DeanWuBlog

Explaining Ourselves

I was discussing lawyers with a layperson the other day, an intelligent, well-educated, sophisticated person who is expert in her own profession, and who happens to need some assistance with what lawyers likely would regard as an engagement that is interesting but not especially out of the ordinary. I was surprised that the task of retaining a lawyer, however, seemed to her to be extraordinarily difficult, a prospect to be dreaded. Of course, that is the nature of many legal matters, that the need to bring in a professional is caused by a problem quite unfamiliar to the would-be client. It is not the lawyer but the issue itself that generates anxiety.

Nonetheless, it would not be unfair to say that she was intimidated by lawyers. I suspect her apprehension is shared by others who need legal services. It shows that we have much more work to do in training advocates and counselors. The most effective among us are those who have the trust of their clients, who are able to communicate effectively with, for, and about people whose causes they have taken up. Our responsibility is not only to do the work well, but to explain it in a comprehensible manner. Hence the establishment of rapport must be a preliminary task in taking up representation.

Grades

People sometimes ask me about grades, specifically what I think about students who study for the sake of grades. My view is that whether this is to be praised depends on what it is compared to: the realities of the world around us or the ideals we may espouse. Certainly it is better that a student study than that she not study, and if grades are the only incentive that is effective then at least they are a motivation that indeed will be effective. To the extent a student does homework, attends class, takes notes, engages in discussion with colleagues, reviews for exams, and does everything else that she ought to do as a matter of course, because she hopes for high marks, well, there are worse problems with which we can be concerned. Yet it would best if a student wished to gain knowledge for it’s own sake, though such purity of purpose turns out to be rather rare in any context.

One of the most disheartening experiences I have ever had as a teacher was trying to persuade students at an elite institution, almost all of whom had spent most of their formative years excelling in academic pursuits as measured by their transcripts, that they should disregard the very criteria by which they had been selected, as was known by all. The exercise was as frustrating for them as well, I am sure, even if a few individuals were persuaded or hadn’t needed to be lectured to about the matter to begin with. It made me understand the need to work within the community norms, even if modest efforts were made to reform those norms.

Perhaps the compromise toward which we can aspire is to make our evaluation as fair as possible, recognizing one its primary purposes is to perform a necessary task of sorting people into categories, and along the way we can nurture some skepticism. To the extent grades are used for the purpose of sorting, if they are to distinguish meaningfully among talented people, it must be impossible for every one to earn an “A.” Ironically, the more uniformly talented a group is, the more important it is to make fine distinctions that may not correlate well to any practical differences. So best to bear in mind that in the end grades are predictors of performance, not merit in itself.

Semantics

I’ve never understood the condemnation of law as “semantics.” It is true that the practice of law depends on rhetoric. But there is nothing wrong with that at all. To the contrary, it is the great triumph of civilization, that we are able to settle disputes, including those involving contested principles of great importance, through language – rather than physical conflict. It makes no more sense to condemn lawyers for their dependence on words than it does to condemn mathematicians for their dependence on numbers. Indeed, one of the great challenges for law students entering the profession is appreciating the tremendous importance of words – of accuracy and precision (and, incidentally, accuracy and precision, to be accurate and precise, are different concepts). There are numerous litigated cases, which have passed into urban legend, that turn on the crucial distinction between “and” and “or” or the omission of a comma, and so on. It is for this reason that grade-school grammar lessons are worth reviewing: a restrictive clause and a non-restrictive clause are different in substance, not style. Whatever laypeople may believe, a lawyer would be remiss if she believed that her work was merely “semantics” in a pejorative sense.

Closure

I write regarding the closure of the university. As President Irvin D. Reid has announced, Wayne State University is closed today, Wednesday, March 5, due to the weather conditions. This closure is for the entire day, including the evening. All classes are cancelled. All activities also are cancelled (including, e.g., the class photographs). The Law School facilities will not be open. At this time, we expect Wayne State University to resume normal operations tomorrow, Thursday, March 6. Individual instructors will make announcements regarding make-up sessions of their respective courses. Thank you for your attention.

David Moran

I write in response to the announcement made by Associate Dean David Moran that he will be leaving Wayne Law to develop the clinical legal program he has dreamt about.

I have had the honor of knowing David Moran for about half my lifetime, though I had not known him well before we began to work together. Since then, I have come to appreciate his wisdom and dedication, not only with regard to the art of teaching, about which he might teach the teachers considerably, but also to the betterment of an institution about which we both care greatly, he so sincerely that I am humbled. David has already had, well before reaching the apex, a career of which most of us would be envious if we were able to comprehend its entirety. As a teacher, he is without equal in the eyes of all observers. With a plainspoken manner, bearing a sheaf of handwritten notes generated through preparation rare to see among experienced faculty, and little else besides his wits, he captivates, entertains, and, above all, educates. As a scholar, he has proven how much the theoretical can be practical, and vice versa, single-handedly eliminating false divisions that plague the academy. And in his service, I could say so much but will limit myself to the observation that he has done the thankless work of his office without for a moment aspiring to use it for his own advancement.

David Moran is an individual who exemplifies what the practice of law is about. Some may be aware that he was a scientist before he was a lawyer. Whatever the loss to science, the gain to law is magnificent. In the Dean's Suite these past two and a half years, David has been a model for me to follow. He has been an ideal colleague.

Please join me, and the countless others who have benefitted from this association, in wishing him well in his endeavors to come.

Brussel Sprouts and Bruckner

II have always believed it important to be as open-minded as possible. As I age, I realize it will be easy to follow habits to becoming a curmudgeon, unwilling to tolerate much less try new experiences and consider new ideas. So to avoid a sedentary, slothful life, not only physically but mentally and spiritually as well, I am always looking for opportunities to learn and grow.

Lately, I have decided to acquire a taste for brussel sprouts and Anton Bruckner, both of which I have contacted only minimally. I did not grow up eating brussel sprouts, meaning I lack the aversion to the vegetable that so many seem to have developed from childhood forced consumption. I am a philistine with respect to classical music, though I know that classical music is itself a misnomer covering multiple periods from the Baroque to the Romantic. Having tasted brussel sprouts perhaps thrice, I have found them to be piquant – indeed, to be the perfect food for that term. Bruckner’s Eighth Symphony, the first movement of which I have listened to several times in a fine recording conducted by Gunter Wand, has the exciting quality that I most like in orchestral works.
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Criticism

I recently had the opportunity to complete the survey for the Zagat restaurant review book, and, as I did so, I developed greater admiration for the food writers who critique their meals on a regular basis, with a palate as well educated as the pen. I found it difficult to contribute more than the most general, clichéd, and trivial remarks, despite eating out almost every dinner and lunch. It truly is a set of skills that surpasses what most amateurs are able to muster, to author descriptions of the act of eating that are more than recitations of the menu. And it is independent of the ability to cook. I am often struck by how many people who are good in an endeavor are not especially compelling in describing that endeavor, and how others who have developed wonderful taste may lack the skills to perform the very activity of which they are the most astute observers. I am reminded of the great Pauline Kael, the film critic who single-handedly established a genre of writing, who once said something along the lines of, “You don’t have to lay eggs to know what a good omelet tastes like.” (More)

Stakeholding and More

As Dean, I have realized that one of the most difficult aspects of leadership is persuading people they have a common cause. I have tried to cultivate a sense of stakeholding: the feeling that causes people to invest their time, money, and energy into an idea or an institution, abstractions and entities larger than themselves. I have enjoyed modest success. Indeed, some of the people who have been most generous, especially of their time, which is harder to give than money, had not previously had the most direct relationship to the Law School. The greatest gratification is when they in turn persuade others of the value of the vision we have for positive change – for the contributions that can be made by our students and our alumni, and by organized activities that create public life.

Yet as much of a challenge as it has been to generate a sense of stakeholding, for the sentiments cannot be instilled by command nor can they be readily faked and a place that trains attorneys inspires less affection perhaps than some other sites of memory, it is even more of a challenge to generate a sense of shared goals. Many of us believe in the programs with which we are associated, the students whom we have trained, the teachers by whom we have been trained, and so on, without connecting our experiences to those of others in a meaningful manner. The notion that our success depends on the success of others, and that it will be our failure if they fail, is referred to in rhetoric only rarely, and put into practice even less. It matters not that it is true: certainly, a Dean recognizes as much, for a Dean is identified with the entirety of the operation over which he nominally presides, and it would not do to point out the accomplishments of a single aspect, especially if it were to the neglect of everything else.

Our Law School, like our metropolitan area, will flourish only if all of us work together.

