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FROM STRENGTH TO STRENGTH:

For Growth and Renewal

at

The University of Michigan Law School

— for the Committee of Visitors —

Jeffrey S. Lehman

October 21, 1994

Not for quotation, reproduction, or distribution beyond the membership of the Law School Committee of Visitors.

I.      Introduction

A.     General Observations

This is the first circulated draft of “From Strength to Strength.”

It is most assuredly not a statement of law school policy.  (I have not yet shown it to any of my colleagues, much less asked for full faculty endorsement).  It is not even a finished statement of my own views, since many of the things that I say here are tentative opinions, weakly held.

Indeed, even when this paper is “finished,” when it becomes a “final draft,” I do not intend it to serve as some kind of binding “mission statement” or “strategic plan.”  My aim is instead to produce a useful analytic tool — a way to organize conversation and to focus debate.  I believe that writing helps to organize thought, and I hope that the document this ultimately becomes will help us to organize our collective thoughts about the choices the Law School will make over the next few years.

Much of the value of this paper will lie in the process of production rather than in the ultimate product.  Therefore, now, at the earliest moments of production, I will begin sharing it with a wide circle of friends of the Law School.  Their reactions, criticisms, and suggestions will help me to refine and revise this document, in order that it evolve to reflect an ever-more-sophisticated understanding of the Law School and the choices it should be making.

I should say that, while much of this paper will change over the years, I doubt its title will.  The extraordinary strength of the University of Michigan Law School today is an indisputable fact.  The challenge before us is to identify the qualities of strength that we would like to associate with the University of Michigan Law School a decade from now, and to chart a course to attain them.

B.     Special Words for the Committee of Visitors

I am pleased to be sharing the very first, most primitive draft of this paper with the Committee of Visitors, as part of our Fall 1994 meeting.  That means my pride of authorship is at its absolute weakest.  So you should feel not the slightest hesitation in sharing your most candid reactions to it, and to the ideas that it presents. 

I must, however, attach an important caution to this draft.  Some of the assertions of “fact” that appear in the following pages may not ultimately be true.  Three months into my deanship, I cannot yet provide footnote documentation for every bit of information that ought to bear on the conclusions that are drawn in a paper such as this.  Rather than restricting my discussion to demonstrable facts, however, I have chosen to include some impressions and informed speculation.  And while I have been associated with the Law School long enough to believe that my speculation is not idle, I also expect some of it to be off base.  For that reason, I have emphasized on the cover that this document is not for quotation, reproduction, or distribution beyond the Committee.

I hope you will take full advantage of our annual meeting to think carefully about what this document ought to become over the course of the next year.  What priorities are listed here that should not be priorities at all?  What important goals are missing?  How should the ranking of priorities be determined, and what significance should attach to the rankings?  What factual assertions do not ring true to you?  What relevant data should be gathered and included in this paper, in order to make analysis better informed?

During the weekend, we will have many different contexts in which to discuss such matters.  I hope, however, that our conversations will not end on Saturday.  Please continue to reflect on these issues after you leave campus, and share your further thoughts by phone, letter, or even e-mail message.  I hope you find this project as challenging and satisfying as I do.

II.    The Strength of the University of Michigan Law School Today

The Law School carries forward a tripartite mission: 

·      To provide the finest possible education to the legal profession’s next generation of leaders,

·      To disseminate original research that deepens human understanding of law and legal institutions, and

·      To deploy its special expertise in service to the state, the nation, and the world.

Since its founding in 1859, the University of Michigan Law School has been recognized as one of the outstanding exemplars of professional education.  To merit that standing, however, the Law School has frequently been required to change in ways that preserve the core of our intellectual traditions while adapting them to new circumstances.  The accelerating pace of evolution that we see today in human society and the legal profession are creating important new challenges for all law schools, including our own.

I believe that American legal education is entering a period of increasing inequality.  Over the past fifteen years, social scientists have documented a “spreading out” in the distributions of wealth and income in America.  For better or for worse, I believe that a similar process is underway in the law school world.  I believe that, over the course of the next decade, a handful of truly outstanding schools like Michigan will begin to distance themselves from the larger group of “very good” law schools.

