Priorities in Legal Education and an Odd Analogy to Tennis Players' Arms

-- Posted by Neil H. Buchanan

In my Verdict column and Dorf on Law post earlier this week, I expressed a decidedly negative view of university administrators.  In my telling, they are engaged in a relentless campaign to destroy higher education, thus undermining the modern university's role as a pillar of the Enlightenment.  Although there is all too much evidence that my description accurately captures the trend among university administrators, many of whom are intensifying efforts that have been ongoing for decades, my comments should definitely not be read to say that it is easy to run a university well, or that all administrators are acting in bad faith.

For those administrators who understand the importance of university stewardship (and there are many, many such administrators), the challenges of making universities work is never an easy one.  I have enough self-awareness to know that deans, provosts, chancellors, and presidents are doing jobs that I would absolutely hate to take on.  I respect those who try, but I do not truly understand why anyone would put herself or himself on that firing line.  Even in the best of times, it is a grueling job.  In tough economic times, it is harder still.

At my law school, we are in the midst of a search for a new dean.  Our interim dean, Professor Gregory Maggs, has continued to do a fantastic job of serving our community on a temporary basis, but he evidently (I have not spoken with him about this) has the same overall view that I have about being a professor, because he did not put his name in for the permanent position as dean.  He has been willing to sacrifice two out of the last three years to serve our law school in times of need, but he has chosen to go back to being a professor.  Who could blame him?

As we are considering various candidates who have expressed a willingness to serve as our next permanent dean, one obvious set of questions revolves around how each potential dean views the role of faculty in governance, how she or he would deal with the university's central administration, and so on.  To the extent that one can assess good faith in the interview process, the news is good for us.  All of our potential deans seem to be committed to maintaining the values of legal education, and of higher education in general, that have made the American system so successful for so long.  We face an embarrassment of riches, with our choice to be made from among a list of people who would be "good administrators" in the broadest sense, leaving us to base our decisions on an unquantifiable mixture of other criteria.

One question that I have been asking, and not just of the potential future deans, has to do with the classic economic problem of dealing with tradeoffs in allocating resources.  No matter whether the overall budgetary picture is flush or tight, so long as resources are finite, the commitment of a school's resources must involve difficult choices.  A dollar spent on one priority cannot be spent on anything else.  (The less charitable among my readers might be saying, "Well, duh!")

In the case of GW Law, however, we present a somewhat extreme version of a classic sub-question regarding tradeoffs in resource allocation: When your institution has great strengths as well as glaring weaknesses, should you build on the strengths or shore up the weaknesses?  Yes, you can do a little bit of both, but splitting the difference is itself a choice that needs to be justified and calibrated.  What I find interesting is the more general conundrum of how to choose between directing resources toward areas of strength or weakness.

There is no reason to be abstract about this, so let us look at specific examples.  GW Law's many strengths most obviously include government contracts law, international and comparative law, intellectual property law, and constitutional law.  (Obviously, I do not mean to diminish other strong areas by highlighting this short list.)  Its current weaknesses include environmental law and tax law.

The weaknesses that I am describing, of course, are not based on particular personnel being weak (present company excluded).  Our tax faculty was never large, but it is now down to two people (including me, and I am not really a classic tax scholar).  Our environmental faculty, and our community as a whole, suffered a huge loss a few years ago when one of our colleagues died of a rare disease at a young age.  What I am describing as weakness, therefore, is not a matter of poor performers, but of strong performers without enough disciplinary colleagues.  If the problem were that current personnel were underperforming, that would raise a wholly different set of issues.  But for us, the only way to get better in tax and environmental law is to increase our ranks.