Outlaws and Stonewall Bar

Last night, I personally hosted a reception for Outlaws and the Stonewall Bar Association, our LGBT student group and the local predominantly LGBT voluntary bar association. I did so not only because I believe in engaging with students and cultivating the bench and the bar, but also due to my belief that among the remaining civil rights issues our nation faces is legalized discrimination against individuals based on their sexual orientation. While we have much more than we may realize to do, and I embrace the challenge, with respect to race, gender, disability, and religion, among other sources of potential division, we at least have forged a consensus, fragile though it may be, that legal discrimination on the basis of these classifications is wrong – more than wrong as a technical matter, violative of a shared sense of moral norms. Other forms of legal discrimination have become so inconsequential that they barely attract notice: for example, there was a time and there are still cultures that embrace explicit birth order discrimination. Yet with respect to only a few remaining traits – sexual orientation and immigrant status perhaps most prominent among them – do we as a nation continue to allow de jure distinctions to be drawn, almost all of them rooted in invidious intentions even those motivations have been forgotten or may be unconvincingly disavowed. As Dean of our Law School, I have sought to address these issues as they affect access to higher education and the justice system, though of course the consequences extend far beyond those areas with which it is eminently appropriate we be concerned.

It has been my practice to host events with various student groups, including, among others, BLSA, JLSA, and the Christian Law Students Association. The opportunity to interact informally with faculty, along with practitioners, is invaluable. I’d like to thank especially Professor Peter Hammer for attending the Outlaws-Stonewall function, along with philosophy Professor John Corvino.

Guest Teaching

Last week, I guest taught for David Moran. The course was Evidence and the session was on conditional relevance. I have taught Evidence before, but the particular topic is complicated and not intuitive.

I approached the evening with guilt, fear, and the anticipation of pleasure. Guilt because I know that by asking David to be Associate Dean, I had taken him out of the classroom (not wholly, but partially), and he enjoys teaching. Fear because I also know that David is among the best teachers on a faculty that values teaching. The anticipation of pleasure because I have missed teaching, and I had found the preparation to be challenging, which meant that the discussion would be even more so.

It was terrific to have had the opportunity, albeit brief, to work with my friend and colleague David in an altogether different context than our usual tasks in the Dean’s Suite. It was even better to have interacted with the students who obviously are learning a tremendous amount.

Lincoln

I enjoy reading biographies. One of my life projects is to read a biography of every American president: I’ve started with the giants whose lives are fascinating and accomplishments universally admired, such as Washington, Jefferson, and Lincoln. The ability of the last to bring together people with strong wills and different viewpoints, during a time of great crisis, offers many insights into leadership.

The historian Doris Kearns Goodwin wrote a popular article about Lincoln in which she recounts a number of episodes for didactic purposes. I try to bear in mind a pair in particular. Goodwin said the following.

Lincoln’s Secretary, John Hay, described the mental torture of waiting for an hour with Secretary of State Seward and Lincoln in George McClellan’s house for the general to return from a wedding. When McClellan finally did come back, he simply passed the room in which the President was sitting; another half an hour went by before a servant informed Lincoln that McClellan had gone to bed. Young John Hay was enraged. “I wish here to record what I consider a portent of evil to come,” he wrote in his diary as he recounted the story of what he considered an inexcusable “insolence of epaulettes.” To Hay’s surprise, Lincoln “seemed not to have noticed it specially, saying it was better at this time not to be making points of etiquette & personal dignity.”

Another story is told of the time when a Congressman had received Lincoln’s authorization for something to be carried out by the War Department. When War Secretary Stanton refused to honor the order, the disappointed petitioner returned to Lincoln, telling him that Stanton had not only countermanded the order but had called the President a damn fool for issuing it. “Did Stanton say I was a damn fool?” Lincoln asked. “He did, sir, and repeated it.” At which point, the President remarked, “If Stanton said I was a damn fool, then I must be one, for he is nearly always right and generally says what he means. I will step over and see him.”

These two stories, even if apocryphal, set a high standard for anyone who holds authority. Of course, Lincoln was no weakling. For in most cases, because of his skills including his own self-restraint, he was able to turn his vision into reality.

Athletics

As the NCAA Faculty Athletics Representative, I have been persuaded of the value of organized athletics to higher education. I must admit that I was an unlikely choice for this important role on campus: as a child, I was a classic geek with little interest in sports. My father, who played intramural basketball and traveled to tournaments to compete against other club teams in the Midwest, continued to be a vigorous about hoops until recently, as well as taking up tennis later in life and being willing to shovel the snow off the courts in order to play doubles. Like his profession of engineering, this passion I did not inherit.

In any event, from my involvement with our athletics program I have seen that it provides structure to undergraduate education, instills discipline and teamwork (the latter even in events requiring competition among individuals), creates a lasting sense of stakeholding and community, and offers a welcome complement to academic study. Of course, it promotes a healthy lifestyle, and it would be wrong to underestimate the influence of physical well-being on intellectual pursuits. There also is ample empirical evidence showing that, on average, student-athletes persist to graduation at higher rates than typical students. It is enough that I have taken up exercising with a trainer at least twice a week, and I took fencing lessons – just enough to host “Whack Wu,” a group lesson for alumni, faculty, and administrators.

Carol Izumi

Although my wife, Carol Izumi, and I are more private than public, people have been appropriately curious about her condition since I announced my resignation due to her health. Carol suffers from lupus and rheumatoid arthritis, both of which are conditions that can flare up and become more severe. Just over a year ago, she ruptured a tendon in her right hand. Her doctor had earlier warned her about this possibility, which is a consequence of degeneration of the wrist bones, and for which he advised immediate surgery, to avoid further ruptures that could impair use of the hand on a permanent basis.

Accordingly, in December 2006, Carol had surgery to fuse the right wrist, which in her case involved installation of a metal plate to provide strength. She then had three months of physical therapy to restore use of her hand, though the wrist no longer has mobility and she regained use of four of five fingers. In May 2006, she then had surgery to fuse the left wrist, as a precautionary measure. She again had three months of physical therapy, and it was entirely successful.

As we had planned, Carol resigned her administrative position at her law school. Following a sabbatical, she has returned to teaching.

Meanwhile, Carol has started a new treatment regimen, using some different medications. The issues she faces are life-changing, but they are not life-threatening. We are hopeful that the degenerative course of the lupus and arthritis will be slowed or stopped. We appreciate the support we have received from everyone.

Transition

I am pleased to report that Dean Designate Robert Ackerman and I have started the transition process. Dean Designate Ackerman is an experienced Dean, having served in that role a decade ago at a school on the West Coast.

We have already worked out a good division of responsibilities. We communicate constantly to ensure we are integrated in this process. As Dean, expected to remain through Commencement, I am continuing to fulfill all the responsibilities of the office, in particular with respect to day-to-day operations and this fiscal year. It is important to me personally that I continue to steward the Law School, as if I were to be here for many years to come – in my view, the principled course of action is to make decisions with the same sense of commitment. I’d like to hand over the keys to a Law School that is as strong as possible. As Dean Designate, Professor Ackerman is beginning to learn about the institution and the people. In addition, he is consulting on and making decisions as to matters affecting primarily next fiscal year and beyond. His input is invaluable on many of the choices we face now, and I’m pleased to commit to his judgment any that have lasting effect. I’ve indicated to everyone on the administrative team of the Law School that they should feel free to work directly with Dean Designate Ackerman, advising me of what is resolved, while also bearing in mind that like me he too has a day job. That is to say, he has graciously indicated to me he does not have an interest in micromanaging from 500 miles away before he has started.

I’m confident that our understanding will allow Dean Designate Robert Ackerman to have the best possible start to his tenure. I’m looking forward, at least as much as everyone else, to his arrival, and I wish him only the best.

A Former Student

I am a client of a former student. To advance my research on a book, I have retained a a prominent local law firm to litigate a Freedom of Information Act (FOIA) claim. They are doing so, very graciously on a pro bono basis. Aside from my gratitude for their services, I was delighted to learn that someone whom I had played a minor role in training several years ago was assigned as the associate on the matter.

I am honored to be represented by a former student. Whatever the outcome, I am pleased to see that an advocate whose development I influenced is so capable. The brief he wrote was wonderful, without a doubt far better than I could have penned. That is an accomplishment in which any teacher can take pride: to have imparted some skills, perhaps, to another individual who then can be claimed as a colleague.
The occasion allowed me an opportunity to reflect on the profession.

A law professor, of course, professes; the title remains amply descriptive. In the classroom during the law school, it appropriate that the professor have a different status. After all, a professor would not be entitled to stand on one side of the podium and earn a living offering opinions, if he did not have some superior knowledge as compared to those seated and scribbling notes in the hope of joining the bar. But a professor would fail to understand his task, if he believed that the position he enjoyed was permanent. The point of the exercise is to ensure that as many as possible to one’s students become one’s equals in every respect, even experience – for an attorney who bills hours will, within a few years, surpass the amount of direct interaction with clients and actual transactions and disputes of all except the most seasoned lecturers from whose tutelage she has benefitted.

RSVPs

I recently received a short email from someone I’d invited to a social event, apologizing for having failed to RSVP. Although she was not able to attend anyway, she felt remiss for neglecting to inform me. This was remarkable for two reasons: first, most people nowadays seem to lack any appreciation of the concept of an RSVP; second, even fewer people seem to even notice such a faux pas much less believe it is worth any correction. I appreciated the message very much, both for it’s own sake and as a signal about our shared norms. An RSVP is more than a mere courtesy. Among other rationales for the practice, except for large public events, an RSVP is crucial to establishing an accurate headcount and determining whether to wait for a potential late arrival.

