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March 18, 2014

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ALS Alum in Search of a Snappy Username

Wait, you mean that a Law School can offer faculty buy outs without their being an AAUP chapter formed, letters written to the ABA, and general nastiness?

TS

Do we know what the terms of the buyout were and to whom it was extended or whether it was a general offer?

Jason Yackee

I wonder if 40 'faculty' means 40 full-time-equivalent tenured/tenure track faculty, or whether that # includes non-tenure-track clinicians, LRW instructors and the like. If it means 40 FTE/tenure, then with an "ideal" class size of 185 I would imagine the school could reduce faculty even further without hurting their ability to offer enough courses. You could probably get by with 30 FTEs for a class of that size, as long as the curriculum/scheduling was managed intelligently.

Jeffrey Malkan

I hate to say this but Dean Mutua had other reasons for buying out almost the entire senior faculty when student enrollment is falling anyway. These buy-outs are the scholars and thinkers who made Buffalo a top twenty law school in the 80's and 90's. Over the past six years, however, they have stopped attending faculty meetings or even communicating with Dean Mutua out of protest over his autocratic deanship and the fact that he was appointed without faculty approval.

Now almost the entire remaining faculty consists of junior professors whom he hired and who are personally dependent on him for their continued employment.

The buy-outs will also conveniently put most of the witnesses in a section 1983 federal trial scheduled next year-- of which he is the principal defendant in his personal capacity -- out of the jurisdiction.

Why this announcement on the Monday after the U.S. News ranking revealed that Buffalo dropped from #86 to #100? In 2008, Dean Mutua promised to put SUNY Buffalo in the top 50, but the school is moving the other way. This announcement makes it sound like he has a plan. Raising the student-teacher ration, however, will do nothing to improve the ranking.

Jeffrey Malkan

Sorry, in the first sentence above I meant to say that SUNY's buyout of senior faculty (defined as anyone age 55!) comes when law student enrollment has already stabilized at 185-200, down from 240 in 2008. In his statement, Dean Makau Mutua claims that this year is the low point in the cycle and that law school enrollments should begin recovering soon. So, again, the buyout is a political maneuver, not an academic one.

ALS Alum in Search of a Snappy Username

Looks like I posted too soon...

PaulB

Jeffrey,

The fact that that the Dean has said that this is the low point in the cycle doesn't make it so. Also, it may well be that costs have not declined as rapidly as enrollment and that there's pressure from the administration to get costs under control now and not wait for an uncertain bounce in enrollment. I have no knowledge as to the dean's performance, but to use his words as proof that there wasn't an economic need to downsize the faculty is a step too far.

Anon

For what it is worth, these kind of buyouts are pretty common in academia and have been around for years and years, at least since the ADEA banned mandatory retirement in the 1980s. Colleges, by the way, were the last employer phased into the ADEA because these are jobs that people can do without too much stress into their 70s or 80s and one of the few jobs people want to continue in after normal retirement age (sometimes because they have not been paid adequately during their career to save for retirement but often just because they enjoy it.) I don't know why people would think it was some extraordinary deal or plot or . . . It might be that there was something going on at Buffalo but for heavens sake, accept that buyouts are common and wise in many instances.

JillyfromPhilly

Anon,

Are you suggesting that the buyouts at SUNY Buffalo Law can be even partially attributed to the underpayment of law professors? Do you know the approximate annual compensation the bought out professors received over the years? I'd be very interested to hear how whatever amount they were paid is insufficient to fund a retirement, and even more interested in reviewing the process employed by SUNY Buffalo Law in determining lump sum awards intended to make profs whole after years of below-market compensation. It certainly seems like an odd time to crack open the piggy bank and dole out the extra dough.

Ellen

A NYC area law school (or rather its university) has offered buyouts to ALL employees and hinted that layoffs of admins and staff will likely happen if enough people do not take it. This school has offered large-scale buyouts repeatedly over the years and had been doing "personal" buyouts to law faculty (a couple a year) for the past few years. The law school's drop in ranking this year might encourage more people to take the buyout.

Someone should start a buyout blog so people can compare and contrast the offers and number of takers!!

