selecting "traditional" deans-those chosen from the tenured ranks of the legal academy-and against "non-traditional" deans-those whose career paths have been primarily outside the academy⁴-is supportable, and, if so, to what extent. Today's law school dean is reminded daily that he or she is at the helm of an enterprise and that, perhaps above all else, the dean's success or failure will turn on his or her ability to function as an entrepreneur. Any doubt about these related perceptions has been swept away by the precipitous decline in state funding at many public law schools and the near universal decline in law school and university endowments caused by the economic crisis.⁵ Page 925

There is little reason to believe that legal academics are more likely to be successful in the entrepreneurial part of the dean's job-so critical in today's environment-than deans selected from other outside, relevant pursuits, including sophisticated law practice. At the same time, important characteristics of the non- academic experience (including practice-based experience) are highly relevant to a law school dean's role in fostering change, defending core institutional interests, managing conflict, integrating practical and theoretical instruction, and promoting employment opportunities for the school's graduates in a rapidly changing legal economy.

It is true that the dean's leadership of the academic side of the house calls for different insights, different personality traits, and a different base of personal experience than those the dean must demonstrate in the roles of entrepreneur, change agent, institutional defender, conflict manager, practice maven, and chief- employment-officer. It is too easy to assume, however, that non- traditional deans are less able to lead the law school's academic mission. In my view, the chief advantage traditional deans have as academic leaders is the credibility and affinity with colleagues that traditional deans derive from having "come up through the ranks". Traditional deans may be better teachers or scholars by virtue of their academic experience, but those skills are not critical to effective deaning. These same traits may be found in more than adequate measure through the experience of many non-traditional dean candidates.

Although this discussion will have some general applicability, the considerations I discuss, like the job of deaning itself, surely will vary from institution to institution.⁶ My experience has been acquired exclusively at a public law school that is part of a larger "flagship" state university. My perspective has been shaped and limited by this experience, although discussions with a wide spectrum of my fellow deans over these last two and a half years do lead me to believe that there is considerable commonality in the challenges we confront. Page 926

I A Bit Of Historical Perspective

In reexamining the dean's role, I have found it helpful to look back briefly at the history of American legal education. Several aspects of this experience are relevant to this discussion.

First, the education of lawyers in a university setting, taught mainly by full-time law professors whose predominant experience is scholarly and not pragmatic, is a fairly recent phenomenon. Well into and beyond the mid-nineteenth century, most American lawyers were trained and admitted to the bar through the apprenticeship system of legal education. The Founding Fathers never attended a law school.⁷ The apprenticeship system involved a combination of private study and training as an apprentice with a practicing attorney.⁸ Although the apprenticeship system has been much criticized, at least one leading historian of legal education argues that:

[A]t its best, elite legal apprenticeship had both a pedagogy and a curricular structure that was far from random. It was neither "local" nor necessarily "practical" in its forms. . . . This education may not have been ideal, nor uniformly excellent, but given a good tutor and a good student it was rigorous enough to explain the strong sense of legal professionalism to be found in America before the Revolution.⁹

The apprenticeship system prevailed until well after the Civil War; indeed, Abraham Lincoln, Daniel Webster, William Wirt and other pillars of the mid-nineteenth century political and legal establishment were trained, and admitted to practice, through that system.¹⁰

Second, when apprenticeship did give way to the institutionalized teaching of law in the nineteenth century, the first institutions to offer legal instruction were not university-based, but rather practitioner-run, proprietary law schools. The Harvard, Yale, and Columbia law schools all trace their origins or success to proprietary law schools that were "way stations on the path to Page 927 university legal education."¹¹ The proprietors of these predecessor law schools were practitioners and judges, and they became the first faculty members of the newly-absorbed university law schools when those schools were founded in the nineteenth century.¹²

Indeed, long after the founding of the first university law schools, and into the early decades of the twentieth century, practitioners continued to populate the faculty ranks, even at elite schools like Harvard and Columbia.¹³ John Chipman Gray, appointed the first Story Professor of Law at Harvard in 1875, founded the leading Boston firm of Ropes & Gray before his appointment and continued to practice law actively throughout his academic career.¹⁴ Gray taught actively through 1913, when he took emeritus status.¹⁵ Felix Frankfurter graduated from Harvard Law School in 1906 and spent some eight years between his graduation and his appointment to the Harvard faculty in private practice, as an assistant United States attorney, and as a lawyer in the War Department, arguing six cases before the United States Supreme Court.¹⁶ Moreover, in 1910 Ezra Ripley Thayer moved directly from eighteen years of law practice in...