More generally, the RSVP belongs to a category of gestures that anyone, regardless of origin, can not only learn but also execute well, that involve minimal effort and produce an excellent return on the investment, and that are certain to be noticed for their increasing rarity. Another such practice is the thank-you note. Our mothers were right. It is important to send thank-you notes, for gifts and after having been a guest. A failure to do so is simply rude, but needlessly so. As much as I rely on email, in this context there is much more to a hand-written card. It need not be on Crane’s or Pineider stock, or written with a fountain pen, to be impressive and memorable. My 96 year-old aunt writes with a magic marker on white paper she has drawn wide lines on, because that is all she is able to manage.

These practices have in common that they involve follow through. The RSVP is a statement of intention and making good on it is important for establishing a pattern of reliability. The thank you note shows thoughtfulness even after the meal, the drink, the entertainment, and the conversation are no more than a memory.

For a lawyer, follow through is crucial. The source of the greatest number of complaints from clients about their attorneys is that the latter fail to communicate. It takes only a moment to overcome inertia, and the effort will distinguish the competent lawyer from the obviously competent lawyer. If you say to someone, “Let’s do lunch,” then contact her immediately and set an appointment.

Of course, I don’t doubt that there are many occasions when it also is principled to disregard etiquette. David Henry Thoreau, one of the most original thinkers our nation has produced, hardly ever bother with social niceties. He needed neither RSVPs nor thank you notes at Walden Pond. Yet I suspect that Thoreau, scientific in his observations, was at least aware of the rules. When be broke them, he did so deliberately.

Dinner

From time to time, I am invited to give speeches. Once, before the event, I went to dinner with a group of students. It was a nice establishment, suitable for entertaining guests and likely more expensive than I would have chosen on my own. We ordered our meals, and one of the students, I noticed, was unhappy with his choice. He told me he had selected the most expensive entrée on the menu, because someone else was paying for it, even though he didn’t like the main ingredient or the description. . . I will offer the anecdote for amusement, but I will not offer a moral.

Riding

I will never be a professional motorcycle rider. That is a liberating limitation, realized long ago and shortly after my entry in this hobby. It serves as a reminder not to speed in trying to catch a pack, allowing me to set my own pace that is enjoyable. Yet this realization does not stop me from trying to improve, in judgment, handling, and the myriad skills required to keep the rubber side down and the shiny side up. To the contrary, it returns me to the great pleasures of riding for it’s own sake. I remain ambitious. I’d like to decrease the day to day risks I face as I ride in traffic, increase the distance I can travel in a day on a long-distance trip, and so on.

Although I remember the quip that “it’s bad enough when your enemies succeed, it’s worse then your friends do,” I have become convinced that there are the appropriate uses of competitive instincts – professionally -- and there are equally appropriate contexts for the gifted amateur. As a teacher, I see that there is much more than training the best litigator. The transactional lawyer who never sits foot in a courtroom also needs basic background in the rules of civil procedure; so too the politician, the business person, and the scholar who enters my classroom. Few of us will perform at the top of the field in every endeavor. Society would be worse off, and each of us as individuals, too, if we entered the fray only in activities in which we were certain to prevail. We cultivate a hundred great readers to produce one greater writer; the ninety-nine greater readers, if they must take pride in their accomplishment, can be assured that it is an honor indeed to be a great reader.

Legal Advice

I often am asked for legal advice. Sometimes, family and friends, or students current and former, or total strangers, contact me to ask about a transaction or a dispute. In almost all instances, I turn them down. I do so for many reasons, not least of which are the restrictions on my license (people may want advice about the law of a state where I am not barred), my acute awareness of the limits of my knowledge (people may ask me about criminal law, an area in which I have virtually never done work), and the constraints of my role (it would be inappropriate except in situations I cannot imagine, for the dean of a law school to serve as legal counsel on behalf of a student). The people who ask for assistance on a pro bono basis may be incredulous, but I almost never make a decision based on whether I would be paid a fee or on the size of that fee. I am genuinely flattered to be asked, even if anyone with a bar card would have been asked. I also hasten to add I believe we have a responsibility, those of us who have the privilege to belong to the profession, to render service in the public interest -- I need not note that the majority of my actual legal work nowadays involves no compensation.

There is a particular type of inquiry, however, that I invariably turn down, but which laypeople are puzzled by. It is the inquiry that comes with the assurance, "oh, I don't want you to be my lawyer," or "I already have a lawyer, but I just have a few questions," or "I don't want any formal opinion, just some advice," or "I can explain it in just a few minutes." These are especially dangerous. The more casual they appear to be, the more dangerous they have the potential to become.

Here is the reason. As soon as you start to answer questions -- even as simple as "I'm just wondering if I have a claim worth pursuing -- I don't want you to represent me; I just want to know if it is worth talking to a real lawyer" or "I'm wonder if I should file this in federal court or state court," or "Is it too late to sue?" -- if the person forms a reasonable belief (and what is a reasonable belief may look quite different later, especially if an off-the-cuff response turns out to be less than ideal) you are giving them legal advice, congratulations: you have formed an attorney-client relationship that may subject you to professional liability, complaints to the bar, and all manner of entanglements you had not expected. The casebooks are replete with object lessions of the well-meaning lawyer who has managed, through a series of mishaps, each understandable in isolation, to expose herself to sanctions that could have been avoided if she had been just slightly less friendly.

While it may not be easy to explain why to someone who trusts you, and, indeed, someone whom you may believe has a compelling case, I suggest the following reasons for this apparently harsh philosophy. The would-be client, whose insistence that she is not looking for a lawyer can recede from memory, is by the very purpose of explaining her concerns likely to divulge information that must be protected by the attorney-client confidence. Yet if she does so before a preliminary conflicts check, she may jeopardize her case and compromise the lawyer. Laypeople cannot be blamed for not realizing what lawyers would find obvious: people have said to me, "I'd like to know your opinion of whether I can sue [name of my current employer], but of course I know you can't actually represent me because you work for them." Needless to say, I also can't offer any opinion, whatever the caveats, and I shouldn't even be told about the allegations.

As significant is the risk level associated with legal conjectures that are not based on adequate investigation of the facts and research into the law. Under our rules, a lawyer cannot rely solely on the representations of her client -- a fortiori, she should not rely solely on the representations of someone who isn't even her client. Someone who chats me up at the barbershop, the bar, or a ballgame cannot, no matter how good a listener I am, tell me enough about the situation for me to be able to do anything meaningful. And other than the extraordinarily limited areas of the law that I follow closely, off the top of my head I don't know the intricacies of whether a landlord must pay back a security deposit within a week or a month or a year. I have found in every instance I have seen that a layperson, even someone with great intelligence in other disciplines, does not describe accurately documents that are relevant, and in many instances they are unaware that the papers in their hands are significant. This problem isn't due to malice or stupidity; it's a consequence of their very need for legal help -- they are not trained and don't know the difference between a complaint, an answer, a subpoena, and a judgment. If they did, they would not bother to seek out my view.

If someone has counsel, I am even more loathe to start second-guessing that attorney. I know I wouldn't want to have someone commenting on my legal work without having a real grasp of the issues and the rationale for decisions. If the person expresses concerns about their lawyer, my advice is always the same: talk to the lawyer herself. After all, the source of most complaints against lawyers is the failure to communicate. It may be that the client has good reason to be concerned about their lawyer, but raising the issue with the lawyer will be much more useful than grousing to me about it.

In the end, I tell people who approach me that if they believe their legal question is worth asking, then it deserves a good answer. That requires finding someone, not me, who is capable and willing to invest the needed time and energy to offer that answer.

Jin Wu

My uncle passed away this week. Dr. Jin Wu was a wonderful role model for any professor who aspires to a leadership role in higher education. An immigrant who had been born in China and raised in Taiwan, he was educated at the University of Iowa. An expert in the interaction of the atmosphere and the oceans, he eventually held an endowed chair and supervised a major research laboratory at University of Delaware. It would have been quite a career for anyone, to move around the world, establish one’s self, and make contributions in a highly technical field. (Accordingly to the obituary and other accounts, my uncle also was a Renaissance man: I knew he was a sports fan, but I didn’t know he served as a media commentator in Taiwan on the NBA playoffs!)

Instead of retiring a decade ago, however, my uncle accepted the position of president of his alma mater in Tainan, just south of Taipei. After two highly successful years, he was offered the opportunity to serve as the Education Minister, a cabinet-level position. In a culture that has always valued education greatly but that also is suffused with a strong sense of hierarchy, my uncle became a reformer, bringing about comprehensive changes to the post-secondary system. At the time of his death, he was working on an article advocating changes here, increasing the scope of access for everyone who wished to improve their lives and increasing the level of support to students of all abilities. The ability to make the transition from academe to high public office, and to leave the position widely admired, is rare.

