UNIQUE ROLE OF THE AMERICAN LAW SCHOOL DEAN:
ACADEMIC LEADER OR
be remembered that there is nothing more difficult to plan, more doubtful of
success, nor more dangerous to manage, than the creation of a new system.
For the initiator has the enmity of all who would profit by the
preservation of the old institutions and merely lukewarm defenders in those who
would gain by the new ones."
Machiavelli’s advice is sobering to anyone who
takes a deanship with the expectation that she can immediately be an engine for
change or reform. Reform and change can be initiated, but one should not
underestimate the obstacles.
First, the obvious, the role played by the American
law school dean is markedly different than that played by deans at law schools
elsewhere in the world. American
deans generally serve longer, have more power—particularly on finances—and
have a larger and more diverse constituent base they must serve.
There are a number of reasons for this expanded decanal role in America.
Only in the United States and Canada is law a graduate discipline,
generally requiring a four-year undergraduate degree prior to admission.
As a graduate level discipline, law schools can control the quality of
the candidates they admit—unlike schools elsewhere in the world where law is
an “undergraduate major” and the quality of the candidates admitted for law
study is not in the hands of the law school.
Furthermore, law graduates serve in highly visible roles in government
and business as well as law. Powerful
alumni organizations remain financially supportive of and highly interested in
the progress of their own law school. The
judiciary, the bar examiner, and the organized bar look to the law schools as
“gatekeepers” responsible for the quality of those entering the profession.
Law deans are also active fundraisers, as well as academic leaders.
Thus, the position of the law dean in the American higher educational
system is a lofty one.
While the “average” length of service of an
American law dean is three years and a few months, that figure is misleading.
Sometimes faculty members, promoted to a deanship, find themselves
unhappy and ill-suited to the frantic pace of the job and leave after a year or
two. The truth is that if one
survives the first and second year, it is common for deans to serve five, six,
or more years. Furthermore, it is as common for a dean to be appointed from
“outside” a particular law faculty, as to be appointed from within.
There are a growing number of experienced deans now serving in their
second, or in some cases, their third deanship.
Perhaps a new class of professional deans is emerging.
A HISTORICAL PROSPECTIVE
It is true that the days of the great iron deans in
American legal education are over. There are no more Griswolds, Wigmores, Keetons, or McCormicks.
Those great deans, who had so much to do with shaping modern American
legal education, have gone the way of the dinosaur.
And, while they are little lamented, legal education may be worse for
their passing. As the quotation
from Machiavelli (who as a jaded five-time dean I may read too often) indicates,
change is an extremely difficult and risky process for any leader, however
powerful. For those great iron
deans, it was tough enough. Today,
in an environment of shared governance with multiple constituencies on even the
minutest decisions, any dean who desires to initiate major change faces almost
insurmountable odds. And,
unfortunately, modern American legal education finds itself in a time that cries
for massive change. The costs of
legal education continue to rise; for example, tuition has continued to increase
far beyond the national inflation rate. Students
are borrowing far too much. Loan
defaults are increasing—jeopardizing private loan sources—at a time when law
schools are absolutely dependent on the ability of their students to borrow
large sums. The profession is
demanding major costly changes in the curriculum.
The universities want more and more of law schools’ revenue.
And faculties, drastically in need of new blood and fresh ideas, are
increasingly static because of the federal removal of retirement ages, coupled
with hide-bound tenure policies. Massive
changes are needed. But—and here
is the rub—the logical person to initiate those changes, the dean, despite the
lofty position held in American legal education, has slowly devolved from the
classic stereotype of a benign autocrat to, in too many cases, little more than
an embattled, dispirited juggler trying to accommodate increasingly fractious
In short, more responsibilities than ever are being conferred upon the
dean. At the same time, however,
almost all the powers necessary to carry out these increasing responsibilities
have to be shared with multiple constituencies.
True to the human condition, those constituencies who share power
generally accept no responsibility for the result, but they frequently want to
dictate or control the decision making process.
About the time of the Vietnam era, when wrenching
societal changes were made, revolutionary changes in governance came into the
American academy. Many of the
changes were long overdue and have been beneficial.
Many have not.