The outstanding schools will continue to make the investments necessary to sustain a truly uncompromised commitment to excellence in teaching and research.  They will continue to diversify their programs, pioneering new ways for students to prepare themselves for the practice of law.  They will also develop new ways to serve an expanded array of intellectual consumers, so that their graduates will continue to feel an intellectual connection with them long after graduation day.

Today, Michigan stands proudly among the world’s truly elite law schools.  It is ideally positioned to shape the course of legal education in the next century.  Yet leadership will not be automatic.  To be effective in claiming that role, we must first understand exactly what makes the law school so strong today.  We must then choose wisely among the many opportunities that lie before us, so that we may be even stronger a decade from now.

The following structural features place Michigan at the apex of legal education and establish an  extraordinary base for future growth and development:

A.     Reputation

Michigan has historically been recognized as one of the world’s great law schools.  The current edition of the “Gourman report” ranks us second (behind only Harvard).  The U.S. News and World Report survey separates reputation into two components:  with judges and lawyers, it shows us as tied for first place with only four other schools (Yale, Harvard, Stanford, and Chicago); with academics, it shows us as tied for first place with only five other schools (the same four plus Columbia).

Current reputation is undoubtedly one of the critical building blocks for future growth.  Michigan’s name is linked with excellence.  That simple fact means that we receive institutional opportunities that other schools do not receive, opportunities that in turn continue to enhance the quality of our teaching and research.

B.     Faculty

We are blessed with a faculty of unsurpassed, and probably unequaled, quality. 

The tenured faculty comprises scholars and teachers who, individually, are recognized as outstanding in their respective fields of endeavor.  Rather than clustering in redundant “pockets” or “schools” that might promote intellectual balkanization, they have pursued an unparalleled degree of intellectual diversity.   That diversity is expressed through a wide range of faculty-level connections to the profession and to the rest of the university.  It is expressed in a curriculum of astonishing breadth. It has sustained a faculty culture in which each of us is constantly pressed to extend our range, to rethink our ideas from ever more perspectives, with a minimum of backbiting and with a healthy tolerance for disagreement.

Our seven untenured tenure-track faculty members are, quite simply, the envy of the law school world.  Over the course of the past seven years, we have enjoyed the good fortune to attract the very finest beginning academics to Ann Arbor.  Each of them has the potential to be one of the dominant intellectual figures of their generation.

The clinical faculty is also among the finest in legal education.  They have constructed a stunning array of innovative in-house clinical programs:  general litigation, child advocacy, women and the law, and the program in legal assistance for urban communities.  The programs regularly attract national attention for their pathbreaking endeavors.

C.     Students

The students are as strong as ever.  Although in recent years we have been forced to compete for a shrinking pool, we have been able to go on drawing a talented, diverse, successful group of students:  one capable of carrying on the tradition that Michigan students learn from each other as well as from their teachers.

Last year we received approximately 5500 applications for approximately 360 positions in the entering class.  Only about one in five applicants was admitted.  The students who enrolled had a median undergraduate grade point average of 3.52, and a median LSAT of 166 (roughly the 95th percentile).

D.    Alumni

The Law School has over 18,000 living alumni.  They have achieved positions of extraordinary professional success in the private practice of law, in government, in business, in academia, and in every other walk of life.  Moreover, their achievements are not limited to the United States; our alumni have achieved extraordinary prominence throughout the industrialized world.

We are also fortunate in that our alumni are an exceptionally devoted group.  They remember their time in Ann Arbor with great fondness.  And they take pride in their association with Michigan.

E.     Library

Our library collection remains one of the largest and finest in the world.  European and Asian visitors frequently find Michigan’s collection of materials on their home countries more complete than those available to them at home.  New technological advances have made the 750,000-volume collection more accessible than ever before. 

Furthermore, the library staff’s commitment to quality service has enabled a kind of support for research that I believe surpasses what is available anywhere else, with the possible exception of the U.S. Supreme Court library.  I have heard many, many visitors report that our library is the finest they have ever used.  I have never heard a visiting professor say that it is not.

F.     Physical Facilities

To be blunt, the Cook Law Quadrangle comprises the most beautiful and inspiring set of law school buildings in the United States, if not the world.  Everyone who works or studies here feels uplifted, motivated, and challenged to work in a way that lives up to the standard of excellence set by the physical environment.  And, for the most part, the buildings are in very good condition, especially considering their age.