Along the way, my uncle developed a fascination with the Chinese Admiral Cheng Ho, the Muslim eunuch who commanded an armada of enormous vessels that may actually have reached the West Coast of the North American continent before Columbus became the European discoverer of the New World. He was heavily involved in studies that blended history and science, most recently holding a position as a distinguished scholar at the United States Library of Congress. Bridging the gap between the two cultures of science and the humanities is at least as difficult as integrating East and West.

For me, my uncle’s legacy offers many lessons. Among the most important are the ability to blend the most rigorous scholarship with an interest in interacting with the general public, wearing one’s educational accomplishments as lightly as possible while bringing intellectual insights to bear on practical problems of policy; cultivating a genuine curiosity about the infinite variety of human endeavors and the natural world, without being limited by the confines of formal training or the artificial categories of contemporary disciplines; and pursuing ever greater challenges over the course of a career that was more than a series of jobs.

Thomas Sugrue

I was thrilled to see the enthusiasm and the level of engagement of the standing room only crowd – even the balcony was filled (“the crow’s nest,” as those who attended the event would undertand) – for the Izumi Family Scholar in Residence speaker Thomas Sugrue yesterday afternoon. I am always pleased to welcome speakers to campus, because I believe that beyond the research and the teaching, what makes a public institution such as our Law School so important to the community is our ability to be a public venue. There are so few opportunities now to engage in civic life. Universities serve their purpose when they lead the effort to offer serious discourse about our society.

Dr. Sugrue, the critically acclaimed author of The Origins of the Urban Crisis, the single most important book about the city of Detroit, is an especially appropriate scholar for us to invite. The type of work he does is what our Law School is known for. It is rigorous, meeting every academic standard, as the copious endnotes demonstrate. It also is passionate in its commitment to practical progress. Thank you to everyone who participated in two days of intellectual activity that give us hope for the value of education.

Rules

While as Dean I believe it is crucial to foster a sense of stakeholding, with students at the center of the community, I also recognize that the role includes the responsibility to make decisions that may be unpopular both about policy and as to specific cases. Every semester, I must sign letters informing a small number of persons that they are no longer academically eligible to continue their education here, their scholarship will not continue, they cannot graduate, they face discipline for misconduct, and so on. The best I can do is ensure that we support people as much as we can while they are enrolled to give them every chance to succeed; that our decision-making is principled and fair; and that we explain our actions in a reasoned manner. Accordingly, I would be remiss if I did not occasionally note the importance of learning the rules that govern an institution.

The study of law offers insights into the management of a law school, and vice versa. Indeed, students who are being trained in advocacy -- specifically legal advocacy that abides by precedent and a set of formal procedures -- may be expected to be more attentive to the rules that govern an institution. Students are already part of the profession, even though they have yet to graduate and pass the bar exam. They are expected to conduct themselves as lawyers would, and it is not easy to adjust to such norms. There are positive aspects to the law; there are negative aspects. It is a cliche, but one we might sometimes prefer to ignore, that every choice produces consequences.

Just as lawyers recognize they must abide by statutes and cases, so too students must recognize there are university regulations. Lawyers are able to challenge the status quo, but even then what distinguishes legal advocacy for the better is its established structure for doing so.

From time to time, students who are unhappy about an outcome seek to appeal it. And sometimes, after they have appealed through the normal process and exhausted their options, they hope to continue their appeal by requesting that the Dean or the faculty make an exception because of their personal circumstances, which may be genuinely compelling. They are surprised, then, to find that the Dean lacks authority to grant extraordinary relief or that the faculty have agreed, as a matter of policy, that they will not take a particular type of action, such as changing a grade. In these situations, students may be disappointed -- understandably.

Yet there are parallels in the practice of law. The rules governing appeals, for example, are so strict as to shock most laypeople and even lawyers unfamiliar with that specialized area. Failure to file an appeal on a timely basis is virtually certain to be fatal to a case, no matter what the facts show about the merits. Statutes of limitations are similar. Once they have run, if the recognized exceptions do not apply, well-founded claims may nonetheless be lost.

There are various reasons for such seemingly harsh results, which are amply covered in the relevant courses. Suffice it to say that the rules have typically been adopted because they produce optimal results in the aggregate even if they fail to do so in specific instances. There may be countervailing considerations. Time limits and limits on appeals tend to be severe, because society as a whole values resolution and repose. Such limits also tend to be enforced uniformly, out of our commitment to equal justice: a waiver in this case either means that one individual receives special treatment by virtue of nothing more than having been aggressive or that numerous others must then in turn also be considered.

A lawyer who wishes to counsel clients in these intricacies must abide by them, too.

New Dean

I am pleased to welcome the tenth Dean of the Law School, Professor Bob Ackerman of Penn State University Law School. Previously Dean at Willamette University College of Law, Professor Ackerman is an expert in mediation. We have already met at the AALS Annual Meeting in New York City. I look forward to working with him over the next several months on the transition. He is wonderfully qualified for the position. Please join me in congratulating him on his appointment.

Research

I would like to offer six thoughts about conducting research. Given the technology that has become available within our lifetimes, anybody can conduct research. Yet as with much else, that has only increased, not decreased, the difference between results that are common and those that are superlative. A strategy is still needed to achieve the best results, and patience is likely to enhance performance. The below tips apply to both scholarly work and traditional legal research.

First, memorialize everything, including especially failure. You write a memo not only for others with whom you are working; you write it for your own future self. Anything you have looked at during the course of your work should be noted in some manner. The dead ends that appear to lead nowhere useful are the most important to remember, both to avoid pursuing the same blind lead once again and because what appeared irrelevant may turn out to be worthwhile in a previously unknown manner.

Second, trust nothing, including primary authorities. The best source of information is also the most unreliable: the internet, including even apparently reputable sources, is a repository of the outdated, the speculative, the malicious, and the fictitious, and the false. It is invaluable, but it also is dangerous. Google, Yahoo, or whatever other search engine you prefer, is the beginning, not the end, of the process (remember that search engines can be manipulated and you typically do not know their algorithm even if nobody is attempting to game the system). Ensure that everything you assert is based on multiple independent sources, the provenance of which you personally would vouch for. Even case law, statutes, and regulations cannot be accepted at face value. Laypeople often make that mistake: they locate a single precedent that supports their claim, and they might not be in error that it indeed is favorable to their cause – but they do not realize it must be checked in a citation service such as Shephard’s for everything subsequent. The decision may have been reversed on appeal or overruled by a later opinion or superseded by further legislative actions. Negative treatment of the best legal authorities is as important, indeed more so, than positive treatment of the same.

Third, document how you found what you found – the methodology as well as the substance. You will want to be able to retrace your course of action, and others will follow. You are likely to need to cite the source of your information, so retain what is needed to do so. When you copy a page from a book, copy the title page and the copyright page.

Fourth, if you conclude there is nothing on point, be prepared, using the above suggestions, to prove that there is nothing on point. Whenever you come up empty-handed, there are two distinct possibilities: (a) that the universe is empty; and (b) that you have not yet looked with enough skill. Novice researchers, asked by those for whom they are performing the work, how they can be confident that they live in the former universe are often frustrated; they feel it is unfair to be questioned, or they would prefer to simply re-do the work anew. To the contrary, a researcher who has memorialized everything, trusted nothing, and documented the methodology is best prepared, and she will be able to report to others and they will be persuaded: if she says there is nothing, then there is nothing. There is no research that is more important than research into the unknown – the other research is merely the collecting of information already available, however difficult it may seem.

Fifth, understand why the research is being done. How does this particular assignment advance the larger effort? It is much easier to perform competently and to offer original insights, if the overall goals are apparent. You should ask yourself, or, if there is a supervisor, ask her. If there is any problem explaining the point of the exercise, it is much less likely to repay the effort it requires.

Sixth, at least in performing work for me, be circumspect about discussing matters with others. I was chagrined to find when I was reviewing a book and preparing to make a critical comment about the author’s claims, and I needed to determine whether the author was novel in his statement or if he was quoting another source, that my research assistant contacted the author on my behalf to pose the query directly to him. Despite her good intentions, she betrayed the very ignorance I was attempting to remedy. Nonetheless, the fault was mine, for I had failed to explain how much I valued discretion. The admonition about confidentiality is all the more urgent in the context of legal work. Most of us are aware that attorneys owe a duty to their clients to maintain the privacy of everything divulged to them. Fewer may recall that the same rule extends to the agents of every attorney.

Issue Spotting

From time to time, I work with lawyers. What I mean is that from time to time, I work with lawyers as a client. Whenever that occurs, I bear in mind I am the client – meaning both that I have decision-making authority and cannot delegate my responsibilities and that I have retained an expert because of her expertise.

In working with some lawyers recently, I was reminded of the importance of issue-spotting as a skill. When I was a student, I wondered why, on final exams, professors didn’t do us the favor of identifying the issues they wished for us to analyze, rather than having us engage in the task of figuring out what was going on in a hypothetical fact pattern. It seemed perverse, unfair, perhaps silly.

Yet in working with counsel, I realized again how well they were trained to see the relevant controversies, indeed the outlines of risks that might never be realized, which were present in the situation we faced and of which I was quite unaware. We cannot very well rely on opposing counsel, or the court to help us out in this regard. If it is the former, we have ceded the crucial opportunity of framing – setting the agenda for discussion and the parameters within which it will proceed. If it is the latter, we have shown our weakness and our need for intervention, sympathetic or not.

