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Emory University School of Law’s faculty is scheduled to vote today on who they want to become the school’s new dean, and some of them are less than enthusiastic about both the process and their choices. Their vote is advisory because the decision rests with the university’s president, William M. Chace, and the chairman of its board of trustees, Ben F. Johnson III, who together will decide whom to recommend to the board. The faculty, as law professor Howard E. Abrams puts it, has neither the power of election nor the power of veto. “It’s a marginal complaint power,” he says. “This is unheard of, and I don’t know why the faculty isn’t up in arms.” It’s true that the faculty isn’t out picketing in front of the law school at at the corner of Clifton and North Decatur Roads. But all is not quiet on the law school front. A two-hour faculty meeting last Thursday afternoon, designed as an open-forum discussion on the candidates, turned out to focus primarily on dissatisfaction with the selection process, according to some attendees. The problems cited include the secrecy employed by the search committee, which won’t even tell faculty how many people it considered for the job; the professors’ limited involvement in the process; and two of the three candidates’ lack of juris doctor degrees. But that’s only one side of the story. The other side, of course, is the search committee. Its chairman, trusts and estates professor Jeffrey N. Pennell, says professors did, in fact, have input during the process. They even were asked to recommend members for the nine-person search committee. And after a nationwide search that included consideration of law professors, judges, managing partners and even politicians, that committee unanimously chose two non-J.D.s, he says. Pennell also defends the committee’s secrecy, explaining that a search consultant recommended keeping information about those considered confidential, for the good of the candidates and the process itself. That’s not where the dissatisfaction ends. According to three law professors, the law school is the poor, underfunded stepchild of the wealthy university. Three more say that though the school has great potential, lack of funding and a need for convivial, public-relations-oriented leadership prevent it from moving into the top tier. The candidate President Chace and the board choose will inherit these issues and a faculty that offers considerably less than a wholehearted endorsement of his selection. THE CANDIDATES The three under consideration are Davison Douglas, 45, who teaches constitutional law at the Marshall-Wythe School of Law at the College of William & Mary in Williamsburg, Va.; Harry N. Scheiber, about 66, who teaches law and history at the University of California, Berkeley’s Boalt Hall School of Law; and Thomas S. Ulen, 54, who teaches law and economics at the University of Illinois College of Law. The candidates’ credentials raise two more points of contention for some Emory law faculty. First, none of the candidates is an Emory insider. Second, though all three have doctorate degrees, two — Scheiber and Ulen — don’t have law degrees. If one of them becomes dean, Emory’s law school would be the only one of 185 American Bar Association-approved law schools nationwide led by a nonlawyer. Harold J. Berman, an Emory professor with a 54-year teaching career at law schools including Harvard, Stanford and Columbia, expressed concern about how the candidates’ lack of J.D.s would play with alumni and students. “It’s a problem,” he says. “It’s not a fatal flaw, in my opinion. … It’s unusual, but maybe we need something unusual.” He met two of them — Douglas and Scheiber — when they visited the campus. “Both of them were very forceful, attractive people, looked to be very promising people for deanships,” he says, but adds, “I’m not sure that the three we’ve seen are better than the insiders.” Another law professor, Andrew Kull, says he hasn’t decided yet which candidate would be best for the school, but acknowledges that he can see why the lack of a J.D. is an issue. “I could see the argument if it makes a difference to other groups of people. Alumni, reputedly, care, and so perhaps the university should care,” he says. But another law professor, Marc L. Miller, says he has no concerns at all about the J.D. deficit. Miller says Ulen and Scheiber have worked with practicing lawyers and judges, and after talking with them and reading their work, he found them “not just capable, but extraordinarily qualified. … You’re talking about people who are successful in top environments.” DECIDING FACTORS The ranking of those environments is an important factor in the dean search, says one law professor who asked not to be named. “Within legal academia, many people take the established reputational rankings of law schools so — underlined, italicize — seriously that any individual candidate will, to a significant extent, be judged upon the ranking of the school from which they hail.” According to U.S. News & World Report rankings, then, Scheiber should top the list. His school, Berkeley, ranked ninth last year. Ulen’s Illinois ranked 23rd. Davis, the only lawyer of the bunch, is from 34th-place William & Mary. Emory tied the University of Georgia School of Law for 27th. Abrams, however, says that the decision about who will be Emory’s next dean turns more on university funding for the law school than on rankings. “My guess is, the deanship will go to the lowest bidder,” he says, referring to the guarantee of school funding upon which dean candidates usually insist. According to Abrams, Scheiber said he would come to Emory if the money were right, and asked for $100 million to fund law school growth and programs. Scheiber did not return a call seeking comment about that figure, and Pennell, the search committee chairman, said he was not at the school for Scheiber’s visit, and so could not confirm the number. Abrams speculated that Davis would be the low bidder, because he seemed eager to leave Williamsburg for Atlanta. “We met him, and no matter what you asked, he gave sort of a politician’s