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September 28, 2012

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Anders Walker

“We learn geology the morning after the earthquake.” (Ralph Waldo Emerson, Conduct of Life (1860)).

Ok, so it sounds like there are at least three points worth responding to in this post. One is some “detailing of relevant events,” two is a comment on “corporate judgment” and three is a note on how the matter should be “remedied.” Let’s take the middle one first. I seriously doubt a corporate, i.e. unified judgment will be reached here at SLU, mainly because our faculty remain divided over Dean Clark’s resignation. Some clearly believe that Clark’s resignation was a heroic act that warrants some kind of direct action. Others support Clark’s decision to go public, but remain ambivalent about what its impact has been on the school and what the best way to move forward is. Yet others find Clark’s public exit to have been ill-advised and embarrassing. While it is certainly possible that these factions will somehow come together in the upcoming months, I doubt it will happen anytime soon. In fact, it is my sense that most people would rather that the latter group not come forward. On the “detailing of relevant events” matter, I think there is a much larger story to be told about our current situation. First, over the past two years our enrollment has dropped significantly. This, to my mind, is a good thing. Our LSAT and GPA numbers have remained strong, and we have a much better chance of getting two hundred students jobs than we do three hundred. One of the things that impressed me most about Dean Clark is that she resisted the impulse to reverse this trend, even though it meant a serious projected drop in revenue for the university, enough to warrant major cuts to our base budget. When the university did request that we cut summer stipends, Dean Clark fought valiantly to preserve them, knowing full well that these were critical to both recruitment and retention. However, this is where the tectonic plates began to collide. Not only did Clark have to deal with a dramatically shrinking student body and a university looking to cut what it perceived to be extraneous expenditures, but she also confronted a creeping suspicion (on the part of the university administration) that we, the law faculty, were engaged in a scam, lining our own pockets, writing irrelevant scholarship, and sticking students with the bill. Sadly, there were and remain credible sources for this, including David Segal’s articles on legal education in the New York Times (which enjoyed a broad readership here at SLU last year), Paul Campos’s Inside the Law School Scam, and, most recently, Brian Tamanaha’s Failing Law Schools. To the lay reader (or university trustee/president), all three make a compelling case that law faculties get more than they deserve and, more dangerously, that there is a moral imperative to cut extraneous, self-serving expenditures like summer stipends. What bothers me most about this literature is that it paints US as thieves. Feel the earthquake yet? Given these “relevant events,” and given current divisions on the faculty over the resignation issue, I am left to conclude that at least one aspect of the “remedy” must be structural. Whether we engage in a protracted battle with the university or not, we need to move quickly to develop independent streams of revenue to fund research that do not rely solely on university support. One model for this is the Law School Foundation at the University of Texas, an independent non-profit that provides the Dean with resources to fund faculty support, recruitment, and retention. Another is the Frances Lewis Law Center at Washington & Lee. A third is the endowed center, along the lines of the Searle Center on Law, Regulation, and Economic Growth at Northwestern. If we can begin to emulate one or more of these models, much of the pressure that we placed on Dean Clark to fight the President for resources will be offset, hopefully forestalling future blow-ups. Conversely, if the university allows us to keep our enrollment near 200, we will score high placement numbers, secure respectable LSATS and GPAs going forward, and fulfill our moral responsibility to our students. One final note: we may not have been asked to weigh in on the new building, but I like it.

Anon.

Anders - A minor question, if you don't mind indulging my curiosity. If I read it correctly, Dean Clark's letter suggested that the admin was refusing to provide you all with offices in the new bldg., and wanted you all to work in cubicles, as a way to cut renovation costs. What happened with that bizarre plan?

Anders Walker

Ok people, happy to answer random questions about SLU. That said, one of my pet peeves is anonymous posting. If you want info, great, just reveal yourself.

Anon.

Understandable, and sincere apologies. You can consider my question retracted.

Brian Tamanaha

Once again, Anders Walker presents a distorted reading of my book. I do not "paint US as thieves." My argument is that, at a time when our students are burdened with massive debt and poor job prospects, law schools should do everything we can to reduce costs, including trimming the amount of money we allocate toward the production of scholarship.

Law schools around the country are already making moves in this direction for reasons having nothing to do with my book. The number of applicants to law school is falling, and revenues with it. Every law school will be forced to reduce costs. Walker appears to take the position that any reduction of resources currently allocated toward scholarship is unacceptable or outrageous. I don't agree. (I applaud his suggestion to look for outside sources of funding, though this will be tough to pull off.) But my views and Walker's views don't really matter--economic imperatives will impose this reduction on law schools regardless of what we think.

While all law schools are facing challenging times, the situation at SLU is made worse by a president who has engaged in questionable actions. Walker's bitterness at events that have transpired at SLU is understandable. His persistent effort to blame me for their plight (in three separate posts, including a bizarre suggestion that I was plotting with his interim dean, who I have never met), however, is absurd--a classic exercise in blaming the messenger.