Issue-spotting is the prerequisite to everything else. One must know there is potential issue, be able to assess the realistic likelihood it will materialize, exercise good judgment as to how much resources to devote to it, and so on – all as a preliminary analysis before turning to the merits of the matter.

Inference

I woke up this morning to see snow on the ground where there was none before. I slept soundly through the night, and I did not awaken at any point. I did not see snow falling during the night. Yet it is reasonably to infer that indeed it snowed during the night; it would be absurd to deny it.

This is a good demonstration of the power of inference. We infer all day, every day. We could not function if we required, in ordinary decision-making, direct evidence of each fact we considered.

There is nothing wrong with an inference per se. It may be less persuasive than direct evidence -- for example, awakening in the night, looking out the window, and seeing the snowflakes coming down -- but it can be only slightly less persuasive. The inference should be evaluated on its strength -- i.e., how many times has direct evidence proven the same proposition, reliably -- and not dismissed merely because it is an inference. The argument against an inference should be framed as "That inference is unwarranted, because . . ." and not as "That is an inference, and therefore unwarranted."

Peter Irons's Stork Theory of Supreme Court Cases

I was listening to a wonderful series of lectures by legal historian Peter Irons, and he mentioned the importance of disabusing people of the “stork theory” of Supreme Court cases. (This set of lectures, offered by The Teaching Company, is well worth the time.) According to Irons, many observers supposed – erroneously – that just as babies are supposedly delivered by storks, disputes simply show up on the Supreme Court docket. We overlook the tremendous effort, encompassing years in many instances, by lawyers, parties, experts, and others to develop the facts of the case. They are not ready-made, but are fashioned from the available materials.

Expertise

The greatest deception of experts is making it all look easy. This effect is not even deliberate. Oftentimes I have attended a performance, especially of an art form that is unfamiliar to me, and I leave the show with the delusion I too could do that too – dance, act, play the musical instrument, perform the athletic feat, and so on. It takes only a moment of reflection or simply a clumsy effort to imitate what I’ve just seen or heard, however, for me to understand that I have just witnessed a level of skill that, whatever the innate abilities involved, must have required incredible effort in training and practice. Indeed, I am so ignorant I am unable to discern the differences between what is basic and advanced, and who is merely good and who is extraordinary: I am told, for example, that there are many piano pieces that sound very difficult but in fact are simple, and vice versa.

I remember the first time I went to an appellate court. A group of us visited the Seventh Circuit, in the company of an experienced attorney. Afterward, I asked him how good the oral arguments were, in his view. None of us as neophytes had a good sense, one way or another. We needed his reassurance that the advocates had been effective, likely in part because our perceptions were distorted by media representations that bear little resemblance to reality.

Conversely, I have sometimes wondered why others cannot do what I do regularly. For example, I give speeches to audiences large and small, on subjects I know thoroughly as well as those I am only learning. I am not especially impressed by myself, but I recognize that true humility also means being aware that I have had more experience in these endeavors than most other people – not to mention formal education. I have been doing public speaking for well over half my life, not to mention the benefits of Socratic dialogue in law school, and I have had my share of humiliating moments that only I now remember.

So there is, as there should be, a difference between what teachers know and can do and what their students know and can do. The best teachers are those who are able to start their students toward becoming their equals.

Context

As a law professor, I try as much as possible to see multiple viewpoints. I believe that my responsibilities as a teacher charged with training advocates requires me to offer them a range of acceptable positions taken by lawyers in actual practice and to ensure they will be effective for any client who retains them. Students benefit from the challenge of articulating arguments with which they may disagree.

There is a specific process of acculturating new members of the profession to legal culture, especially in the first year curriculum, however, which I believe requires our self-consciousness about what is happening. It is the method by which, typically through Socratic method, we ask students to analyze cases by distinguishing those facts that are legally relevant from those that are not legally relevant. This is a very important skill, crucial to everything else that a lawyer is expected to do. It is a deliberate process. It becomes an unnoticed phenomenon. The same sharpening of focus occurs in medical school with the training of new doctors.

Yet it is troubling, because it tends to strip away much of the context that may well have been very relevant to the parties as well as the rest of society, not only motivating them but also explaining the situation: issues of authority, power, race, gender, class, history, personal relationships, and so on. These other facets of the cases we study may be much more important than the aspects that determined the outcome in official terms, at least to all of the participants in a matter other than the judge and the lawyers. Hence the familiar complaint made by even sophisticated lay observers, namely that disputes have been resolved for “technical” reasons. Lawyers tend to be unsympathetic to this lament, for virtually everything they do appears, in particular to those who do not benefit from the ruling, to be “technical” – arguably, that is the whole point of introducing lawyers to a matter, to have them address what is “technical” and thus beyond the skill of those lacking professional expertise.

Matters are more complex than that, too. There is no simple distinction between what is legally relevant and what is not legally relevant. Facts do not come ready-made in the world, stamped as relevant and irrelevant. An integral part of distinguishing precedent is the difficult task of drawing the line; it is contested and dynamic. The controlling law changes over time. In the infamous case of Dred Scott v. Sandford, the Supreme Court made a decision about jurisdiction that essentially turned on the race of the litigant. In its holding, it ruled that African Americans were not citizens. Since then, the case has been repudiated; it is clear that the race of the parties is not legally relevant much less dispositive. In the more recent case of Burger King v. Rudzewicz, the Supreme Court mentioned in a footnote that the relative wealth of the litigants was not legally relevant in determining whether personal jurisdiction was exercised properly. For almost all individual litigants facing corporate adversaries, relative wealth will be highly influential in decisions about where to sue or preferences on where to be sued.

So in my approach, I try both to ensure students are competent by conventional criteria in the mode of thinking that is expected of lawyers and that they are able to challenge that mode of thinking where and when appropriate. The best lawyers not only follow the law; they change it.

Dean Search

As Dean, I play no role in the choice of my successor. Our institution has a strong sense of faculty governance, and it is the law school professors who will have the most important collective voice in determining who leads us next. Although I have abided by the principle that I should not seek to influence the decision, I would like to comment on the process by praising everyone for the collegial discussions that I know have occurred and are continuing. In addition, I believe all of us should recognize the service of Dr. Beverly Schmoll, Dean of the Eugene Applebaum School of Pharmacy here, who has once again chaired the committee. I am confident that with the candidates who have been brought back to meet with all of our stakeholders, a terrific individual will be identified to serve as the tenth dean of this wonderful Law School.

Reading and Writing

I was shocked once to have met a law student who confided to me that he didn’t realize the profession would require so much reading, and, furthermore, he didn’t like to read. I was tempted to advise him he had made a mistake and it would was not too late to withdraw from the first year. Upon reflection, however, I realized he likely had not been encouraged enough to value reading (and writing), and he also was actively misled by the portrayal of lawyers in the media – they hardly ever do any research, but instead appear to rely on their oral advocacy, as if no preparation were needed for effective cross-examination.

Be that as it may, it is crucial for us as educators to cultivate a love of language. My scolding someone that the placement of a comma may turn out to be an issue worth millions of dollars, in a subsequent dispute, will not inculcate the sense that words are powerful enough to change the world, nor will it provide any training in how to make it so.

Perhaps I am naïve, but I believe that the internet will have a salutary effect. It is direct democracy in action, and it enables each of us to become an author capable of communicating with everyone else, cheaply and instantaneously. Our ability to blog or even twitter, on subjects mundane as well as profane, not only gives us power but also allows us to play. As we create, most of us will want to improve. We will want to have better audio and video recording, which is shifting the cultural toward a universal language that could not have been dreamed of (graphic and dynamic rather than literal and traditional), but we also will want to be more skilled in our diction and grammar. In that, we may have hope for advocacy.

Confidentiality

Perhaps the most difficult aspect of our professional training is learning to maintain confidentiality. The lawyers who have done their best to protect the information entrusted to them by their clients, even those who have committed criminal acts, have been vilified by the general public even as they have been celebrated within the profession. It is not easy to cultivate discretion, especially within a culture that has established norms of disclosure of even personal information that an earlier era deemed obviously private.

Nonetheless, as you are trained as an advocate and counsel, you will learn the importance of confidentiality. No matter how much public interest there is in a case you are handling, and even – especially – if your own self-interest would favor revelation over secrecy, it will remain crucial to exercise restraint. The legal system depends on no less.

Endowed Professorships

The other day a student asked me whether we should have more endowed professorships and the answer is a resounding “Of course!” We have a single endowed chair, established by the late Walter Gibbs with a bequest, and when it was set up we were able to recruit a nationally renowned constitutional theorist here, Professor Steve Winter; he had previously taught at Miami and Brooklyn. The Gibbs Chair was crucial to the effort to bring someone of Professor Winter’s stature, to the benefit of our intellectual community as well as reputation.