Anon

I think JullyfromPhilly may have misunderstood the point I was trying to make above, which may not have been stated clearly. My point was not that the buy outs were insufficient but was an effort to explain why buyouts are necessary. In most industries, workers in their 60s and 70s would just retire on their own and not need to be bought out. But in academia that is not generally true because it is a job that can be done with little strain and many Professors enjoy what they do. I assume the buyouts are sufficient to fund retirement, otherwise people would not take them.

ML

A couple of random thoughts:

1. The buyouts I'd heard of have been about a year or two worth of pay. Even assuming that an aging professor spends only half of that income (whether by living frugally or by using Social Security to make up the difference), that's still only two to four years. How is that enough to fund retirement?

2. I can understand why a school would offer buyouts to tenured professors. But why offer buyouts to staff who are (I suspect) mostly at will employees who can be fired tomorrow, or contract employees who can be fired at the end of a year?

ML

One other weird thing about Buffalo: this is NOT a school that is losing enrollment significantly; their 2012 class had 209 graduates. So why bother to downsize if your enrollment isn't going down?

Ellen

Haven't most tenured profs been contributing to their TIAA-Cref or other retirement fund for decades?? I don't think the buyouts are intended to be their sole income (along with SS). Buyouts are icing on the cake intended as an incentive. I know for some profs, the included 5 or so years of medical coverage was more important than the dollars. Buyouts also encourage profs who were planning on retiring in a couple of years to go now.

Anon: Offering buy outs to employees prevents mass layoffs, which would not look good for most universities. Like with profs, people who were thinks of leaving soon (or know they can get work elsewhere) will likely take them.

Jeffrey Malkan

Paul,

I'll give you some background. In January 2008, Makau Mutua was appointed interim dean of SUNY Buffalo, when his predecessor resigned in midyear for health reasons. The search for a permanent dean that spring failed after the provost rejected all three finalists. (The finalists included the present deans at Illinois and Wisconsin.) The provost then appointed Makau Mutua for a three year limited term to provide breathing space for a new dean search. In March 2010, the faculty convened for a vote of no confidence against Dean Mutua. The President and Provost showed up at the meeting to tell the faculty not to vote or it would suffer serious consequences. The faculty acquiesced.

Since Dean Mutua took office, the law school has hired sixteen junior or lateral faculty members (not counting LRW instructors), with six retirements. So there's been a net gain of ten professors at a time when enrollment was stable at 240.

Also, because of a recent change in SUNY's enabling legislation (called "NY2020"), the professional schools have been authorized to raise their tuition without legislative permission. Tuition at SUNY Buffalo Law, the only law school in the 64 campus system, has doubled ($12,500 to $25,000), with only routine improvements to the curriculum and facilities.

I know you can't easily verify all of these facts, but they are true. The result has been a transformation of the faculty that removes Dean Mutua's opponents and reinforces his supporters. Most of the new faculty have no recollection of how Dean Mutua came to be running the law school. The tuition increase has also provided a very large of sum of money for buy-outs and faculty support.

I suppose enrollment could fall even further below 200 (the tuition increase hasn't exactly encouraged applicants), and there might be mixed motives for these buy-outs, but I think this policy, for the most part, is politically motivated. The educational program, moreover, has suffered from the wholesale removal of senior faculty and their replacement by junior faculty with little teaching experience, practice experience, or doctrinal expertise.

The law school is non-renewing many of its best adjuncts because the registrar is reporting that class enrollments for some of these junior faculty members have fallen so low that these new teachers can't meet their minimum teaching load.

So I think this is a troubled law school going in the wrong direction and that there will more controversy to come in the near future. It is unfortunate and I'm sorry about it. This is what happens when faculty governance is repressed by the central administration.


Jeffrey

UB Law Alumnus 2005

Jeffrey,

I'm a 2005 UB Law alumnus who has stayed somewhat involved with the goings on in O'Brian Hall. I have firsthand visibility of the trends you describe going back to August 2002.

I know that you are frustrated because you were not selected to stay on as the LRW Program Director. Nonetheless, your personal bias clouds your judgment and is leading you to make factually unsupportable assertions. Personally, I'm glad that your contract wasn't renewed. While you were ostensibly the "head" of LRW, the program during your tenure was atomized with instructors of widely varying quality. It desperately needed a new direction and I'm glad that the tenured faculty have been brought more fully into the program's oversight and accountability mechanisms.