Everything transpiring at law schools today, including at SLU, would have happened even if my book had never been written. Rather than blaming others for the difficult situation we find ourselves in, legal educators should take a hard look at our own operation. One necessary part of this is to examine how much time and money we allocate to the production of scholarship.

Finally, on the main post, it strikes me as distasteful for someone not at SLU to repeatedly raise the subject of the unfortunate events at SLU, and to assert that law professors there have a "duty" to take a public stand against the administration. The situation is difficult enough without outsiders exhorting them to stick their necks out.

Former SLU loyalist

Ralph Waldo Emerson may have learned geology after the earthquake, but there were others who could read the landscape and knew it was simply a matter of time. -me.

The previous detailed post by Anders provides an excellent distillation of the issues at SLU as they relate to the College of Law, and to some extent those same issues are relevant to the rest of the campus, but his post doesn't detail all the reasons why the general SLU faculty are adamant about the resignation of Manoj Patankar. At the time of his selection as interim provost (a position later converted to vice president of academic affairs), Patankar was considered a puzzling and weak choice by many. Within two months, Patankar initiated the disintegration of the Graduate College and the reorganization of upper administration. His plans, which were widely disseminated, were justified on the basis of cost and program flexibility, but they were widely perceived to be more personally based (for the Graduate College, which had not sanctioned graduate programs that Patankar had sought while Dean of Parks College, the engineering school) and ill-conceived (the presumed cost savings did not, in fact, occur). Subsequent decisions were done without faculty consultation, which is a requirement stipulated in the Faculty Manual and therefore a contractual obligation. He introduced new schemes of evaluation that largely ignored long-standing precedent and heavily emphasized fundraising, including stipulations in some contracts that set a fixed dollar amount as a basis for annual evaluation and contract renewal. The list goes on and on. The allegations of surreptitious budget reallocations and broken promises made by former dean Annette Clark are the ones everyone has heard about, but in fact, Patankar has adopted the same philosophy as his mentor, Larry Biondi, towards transparency and ethics. Biondi's deficits in both are legendary on campus and in the greater St. Louis area. The faculty have little trust in either of them.

There is an apparent cognitive dissonance between the Board of Trustees unwavering support for Patankar and the almost unanimous faculty opposition to his administration. I say 'apparent', because it is easy enough to understand if one permits the theory that the Board of Trustees is fully supportive of the kinds of academic reorganization, financial flexibility, and tenure-related policy changes that have been proposed by Patankar. While no Board member has stated so for the record, it is a virtual certainty that an overwhelming new emphasis on research funding and publication is part of a broad strategy to emphasize profitability. The chairman of the Board of Directors, Tom Brouster Sr., is a master at bank takeovers. Everything that has taken place over the last three years points to a strategic reorganization that emphasizes profitability over intellectual diversity. I can't find any other way to reconcile the Board's ongoing support of Patankar in the face of almost unanimous opposition.

Any lack of action by the Board of Trustees should be taken as evidence that they have a specific reason for keeping Patankar. This should be cause for deep concern. Education is a unique 'product' that does not lend itself well to economic analysis. Most of the Board are from the world of business and have little or no experience with the full range of wants and needs that come with SLU's primary customer, i.e., students. General Motors may be able to turn a profit by narrowing its product offerings, but in academia, every department closed is a diminution of choice for the customer and diminishes its ability to recruit. It also seems counterproductive that teaching skill is increasingly less important in SLU's decision to hire and retain faculty (and nearly irrelevant in some cases), when most students view teaching as the most important product offered by SLU and nearly 70% of SLU's revenue comes from their tuition. It's easy to abandon these kinds of considerations because of their mathematical complexity and philosophical foundations. Patankar demonstrated his aversion to both when he detailed his analysis of departments now slated for closure. SLU faculty should carefully ponder why.

Academics intuitively know there are immeasurable variables that have to be factored into the strategic future of a department or college, but business leaders often do not. In my opinion, SLU faculty--including law faculty--must be prepared to make a well-reasoned, market- and economics-based argument if they want to effect a change in university leadership. No matter how wrong-headed and antithetic to education the Board's attitudes might be, they are not likely to change direction without a practical and compelling alternative. There are hundreds of SLU faculty who 'feel' that the university is headed in the wrong direction, but feelings aren't going to matter. Somebody needs to step forward and provide a convincing 'dollars and sense' argument why Patankar should no longer lead the university, or it is not likely he will be replaced.

Matt Bodie

Since Anders has weighed in here, I thought I would add a few thoughts:

- Whatever you think of law faculty salaries, eliminating summer stipends would be a regressive move. It would hurt those who are publishing more than those who are not, and it represents a much larger percentage of salary for junior folks than for upper-level senior folks. So if you think faculty salaries should be cut, that's fine, but simply eliminating research stipends is -- in my view -- a pretty poor way of doing it.