An endowed professorship allows us to recruit and retain the most talented faculty. They are established when a donor gives us a sufficient gift -- $1.5 million for an endowed chair. As with other gifts for an endowment, the corpus is used to sustain the position permanently; the income, which is made from the investments directed by the university’s foundation, are paid to the holder of the honor. For a donor, it is an opportunity to help the institution, receive the recognition of the title (Professor Winter is the Gibbs Professor), and perhaps even influence the curriculum by supporting a specific specialty.

Much as law firms must compete in the marketplace, so too law schools must do everything possible to ensure talented scholars remain productive and committed to staying. Our faculty are talented enough that they are recruited by other schools, a problem that is preferable to the alternative (professors who do not attract the interest of anyone else). In those efforts to attract the superstars of academe, the prestige of a chair is crucial.

There are other honors, which are conceptually similar to an endowed professorship, that we bestow on our professors. The Honorable Avern Cohn, a United States District Judge who has been generous toward the Law School, established the Cohn Family Scholar position, which is held on a rotating basis by different professors. Professor Greg Fox was the inaugural Cohn Family Scholar, for two years; he will deliver a lecture on historical aspects of his area of international law in the winter semester. Friends of the Honorable Damon J. Keith, an LLM alumnus, set up a Visiting Professor position named for him. As I mentioned earlier, we have begun the search process for the first holder of this position, who will teach a course on civil rights.

As with many other aspects of our mission, we have wholehearted agreement from everyone that it would be desirable to increase the number of endowed professorships. It is the duty of the dean to determine how to ensure that such aspirations are realized.

Advancement

Among a law school dean’s most important responsibilities is advancement of the institution. “Advancement” in this context is a euphemism for fundraising. It is a constant calling. Even public institutions in this era depend heavily on private support.

Like many deans, I have found advancement to be a fulfilling activity, perhaps the best part of the job. Observers sometimes suppose that development (another euphemism) will be a duty that is less than pleasant, but in fact the people whom one sees are generally supportive of the school already and they usually have a sense that they will be asked for money at some point. The interaction is as positive as possible, because it consists of discussing the strengths as well as the needs of our Law School, with someone who is already a stakeholder. They are a friend to us, even if they are not yet known to me. One does not simply accost strangers with a demand for a contribution.

The crucial lesson of advancement, development, fundraising or whatever name we give it, is that people must be invested as more than merely sources of revenue. Otherwise, they will give only once. They must be genuine stakeholders, whether it is as adjunct professors, guest lecturers, moot court judges, or simply attendees at conferences. They must come to campus, interact with us, and feel as if they are part of a community that needs them. So I have found that to persuade them to give time, which is more valuable than money for any of our prospective supporters, is the greater challenge; once they have sacrificed their time, they will follow by offering their money.

The best fundraisers, however, are students. As individuals and in groups, they are far more appealing to virtually everyone, than any dean or faculty member, building, or program, no matter what the message or how articulate the presentation. So I encourage our current students and recent graduates, especially interactions with their peers, to discuss the value of the education they are receiving. It is in their principled self-interest to do so.

As we undertake this activity, it is important to bear in mind that we must express appreciation at every turn. The cliché is true – and it is effective as an appeal – “every penny counts.”

Anxiety

This time of year, first year students begin to feel anxious. It is inevitable and it is true at every law school and of virtually all individuals, regardless of a person’s academic credentials, work experience, or personality. People then become anxious that they are too anxious; in a demonstration of the power of suggestion, they even become anxious that they are not anxious. No advice, whatever its quantity or quality or source, appears especially effective in addressing this phenomenon. Nonetheless, it is imperative to offer at least a few words of reassurance. Most importantly, it is possible to take comfort that one is not alone. Others have suffered the same worries and they have succeeded – finishing the first year and proceeding through the upper-class experiences before beginning wonderful careers in the law or otherwise.

In concrete terms, I would suggest the following.

Form a study group if you have not already done so. Study groups and support networks of individuals who have a seriousness of purpose about their academic work have proven effective and they are likely to work for you. The practice of law is not a solitary activity; there are no hermit lawyers, and there is no need for lawyers on desert islands. The study of law should be social as well, in the best sense.

Write an outline. The process of creating an outline is more important than the product of the outline. An outline that is customized for your professor, your casebook, your course, and your experiences, will be superior to any professionally produced study aid no matter how expensive. There is no substitute for the effort of reviewing and synthesizing that is necessary for developing your own outline.

Turn off your television. Better yet, move it into a closet. This is a test of your desire to be a lawyer: if you cannot stand to do this, you will not be able to make the commitments necessary to do your best for your clients.

Take a break. You had family and friends and hobbies before law school and you should have them throughout law school. There is nothing in the stress of law school that exceeds the stress of legal practice. Indeed, it is likely that law school is considerably more gentle and forgiving than will be clients and courts. It is important, accordingly, to develop good habits and coping mechanisms, which will last once you are a member of the bar. Engage in meaningful conversations, walk the dog, visit the gym, go out on a date, see a movie, and so on. Then, refreshed, return to the serious endeavors before you: motions to dismiss, the meaning of consideration, the rule against perpetuities, proximate causation, and mens rea.

Enjoy the Thanksgiving holiday.

Honors Convocation

Woody Allen once said half of success in life is showing up. I have come to believe that most of the other half is showing up again and reliably.

That said, I regret very much I will miss Honors Convocation. This important annual event, which recognizes students receiving the many awards we confer, along with the generous supporters who have created those prizes, celebrates individual achievement even as it creates a sense of community.

I believe all attendees deserve an explanation of what I will be doing instead. At the risk of immodesty, then: I will be receiving an award, too. The National Asian Pacific American Bar Association (NAPABA), an organization with which I have been associated my entire professional life, is honoring me as a “Trailblazer” at its annual convention in Las Vegas. NAPABA has been an important organization in my development as an attorney. I am humbled to be designated a “Trailblazer.”

Kingsley Browne

I am delighted to announce that Kingsley Browne of our law faculty has published Co-Ed Combat: The New Evidence That Women Shouldn’t Fight the Nation’s Wars. Professor Browne, an expert on evolutionary psychology, does the type of scholarship I believe we should promote, because of its interdisciplinary nature and its attempt to engage with public policy issues in concrete terms. Evolutionary psychology is an exciting line of research that has many implications for the law, but it oddly has received relatively little attention from legal academics. We are fortunate to have someone who is a leader in the specialty among us.

Our great strength as an institution is the strength of our faculty, and Professor Browne exemplifies that. He was one of the few professors here whom I knew prior to becoming Dean. I had met him years ago when we both testified before Congress on affirmative action, offering opposing recommendations. It has been terrific to become better acquainted with him and to engage in further discussions.

Ms.

I have always used “Ms.” in addressing women. I have been surprised that some people have asked why I do not use “Miss” and “Mrs.” It is good, however, to be challenged in one’s opinions, and it is always useful to review one’s rationales.

I have chosen to “Ms.” because it is a counterpart to “Mr.” in the sense that it is a generic social title applicable to people regardless of age or marital status. The use of “Miss” and Mrs.” in contrast distinguishes between unmarried and married women, suggesting that their marital status is a relevant factor even in a professional context; it is unequal in the sense that men are not similarly marked as unmarried or married. The use of “Mrs.” coupled to the husband’s given name and surname is even worse in this regard, for then the married woman ceases to have any individual identity that is discernible.

As it happens, “Ms.” is a word that has a distinct moment of acceptance in the mainstream. Etymologists seem to agree that it was the 1984 election, in which the Democratic nominee for Vice-President was Geraldine Ferraro, a member of Congress, that caused newspaper editors to adopt “Ms.” as never before. Ms. Ferraro had not taken her husband’s last name, and she indicated a preference for “Ms.” Even William Safire, the venerable authority on usage, acquiesced.

Of course, more important than any view I may have is the preference of the person who is named: the trumping principle is that each of us should have the power to declare for ourselves who we are. Thus, if any woman would rather be “Mrs.” or even “Mrs.” with the spouse’s name, I will defer to them.

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DIA

One of the benefits of our location is the concentration of civic institutions and cultural activities. Among them is the Detroit Institute of Arts. You likely know of its fame. The Diego Rivera mural, "Industry," is a world-renowned piece, and it is only part of a tremendous collection.

Dean Sharon Vasquez of the WSU College of Fine, Performing and Communication Arts has been part of the team working on the DIA's renovation. She recently sent me the below and asked that I ensure everyone was aware of the upcoming activities. I am delighted to commend these programs to you.

Please plan to bring a full delegation from your organization or community to our free Public Opening Weekend, November 23-25! On this weekend, the museum will be open for 32 hours straight, from 10:00 AM Friday, November 23 to 6:00 PM Saturday, November 24; and from 10:00 AM - 6:00 PM on Sunday, November 25. There will be wonderful programming and great entertainment for the whole family. Friday night's programming includes "Art After Hours," a high-energy, late-night party with DJs, etc., from 10:00 PM Friday night to 4:00 AM on Saturday! Though it's geared especially towards the "20/30-Something's," it should be great fun for anyone who can stay up that late!