Most of the faculty who departed/retired since Dean Mutua's arrival were no longer productive. At least four (Boyer, Headrick, Newhouse and Filvaroff) were past deans who due to the vagaries of the SUNY system continued to draw high salaries as former administrators even though they had minimal teaching responsibilities and were essentially ghosts outside of their very few classroom hours. Their outside the classroom mentorship or interaction with students was minimal to non-existent. Another, Lee Albert, was once a rising star in legal academia but I don't know if he published any scholarship during the last decade of his tenure at UB Law. Still another was Judy Scales-Trent. I won't go there. The idea that UB Law's educational program has been harmed by the retirement of these six is laughable. Most students had no interaction with them, they didn't publish, and they were essentially ghosts. I was a very involved student, served on law review, and was the president of one of the largest student organizations at UB Law that depended heavily on faculty involvement and support. I never met or knowingly laid eyes on Filvaroff, Headrick, or Newhouse - not once.

I agree that students lost doctrinal titans with the retirements of Ken Joyce and James Atleson. What you omit is that these men both taught at UB Law for over four decades. Their retirements were the result of the natural course of life. They would have retired no matter who was the Dean. To suggest that they were caught up in some ideological purge by the Dean is preposterous.

The faculty hired by UB Law over the past five years are exceptional. They have stellar credentials and objectively more practice experience than those who they replaced. Dean Mutua has reconstituted UB Law's tax program and bolstered other doctrinal areas of expertise that were allowed to languish and whither during the Olsen and Boyer deanships. That said, I really wish he would put some priority on reconstituting our health law and JD/MPH programs. These could be core strengths and are inexplicably being allowed to wither and atrophy.

These new scholars have fundamentally changed the environment within O'Brian Hall. They are dynamic, engaging, and visible in the life of UB Law. The students see them, consult them, and respect them.

Under Olsen's reign, UB Law may have developed the oldest faculty of any ABA accredited law school. When I graduated in 2005, I remember one tenured/tenure-track faculty member under age 40 (Markus Dubber) - and he was 37 or 38. There were no new scholars and there was little enthusiasm on the part of the faculty. This was problematic. Olsen and Boyer willfully ignored/dismissed the corrosive influence of US News rankings on legal academia. They were content to have the school retrench from the statewide and national reputations that brought it acclaim (and exceptional students) during the 70's and 80's. Instead of investing in new faculty, they rested on their laurels. The school's reputational scores trended downward as the generation of legal scholars who knew Buffalo in its heyday aged out and retired. This is the proximal cause of UB Law's inability to rise in the US News rankings. A school's reputational score is so heavily weighted that it is "sticky" and incredibly hard to resurrect once allowed to fall. The warning signs that this would happen were there for at least a decade. Olsen and Boyer did nothing. In 2005 and 2006, UB Law had among the lowest LSAT scores of any Tier 1 or Tier 2 laws school. The only thing that preserved its ranking was the residual reputational score that resulted from its heyday in the 70's and 80's. Once that score dropped by 1/10th of a point, it was game over and we've been stuck ever since. The school has improved its student profile, hired star faculty, and aggressively enhanced its image but the reputational score is a tough nut to crack. Dean Mutua is doing what he can, but he can only do so much. Boyer and Olsen, largely through inertia, made UB Law an increasingly inward focused and parochial environment that increasingly drew from the narrow confines of Western New York.

In closing, I just wanted to provide another perspective for those readers unfamiliar with UB Law. Jeffrey Malkan has one very biased perspective on UB Law, but there are others. They deserve to be heard.

Has Makau Mutua made some missteps? Sure. I think his laser-like focus on significantly raising tuition in the 2007-2008 timeframe is chief among them. On balance, he has been a dynamic leader who courageously took unpopular positions to put the school on firm footing during a severe economic recession and a difficult time for legal academia generally.

anon

UB Alum:
A cogent defense.
Could you be a bit more specific about this statement: "The faculty hired by UB Law over the past five years ... have ... objectively more practice experience than those who they replaced."
Jeffrey refers to "junior faculty with little teaching experience, practice experience, or doctrinal expertise," so there is clearly a factual dispute here, as well as a dispute based on differing opinions.
To be sure, we can review the bios of the current associate professors ... but your insights would be appreciated.
One observation with respect to both your comment and Jeffrey's comment, it doesn't seem that a Dean can be solely blamed or credited for hiring decisions, and one would suppose that, like many schools, the junior faculty to whom Jeffrey refers are taking major roles in the "faculty governance" of their law school.