THE PRESENT CONDITION
Even with American deans who have considerably more
power and stature within their universities than deans elsewhere in the world,
who serve in the “department chair” role, the task of an American dean
remains daunting. Following is a
discussion of the American dean’s relationship with a law school’s various
constituencies in this new era.
Prior to the Vietnam era, law deans typically
operated with small staffs and little faculty participation in governance.
Faculties were essentially small and the panoply of present
administrative support units did not exist.
Deans generally came from their own faculties, understood the mores and
traditions of their particular schools, and made almost all the decisions.
They hired faculty members, fired faculty members, and they made most
educational decisions. In short,
they had vast responsibility but they also had vast powers.
The deans reflected their faculties.
Almost all faculty members were white males, trained at the same
“elite” law schools’; and, the deans selected mirrored the make-up of
their faculties. Since the Kent
State-Cambodia years, faculties have diversified extensively and so have deans.
Furthermore, the modern faculty member, reflecting different generational
experiences, demands participation in all basic academic governance decisions.
The lines between what has traditionally been thought to be decanal
powers and what has been thought to be faculty academic powers have blurred.
Faculty members, more and more, want to be consulted about everything.
Faculty appointment committees dominate the hiring structure. Faculty promotion and tenure committees dominate the
promotion and tenure structure. Faculty
curriculum committees organize and control the curriculum.
Faculties set standards, and more and more faculties want “executive
committees” or “advisory committees” to the dean on what has been
traditionally considered decanal powers, i.e., control over the purse, control
over course assignments to faculty members, etc.
Tenure policies, which result in the promotion to
full professor with tenure after six year at most law schools, have created
faculties that are over 85% tenured in many schools.
Tenure has become so hidebound and rigid that it is, in reality, legal
education’s sacred cow. Criticize tenure only at your own peril.
It is a stark but true fact that tenure has made it impossible to remove
the slothful or the incompetent colleague.
There have been no more than a handful of tenure removal cases in legal
education over the last five years—and then only for acts of gross
malfeasance. My personal
observation is that almost all law faculties have two, three or more full
professors who have retired in place. They
teach the same course, with the same yellowed notes, publish little or nothing,
do no more than 20-25 hours of work a week, and command a full salary with all
benefits. Worse yet, non-mandatory
retirement ages, coupled with tenure, make it almost impossible to deal with the
growing problem of faculty “deadwood”. The result is almost no movement into the profession of
bright, young people. As a result,
faculty members have become more resistant to change, more protective of
prerogative, and more micro-managing in governance than ever before at many law
Despite the above comments, faculty governance is
important. I personally believe a
faculty should collectively set and enforce standards; should make basic
curricular decisions; and, should participate and be informed about decisions
involving the law school. Nevertheless,
candor requires one to state the obvious. The
rigidity of tenure policies, the near impossibility of removing any faculty
member’s tenure except for the most egregious conduct, and the lifting of
mandatory retirement age is stifling mobility in legal education.
This is an area that requires major rethinking and then major reform.
In summary, tenure needs to be redefined to protect
academic freedom. It should not be
a refuge for incompetence or sloth. With
the present tenure structure, coupled with faculty demands for participation in
all phases of governance, many modern deans believe change is nearly impossible.
They assert that faculty members protect each other, they protect tenure
at all costs, and resist any meaningful change. Thus, it is said that any dean who desires to deal with those
basic structural issues, faces an almost insurmountable task.
Machiavelli understates the problem.
It is true that the most important constituency
with which a dean must deal is the faculty.
And, it is true that faculty structural issues make it almost impossible
for any dean to come to grips with the basic changes that need to be faced by
legal education. Therefore, too often, the result is that the dean is destined
to become impotent after a period. If
so, other forces at work will come into play.
Increasingly shrill demands from the profession are but the early
indications that society will no longer endure legal education’s failure to
come to grips with its structural issues. Therefore,
change will come. If not from
inside the law school, than the change is likely to be forced by outsiders, who
know little about the academy and even less about legal education.
These outsiders are likely not to be sympathetic to the traditions and
mores that have made American legal education great.
Boards of trustees, legislatures, and alumni are ill equipped to make the
kind of informed decisions that need to be made.
But, their growing frustration with the present situation, and their
frustration with deans who cannot initiate or carry out change, bodes ill for
the academy in the future.
