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Wednesday, December 26, 2012


As reformists and irritants likewise insist, we are going to increase our expectations of full-time faculty members in order to realize cost savings and take our foots off the tution pedal.  Market pressures make the exhortation "pay the bastards less" ring rather hollow -- and all the shouting and screeching from the disgruntled won't make it otherwise.  Salaries for incumbents will remain more or less where they are (albeit with rarer raises).  Faculty hiring is what will take the hit.  In this environment, law schools will be asked to do more with less.

So how ought we to think about these great(er) expectations?

(1) Teaching regularly and well and with sufficient accomodation to institutional needs, as these needs evolve in this new and difficult era.  Deans, including this one, will be reticent to enter into permanent teaching reduction agreements.  Scheduling will need to follow the imperative of student learning and sensible organizational management, not principally the convenience of full-time faculty members.  Faculty leaves, whatever the reason and whatever past practice, should be discretionary and timed around the needs of the school and its learning environment.  And teaching must be excellent -- sophisticated in content, coherent in expression, up-to-date, and connected increasingly to the essential project of making our students into first-rate young lawyers;

(2) All hands on deck.  Faculty members are the professional portals to the students' legal careers.  The work of training rests in their hands.  But, to an increasing extent now, so, too, does counseling and placement.  Developing opportunities for students to pursue remunerative, valuable careers should be part of the work of a faculty member.  This will range from active career counseling, writing effective recommendations for clerkships and, where appropriate, law firm employment, and helping students with their employment search in imaginative, tangible, and reliable ways.  This work is too important to leave solely to overworked career service offices and deans;

(3) Insofar as scholarship forms an important part of the modern faculty portfolio, expectations of excellent, impactful scholarship should be high -- indeed, in this difficult environment, especially high.  Law profs have an exceptionally enviable gig.  Let's just suppose that faculty members need to demonstrate their suitability for this gig on an annual basis, and with unimpeachable evidence that they are doing their scholarly work at a level that befits this great job.

In short, faculty workloads will grow.  They ought to grow.  The central question, to me, is how they ought to grow in a way that serves the professional objectives of our students, while also preserving what is tremendously valuable in the contributions of the law professiorate in the contemporary legal academy.



Posted by Dan Rodriguez on December 26, 2012 at 08:17 PM in Life of Law Schools | Permalink


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I'm a somewhat new (untenured) professor and a CJA attorney for criminal appellate matters. I take students on to do as much of the work as they're capable of, and I teach them as much as I can commensurate with representing a (real) client. I get paid by the court, and they get paid by the court. Luckily, I'm at a school that, for all I can tell, values this experience. It also informs my teaching and scholarship in demonstrable and substantive ways. This, by the way, in addition to a heavy service load, full teaching schedule, and scholarship. Here's the thing: I'm almost certain that if I went on the job market for a higher-tier school, I'd have to downplay or virtually hide this work. I'd like to hear from others: is this true? Would your school value such work? Would it count toward service (as it does at my school)? Would it be a plus for a faculty member? And if not, why not?

Posted by: Anon | Dec 27, 2012 1:03:52 AM

Interesting post (as all of your posts have been). Deans have control over what classes professors teach, and how much they teach. But how does a Dean change the rest of these expectations?

Posted by: Orin Kerr | Dec 27, 2012 1:09:29 AM

Anon, sadly, that's pretty much true, although it may depend somewhat on the school. I argued a Supreme Court case on an issue I had written about in my work while I was doing a visit at a higher-ranked school. I tried not to bring up the case during the visit, as my sense was that it would probably hurt my candidacy by making me seem too much like a lawyer. With that said, my own school valued it; my Dean and my colleagues really seemed to value the bridge between the academic and the courtroom.

Posted by: Orin Kerr | Dec 27, 2012 2:16:49 AM

Orin -- I don't think a dunk tank has ever failed as a motivational tool. That is, productive faculty could be rewarded with 3 chances to "sink the dean," like in the carnival game.

For law schools with strained dean-faculty relations, the dunk tank game could be replaced with an opportunity to hold the dean's head under water for 10 seconds.