G.    International Ties

The Law School has, for a very long time, extended its reach far beyond the borders of the United States.  Students from abroad have come to Ann Arbor since the 19th century, and a great many of them returned to their homes to enjoy careers of remarkable distinction.  Their accomplishments, coupled with their fond memories of Michigan, have given Michigan a substantial presence in Europe and Asia.

In recent years, we have moved to build on that presence to create academic links at the faculty and student level.  We have become more and more active in bringing the world’s outstanding scholars to Ann Arbor to teach our students.  This year, we are welcoming visiting professors from England, France, Germany, Japan, the Netherlands, and Switzerland.  Each of them is recognized as a person of exceptional distinction; they are truly the great figures in their fields.

We have been active in the “outbound” direction as well.  For the past few years, we have sent three of our faculty members to teach during the summer at Tokyo University.  This fall, Ted St. Antoine inaugurates an annual tradition of sending a member of our faculty to Cambridge, England, to teach an introduction to American law.  And we now have an ABA-approved program whereby our students may spend a semester studying at the University of Leiden in the Netherlands, one of Europe’s outstanding law schools.

H.    The Larger University

The University of Michigan is one of the world’s greatest research universities.  The Law School, more than any other that I know of, has integrated itself into the overall life of the University.  I believe that our tenured faculty includes more people with genuine long-term or permanent appointments in other campus units (not mere “courtesy appointments”) than does that of any other law school.  Those linkages across campus enable the intellectual resources of the University to be of direct benefit to our teaching and research missions.

I.       Financial Resources

At least during this century, the Law School has been an institution of exceptional financial strength.  That strength has derived primarily from two sources:  public subsidies and private endowment.  Over the years, the State of Michigan’s generous annual contribution to the University has permitted the Law School to subsidize tuition quite heavily across the board — especially for state residents.  And since the 1930’s, the Cook Research Trust — a research endowment created through the near-legendary generosity of William Cook — has provided the research support that permitted the Law School to ascend to the pinnacle of legal education.

To understand the current sources of the Law School’s financial strength, one must alter that picture slightly. 

First, the balance between state subsidy and private tuition has been altered dramatically over the past fifteen years. Tough economic times in Michigan led the state to cut its annual contribution to the University by 23% (in inflation-adjusted dollars). The University decided to conserve the diminished state appropriation for the intellectually essential but financially vulnerable units on campus, effectively eliminating the pass-through for the Medical School, the Business School, and the Law School.  And the professional schools, in turn, did away with across-the-board tuition subsidies.  The Law School’s out of state tuition this year (approximately $21,000) is not significantly different from that charged by private law schools.  And the Law School’s tuition for state residents (almost $15,000), reflects a smaller subsidy than ever before.  Overall, tuition revenues account for approximately $15 million out of the Law School’s $22 million budget.[1]

Second, the significance of the Cook Trust within the Law School’s total endowment has declined.   To be sure, the Cook Trust remains an important element of the Law School’s wealth.  But today more than two thirds of the endowment has been derived from other sources — benefactors who are individually less well known than Cook but have collectively allowed our endowment to remain (I believe) the sixth largest in the nation.

It also should be mentioned that the Law School’s endowment — both the Cook portion and the non-Cook portion — is at the present time superbly managed.  Both portions are obtaining very high annual returns on their portfolios, while keeping risk well within the boundaries that are acceptable for an institution such as ours.

Finally, to understand the complete budget picture, one must add in the annual gifts of unrestricted, expendable funds that the Law School receives from its alumni and friends.  At the present time, unrestricted giving accounts for approximately $2 million each year.

III.  The Strength of the University of Michigan Law School in the Future

The Law School’s future financial course seems clear, and therefore deserves only a brief comment.  Over the past decade, the changing priorities of state government have led to a shift in the Law School’s budgetary foundation.  What has emerged is a new model of public law school.

Michigan no longer receives a pass-through of public subsidies.  The school has made up for that fact in two ways, each of which might be thought to make the school less “public.”  First, the Law School no longer provides an across-the-board tuition subsidy, and it has been reducing the subsidy for state residents.  Second, the Law School has come to depend increasingly heavily on a private community of loyal alumni who have stepped forward and assumed the role that alumni have traditionally played in supporting elite private law schools.  Through their participation in the Campaign, Law School alumni will add a total of $45 million to the School’s endowment, and will increase annual unrestricted giving by $1 million per year.