answer,” says Abrams. “He seemed desperate to offend no one.” PROBLEMS WITH THE PROCESS Another law professor who requested anonymity says money isn’t the issue and that he has no reason to think the deanship will go to the low bidder. The problem he has is with the dean selection process. The professor says he has participated in two or three other law dean searches, and this one is the most secretive and least democratic. His dissatisfaction prompted him to opt out of the process entirely, he says, even though he thinks he’ll be happy no matter who is chosen. He hasn’t met any of the candidates and wasn’t planning on going to faculty meetings to discuss them. Abrams isn’t a fan of the selection process either. “Most everybody is unhappy with the process. Most everybody is disappointed that we have serious consideration of nonlawyers. … They’re stunned that we only have one who’s a lawyer, and stunned that nobody asked us,” he says. A nonlawyer dean with name recognition — say, Colin Powell — is one thing, he says. “We’re talking about people whose names no one has heard of. … We were given these four names. We have no idea who was in, who was out, or why.” Emory initially had four finalists, but Alfred Aman, an attorney and dean of the law school at the University of Indiana at Bloomington, withdrew his candidacy in part because his wife got a job in another city. “Jeff [Pennell, chairman of the search committee,] keeps pointing at the 26 inches of resumes on his shelf and saying, ‘We went through all that.’ But we don’t know who they are,” says Abrams. He compares the process to the 1950s hunt for Communists led by Sen. Joseph McCarthy, who claimed to have 100 or so documented cases of Communists in the government, but wouldn’t say who they were. He also complains that the faculty had no input in choosing the search committee. That was done by Chace. DEFENDING PROCEDURE The faculty wasn’t left out, according to committee chairman Pennell. Months ago, Chace and then-provost Rebecca Chopp asked Emory’s law faculty to submit letters recommending committee members, he says. After Pennell was asked to be the chairman, he says, he reviewed those letters and selected a committee designed to represent different interest groups at the law school. As for the charges of secrecy, Pennell says the committee simply followed the advice of a consultant hired to help in the dean selection process. The consultant advised them to protect the identity of outside candidates who didn’t want their home schools to know of their interest in Emory unless they were finalists. She also advised them not to reveal the number of candidates given screening interviews, lest people feel the pool was too large and nothing but a cattle call, or that the process was corrupted because the pool was too small, he says. The professor who opted out of the faculty’s portion of the dean search says he’s disillusioned with the whole process. He cites problems that he says may not be solved no matter who is chosen as dean: governance issues in the law school and university, a need for more carefully considered hiring decisions, curriculum improvements that would move Emory up in the rankings. “It’s a little discouraging to me,” he says. “It’s hard to see how improvement will take place. … The law school is not improving. It’s just not growing. Its stature is not improving.” He’s right, at least in terms of the U.S. News & World Report rankings, which law deans and professors alike love to hate. In the 2001 rankings, Emory and UGA law school tied for 27th place. In the past five years, Emory has ranked in the mid- to high-20s, while UGA has moved up from the mid-30s. “We need to advance our standing with, excuse me for saying so, these damn journalists, the U.S. News & World Report, which affects our standing,” says Berman, the professor who has taught for more than 50 years. He cites New York University’s dean, John Sexton, who he says refused to take the job unless the university gave him $40 million in law school funding. Sexton brought the school from a mid-20s U.S. News ranking to No. 5, according to Berman. “And that all happened because of dramatic changes in the school which attracted everybody, and the acquisition of new people,” he says. LOOKING FORWARD Emory has a tremendous amount of potential, according to Berman. He says the school has the best Islamic and Jewish legal scholars in the country, an outstanding group of professors who teach comparative law and tax and estate planning, and 10 to 15 professors good enough to teach at any law school in the country. “The faculty is outstanding,” he says. “I’m speaking objectively, I really am.” But Emory’s got some hurdles. “We’re very poor. Emory University is heavily endowed, but we don’t get the money,” he says. Chace, he says, has focused his attention on the school of public health and the business school and only now, perhaps, is turning toward the law school. Miller, the professor who says he’s not troubled by the candidates’ lack of J.D.s, won’t discuss Emory’s future in terms of problems. He says the great thing about a dean search is the opportunities it opens for change and institutional examination of what the school needs. “Emory is wonderfully situated to be one of the strongest and most interesting law schools in the United States and indeed the world,” he says. Miller, however, may be leaving Emory. He’s a finalist for the law dean’s job at the University of Oregon. He says he doesn’t see his candidacy there — and lack of candidacy at Emory — as an issue. “Different schools have different needs at different times,” he says, pointing out that Oregon, too, is looking only at outsiders. Sometimes schools need a fresh perspective to make positive changes, he says. He cites the following for Emory: boosting energy, intellectual excitement and scholarship; making connections with the bar and various foundations; and increasing the size of its faculty, with a focus on corporate and intellectual property specialties. For Emory, he says, “It’s time to set the course for the ship, if you will.”

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