November 16, 2009
Faculty Governance in Crisis
Posted by Erik Gerding

 I am still getting provocative responses to my post last Tuesday on the Death of Big Law School. (link)

Jeff Lipshaw continues to write on the role of interdisciplinary education in legal education.  Glenn Reynolds notes some surprising courses that turned out to be of great practical use to him.  (I under-appreciated my law school professors and now, like Mister Kotter, reap my karmic rewards every week).

These posts lead me to think that there may be two potential responses by law schools to the economic pressures I described:

First, as Larry Ribstein and I suggest, there may be increased separation of law schools, which might be combined with many law schools continuing a trend of trying to fill a particular niche - clinical education or more skills training, a particular kind of interdisciplinary education, or even expertise in a particular field. The risk with the niche model is that a given choice may not respond well to changing tastes of law students and changing demands of employers, let alone provide all the ingredients of a good legal education.

Second, law schools may react by trying to do more of everything. To build off Jeff's post, law schools might focus on a very broad legal education, but still require students to specialize in a particular field - perhaps with a particular interdisciplinary component. This may have the benefit of not only giving students mastery in one area, but, more importantly, learning the importance of mastery and how to achieve it.  Or as Glenn puts it, to model for students how to think deeply.

The problem, as Kim Krawiec noted in a different context in several Faulty Lounge posts a few weeks ago, is that the internal politics of faculties often means that "more of everything" or "we can do both" decisions often reflect more of a desire for internal faculty peace rather than coherent decisions. Moreover, it is hard to do more of everything when the resource pie is shrinking.

Whichever choices law faculties make, the changing and increasingly ruthless economics of legal education will place faculty governance under incredible stress. Law schools that cannot react nimbly to changing economic circumstances have everything to lose. Consensus-based decision-making by faculties is already being challenged.

At the same time, more hierarchical, corporate-type models for university governance do not sit well with professors. There are many reasons for this, some of them dealing with the self-interest of professors and the cloistered world of the academy, but also valid concerns about maintaining a governance structure appropriate for a community of critical, independent scholars. We have already seen many efforts to change faculty governance to more hierarchical models crashing against the rocks of faculty dissent or the threat of mass departure. Also, I have heard rumors in recent years, from both the private and academic sectors, that sometimes traditional hierarchical corporate governance leads to suboptimal decisions.

Where does that leave law schools? With some potentially nasty Darwinian outcomes if faculty governance can't negotiate these various tensions while adapting to the more ruthless economics of education.

Here is a heretical thought. What if we treat faculties as partnership that need to choose among a menu of various governance structures? In other words, what if we supply lessons from corporate or public law governance scholarship on ourselves?

Whatever lens we pick is likely to be viewed with initial skepticism. (I think some of colleagues are still suspicious of me after I made a joke in the a faculty meeting two years ago about engineering a hostile takeover of Arizona State. And I am myself suspicious of management consultants and retreats.) There is also the danger of getting bogged down with finding a process to talk about process.

Some institutions have a way of tearing themselves apart in times of economic stress and dwindling resources.  Others find ways to pull together.

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