- I have seen Brian and Anders talk past each other a few times, and it makes me sad and frustrated to see it. I agree with Brian that we should not blame the messenger, and that he has presented the message respectfully and exhaustively. But I also wish Brian would be less ambiguous in his defense of legal scholarship. He himself did terrific work at a school outside the top-20, and I'm sure it benefited his school and his students. There are ways of cutting the costs of legal education without derogating our research and writing. My colleague Marcia McCormick has written eloquently on this, but I really object to those who happily slag on legal scholarship, and I fear some of what Brian says plays into that. I wish he would provide more clarity on this.

- Phil, a big subtext of your posts has to be your experiences at Ave Maria. I wish you would speak to that -- I think hearing about the difficult events at that school from your perspective would help the rest of us achieve a better understanding.

Anders Walker

First, a concession. Brian is not only right that tuition-driven law schools like SLU need to take an aggressive, pro-active approach to keeping enrollment down and tuition low, but cutting funding for scholarship is neither unacceptable nor outrageous. In fact, my exchanges with Brian over the past few months have actually convinced me that the way forward for faculty support at SLU is to begin a conversation about endowed research. While Brian is right that this will be difficult, it is imperative. It is also interesting. Already this semester, the prospect of finding synergies between work done on our faculty and potential donors in the city and region has led to a series of wide-ranging conversations both internally and externally about the relationship between legal scholarship, public policy, and business. Several of my colleagues and I have talked to writers, developers, public officials, and business leaders, all about potential interconnections between what we are doing on the law faculty and what others are doing in the public and private sector to take advantage of regional strengths, meanwhile addressing local issues ranging from improving our city school system to redeveloping the Pruitt-Igoe property.

This leads to an important point. Brian's book IS different from Campos's blog and Segal's NYT pieces. Even if I disagree with aspects of it, his fundamental argument is right. We need to think creatively and responsibly about what we are offering students - and at what price - meanwhile tailoring our individual needs to meet our individual circumstances. For some schools, this might involve developing new ways to fund faculty research and support. For others, it might involve going off the US News grid, deliberately.

Though it hurts to confess this, the more I critique Brian's book, the more he convinces me he's right.

Brian Tamanaha

Matt and Anders,

Thanks for your comments. I can see from these exchanges that I must clarify my position on a couple of points. First, I value scholarship greatly. I state this unequivocally in the book (p. 61). And my own commitment to scholarship--seven books and dozens of articles on esoteric topics in legal theory--speaks for itself. (I recently completed a draft entitled "The Unrecognized Triumph of Historical Jurisprudence," which is both historical and theoretical--a double dose of scholarship with no obvious practical value.)

Second, if I were the dean of a law school, I would not cut research stipends across the board. As Matt points out, this is a regressive move. When I was interim dean, as I recount in the book, I retained summer stipends for the younger professors, who as a group were highly productive and the lowest paid members of the faculty. When trying to trim costs, it would be foolish and counter-productive to penalize professors who are working hard and doing great things for their students and the school.

Anyone who invokes "Tamanaha's Failing Law Schools" to support scholarship bashing is distorting and abusing my arguments. When writing the book, I strove to make my views about scholarship clear. My argument is a nuanced one which tries to find some balance between costs and economic return for our students. But as every scholar knows, nuance is often overlooked, and we cannot control the uses to which our work is put.

anonprof06

I hate to break in an interesting exchange here, but ... may I say a word about research stipends? I understand that, probably for historical reasons, they're structured as an addition to our (well, my) regular compensation. But in actuality they're not. When I was hired I was offered compensation of (to change numbers a little) 110k -- 100k regular salary plus a 10k stipend over the summer. The 10k could be removed if I quit doing research, but the understanding is that I would get the yearly salary + 10k if I kept doing what I was supposed to be doing. I see the cuts in stipends, at SLU and elsewhere, as backdoor salary cuts. Don't get me wrong; we may need to correct an imbalance between scholarship and teaching at many law schools, and I would not object if my current 10-credit a year load was increased to 12 (so long as the money released by this actually went to help students). I could also understand cutting stipends for people who stopped doing research, since doing research was part of the original deal. But treating research stipends as an "extra," to be removed at the whim of an administration, is to misunderstand the role they play in compensation.

AnonProf08

I would just second Matt's point. I know there are many people who would support more radical shifts in restructuring legal education, but who have such a hard time with the attacks on legal scholarship that accompany the discussions in public. I know Brian's book doesn't do this, but that is how it is often paired up by people who simply want to attack law schools in general. I will also point out that this particular demographic tends to trend towards interdisciplinary scholars familiar with other fields and those who are committed to issues of economic justice in general. But these are the same people whose scholarship most often gets targeted as "irrelevant to lawyers and judges." This generates some real tension among those trying to contemplate exactly what constituencies could be formed within law schools to promote more systematic change.

