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The Law School Faculty as a Commons

[Cross-posted from Concurring Opinions]

What’s the connection between law professors and stand-up comics?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of social norms them by inferring their existence from regular behavior and from anecdotal reports. That interplay between observable, objective, and “external” dimensions of an innovation environment and subjective, “internal” dimensions of that environment is central to understanding its mechanics.

In fact, that interplay is probably central to understanding the mechanics of any cultural context. It’s’ a central theme in the work that I’ve begun on “cultural commons” with Brett Frischmann and Kathy Strandburg. And it connects stand-up comedy and law faculties. More below the fold.

In a comment on my last post, Jacqui Lipton asked about the greatest challenge that I’ve faced as Research Dean at Pitt. The short answer is that it is relatively easy to design, implement, and manage objective, observable dimensions of the faculty’s research and scholarship environment. It is very difficult to change the subjective, “internal” dimensions of that environment. Much of the job reminds me of my years teaching six- and seven-year-olds to play soccer: I could teach the rules of the game. I could teach basic skills and some rudimentary strategy. These were the objective, observable pieces. I could not teach instinct or passion, and I could not teach the idea that individual investment and collective success are inextricably linked. These were the subjective, “internal” pieces. Some girls would collect the ball at their end of the field and tear toward the other goal. Some of these were more skilled than others. Many of them intuited the proposition that individual effort and team success were linked. I’d call these players the naturals, “natural” in the sense that skills would come in time but they had a nose for getting to the right place, at the right pace. Some of them were skilled but selfish, human highlight reels, at least in their own minds, but in roughly equal portions both detrimental and helpful to the team. And there were the dandelion pickers, who would stab at the ball if it happened to roll in their direction.

Much of this maps on to the Research Dean question. (I am not the inaugural Research Dean at Pitt; one colleague held the position before I did. When I was appointed three-plus years ago, however, our (then new) Dean charged me with scaling things up.) On the objective, observable side, we have added a number of things, few of them really unique or innovative but most of them useful in one way or another: We instituted a program of regular faculty workshops, including faculty exchanges with some other law schools. We established an SSRN Research Paper Series and a program of stocking it with faculty scholarship. I built a Faculty Blog (which consists of my posting about my colleagues’ research and scholarship). I produce an annual internal report of faculty research and scholarship, including future research directions, that is independent of the information collected annually by the Dean and that is circulated to the whole faculty. I’ll save for another time, perhaps, the additional two or three paragraphs that would describe the programming and activities that I undertake or support.

All of that, however, is the relatively easy part. The challenging part is persuading the faculty dandelion pickers, as it were, to collect the ball in their own end and tear toward the other goal. The metaphor is a little overwrought, of course; I’m not misdescribing our faculty when I claim that we have no real dandelion pickers. Our faculty does, however, house a group of individuals with a broad range of subjective beliefs and expectations regarding their own research and scholarship and an equally broad range of beliefs and expectations regarding the relationship between their work and the institutional interests of the school. Changing either set of beliefs and expectations, if that is something that I’d like to do (and sometimes, it is) is very, very difficult. I can’t take for granted that every faculty member is motivated by the same goals, or that any of them necessarily subscribes to my goals, or to the Dean’s goals. Every faculty has its own range of beliefs and expectations, and its own history. There can be no assurance, as the saying goes, that lots of objective, observable programs that support research and scholarship will, in fact, produce more or better research and scholarship, or that it will produce more engaged scholars, or that the research and scholarship that a faculty produces will have greater impact in the world.

There are two obvious exceptions.  One is appointments; if a faculty (or a Dean) really wants to turn the ship, then hiring people who bring the desired set of beliefs and expectations with them is a direct way to do so. But there can be no assurance that the views of the Research Dean will have a strong bearing on the conduct of the Appointments Committee. There are always other important interests and goals at work.  Two is the scholarship of the Research Dean.  It’s important, I think, for the Research Dean to model what is expected from the rest of the faculty, and it certainly helps if the objective, observable features of the environment enrich the Research Dean’s beliefs and motivations.  For me, they certainly do.

It’s implicit in what I’ve summarized that some of the pieces of my Research Dean role are in tension with each other. It’s also implicit that if one of the things that I’m trying to do is to nurture the role of a law faculty as a kind of cultural commons (knowledge goes in to a community, gets stirred and shared, and new knowledge comes out), then measuring success — if there is such a thing in this context — requires a long-term perspective.  And it’s implicit that the Research Dean isn’t simply an appointment that any person can fill with equal success; the person who serves as Research Dean is a kind of focal or anchoring personality, a cheerleader as well as a teacher and an organizer.  A law faculty commons, like any commons (11 players, or 22, on a soccer field?), doesn’t simply happen; it’s created and managed, sometimes with greater success and sometimes with less.

In short, my biggest challenge as Research Dean — and probably an insurmountable challenge — is getting my colleagues to behave the way that I described in this older post:

I played competitive soccer until I finished high school. I played on horrible teams and magnificent teams; for coaches I had tactical masters, experienced former professionals, veterans of soccer on several continents. The best pure leader of the bunch, however, was Mark Speckman, who was my coach during my junior year of high school.

Mark was only about five years older than we were, and he was just starting his coaching career. He knew next to nothing about soccer. He had been a football player in college, earning national recognition as a linebacker at Azusa Pacific in the old NAIA. He was hanging around our school helping with the football team, when he was asked to take the reins of the soccer program for a year.

I should mention at this point that Mark Speckman was born without hands.

So picture a non-soccer playing linebacker, without hands, coaching a bunch of kids whose job it was to put a ball in the back of a net — without using their hands. He didn’t teach strategy, or tactics, or skills; he couldn’t. He was smart and a quick study, and he put 11 men on the field in mostly the right places. We did the rest. But at every practice and at every game, he was on fire. En fuego. With his energy and enthusiasm for us and for the cause, and partly simply by his own history and presence, Mark Speckman was a one-man force of nature. One-to-one, in the group, whatever it took, Mark Speckman goaded us, cheered us, and validated us loudly and publicly whenever we made great plays and sometimes when we were merely OK but he and we all knew that better was there for the taking, with more effort. His was always the loudest, most positive, and most relentless voice on the sideline. No hands for him; no hands for us.

I honestly don’t remember our record, though we did pretty well. We were competing against schools that were five and ten times our size. Occasionally there was a college coach lurking here or there, but to my knowledge none of us went on to college careers (and a number of our opponents did). What I do remember, however, is that just about to a person, we would run through walls for Mark, and for each other.