Students view the dean as the boss.
They expect, for example, when poor teaching occurs and complaints are
made to the dean, that the next day they should find a new teacher in the
classroom doing a better job. They
want instant response to complaints, they are less and less tolerant of poor
teaching, and they want a reward system where they work in a less competitive
environment, avoiding stress at all costs.
They also want to participate in all decisions that affect them.
They want a say about the grading system. They want substantial input into policies that govern
admissions, placement, and basic functions of the school.
They want representation on key faculty committees.
However, they are not anxious to share in any responsibility in carrying
out those decisions. They expect the dean to respond almost immediately to their
concerns, and failure to respond labels the dean as ineffective or worse.
More and more alumni are becoming convinced that
law schools are not responding to the needs of the profession.
There are escalating demands for more “clinical” skills training,
with no apparent appreciation for the enormous changes that have already
occurred in this area. There is
little understanding of the cost of that type of education or its complexity.
There is more and more a feeling that the profession knows what is best
for law schools, and less and less tolerance of the views of those who are more
familiar with the problems, i.e., deans and faculty. Those feelings are exacerbated when too often deans and
faculties appear to be totally non-responsive to alumni concerns.
While most alumni organizations are loyal and supportive, the views of
alumni are affected by the shrill voices heard at large in the bar.
And, deans realize that law schools depend heavily on their alumni base
for external support, that a failure to allow considerable alumni involvement or
input in the law school can cut off a key source of support for the school.
Despite the high stature of the American law deans
in the university, law schools have long been the bane of central
administrators. They are viewed as
demanding too much autonomy, of having too much political clout from outside,
and of not being good soldiers. Too
frequently, the dean, to the central administration, appears to be little more
than a middle manager whose duty it is to carry out the commands of the central
administration. Contrast this with
the view of faculties that the dean is little more than a “managing partner”
of their college, whose duty is to fight for the interests of the faculty,
against the central administration.
F. The Organized Bar
More and more, issues involving legal education are
debated at the organized bar level. More
and more bar organizations are making demands about curriculum, admissions,
policies, and the perceived inferior quality of recent graduates. Frequently, bar associations will pass resolutions or demand
changes in accreditation rules without even considering the necessity for
consulting those who know most what the problems are—the deans and faculties
who run those law schools. The
enmity between the professor and the organized bar may be growing. The dean, as always, is caught in the middle.
The dean must deal diplomatically and intelligently with the bar; and,
yet, the dean’s faculty demands the dean be on the frontline battling what
they perceive as the barbarians at the gate.
The disastrous Consent Decree, agreed to by the
Board of Governors of the American Bar Association, was brought on by the
Justice Department, which had little understanding of legal education.
Demands were made on the accreditation process that made no sense from a
public policy viewpoint. Nevertheless,
the Consent Decree is but the latest example of governmental interference in
issues involving legal education. More
and more state legislatures are cutting budgets, mandating minimum teaching
loads, attacking tenure policies, etc. As
always, the dean is on the point in trying to explain the position of legal
education to increasingly hostile government regulators.
Frequently, the government fights among itself.
The Department of Education has regulations that demand less interference
by the profession in the professional school. However, the Department of Justice
seems to demand that the professions have more control over professional
education. And the Americans with
Disabilities Act, and its inclusion of “learning disabilities”, is causing
real headaches in legal education.
Legal Education Organizations
These organizations are important.
They represent another contstituency that must be tended.
The dean should participate in national professional organizations in
order to voice the views of the dean’s law school to those organizations.
Those organizations, in American legal education, are splintered.
The Association of American Law Schools has become the learned society
for the law professorate. The
American Bar Association’s Section on Legal Education has been almost totally
consumed by accreditation issues, and the task of enforcing accreditation
requirements. The Law School
Admissions Council, whose meetings are attended primarily by admissions
professionals, is an organization with substantial resources that has been at
the forefront of many reforms. There
is always the risk that it may someday respond too much to the voices of
admissions professionals rather than the larger interests of legal education.
The same is true for the National Association of Law Placement.
In all these organizations, if the dean doesn’t play a role, others
will attempt to speak for the law school, sometimes not in its overall the best
In short, each of the above constituencies views
the role of the dean through its own narrow prism, based on its own needs.