Posted by: andy | Dec 27, 2012 2:21:44 AM

Just to riff off of Orin's point -- control over teaching loads and service responsibilities is very important, but I don't know why salaries can't also be a way of communicating with and rewarding faculty. If a professor is not meeting scholarship expectations, that should be reflected in pay, I think. We have been able to get along with paying everyone well, with some degree of additional reward to productive scholars (depending on the institution). There are a lot of shades of gray here, and cuts are particularly painful to swallow. But if a faculty member is not writing, not teaching especially well, and not to be trusted with important committee assignments, I don't see how we can afford to keep paying that person well. Especially if the alternative is that faculty hiring of new, productive folks takes a hit.

Posted by: Matt Bodie | Dec 27, 2012 10:35:46 AM

Market pressures make the exhortation "pay the bastards less" ring rather hollow -- and all the shouting and screeching from the disgruntled won't make it otherwise.

I apologize for all the shouting and screeching you have endured, as one of this blog's "irritants." It must be awful for you.

However, I think that "(m)arket pressures" has to take into account not only what a law professor could command by returning to private practice (if that's even an option, see also the former dean at Boalt who is part of a two-man appellate-work shop in San Francisco now) but also what the incoming 1L class is willing to pay as its effective tuition rate over the course of three years. At an institution like Northwestern, where 81% of attendees were in full-time, JD-required jobs (and the majority at BigLaw) within 9 months of graduating, 1Ls may be willing to pay a $80,000 COA or somewhere near it. However, most schools are not situated similarly to Northwestern except in terms of costs of attendance and faculty payroll. Something has to give.

Posted by: Morse Code for J | Dec 27, 2012 10:52:36 AM

"In short, faculty workloads will grow. They ought to grow."

This way of putting it tends to obscure the underlying difficulty. Some faculty members already carry a very heavy workload (working nights and weekends). Not much more can be squeezed out of them (although what they spend their time on can be changed). On the other hand, some faculty members do little beyond teach their classes and serve on a committee or two, and others work at a productive but comfortable pace. Faculties differ in the proportion of people in these respective categories.

Getting more out of the latter two groups is difficult because deans have little power to sanction slackers and limited resources to create incentives for working harder. A dean can increase faculty productivity by assigning an extra class to those who should be (or could be) doing more, but deans are reluctant to do this because it generates resentment.

The key is to raise up the internal culture of expectations within the faculty in a way that gets everyone to embrace the duty to give it their all. Any suggestions on how to do that?

Posted by: Brian Tamanaha | Dec 27, 2012 10:58:14 AM

I think deans need to stop worrying about "resentment." All faculties I know of have some very hard workers and some real slackers. The pay should reflect the work done. If a faculty member is working 20 hours a week, as some of my fellow faculty members appear to be doing, they should be making half (or less) of what they are currently making. Worried about those faculty members leaving? I am not. The faculty members I am thinking of could not find another job...anywhere. But if they did leave, we could quickly replace them with someone better.

Posted by: Anon | Dec 27, 2012 11:19:18 AM

Thanks to Orin, Matt, and Brian for postings and for their valuable perspectives from faculty members' perspective.

Deans can incentivize with money; I don't mean to suggest otherwise, but just to be real about how ambitious one or another dean can be, given both the pressures of the market and the resentment issue which Brian rightly notes. But, consistent with the imperative of horizontal equity and, also, with serious attention to the myriad types of work which hard-working faculty members do, pay should track tangible contributions. I agree 100% and, indeed, have endeavored to implement that at both law schools at which I have been privileged to serve as dean.

As to other techniques, I hope it won't be too evasive to say "the bully pulpit." That is, to lead, to really lead, is to develop an articulate way of explaining how times have changed to the professional and financial detriment (generally speaking) of our law students and that, in this challenging environment, we need to reconfigure our expectations to accomodate student interests, even where there is tension between these interests and our own convenience.

More concretely to Brian's question: The key is to craft meaningful expectations at the early stages in the professor's career. What does it mean to be a [Wash U., Northwestern, Saint Louis, etc.] professor? What is a meaningful, productive career in this era of legal education? This means raising these questions squarely and, moreover, role-modeling reliably, both the dean and faculty members who are carrying the "very heavy workload" which Brian describes.