SLU Law prof

Anon - we will have offices in our new building.

Brian Leiter

I want to second Brian Tamanaha's point:

"it strikes me as distasteful for someone not at SLU to repeatedly raise the subject of the unfortunate events at SLU, and to assert that law professors there have a "duty" to take a public stand against the administration. The situation is difficult enough without outsiders exhorting them to stick their necks out."

Who is Phil Pucillo, and why is he writing these bizarre posts? Why is Faculty Lounge hosting them? This whole thing is an embarrassment for Mr. Pucillo and this blog.

Worried SLU Law Prof

A note of dissent vis-a-vis Brian (Tamanaha) and Brian (Leiter): I'd like to commend Phil Pucillo for raising the questions he has. The internal situation at SLU law school is so poisoned and irresolute right now - due to both a lack of leadership at the law school and a university president that few people have confidence in - that there is very little possibility of raising the issues that Professor Pucillo has raised 'internally.' The situation needs 'outside' review, and fora like Faculty Lounge provide an opportunity for scrutiny of this awful situation. In the absence of the ABA fulfilling its duties here, we are sadly left with external blogs to exert a kind of monitoring of the abuses going on at the law school, and also the university.

Brian Leiter

"Worried SLU Law Prof" misreads Tamanaha's and my comments. I have written about the SLU crisis. The objection is to Mr. Pucillo's penchant for making demands on colleagues at another institution to do something about a situation he only knows about from the outside. That is silly and strange.

Time4Patankar2Go

I have to side with Worried SLU Law Prof on this one; I commend Phil for stirring the pot. He's not entitled to have a strident opinion if he's not a SLU law professor? Come on. I know the situation from the inside and think his exhortations are right on target. There will be no better time to push Biondi and the Board of Trustees for a solution. Patankar has been a lawsuit machine with cases pending in state and federal jurisdictions. How much weaker does a deeply unpopular vice president have to get before the faculty decides enough is enough and commits to nothing less than his resignation? How much worse can it get?!? A law school full of lawyers, and nobody can figure out how to bring a class action breach of contract lawsuit???

AnonProf

"I have written about the SLU crisis. The objection is to Mr. Pucillo's penchant for making demands on colleagues at another institution to do something about a situation he only knows about from the outside. That is silly and strange."

That's pretty self-righteous of you isn't, Brian. You know when it's appropriate to address the situation in SLU but Pucillo has to run it past others before exercising his right to free speech?

SLU Law prof

No contract has been breached as of yet - but once SLU crosses the line you can be sure that many of us are ready to file. We have been planning for this since last year.

Unprotected SLU Prof against changing the subject

Echoing Worried Prof, I want to chime in to express my thanks to Phil Pucillo and the Faculty Lounge. I don't know a thing about Pucillo, and I don't feel a need to know. I haven't read anything from him that sounds inaccurate or unfair. To the contrary, his voice is so welcome that I have daydreamed about getting his name put on one of Al Brophy's monuments!

As some have explained already, SLU is a place where the administration may vindictively punish someone who is suspected of being out of line (and it may also offer selective benefits to those willing to seek favor). This can introduce all manner of distortion (a fact that makes Pucillo’s accuracy that much more remarkable). In this context, anonymous commenters don’t deserve the hectoring. Smart blog readers can discount what they read when they don’t know the source. (They should perhaps also consider that the set of faculty who are protected enough with the administration to speak with name attached is not a neutral representation.)

I also write to object to the way this thread was re-directed into a discussion about the general law school crisis, and the need to reform law school finances in the interests of the students. These are really important issues, about which I am eager to hear as much as possible from Brian and the rest. My objection is to the pretense that anyone thinks these issues have anything to do with the specific problems at SLU of the administration's gross disrespect for legality and ethics. Scamlaw is a useful frame for changing the subject because it makes SLU’s problems seem like part of a common trend, and because it introduces moral ambiguity (wrongly implying that the central administration was on the side of reform). I think this desire to normalize the SLU events and limit the airing of dirty laundry comes from a habit of mind that puts protection of reputation above other values. Decent well-meaning individuals are involved. But, in this situation (like an authoritarian state or an abusive family) circling the wagons is not a good way to show love for the institution.


Brian

AnonProf, your comment must be addressed to someone else. Read Brian Tamanaha's original comment again. Many people have written about the SLU situation. Only Mr. Pucillo has "repeatedly raise[d] the subject of the unfortunate events at SLU...and assert[ed] that law professors there have a 'duty' to take a public stand against the administration. The situation is difficult enough without outsiders exhorting them to stick their necks out." That is silly and strange--or "distasteful" as Brian T. put it originally.

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