Prior to the financial crisis in 2008, we had a third tax law professor on our faculty, and the then-dean had committed to hiring a fourth tax scholar.  Even that, however, would have left us in a relatively weak position in tax.  Although it is an admittedly crude metric, I asked my research assistants at the time to gather data on the students-per-tax-professor ratios at the top law schools.  (The result did not meaningfully differ when we looked at different sample sizes: top 20, top 40, top tier, and so on.)  We discovered that, to be in the middle of the distribution, a school of GW's size would need six full-time tenured or tenure-track tax professors.

Moreover, as several of our prospective deans have noted, when I told them about our weakness in tax, "But you're in DC!!  How in the world is GW not a heavyweight in tax law?"  Yes, Georgetown runs a well-respected Tax LL.M. program, but there is more than enough oxygen here to support two large tax faculties, even if GW were to revive its own LL.M. program.  Short of that, there is no reason why we could not be expanding our tax footprint.  Certainly, the "but you're in DC" argument would also apply to environmental law (and health law, and ...).

I am all too aware, in other words, of the arguments in favor of using the law school's resources to shore up our tax program.  I make them all the time.  Those arguments, however, are often based on the assumption that there is some reason why a law school has to be equally good at everything.  Or, to put it less politely, it assumes that a law school should be willing to settle for less than greatness in some areas, in order to level out the allocation of resources.  But why not instead simply put the pedal to the metal on government contracts law, achieving transcendant greatness, even if that means leaving the tax program in a minimalist state?

As an important aside, I should emphasize that we continue (barely) to be able to put together a tax curriculum that is adequate for any J.D.'s needs.  Law schools that have only one tax professor, even with a smaller student body, simply cannot do what we do -- especially given our access to great adjuncts -- and I think that those schools, unlike GW, have crossed a line that should not be crossed.  Others may disagree.

The more specific framing of the core question, then, is this: Assuming that a law school has a minimally-adequate program in all of the major areas of law, how should it decided between building on strength and shoring up weakness?  One analogy that resonated with me is the famous problem of tennis players' arms.  Because of the nature of that game, players' racket-swinging arms naturally grow stronger.  And if one were to put extra effort into building up strength, competitive advantage comes from further building up the racket-swinging arm.  Tennis players who want to have two equally-muscled arms must actually be vigilant and do extra work to bring up the non-racket-holding arm to the stronger arm's level.  See, for example, this photo of the current #1 men's tennis player in the world, Rafael Nadal.  Even with work, his "off" arm is strikingly smaller than his other arm.

When I first thought about tennis players' arms, I imagined the analogy as part of an argument that said, "Well, you'd never want to have such inequality in arm size, would you?  Would you?!!"  But of course, you might.  For example, if you want to be great at tennis, it makes sense to accept the reality that your arms will be of unequal size.  If you have the time and resources to shore up the weak arm, more power to you.  Former top player Roger Federer apparently refused even to work out his non-swinging arm.  Why bother?  That simply did not matter to him.  His off arm was hardly withered or vestigial.  It only looked weak by comparison to the great strength in his racket-swinging arm.

On the other hand (pun intended), maybe tennis is not your game.  Maybe you are a decathlete, or some other athlete who must have a variety of strengths.  (Even most decathletes actually rely on being especially good at a few events, to make up for weaknesses in others.)  In other words, the tennis analogy, and sports analogies more generally, can cut either way here.  We are left with the question of what a new dean, and her or his faculty, should decide with regard to GW Law's strengths and weaknesses.  I can make a full-throated argument in favor of turning tax from a weakness into a strength (or at least a non-weakness), but I confess that I can see how someone would conclude that our game is not best played by trying to be equally-almost-great in every aspect of law.  If we choose inequality, some specialties will be less equal than others.  That fate might await tax law at GW.

Leading a university, or any of its constituent parts, is not easy.  I would not want to be the person to make final decisions about whether we should aim for equality or inequality, or to choose who will be favored and disfavored.  Although it is true that many university administrators are pursuing an agenda that is damaging to the future, even the good administrators will often have to make excruciatingly difficult choices.  It's a tough job, and I am glad that other people are willing to do it.