Unfortunately, the very clarity of the Law School’s future financial course lays bare an aspect of the Law School’s future that strikes me as altogether unclear:  our character as a public institution.  Is it still appropriate to speak of Michigan as a “public” law school?  Has our drive to maintain the School’s uncompromised commitment to excellence in teaching and research left us with no distinctive public attributes?  Is the school becoming cut off from the public values that have nourished it since its founding?  Should we be concerned if it is?

I fear that these questions are much more difficult than we would like them to be.  We cannot hide from the “privatization” of our funding sources.  Nor can we hide from our ongoing role as a critical constituent in a University that is not “privatized,” but rather remains dependent upon public funds.

With some tentativeness, I would be inclined to adopt the following approach to this dilemma of institutional character.  I would first attempt to articulate a set of values that we believe important, and that we believe to be “public” in a deep sense.  I would then suggest that the Law School stake its future “public” identity on its commitment to those values.  I would have the Law School’s public nature no longer be measured at the root, by reference to the sources of its support.  Rather, I would have its public nature be measured at the flower, by reference to the quality of its activities.

We should not blink at the implications of such an approach.  It means turning our back on what some might see as an opportunity.  It means that, just when we might be able to declare financial independence from public authority, we are voluntarily taking on the yoke of a set of public commitments, as a continuing testimony to our history and traditions.

Just as significantly, choosing to define ourselves as “public” in this way means that we are no longer restricting the category of law schools that may claim to be “public.”  We have long been the world’s finest public law school.  A new conception of “public-ness” means that Chicago, Columbia, Harvard, Stanford, and Yale will all be able to compete with us on that turf.  They will be free to contend that their understandings of public values are as good as, or superior to, ours.  And they will be free to contend that they are as effective as we are at promoting those values, or even more so.

But, I believe, that is how it should be.  I welcome the convergence among the nation’s elite law schools.  If the historically “private” law schools are prepared to challenge our right to claim preeminence in the service of public values, then I believe we have no choice but to welcome the competition.

A.     The Values of an Elite Public Law School

What values should define the University of Michigan Law School in the year 2004?  What role should we aspire to play in the world?  What ideas, implicit in our history and traditions, should determine our priorities over the next decade?  At this point, I would offer a slate of five candidates.

1.      Excellence in Teaching and Research

The institution of tenure means that, at any given moment, law schools have relatively few positions open for new faculty hiring.  That fact means that, while it is easy to quickly transform an outstanding faculty into a mediocre one, it takes great patience to build an outstanding faculty.  Michigan has done so, and it must remain committed to strengthening its faculty even further.

For many years, Michigan has shown an uncanny eye for spotting talented teacher-scholars, both at the entry level and through lateral hiring. Just as remarkably, however, in making hiring decisions the faculty members have been able to resist the powerful temptation to clone themselves.  Rather than filling vacancies with protégés and fellow travelers, each generation has strengthened the school by hiring scholars who are interested in new problems, who bring different intellectual skills to bear on those problems, and who draw different conclusions about them.  The result has been a faculty of astonishing intellectual diversity, and an institution where students are trained to think with the flexibility that modern legal practice demands.

In the future, Michigan must build upon its absolute, unqualified commitment to excellence in teaching and research.  That will require continuous reexamination of what such excellence entails.  As the practice of law continues to evolve with accelerating speed, we must consider how professional education should adapt.  How much should law schools be reinforcing changes in the profession, how much should we be adapting to them, and how much should we be resisting them?

2.      Accessibility and Affordability

Throughout its history, Michigan has stood for the proposition that one need not be a Rockefeller to obtain an outstanding legal education.  Talent and hard work, not parentage and wealth, were the keys to admission.  And a combination of low tuition and plentiful financial aid meant that our student body reflected the economic diversity of the nation.

Today Michigan’s tuition levels, like those at every major law school, are frighteningly high by historical standards.  Nonresident students graduate with  accumulated debts averaging $65,000.  Some students graduate graduate with accumulated debts totaling $90,000.

In the future, Michigan must find a way to remain a beacon of economic diversity in the world of elite legal education.  It must continue to hold out the hope that a truly outstanding legal education is available to any student of sufficient talent and energy, regardless of his or her financial means. 