Each constituency is largely unaware, and frequently unsympathetic to,
the needs of the competing constituencies.
Rarely, do the constituencies ever talk to one another or attempt to
understand the each other’s needs. Instead,
each constituency talks through “the dean”.
Each constituency views the dean in a different way. As indicated, the faculty views the dean as “no more than a
first among equals”, or “managing partner” whose duty it is to carry out
policy decisions of the faculty. University
administrators, on the other hand, views the dean as a high-level middle
manager, who reports to them and has a primary duty of carrying out university
policy. The students view the dean
as the “boss”, so why doesn’t he solve all the problems immediately?
Meanwhile, outside constituencies, such as the alumni, the practicing
bar, and governmental entities, frequently intrude demanding that the law school
take action on their pet concerns. They
bring their demands to the dean and the dean is expected to act on them.
So back to the theme, the American deanship has
high status, but with the modern dean too frequently being a political broker
among constituencies. The problem
is simple and clear. The modern
American law dean has too many responsibilities, but almost no undiluted power
to carry out any of these responsibilities. All
of the constituencies demand shared power but no constituency will step forward
to take responsibility for the decisions once made.
The dean is held accountable for the results of the decisions made, but
has almost no power to make those decisions without extensive, shared
THE GLIMMER OF LIGHT
Does the above litany of woes mean that the job of
the modern American law dean is simply impossible?
Absolutely not. The modern American law deanship is one of the most
challenging, exciting, and influential academic jobs available. The job of most law deans is much more akin to that of
presidents of small colleges than to the deans of other disciplines.
Far more than is the case with other academic colleges, the law dean has
both external and internal constituencies with whom she must deal.
Unlike other colleges, the dean does not have department chairs through
which she can deal; therefore, the dean must deal directly with every faculty
member. Furthermore, the management
tasks of the modern deanship are immense and most challenging.
The dean must settle internal faculty disputes and manage staff.
Because of evolving governmental requirements in a number of areas, the
staff needs of the modern law school have increased.
There are admissions professionals, financial aid professionals,
placement professionals, and others, all of whom must be organized and managed.
Despite shared governance everywhere; any dean who
is not a visionary will not survive. The
dean must be the focal point for articulating the vision of the school in order
to coax most of the constituencies into moving in the same direction most of the
Lastly, the dean must provide the resources to run
the school. The dean is in a
constant battle to retain a fair share of the law school’s revenue from a
rapacious central administration constantly in need of funds of its own.
Furthermore, the dean must operate in the outside world in a fundraising
capacity. Finally, the dean is
viewed as the leader of that school by outside constituencies at both the state
bar and national levels.
Indeed, the modern law dean might be viewed as
“the embattled juggler”. The
dean has to juggle multiple constituencies all viewing the role of the dean in
different ways, without dropping too many of the balls at one time.
The task is daunting, but also extremely challenging and extremely
satisfying when done well. As Machiavelli indicated, change is difficult under the best
of circumstances. Changes in the
modern law school world are exceedingly difficult.
However, changes are necessary. New
methods of financing legal education must be found.
The rapid increase in tuition over the rate of inflation must be curbed.
Revitalization of the law school faculty must occur despite the
impediments of tenure and the removal of retirement policies.
Through it all, with an intelligent communication to each of the
constituencies, with an attempt to keep each constituency informed and acquaint
each constituency with the views of the other constituencies, deans, in fact,
Change can be initiated.
For example, too long have we shielded our faculties from the hard truths
about the financing of American legal education.
For the past five years, public schools have faced massive budget cuts
and have had to raise tuition very rapidly.
Private law schools have been increasing tuition far too rapidly, and the
private universities with which they are affiliated have been far too quick to
take far too much of the revenue from the law school to support central
administration functions. It is
time that the modern law dean leveled with the law dean’s own faculty about
the monetary stresses facing legal education.
Faculties must come to grips with the fact that they have to change.
Blind defense of present tenure policies, for example, without a
realization of outside financial forces is foolhardy. The modern dean has the opportunity to inform her
constituencies, pull them together, and move legal education forward.
RESOURCE PROVIDER VS. ACADEMIC INITIATOR
The major tension in the modern deanship is between
the role of a resource provider versus academic leader.