Posted by: dan rodriguez | Dec 27, 2012 12:36:31 PM

One other thing: I confess to being mystified by the chatter on other sites about how my polemical comments cast aspersions on skills-training, value of clinicians' work, etc. I intend this and other posts to do just the opposite. The extraordinary contributions of faculty members who are doing front-line skills training and, perhaps, less traditional legal scholarship should be manifestly recognize and promoted. Indeed, in this new normal, such promotion is an imperative.

I surely see how the message "be excellent in teaching and scholarship" is banal. But to those who exhort us to be more tangibly focused on training lawyers to be practice-ready: What exactly do you disagree with? Inquiring minds want to know.

Posted by: dan rodriguez | Dec 27, 2012 12:40:26 PM

What about announcing a minimum hour standard? The Dean can simply say at a faculty meeting, "if you're doing this job the way I expect you to be doing it, you should put in at minimum 50 hours of effort per week." Or even 40. Don't be otherwise prescriptive about where the work is done nor even about the way those hours are allocated between teaching/scholarship/service. But say that the hours total is the minimum to earn the salary.

Granted, it's not a monitorable standard. I'm not asking for a hourly billing system. And I'm sure almost all lawprofs will protest, saying that they already put in the requisite 40 or 50. But those who aren't might feel at least marginally more guilty that they aren't.

Posted by: Anonymous Prof | Dec 27, 2012 1:09:58 PM

Incentivizing professors with money is likely a very bad idea. Studies have shown that while more money produces more results for manual labor, for intellectual pursuits it has the opposite effect. Money beyond what is needed for a comfortable life creates a lot of stress, which clouds judgment, stifles creativity, and tends to create a Yes-Man culture, where people are afraid to be innovative, criticize/critique their colleagues, or otherwise rock the boat in a way that will put their pay at risk.

Perhaps a better incentive scheme would be to place professors on a default 3/3 course load, and then allow them a reduction to a 2/2 load when they have demonstrated that they have a worthy research project to pursue.

Posted by: Derek Tokaz | Dec 27, 2012 2:46:48 PM

"In short, faculty workloads will grow. They ought to grow. The central question, to me, is how they ought to grow in a way that serves the professional objectives of our students, while also preserving what is tremendously valuable in the contributions of the law professiorate in the contemporary legal academy."

For once in my life, I agree with a dean, if he means it. I have been teaching law for 52 years, 51 at my current school. My initial teaching assignment for the Fall semester was 2 doctrinal courses, day and evening, plus one section of legal writing (with an enrollment of more than 75). Spring was similar...two different doctrinal courses and another large section of legal writing. I didn't get much sleep. That load continued for probably 9 years or so, with different combinations. I also supervised the law review, was adviser to the Student Bar Association and coached a moot court team. Oh yea, I also wrote and published two law review articles -- not the kind with 200 footnotes and lots of words like heuristic and post-modern, but more like Prosser's or Williston's treatises, analyzing a body of law, and aimed at practitioners. That was for the princely initial salary of $6250 per year, with extra money if I taught summer school, two courses, which I did. That meant I was about $1000 more than associates at Big Law, and $1000 was an awful lot of money when the price of gas was .29 a gallon and a sandwich, chips and a coke was less than a dollar.

It also was one of the most happy times of my life. My best friends today were students in those early days. I've gone to their weddings, and unfortunately to their funerals. Many of them have donated money to the school to fund a chair named after me and a scholarship in my name.

I am always embarrassed now when I tell people my current teaching load is -- one section of Torts in the Fall and Advanced Torts and Famous Trials in the Spring. 9 credit hours! I no longer coach moot court teams -- we have a professor whose main job is to do that. I no longer supervise law review or the SBA.... either assistant deans or the professor who is organizing a symposium has a staff member help her/him do it, for extra pay. Many of my colleagues get financial support for writing an article every two years, usually the kind with lots of footnotes and a lot more philosophical or niche driven than mine were. Very few of us teach summer school now -- that's left mostly to the Class II clinicians and legal writing faculty or to adjuncts. They need the extra money for sure. (Yes, we discriminate against those people too....lower paid and work harder. Not eligible for tenure, though they are basically 405(c) secure.)

