Thursday, August 14, 2008
Last week, I blogged the new article by Clayton Gillette (NYU), Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008). Louisville Dean Jim Chen correctly notes that Bill Henderson (Indiana) has written the definitive analysis of Gillette's article in Law Professor Free Agency and "School-Specific" Capital:
[L]aw schools with hallowed reputations can raise money because donors like to be associated with prestigious institutions. But that is not a viable model that most schools can follow. Moreover, it does not provide a useful market test that funnels money into initiatives that produce long term value. Most tier 1 law schools tout that they have become "better" when they hire highly prolific lateral scholars -- but in reality, these are multi-million commitments that guarantee little more than course coverage and the accolades of professors. There is also very little empirical evidence that such a strategy can produce a meaningful reputation change that redounds to students and alumni.
To my mind, this common pattern reflects very shallow analysis. What is the plan for school-specific capital?
For precisely the reasons Bill cites (the incommensurability of teaching and service), it is very difficult to demonstrate a payoff to professors that warrants cooperation even after repeat plays of the game. Law firms are a little better, but my intuition, based on long experience, is that the payoffs of cooperation are almost as difficult to perceive for the partners. My theory is that it's because, indeed, it really is very hard to build any such value. The brand "Skadden" or "Weil Gotshal" is so hard to build, and once built, so independent of the contribution of any single partner (collective action problem at work?), that it just doesn't take us anywhere.
I think that Jeff is right that the law firm lens is too narrow, but I think that the culture-of-leadership framework is likewise incomplete. Bill is right to be thinking in terms of structural solutions, but bilateral rule-following won’t do the trick. Does leadership alone give members of an institution a justification for trading personal capital for a share of institutional capital? If leadership means “persuading individual members to buy the institutional model,” then I think that the answer is no. The deal still involves, as Jeff notes, trading one form of capital for another. If individual members believe that selflessness weakens them, then leadership can’t change their minds.
I epsecially like this reader's comment:
Spend the money to build a brand and reward an institutional culture based on collegiality and mutual respect. Get the dean or the managing partner to pitch the institution that way. Let the people who want to be "stars" at other's expense do it elsewhere. I've seen this work. In my experience the people holding the institution together are never wasting much of their energy status climbing.
If your brand/culture is based on collegiality and quality, then prestige whoring is at best useless. Branding based on prestige as a quality proxy benefits more from "free agency." At a philosophical level, casting all these interactions as "transactions" in a Moneyball sense is what creates the incommensurability problem. Actual people don't have a problem valuing collegiality when you pitch it to them in moral/normative terms. The reciprocity ethic is actually one of the oldest "laws" out there, but it gets no play in legal academia.