The qualities that produce success in one area are not necessarily the
qualities required in others. A
good resource provider may not be a good academic leader and vice-versa.
A truly successful dean has to be talented in both areas. If you drop the resource ball you will fail, even if the
faculty that hired you told you they wanted you to be an academic leader.
Or, if you drop the academic leader role with the faculty, despite the
fact you bring in buckets of money, you will fail, even though you may have been
hired by an administration that told you they wanted a fundraiser.
The modern American dean must do both and must do both well. It is a challenge. And
overriding it all is the need to be the visionary leader that can convince all
the constituencies to understand the need to move in the same direction at the
same time. The dirty little secret
for most law deans is that 95% of the dean’s problems are not “what we ought
to do” but rather, “how do we keep all of those divergent souls moving
generally in the same direction toward common goals”?
It ought to be obvious by now that no human being
can do it all. So what is answer?
Do we give up? And the
answer again is no. I am an
optimist and I am also a realist. I
think that most good deans do most of the functions well enough most of the time
to be successful. There are some
truths that have emerged. A good
dean cannot delegate the bulk of external duties.
Most of those external constituencies will deal only with the dean.
It is also true that the law school cannot raise large outside gifts, or
even conduct an annual campaign, without direct and constant involvement by the
dean. Any large donor will only
give if the dean asks, despite the presence of a very good fundraising staff.
It is also true that the dean must keep a substantial hand on the inside.
While many of the inside duties can be delegated to a good associate
dean, the confidence of the faculty will diminish if the dean does not pay some
direct attention to faculty morale. Furthermore,
the dean must take a personal interest in the scholarly productivity and
teaching quality of the faculty. Faculty
non-productivity cannot be ignored for long, or productive faculty will begin to
resent their non-productive colleagues.
Thus, the dean has a time allocation problem.
It is true when one says the dean should spend at least the bulk of her
time on inside duties. It is also
true when one says the dean should spend the bulk of her time on outside duties. Since it is obvious that the dean cannot spend the bulk of
her time both on the outside and on the inside, balancing time commitments is
important. Therefore, developing
skill in the art of delegation is absolutely critical. The dean must appoint good administrators, delegate to them,
trust them, and try to stay focused on the big picture.
Machiavelli was right.
Change is difficult. However,
a dean is dealing, for the most part, with intelligent faculty colleagues who,
if informed, can both understand the problems and the need for change.
Central administrators can be made to understand that too much direction
from the central administration, and too big a diversion of tuition revenue from
the law school, will lead to disaster for the law school.
Students are impatient, but students can also be made to understand the
traditions of the academy. If a
strong central vision can be articulated and most decision are consistent with
that vision, deans can succeed even in a time when the powers of the dean have
been diluted. The old iron dean is no more, and it is true that the modern
dean is an embattled juggler. But
the dean also can be a visionary, an effective administrator, an academic
leader, and resource provider if the dean can delegate, articulate, and
There was a wonderful ad that appeared in the Minneapolis
Star Tribune on Sunday, June 5, 1994. The
ad read as follows: “Lost.
Black and white cat. Blind
in left eye. Lame. Recently
castrated. Answers to the name of
Lucky”. That ad could describe
the modern American dean, if one is too cynical.
The job of the American law dean is difficult, but it is not impossible
despite all the impediments. All
law school constituencies need to be made aware that these are times when
changes are necessary. While change
is difficult, it is not impossible. It
can be done. And, many good deans
have done it. Legal education will
be the poorer if we do not understand the burdens placed on the modern dean, and
with the goodwill of all constituencies, help that dean carry those burdens.
*Frank T. Read, known as “Tom” Read, is President and Dean of South
Texas College of Law. He
has been a dean since 1974, serving as dean at four law schools - in reverse
order, the University of California-Hastings College of Law, The University
of Florida College of Law, Indiana University-Indianapolis School of Law,
and the University of Tulsa College of Law - before taking his present
position. After leaving
Hastings, he served for a year and a half as the first Deputy Consultant on
Legal Education to the American Bar Association, before taking his present
position in 1995. A version of
this article was first presented as a paper delivered at an international
conference on legal education, sponsored by the Association of American Law
Schools, held in Florence, Italy, in May, 2000.