So, dean, you talk the talk pretty well here. Will you walk the walk? How many hours do Nu profs teach? I believe it is lower than my current load. And what about the extra financial support for their scholarship, largely financed by high student tuition? Will they receive extra compensation for mentoring students? Advising them on job opportunities? Do you treat the legal writing faculty differently....I doubt they are paid half of what an assistant professor doctrinal teacher makes, and yet they work harder and have closer mentoring relationships to their students than most doctrinal teachers ever do? In the course of getting students to be practice ready will pure academics do as well as the skills trainer clinicians and legal writing faculty?

Posted by: Ralph | Dec 27, 2012 3:21:18 PM

Deans like Rodriquez ought to put their administrative houses in order before loading new duties on the faculty. The growth in the numbers of law school administrators has outpaced growth in those of faculty and students. To paraphrase the Bible, deans ought to take the bloat out of their administrative budget before trying to balance the budget on the bank of their faculty. http://www.professorbainbridge.com/professorbainbridgecom/2012/12/dean-dan-rodriguez-thinks-making-faculty-work-harder-is-the-solution.html

Posted by: Steve Bainbridge | Dec 27, 2012 3:39:02 PM

Dean Rodriguez: I understand that Lathem Time makes excellent punch time clocks, such as this one: http://www.lathem.com/products/time-recorders/1500e.aspx. I'm sure your faculty will adjust to using it quite quickly.

Posted by: Steve Bainbridge | Dec 27, 2012 3:41:57 PM

I've not looked, but is there a law review article on the law of faculty tenure? What does "for cause" mean? If a faculty member's name consistently makes it on to the list of non-producers that goes to the AALS and there is no significant institutional contribution to offset the scholarly non-productivity, then why is it not an easy case for a dean to give the faculty member notice and then terminate? Based on my experience, a fair number of these non-producers are going to be fairly senior faculty who have effectively retired in place. You could probably hire two productive junior workhorses for the price of the old mare.

Posted by: JustMe | Dec 27, 2012 3:55:52 PM

Two thoughts/questions -- one for Dan, the other for Derek.

Dan, I agree that the bully pulpit is very important. I suppose the question is, how should you use it? I've only been teaching for 11 years, which is a lot less than some others, but it seems to me that most faculty members pretty much just do their own thing. Some write, some don't; some teach well, some don't. But once they're at the job for 10 or 20 years, they're not entirely open to changing their approach. (Junior faculty is different; The newer the faculty, the more likely a Dean is to influence their views of the job. But at a time when hiring has slowed down, that's a pretty limited set of faculty members.) I suppose one way to influence views is to make the new realities more real for professors who might otherwise be in the cocoon; help professors see how good they have it, which can pressure them to work harder. For example, one idea would be to assign each professor a certain group of entering 1Ls and encourage them to mentor them and keep in touch over time. Or maybe make it 3Ls instead of 1Ls. Maybe that might work, although it's easy to announce such things and not follow through. But I don't envy the Deans who are trying to push their faculties on these issues. It's important work, but not easy.

Derek, can you point to the studies you have in mind? In the meantime, if you have extra cash sitting around that is creating stress, stifling your creativity, and inhibiting your work, I'd be happy to do a public service and take it off your hands. ;-)

Posted by: Orin Kerr | Dec 27, 2012 3:58:52 PM


All of my behavioral econ books are at home, and I'm out of town for the holidays, so I can't do it right now, but the study is referenced in this talk by Dan Pink, starting around 3:30: https://www.youtube.com/watch?v=u6XAPnuFjJc

And if I had extra cash sitting around, I'd be happy to do a public service and donate it to Law School Transparency.

Posted by: Derek Tokaz | Dec 27, 2012 4:22:24 PM

Thanks, Derek. Worthy cause.

Posted by: Orin Kerr | Dec 27, 2012 4:50:35 PM

I wonder what deans, and fellow professors, think of law professors who do 'public intellectual' work. Things like op-eds, serving on blue ribbon panels, popular non-fiction, television interviews, and so on.

So far as I can tell this seems to be in lieu of scholarship rather than service or teaching.

