The dean of another law school (not my own) has reportedly come under scrutiny for retaining a close involvement with the powerful D.C. law firm where he was a partner before he became the dean. I don't know the facts, but I want to say something about the relevant law, one of the American Bar Association's accreditation standards, more formally titled the Standards and Rules of Procedure for Approval of Law Schools. Standard 206(a) that says that “[a] law school shall have a full-time Dean” (emphasis added).
Exactly what these words mean might be debated, and Standard 206 doesn’t itself define what “full-time” means. But Standard 402(b) defines a presumably analogous term: “full-time faculty member.” According to this definition:
A full-time faculty member is one whose primary professional employment is with the law school and who devotes substantially all working time during the academic year to the responsibilities described in Standard 404(a), and whose outside professional activities, if any, are limited to those that related to major academic interests or enrich the faculty member’s capacity as a scholar and teacher, are of service to the legal profession and the public generally, and do not unduly interfere with one’s responsibility as a faculty member.”
Standard 404(a) describes “a full-time faculty member’s responsibilities in teaching, scholarship, service to the law school community, and professional activities outside the law school.” Meanwhile, Interpretation 402-4 adds the following:
Regularly engaging in law practice or having an ongoing relationship with a law firm or other business creates a presumption that a faculty member is not a full-time faculty member under this Standard. This presumption may be rebutted if the law school is able to demonstrate that the individual has a full-time commitment to teaching, research, and public service, is available to students, and is able to participate in the governance of the institution to the same extent expected of full-time faculty.
Rather than parse exactly what this language might mean, let me just assume this concrete reading: that a dean of a law school cannot simultaneously be a partner in a law firm. If that’s what the rule means, is it a good rule?
Presumably the purpose of this rule is to promote better legal education. The problem with the rule, however, is that there almost certainly is no proof that this requirement does have the desired effect. It might - but we don't know. It's hard even to imagine the study that would somehow measure the educational impact of deans who do and deans who don't hold law firm partnerships, while controlling for all the other variables that might obscure or mimic the impact of this one consideration. And if one somehow accomplished such a study, it's a safe bet that the results would show, at most, some impact -- nothing like an automatic cause and effect sequence. (Most social science study results, I believe, fall in this area of qualified impacts – which is simply another way of saying that we don't understand human behavior terribly well.)
So the rule can only rest on intuition. That's okay; lots of our decisions have to rest on intuition. There is, moreover, a plausible intuition one can point to: there's only so much time in the day, law schools are complex institutions, so a significant diversion of a dean's time to non-law school matters will undercut the dean's ability to run the school.
But there are several problems with this seemingly plausible intuition.
First, this intuition implies that the dean cannot effectively and reasonably delegate substantial parts of law school leadership and management to others so as to free up some part of his or her own time for non-law school matters. That’s conceivable, of course, but there’s no reason to doubt that deans can (and do) delegate, and so it seems at least possible they can delegate enough to make room for other obligations.
Second, the belief that deans must spend all their time deaning to cope with the challenges of their job probably overstates the complexity of law schools - they certainly are complex, and are facing many special challenges right now, but there are many larger and more complex institutions in the world. (The job of President of the United States is just one job, and the President does take vacations.) Moreover, there is no rule against hiring a practicing lawyer rather than an academic to become dean, so the Standards must be understood to acknowledge that someone without a lifetime's immersion in academia can understand and value a law school's work well enough to lead it. And if a lifetime of immersion in academia isn’t essential, one might infer that a dean could also function effectively without spending all of his or her working time on deaning right now.
Third, the insistence on “a full-time dean” narrows the dean's value to his or her time. In fact much of what a dean brings to the job is not time but perception and inspiration and connection. It certainly seems possible that a dean's law firm connections, for example, could help build educational and then employment opportunities for students. It also seems possible that a Dean with strong connections to the world of practice would have a better and more inspiring vision of what the school’s students should aspire to, and how they should be prepared to meet that vision, than someone less familiar with the world outside academia.
Fourth, it's hard not to think that the rule reflects a particular notion of law schools, as institutions of learning and teaching separate from the world of practice. There is, after all, no rule against a dean spending substantial amounts of his or her time in teaching - though teaching is not administration. Similarly there is no rule against a dean spending substantial amounts of his or her time in scholarly research and writing - though scholarship is neither administration nor teaching. In practice, I suspect most deans don't do much teaching or scholarship while they are deans - a measure of how demanding the job truly is - but they are free to.
One might answer that the ethical obligations of representing clients can create more imperious demands on the dean's time than either scholarship or teaching. This could happen, to be sure. But many things can occasionally produce sharp conflicts, and it's not at all obvious that this particular potential justifies a flat prohibition on deans remaining partners. Certainly there are today many law school professors who have client responsibilities as part of their teaching - as clinical teachers - and yet they generally seem able to carry their multiple duties successfully.
Perhaps in the end the real force sustaining this rule is a sense of symbolism. Teaching and scholarship are the traditional business of the academy, so a dean's spending time on those activities doesn't undercut the idea of law schools as part of the academy. Law schools are part of the academy, and scholarship and teaching are profoundly important. But law schools no longer are wholly cut off from the world of practice (if they ever really were), as the rise of law school clinics and other forms of skills teaching reflects. Nor should law schools be wholly disconnected from the world their graduates will soon inhabit. Law schools are academic institutions engaged in training students to enter the world of practice; that professional focus is as integral as their scholarly commitments.
Once we accept the importance of law schools’ professional focus, however, the symbolic argument shifts dramatically. To bar a dean from remaining part of the world of practice now seems almost perverse. Law schools are precisely in the business of preparing people for that world; why would they require their deans to assert that they are not part of the world to which the students will soon depart?
There's one final argument that might be made in favor of the full-time dean requirement. One might grant that it's not actually essential to good law school leadership to have this rule, and still say that it's a good rule of thumb. I’m not sure that this is so, but it may be. I agree that deaning is a demanding job, and I imagine the great majority of schools will want their dean to be focused on that role full-time. But the problem with this argument (and this is a point critics of the accreditation standards have made many times) is that it assumes that law schools can't make reliable judgments about when to depart from this rule. Law school trustees and faculties, however, are the people we rely on to do the work of legal education; it would be odd to think they can't make this sort of judgment. (It’s possible, by the way, that the accreditation standards, rightly interpreted, do leave law schools with discretion to make this choice; my point isn’t to insist on a particular reading of the standards but to consider whether an absolute rule against deans being partners – whether or not it now exists – would be a good one.)
If we agree that reasonable educators could decide to hire a less-than-full-time dean, then the only apparent reason to bar them from ever doing so would be that we think the trustees and faculty are potentially engaged in some form of self-dealing. Sometimes this charge may be true - not because law school trustees and faculty are specially untrustworthy but because they are as human as anyone else. But it's difficult to see the self-dealing story here: whatever law schools might be accused of, why would we suspect them of an undue tendency to hire deans who maintain outside commitments? Law schools need their deans. It's hard to see this as the self-dealer's path of choice.
For all these reasons, I think schools should on this score be granted the liberty and burden of choice: to decide who will be the best Dean, in light of all the abilities and commitments and limitations he or she brings.