Criticism

This weekend, members of my church visited with our senior minister at a potluck dinner. The group was organized because of concerns about diversity, within a congregation that, by my estimate, is likely already one of the more racially integrated --at least in black and white terms -- that could be found anywhere in the nation. There is still work to be done, though, however much progress can be made.

I was struck by the attitude of the senior minister. He came to us six years ago, accepting the call to this congregation as his first permanent post following seminary, itself rather remarkable given the prominence of the institution. As good as he has proven to be from the pulpit, he has been even better in his ability to manage: the combination of the substance of his sermons and his skills in organizing have revitalized the place. What was remarkable at our informal gathering, however, was his humility and openness to criticism.

It would be easy to conclude that he is able to listen to negative comments, because he has been successful. The better analysis, in my view, ascribes just the opposite casual relationship. He has been so successful, exactly because he demonstrates that rare ability to respond to others with an assumption of their good faith and a shared cause. He is able to envision the future, rather than defend the past.

Announcement

I am pleased to announce that Felicia Thomas will be working in the Admissions Office as the Director of Recruitment & Enrollment. As you know, Ms. Thomas joined the law school last fall in the Dean of Students Office as the Director of Academic Success. Ms. Thomas will attend law school recruiting fairs; coordinate prospective student open houses and informational sessions; provide consultation to prospective students with regards to the Admissions process; and assist in the development of a comprehensive marketing plan to increase outreach and recruitment efforts, among other duties.

Ms. Thomas is a 2002 graduate of the University of Michigan Law School. Prior to joining the law school, Ms. Thomas served as a law clerk to Judge Daphne Means Curtis (WSU Law '73) in the Wayne County 3rdCircuit Court, Civil Division. Ms. Thomas also worked in the Division of Student Affairs at the University of Michigan, Office of Student Activities and Leadership and taught as a graduate student instructor in the UM Sociology department. Ms. Thomas can be reached at 313-577-8040.

Thank you very much.

Traditional Dress

I have made a change to our invitations. I have asked that for every event where we request business attire or black-tie, we also make an explicit note of “or traditional dress.” Such traditional dress might include, for example, a burka. Although some have suggested that anyone who prefers traditional dress will come so attired without being given permission to do so, I believe it is important to signal to them that they are welcome – and, more than that, to indicate to everyone that all are welcomed on equal terms. While I am quite assimilated as a native-born citizen, and I have never been accustomed to anything other than modern Western clothing, I have tried to remember how common it was for immigrants to be casually humiliated as well as to set a new ideal of inclusion.

Time Management

There are many skills lawyers need that we fail to mention much less develop in the formal educational process. Among the most crucial is time management. Especially for lawyers who bill by the hour, it is crucial to become as organized as possible. There are various techniques for doing so that are popular: touching each piece of paper once, taking care of email messages immediately as they come in, the entire “GTD” protocol, and so on. There also is the cliché no less worth repeating: technology by and large does not improve the basic structure of one’s life; a PDA may automate a person’s habits, but it will do only that. It is scarcely worth giving advice, because almost everyone with responsibility already knows what must be done to avoid procrastination and follow up reliably. Each of us must make choices, recognizing that they are choices: choosing priorities and turning down opportunities to ensure commitments that are made are fulfilled.

Faculty

I joined members of the faculty Appointments Committee at the annual Faculty Recruitment Conference this week. It is at this event that law schools interview prospective professors. Most of the entry-level teachers who are hired come through this process.

While there, I noted to the candidates the tremendous strength of our current faculty. The three professors who were there on behalf of our Law School are typical in their productivity. Each is a terrific scholar in his/her own field. Professor Peter Henning, Chair of the Appointments Committee this year, just published a co-authored teaching text entitled Global Issues in Criminal Law. Professor Erica Beecher-Monas, who joined us as a lateral hire from another institution, just published a major academic study of scientific evidence, with Cambridge University Press. Professor Noah Hall, who is still new to the profession, has joined one of the leading environmental law casebooks as an editor. All of them also write law review articles, in addition to fulfilling their responsibilities in the classroom and through institutional service.

The breadth and depth of this work is quite remarkable. I am proud to lead such a group of thinkers.

Broken Window

I want to assure everyone that the central administration of Wayne State University is aware of and is working on replacing the broken window in our building entryway. The window is a custom-made unit, and it may take some time for this to be taken care of. We have asked that the matter be expedited.

How Do You Know?

Lawyers are different from other people. One of the distinctions between lawyers and other people is that lawyers always insist on not only knowing but also knowing how you know. Whether it is with respect to the law or the facts, a good lawyer will always insist on asking his colleagues no less than his adversaries: what is the basis for the argument or assertion; what is your precedent or your proof? This is a crucial aspect of legal practice. It can be do collegially, even politely; it must, however, be done.

Publicity

This time of the year, law school deans are inundated with promotional materials from virtually every school in the nation – glossy, thick, well-produced periodicals, hardcover books, and trinkets ranging from bookmarks to mugs to flashlights to loupes, emblazoned with logos and slogans. Most deans likely take no more than a moment to glance at these items, long enough to be impressed by the cost rather than the substance. Nonetheless, much as law firms have had to market themselves as businesses, so too law schools have no choice but to compete. We are locked into the ratcheting effect of the exercise. Just as law firms have had to raise associate salaries to maintain their rank even if it is barely rational for their clients to pay the resulting billing rates, law schools must constantly strive to outdo their peers.

So it is no longer enough to be good; one must ensure others are aware of how good one believes oneself to be. Evolutionary psychologists who study human nature would counsel us that, even if these efforts have no intrinsic value, they convey information: the school that can afford to spend vast sums of money on advertising is sending at least the message that it has those vast sums of money at its disposal.

I recently received a message from another law school dean. I admire his decision. He said he would refrain from participating in this frenzy, preferring to invest institutional resources “toward scholarshops and educational programming.” Of course, he is no fool. He did wish to inform his peers “of recent developments” at his school. To do so, he relied on digital versions of the same publications that otherwise would have been distributed in hard copy at great cost. He also has been a pioneer in academic blogging. His very declaration of principle ironically has positive PR value.

We do our best to distinguish ourselves on the merits, first and foremost, without neglecting the importance of marketing. We are preparing a series of flyers that target specific types of potential students: out-of-state; highly-credentialed; non-traditional; and so on. We also are developing a series of brochures on the areas in which we boast exceptional strength: health law, international law, intellectual property, tax, among others.

Legal Research and Writing

The legal research and writing course is perhaps the most important aspect of the first year curriculum, because it spans all the remainder of the curriculum and provides the foundation upon which everything else depends. One of the crucial lessons of the course is that the best lawyer reads everything for herself, anew and with care, rather than relying on summaries or memories -- or others. Laypeople (and lazy lawyers) often describe statutes, regulations, and case law, sometimes with a fair amount of accuracy. Even a good summary is still a summary, a memory a memory.

Yet what is crucial is the precise language and the entire text. There are cases that turn literally on a comma, or the difference between “and,” “or” and “and/or.” A lawyer must know the law to apply it, and one must look with care at the words to see ambiguities that allow for argument. Even a senior lawyer who is experienced depends on a more junior lawyer whom she has trained at her peril: it is why supervisors seem so demanding in legal practice, because they must know not only what a person knows but how they have come to know it (about which more later).

If nothing else persuades you to do your own work, consider your client. After all, your client is paying your bill because she would like your expertise – not your reliance on someone else’s opinion.

What a Dean Does: Service

Traditionally faculty are evaluated on their research, teaching, and service. Although there are different levels of emphasis on each aspect of this triad depending on institutional missions that vary among schools, this basic understanding of the role of academics is standard. For administrators such as deans, there is much less demand for research or teaching but there remain considerable expectations for service other than the ordinary day-to-day responsibilities of the position. For example, deans at Wayne State University contribute formally and informally to the central administration processes that govern the university as a whole and to units other than their own. Law school deans typically participate in the activities of the bench and the bar, both locally and nationally: for example, by speaking at conferences and serving on AALS and ABA Committees.

These forms of pro bono service are intrinsically worthwhile. They also benefit the institution indirectly, through the publicity and goodwill that are generated, the contacts that are made (which may lead, for instance, to employment opportunities for students or donations from unexpected new supporters), and the professional development of the dean himself. To a large extent, there also is an expectation that deans will perform enough of this volunteer work that the self-regulating system of higher education is able to function; it is a responsibility because each school itself eventually benefits from the cooperation.

Along these lines, one of the tasks I will undertake this semester is being a member of an ABA accreditation site visit team that will inspect another law school. This is one of the most important forms of service deans perform. The inspection involves every aspect of a law school, from the faculty and the students to the library and the physical facilities. Before the team arrives, a big box of background materials is distributed to it documenting as much as possible. During the site visit, which runs from Sunday to Wednesday, the team interviews representatives of every constituency group. The team then generates a comprehensive written report that it considered and relied upon heavily by the ABA Council that makes the actual decision as to accreditation. Almost all law schools successfully pass the basic test and remain ABA approved. Many of them, however, are subjected to report-back conditions.