Posted by: brad | Dec 27, 2012 8:40:05 PM

Steve is right. Most schools could operate just fine, maybe better, with fewer administrators who were paid less.

Posted by: Anon | Dec 28, 2012 9:21:47 AM

Public intellectual work is a form of external service: service to society. Other types of service to society include taking leave to work in government and working on law reform efforts like Restatements. They're closely related to service to the legal profession, such as teaching CLE on Restatements or working with ABA sections, and service to the academy as a whole, which is what AALS ought to be. External service is an important part of the job, in addition to -- not in place of -- teaching, scholarship, and internal service.

Posted by: James Grimmelmann | Dec 28, 2012 9:45:05 AM

Forgive the editing: I meant to delete the second reference to Restatements.

Posted by: James Grimmelmann | Dec 28, 2012 9:46:53 AM

Steve (and Anon),

I don't know how it is at your (or Dan's) schools, but at my law school, we have the following "administrators" (not counting faculty members with administrative roles, such as Associate Deans, who would be there drawing a faculty salary anyway):

(1) A Director of Career Services and three professional staff
(2) A Director of Development and two professional staff
(3) A Director of Admissions & Student Services and three professional staff
(4) A Director of Communications
(5) A Business Manager (who handles the law school's internal HR affairs, day-to-day financial paperwork, staff issues, etc.)
(6) A Director of one of our Centers (who also teaches classes but is not a member of the full time faculty, so I've included him here)

That's it. Which of those positions would you suggest cutting in the name of reducing "administrative bloat" and what do you think the aggregate cost savings would be? I'm genuinely curious. Note that each of those administrators makes far less than even the most junior tenure-track faculty member at my school.

Perhaps other law schools simply have much larger cadres of administrators than we do? (Although the above is pretty representative of the three other law schools I've been at). I'm just not seeing very large potential costs savings to be had, at least not without severely compromising the law school's ability to function effectively.

Posted by: anon | Dec 28, 2012 4:34:52 PM

Anon @4:34pm,

If that is the entirety of your school's administrative staff, 14 people, that is indeed very lean. NYU's Office of Alumni Services alone has 32 people. http://www.law.nyu.edu/alumni/contactus/index.htm

NYU's Office of Financial Management has another 7, and the HR department has 5. It's amazing that your school has boiled these 12 jobs into a single Business Manager, and has all of its professors and deans answering their own phones. Kudos.

Posted by: Derek Tokaz | Dec 28, 2012 6:22:29 PM

Ralph @3:21pm asks me some good questions at the end of his thoughtful post, questions which deserve candid answers by me and other deans;
(1) our teaching load for tenure-line faculty is comparable to what you describe. Nothing drastically different at NU, you'll be glad to hear;
(2) Yes, indeed, I support financially faculty scholarship and, yes, some of that support is enabled by the tuition our students pay. Not only tuition, however. We are blessed with a comparatively healthy endowment, made so by the generosity of our esteemed alumni, and my task is to add to this endowment in significant ways, precisely to ease the burden on students and to shift the economic model to the extent feasible to externally generated resources. That is your dean's aim as well. I am confident that you and your colleagues support your dean in this endeavor, as do my colleagues;
(3) No, our faculty will not receive extra compensation for mentoring students and advising them on job opportunities. This is part of their regular jobs;
(4) Your point about differential treatment of legal writing instructors is very well taken. For my part, I have given these instructors extraordinary raises and will continue to do so, resources permitting, until I am confident that their compensation reflects (1) their vital contributions to our educational enterprise, and (2) the market. Ditto with respect to matters of job security, which we are hard at work on improving;
(5)Experiental learning and practical instruction should be provided by those best qualified to do so. That will always be a mix of full-time, tenure line profs (who, yes, do scholarship as a regular part of their work as academics), clinicials, legal writing instructors, and adjuncts. Getting the right mix is the challenge. And appreciation and support by deans and faculty members for the distinct contributions made by an eclectic faculty is necessary to move the needle ever forward.

Let me be presumptous in saying: Thank you on behalf of our profession, Ralph, for your half century of exceptional service to legal education. You have trained fine lawyers and changed lives -- a professional life very well lived indeed.

Posted by: dan rodriguez | Dec 29, 2012 2:05:22 PM

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