Jeffrey Malkan

Dear Alumnus,

You graduated in 2005 and the education you paid for was well worth it. The LRW faculty at that point was paid $35,000 dollars a year, with no job security, and every single teacher worked very hard for their money. I lobbied Dean Nils Olsen for raises for them and I give credit to Dean Mutua for increasing their salaries to market levels.

But I don't think you should cast aspersions on Nils Olsen or Barry Boyer. They are two of the most honest and ethical lawyers I have ever encountered. Every year, Dean Olsen had to balance a budget based on a tuition of less than $12,500. He always did it and the faculty members were willing to tighten their belts. He never made a promise to me that he did not keep. You benefited from that fiscal restraint. Most of the LRW instructors from 2005 are still on faculty and I doubt that their performance, after their salaries have been doubled and all supervision has been removed, is either better or worse. But I'm happy their terms and conditions of employment are somewhat more equitable now.

I don't think you are in a position to assess the teaching or scholarly ability of the junior SUNY Buffalo faculty hired in the past eight years, after your graduation. I'm not in that position either. My information about the firing of the most popular adjuncts in order to protect unpopular junior faculty comes from the highest levels of the administration.

I have no doubt that junior faculty members who are writing for tenure will be more productive than senior faculty in their fifties and sixties, but many of us think that quantitative measures of faculty productivity, as opposed to quality, have taken legal education out of step with the legal profession.

Almost every one of the junior hires has a Ph.D. in social sciences, but that doesn't necessarily mean that every one is dedicated to the legal profession. I have a Ph.D. in English myself, and I think it's a good credential for interdisciplinary work, but it doesn't mean that a Ph.D./J.D. professor has in-depth practice experience or doctrinal knowledge. (The best interdisciplinary scholar on the faculty, Guyora Binder, does not have a Ph.D.) Sometimes a Ph.D. just means that the market for law professors is easier to crack than the market for sociology professors.

I don't think I'm authorized to name the faculty members who have accepted the buy-out. I can say that they are all of comparable stature to Ken Joyce and Jim Atleson, with immense experience and outstanding records of scholarship. Neither Ken or Jim wrote very much in their last few years, but they brought wisdom and experience that can't easily be replaced. The students looked up to them. (They also looked up to Markus Dubber, one of the top scholars in the criminal law field and under forty, who left for Toronto because he couldn't deal with the Makau Mutua administration.)

I can say that I think it's unseemly to assert that the senior faculty of SUNY Buffalo has "aged-out." Someday 2005 will be in the distant past and you won't like it if younger people say that you have aged-out.

Of course there is always a generational change at any institution, but why hire sixteen junior professors since 2008 (it was actually eighteen -- two departed already) when the student body until recently was stable at 240, and then buy-out eight senior professors who are as young as fifty-five and would have remained if the faculty hadn't lost control of its own governance and won't tolerate an unauthorized dean?

Everything I have written about the situation at SUNY Buffalo is true to the best of my knowledge. Anyone who knows me knows that I'm not a person who jumps out in front of an issue like this. The LRW program was my administrative responsibility from 2000-2008 and I did the best I could with it, but I have no ownership rights to it. I was also a full-time, tenured member of the voting faculty apart from my administrative job.

I believe that legal educators must be held to the same ethical and legal standards as law students and legal practitioners. My perspective is my perspective (whose else's could it be?), but it is based on facts about that others will have to assess from their own perspectives when they become public.

Good luck.


Jeffrey Malkan

UB Law Alumnus 2005

Jeffrey,

Thanks for your response. You ask why a school should hire 16 entry-level faculty. I would submit that these hires were long overdue since SUNY-Buffalo barely made very few entry-level hires in the decade and a half preceding Mutua's tenure. You simply cannot have a vibrant law school with a tenure/tenure track faculty so skewed towards the end of their careers. You need to have a mix. If you are going to attract young talent, you need to have a supportive atmosphere. From what I've seen, these new professors have jumped right into the heart of UB Law. This is what Deans Olsen and Boyer completely missed. If your faculty all get older and less productive, you are going to have problems with things like your reputational score. Any strategic analysis of UB Law should have caught this. We punched way above our weight for so long in reputational scores (and flagship law review ranking) because we coasted on a well earned reputation in the 70's and 80's. Our LSATs were subpar in the 90's and early aughts, but the reputational metric "saved" us. A dean doing due diligence would have seen that the reputational score should have been preserved at all costs. Olsen didn't get it. He thought that both he and UB Law were above the US News racket but that is the ocean all law schools must swim in - especially those ranked 50-100. You could have that attitude a decade ago in the T-14, but not in Tier 2. We are reaping the consequences of his epic short-sightedness.