3.      Internationalism

As I noted earlier, one of Michigan’s great institutional strengths lies in its history of links to people and institutions outside the United States.  My claim here is that those links are not an accident of our history.  Rather, they are an essential aspect of our public character.

I will not attempt to define and defend a particular vision of internationalism.  Instead, I will content myself with the assertion of a few claims.  In the next century, an outstanding American public law school should foster study of the laws and legal institutions of governments around the world, as well as the rules and practices of international organizations.  It should promote dialogue and debate among scholars from around the world about the law and legal institutions.  And it should facilitate the efforts of individuals to become expert concerning the laws and legal institutions of countries not their own.

4.      Public Service

Any outstanding law school can rightly claim that it is an institution whose mission by necessity is a mission of public service.  Given that the legal profession is, in a meaningful sense, our most public public profession, those who train each generation’s most outstanding attorneys are necessarily satisfying an important public need.  And scholarly research about the law and legal institutions serves the deep human need to accumulate knowledge, an enterprise whose benefits are known in the future, not the present.

At Michigan, we have long known the truth of such claims, and we have long taken pride in the extent we have served the public good through teaching and research.  But we have also taken pride in the fact that our commitment to public service goes farther than that.  Teachers do not merely teach students a few skills; they also press their students to reflect on the choices they will make about how they use their skills.  We do not preach a particular path in the law, but we insist that our students learn to lead reflective lives, and that they develop a personal sense about what makes the practice of law a public profession. 

Outside the classroom, the Law School has also expressed its commitment to public service in myriad ways. Michigan has long been the home to programs and faculty research that aim to improve the existing legal order.  And it has run clinical programs that expand the availability of legal services to individuals who might not otherwise be able to afford them.

In the future, Michigan must remain true to its heritage of public service.  We must understand the financial pressures that currently engulf the legal profession.  We must understand the multiple claims on the Law School’s own resources.  And, nonetheless, we must continue to be an institution that transcends any narrow understanding of our institutional purpose.

5.      Responsiveness

The value I have in mind here might be considered a correlate of the value of public service.  But I would like to distinguish it in the following way.

It is at least conceivable to me that an elite law school could embrace the value of public service in an elitist way, in a spirit of noblesse oblige.  It might claim to be the center for a particular “school of legal thought.”  It might assert that its own distinctive contribution to the world of legal education would be the development and evangelistic defense of that school.

But while such an approach might be perfectly appropriate to an elite private law school, I think it would be inappropriate to an elite public law school.  I believe that an elite public law school has an obligation to be responsive.  Even while its faculty members, as individuals, must remain free to march to their own drummers, it must not claim that prerogative as an institution.  It should endeavor to remain accountable to the world that supports it.  As the profession changes, as the student body changes, as the University changes, the Law School should at least take seriously the possibility that it should be changing as well.

B.     From Values to Priorities:  An Agenda for Growth and Renewal

I suspect that some readers may have found the foregoing discussion to be frustratingly abstract.  General statements of values are difficult to evaluate outside the context of specific test cases.  Such readers should find some relief in this section, where I will offer some more specific ideas about the future direction of the University of Michigan Law School.

I would like to set forth a set of priorities for the Law School over the next decade.  I believe that recognizing a particular goal as a priority for the Law School would have several important implications for how the Law School acts.  In particular, I see the development of a priority list as having important implications for my own behavior when I speak with potential donors to the Law School.

First, if the Law School acquires new discretionary funds, one would expect to see the School expend those funds to support higher priority goals rather than to support lower priority goals, or at least to see it expend the new funds in a mixed fashion that is weighted to reflect the relative priorities among goals.  Second, if the Law School is offered the opportunity to acquire resources whose use is restricted to a particular objective, it should be willing to accept the offer if the donor’s objective coincides with a relatively high priority institutional goal.  Third, where the Law School is indifferent among several different goals, it should be willing to allow its pursuit of one or another to be dictated by the preferences of donors.

At this time, it seems to me that the Law School’s agenda for growth and renewal should  encompass two categories of new expenditure:  two “top priority areas” and five “high priority areas.”  I would define those areas as follows:

Top Priority Areas

1.      Increasing the Size of the Nonclinical Faculty

In 1974, the Law School had 50 tenured and tenure-track faculty members.  Today, we have 49.  It is time for us to grow.