As you may know from an earlier post to this blog, the ABA accredits law schools and it conducts an inspection every seven years of any given law schools. Thus, about 1/7 of the 185 or so law schools is scheduled for an inspection in any given year; basically, an inspection occurs every week during the academic year. Our turn is coming up in a year and a half, so much of what is learned behind-the-scenes about the process will directly benefit us.

Professor Bambauer

I congratulate Professor Derek Bambauer on his victory in the annual Ambulance Chase. An expert on intellectual property whom we were fortunate to have been able to hire from a fellowship at Harvard, Professor Bambauer proves his athletic prowess once again. At the “Whack Wu” fencing competition last year, he was a formidable foe on the piste after a single lesson.

I also commend everyone who organized and participated in this wonderful event.

Obscenity

I just realized how effective obscenity and foul language in general can be, if it is used rarely.

I recently saw the movie “Idiocracy.” Directed by Mike Judge, the creator of the MTV Beavis and Butthead characters, this satire, starring Luke Wilson and Maya Rudolph, depicts a dystopia that of course is meant to be didactic. In the future, the entire population of the United States has been reduced to idiocy. Wilson and Rudolph’s characters, selected for an Army experiment in hibernation because they are as average as possible, are reawakened and find themselves the smartest people alive. Among the many examples of the degradation of society is the constant use of the extended middle finger as essentially a means of emphasis. It has lost all meaning.

I also just attended an important meeting. In a board room setting, with a formal agenda of discussion topics, and virtually all attendees in business attire, one of my colleagues wanted to make a point especially emphatically. In the course of his remarks, he said that the contrary argument was “bullshit.” Although it was an unusually strong comment, it was effective exactly because any term such as that likely had not been uttered in that context within the memory of anyone present. If this individual, or any of us, regularly swore, we would cease to be impressed by it.

As we train people in advocacy and leadership, I am reminded constantly of how important words are and how much others, too, are aware of our language choices. Attorneys are successful because they are able to use language better than most others; the best among us invariably become public figures in some sense. We have a responsibility in our communications, to respect ourselves and our audiences – our effectiveness depends on it.

Reunions

Our reunion this past Saturday was a wonderful success, thanks to the efforts of the Advancement Office, especially Frank Castronova, and many volunteers from the different years who formed committees to encourages their classmates to come. Two hundred people RSVP’d, which is more than twice the usual turnout. They enjoyed tailgating at the homecoming football game, tours of campus, and dinner with entertainment.

It is always terrific to see our alumni visit campus, recalling their experiences, marveling at the changes, and renewing acquaintances. It is crucial for us to foster a sense of stakeholding, so that the people whom we have trained continue to feel a meaningful tie to the institution. Like any other relationship, this takes work.

Speaking

I make a living by speaking. Lawyers and teachers do that, and law teachers do that especially. I am flattered that from time to time different organizations will invite me to make public presentations. I enjoy doing so, and I believe many others would as well if they had a better sense of how to do it.

Most people fear public speaking more than they do anything else, including death. So oratorical ability, while perhaps not as prized as it was in the classical Athens that invented democracy, is still a highly valuable skill well worth cultivating.

Perhaps the most important advice I have to offer is that public speaking skill is actually less important than substantive knowledge. That may seem contrary. After all, it seems that leading public figures are able to address any subject, even on an impromptu basis. To be clear, I am saying that public speaking – advocacy – requires genuine understanding of the subject; I’m not referring to acting, using someone else’s script (which is a distinct art I admire greatly). Without an excellent background in the subject, meaning much more than could be disclosed during any presentation, very few of us would have the ability and the confidence to say much that is meaningful and deserving of the attention of large groups for sustained periods. As you study how to speak, study something worth saying.

Then I would repeat the stock advice. Take every opportunity to practice. If you aspire to excellence, you must dedicate yourself to the task. Until it becomes impossible to do so, accept every invitation: unless it has become impossible to say yes in a responsible manner, consider no audience too modest.

For your own intellectual development, develop new material. Even the most articulate persons rely on some favorite stories. Few of us display the ability of the late Robert Kennedy, speaking the night the Reverend Martin Luther King, Jr., was assassinated in Indianapolis, delivering a eulogy that was at once heartfelt and profound. Yet it is important to take risks, integrating original lines suited to the occasion with text well-rehearsed with hard experience. Most listeners will know the difference, and few of them will appreciate rote recitation.

Develop structure. A classic outline structure, described explicitly at the beginning and summarized at the end, is difficult to improve on. It’s fine to use Power Point or other visual aids, especially as you start your career. But the best public speakers are old school: their words alone are compelling.

Finally, I would suggest being aware, not self-conscious, that all eyes are on you. This is true before you stand up and after you sit down. Breathing, posture, hand gestures, the blocking of movements, eye contact should all be considered. Much of the content of your communications, researchers will tell you, is non-verbal.

As a child, I was a stutterer. I grew up with parents who had foreign accents. If I can turn a phrase, you should be able to, too. As my mother said in explaining how I could learn to be fluent in Chinese: “You aren’t afraid to open your mouth and make a fool of yourself.”

Ambulance Chase

I am pleased to once again serve as a sponsor of the Ambulance Chase. Although I am unable to attend the event, I also would like to match the generous offer made by Associate Dean David Moran. As he has typically done, he has offered to donate $20 to the charity for every student who finishes before him, plus $20 to the charity for every female student who finishes within two minutes of him. Against his interest, and mine, I encourage you to participate in this important event and make every effort to show Dean Moran that he is slowing down. Thank you to everyone who makes this student-organized activity a highlight of the year for all of us.

Judge Damon J. Keith

This weekend, I was honored to be invited to a celebration of Judge Damon J. Keith’s forty years on the federal bench. Organized by his former law clerks, the evening at the Charles H. Wright Museum of African American History was a testament to the leadership of a jurist who is committed to the city of Detroit even as he has developed a national reputation for advancing equal justice under law.

Judge Keith, whose grandfathers were slaves and who grew up under the regime of racial segregation, served his nation in the Army before completing his juris doctorate at historically black Howard University. He practiced law in Detroit, while earning an advance law degree at Wayne State University. President Lyndon B. Johnson appointed Judge Keith to the United States District Court. President Jimmy Carter elevated him to the Sixth Circuit.

Judge Keith has always stood up for principle, even if his decisions are not popular. His famous wiretapping opinion, known by his name as “the Keith decision” forbade President Richard Nixon, then at the height of his popularity, from carrying out warrantless wiretaps. His desegregation of the Pontiac schools resulted in death threats. He declared “democracy dies behind closed doors” in prohibiting secret immigration hearings. He also chaired the celebration of the Constitution’s Bicentennial. In every federal courthouse, as well as every law school, there is a plaque showing the Bill of Rights, bearing Judge Keith’s name. A founder of the Detroit NAACP, he has been given the highest award by the national NAACP, the Spingarn Medal. The walls of his chambers are lined with dozens of honorary degrees and hundreds of photos of the Judge with public figures of every type over the past half century.

As impressive as Judge Keith’s career has been and continues to be, his humanity – his humility in particular – is even more important. He seems selfless in his dedication to justice. During his entire tenure, he has commanded enough respect that he has never once had to hold a lawyer in contempt. All law clerks are fond of the judges whom they serve. Judge Keith’s law clerks seem to be devoted to him. One after another, they spoke of the life lessons he imparted, both explicitly and by example. It was apparent that he had changed their lives, giving them an opportunity that they have made good on.

For me personally, I cannot think of a better reason to continue as Dean for this year than to assist the Law School in realizing a vision. The Keith Center for Civil Rights will secure our place as an institution that plays a leadership role within the legal community. It will make us one of only a handful of law schools with a center for civil rights. To be able to work together with Judge Keith is indeed transformative. His life’s work deserves to be continued forever as part of every attorney’s understanding of the obligations of the profession.

Emails and the Internet

I enjoy using email, perhaps too much so. I probably receive upwards of 200 emails per day, not including spam; I send about half that many. The people with whom I work most closely remind me from time to time how important it is to have face to face discussions, because of the limitations of email as a medium: it is tone-deaf and doesn’t allow interactive exchange; as a consequence it creates and exacerbates conflict; and it is too easy to make careless mistakes that are then distributed rather more widely than intended. By now, everyone has had the experience of a message that was meant in jest being read as if one is yelling or of having hit the send button only to regret it a moment later.

I also appreciate the internet. This blog is a form of mass communication that would have been impossible only a few years ago, and the ability to engage in it without almost no effort is a salutary development. The web gives us new powers of creative expression, allows the formation of social networks, and has the potential for changing political structures. Yet the internet also is vulnerable to abuse. Not everything that is thought should be said and the anonymity of the websites seems to encourage a level of discourse that is anything but ideal.

Taken together, email and the internet have a wonderful effect of promoting democracy and equality. I welcome that. Yet they also have consequences that are not as positive. They create a false sense of intimacy and a detrimental informality. I encourage alumni and students, for example, to feel free to send me messages. They should not hesitate to do that. But an invitation to direct access doesn’t also mean that I can or should respond to every concern raised by an alumnus or student immediately, however im