Olsen and Boyer may be nice guys and honest men, but they were poor administrators who lacked charisma and vision. It is indisputable that the school turned inward and Western New York-centric during their tenures. A compare and contrast of the types of students (undergraduate credentials and employment outcomes) we attracted prior to their tenure vice those later should be fairly self-explanatory. Article III clerkships may be a useful metric.

I think the scholarly ability of most of the new hires is pretty easy to quantify. They are writing, getting published, and getting the Buffalo name out there again. It's long overdue.

While I don't live in Buffalo anymore, I do come back about twice a year for things like the BPILP auction and the Law Review banquet. Frankly, I've been impressed with what I've seen and who I've spoken to - Profs. Su, Steilen, O'Rourke, Owley, and Lazer just to name a few. If nothing else, they have changed the culture of the law school for the better. Having a nucleus of young scholars is a great tonic for what was a sclerotic culture. I see the interaction with the students and that's a good thing. It's certainly not something we ever had a decade ago. I can't speak for every new hire, but I like what I see.

Isn't it a good thing that we are getting tenure/tenure track faculty to teach core courses? For God's sake, UB Law essentially outsourced Criminal Procedure and Evidence (among other subjects) to adjuncts for years. Ditto for things like Insurance Law. If core faculty are teaching these again, it's all for the better. We went way too far in the adjunct realm by outsourcing critical "bar" courses to adjuncts. Charles Carr and Paul Birzon (in his later years) anyone? I had both of these long-serving adjuncts for Criminal Procedure and Evidence respectively, and this is not the way these courses should have been taught.

Yes, many of the new hires have dual degrees. I may add that virtually all had Federal appellate clerkships as well as practice experience in BigLaw or in the government. Rick Su does not have a PhD. Nor does O'Rourke, Melish, Malhotra, Kolsky Lewis, Lazar, Brown, Chiesa, Braverman. By my count, isn't that just about half of the more recent hires without a PhD? I find it curious that you view the JD/PhDs with suspicion when that has always been a feature/bug of UB Law. I mean, if the legal experience of dual degreed new hires is suspect wouldn't the same criticism logically apply to people like Rob Steinfeld, Rebecca French, and Isabel Marcus? This is where I find your argument illogical. Hell, Lynn Mather doesn't even have a law degree.

Please reread my post re: the term "aged out." I used that term to explain that the faculty at other schools who knew Buffalo in the 70's and 80's as a place for cutting edge scholarship are "aging out." They vote for the reputational score for US News. If a school doesn't hire anyone new for a decade or more, the school's name falls out of use in discourse. Younger faculty have no idea of this history and if they have no peers on the faculty, they likely won't even think about the place come voting time. This is a problem and one Dean Mutua tried to fix through aggressive new hiring of young, productive faculty.

Jeffrey Malkan

Dear Alum,

I don't personally know any of the people you've met at alumni functions. They deserve a chance to succeed. I still maintain, however, that the hiring of so many new faculty members at a time of stable enrollment with unnecessary buy-outs of eight senior faculty members was motivated by the politics of a dean fighting a no-confidence vote. Any dean could have gradually rejuvenated the faculty as senior faculty members retired, and done so without Dean Mutua's bullying and grandstanding.

Academic freedom means the right to disagree with your employer without fear of retaliation. Dean Mutua holds a veto over the promotions of the faculty members he hired and they know he won't hesitate to use it. I can't say anything more now without trying the patience of the subscribers to this forum. I don't mean to be cryptic, but we need to pick up this issue again after the summer. Then everyone can draw their conclusions based on the same evidence.

Again, good luck,


Jeffrey

P.S. You're right -- only nine of the new hires have Ph.D.s. I didn't mean to imply that a Ph.D. is the scarlet letter, but it does take four or five years of one's time. Also Charles Carr wasn't really an adjunct (long story - maybe you know it) and Paul Birzon was in early stages of dementia -- a sad situation for everyone, including Nils Olsen.

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