Several changes in the structure of modern legal education over the past two decades lead to the conclusion that we should add more nonclinical faculty members.  I would group them into four categories.

Joint Appointments.  The numbers shown above are deceptive.  The 49 tenured and tenure-track faculty members include 10 who hold only fractional appointments in the Law School.  As I mentioned earlier, these interdisciplinary connections are central to the Law School’s current intellectual strength.  But they mean that we have substantially fewer than 49 “full time equivalent” nonclinical faculty members.

Seminars and Small Classes.  In the competitive world of legal education, an elite law school can no longer restrict its offerings to a stable menu of large courses.  Innovative pedagogical developments at Michigan, such as the first-year “small section” program and the so-called “New Section” have required more teachers per student credit hour.  Similarly, the Law School’s commitment to provide every law student with an intensive seminar experience has reduced the number of teacher hours that may be devoted to large courses.

Increased Research Effort.  Over the course of the past twenty years, all of the elite law schools have come to expect more, and riskier, scholarly writing from their tenured and tenure-track faculty members.  Around the country, greater numbers of law professors are being denied tenure.  And it is more and more the case that academic reputation and salary are keyed to scholarly production.  As a result, all of the elite law schools have moved to provide their faculty members with regular “leaves” during which they devote all of their time to research and none to teaching.  That phenomenon has also effectively reduced the number of hours any given faculty member spends in the classroom over a seven-year span.

New Courses.  The subjects covered in the curriculum of an elite law school have multiplied over the past twenty years.  New professional specialties have created their academic analogues.  New interdisciplinary linkages have been reflected in new course offerings as well.  And the opening up of law schools to women and to racial minorities has helped to develop interest in a new set of courses that cut across doctrinal boundaries.

To be sure, growth must not come at the expense of quality.  The Law School must continue to hire the finest teacher-scholars in the country. Subject to that critical overriding constraint, I believe the Law School should increase the number of its tenured and tenure-track faculty over the next ten years, to reach 60 by the year 2004.

2.      Expanding Financial Aid

During 1993-94, the Law School spent over $3.1 million on need-based grants, and about $600,000 on merit-based grants to current law students.  Current law students supplemented their grant receipts with about $13.6 million worth of loans from external sources.  Finally, the law school spent an additional $150,000 in grants and loans to students in the “debt management program,” a relatively new effort to address the effects of large debt burdens on recent graduates.

The Law School should be spending more on all three areas of its financial aid program.

Need-Based Grants.   The Law School’s expenditures on need-based grants appear to be competitive with those at other elite law schools.  Unfortunately, they have not been able to grow fast enough to prevent an alarming increase in the typical debt burdens of graduating students.  It would seem inevitable that, if nothing is done to reduce the debt that students can anticipate upon graduation, all law schools, including Michigan, will begin to see a noticeable decline in the economic diversity of their student bodies.  At present, our need-based grants total approximately 15% of our tuition revenues.  Over the next ten years, I believe we should increase our need-based grant expenditures by 3% of our tuition revenues.

Merit-Based Grants.  Our Darrow and Jentes scholarship programs enable the admissions office to award full-tuition scholarships to approximately ten students each year (7 nonresidents and 3 residents).  Such scholarships enable the school to attract extraordinary students who would not otherwise choose Michigan.  Since the law school classroom places a high premium on the quality of student participation, the presence of such outstanding students enhances the educational experience of all their classmates.  I believe the Law School should double the number of full-tuition merit scholarships over the course of the next ten years, so that each first-year section of ninety students will ultimately include a critical mass of five full-tuition merit scholars.

Debt Management.  In many ways, an after-the-fact assessment of financial means is an even more attractive approach to need-based financial aid than is an assessment that turns on a student’s family resources while the student is in law school.  In practice, however, true income-contingent loan programs have proven difficult to implement.  A second-best approach, implemented at a few law schools, has involved “debt restructuring” or “debt management” programs that enable students who pursue relatively low-paying careers after law school to restructure their debt obligations in a way that makes them more manageable.  Michigan has begun such a program on a relatively small scale.  Unfortunately, the program is still too small to offer much flexibility, or to have much of an impact on many of our graduates.  I believe we should increase the size of the program over the next ten years to the future equivalent of $500,000 current dollars per year.