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Facilitating Distinctive and Meaningful Change Within U.S. Law Schools (Part 2): Pursuing Successful Plan Implementation Through Better Resource Management

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Facilitating Distinctive and Meaningful Change Within U.S. Law Schools (Part 2): Pursuing Successful Plan Implementation Through Better Resource Management Penn State Dickinson Law Dickinson Law IDEAS Faculty Scholarly Works Faculty Scholarship Spring 3-19-2020 Facilitating Distinctive and Meaningful Change Within U.S. Law Schools (Part 2): Pursuing Successful Plan Implementation Through Better Resource Management Patrick H. Gaughan The University of Akron School of Law, [email protected] Samantha Prince Penn State Dickinson Law, [email protected] Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/fac-works Part of the Legal Education Commons Recommended Citation Patrick H. Gaughan and Samantha Prince, Facilitating Distinctive and Meaningful Change Within U.S. Law Schools (Part 2): Pursuing Successful Plan Implementation Through Better Resource Management, 18 U. N.H. L. Rev. 173 (2020). This Article is brought to you for free and open access by the Faculty Scholarship at Dickinson Law IDEAS. It has been accepted for inclusion in Faculty Scholarly Works by an authorized administrator of Dickinson Law IDEAS. For more information, please contact [email protected]. ® Patrick H. Gaughan & Samantha J. Prince Facilitating Distinctive and Meaningful Change Within U.S. Law Schools (Part 2): Pursuing Successful Plan Implementation Through Better Resource Management 18 U.N.H. L. Rev. 173 (2020) ABSTRACT. In Part 1 of this series, one of the current authors used institutional theory, behavioral economics, and psychology to explain why U.S. law schools have had difficulty evolving faster and better.1 The author then used institutional entrepreneurship to propose a seven-step, faculty-led, operational change process designed to overcome institutional isomorphism and to enable each law school to formulate a distinctive, meaningful, strategic plan. In Part 2, the current article addresses the typical implementation challenges to be expected within the context of existing law school governance. The article begins by discussing the Resource Based View of the firm and the role of resource management in achieving competitive advantages. These considerations lay the foundation for the critical role of faculty engagement and law school leadership in successful strategic plan implementation. Next, within this context, the article discusses four questions whose answers may foreshadow implementation problems. Lastly, the article discusses the results of several Monte Carlo Simulations. The simulations provide insight into the likely performance problems caused by faculty misaligned with, or disengaged from, their law school’s strategic goals. The results suggest that even minimal faculty misalignment can have a significant deleterious effect on the ability of a given law school to achieve any distinctive position. All told, the article concludes that U.S. law schools can successfully implement distinctive and meaningful strategic plans within existing shared governance structures. However, success will be difficult to achieve. It requires the full engagement and leadership by both the faculty and the Dean, sustained operational support for strategic change, and the active management of law school resources. AUTHORS . Patrick H. Gaughan is an Associate Professor of Law at the University of Akron. He earned his B.A. from Columbia University; M.B.A. from Trinity College, Dublin; J.D. from the University of Virginia; and his D.B.A. (International Business) from Cleveland State University. 1 Patrick H. Gaughan, Facilitating Meaningful Change Within U.S. Law Schools, 16 U.N.H. L. Rev. 243, 302 (2018). 173 THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 1 8 : 2 (2020) Samantha J. Prince is an Associate Professor of Lawyering Skills and Entrepreneurship at Penn State Dickinson Law. She earned her B.S. from Muhlenberg College; J.D. Widener Commonwealth Law; and LL.M. (Tax) from Georgetown University Law Center. The authors would like to thank (in alphabetical order); Professor Martin H. Belsky, University of Akron School of Law; Dean Danielle M. Conway, Penn State Dickinson Law; and Dean Joshua P. Fershee, Creighton School of Law, for their valuable comments on earlier drafts of this article. We would also like to thank Assistant Dean Bekah Saidman-Krauss and Gregory Archibald for research assistance. Additionally, given that part of this article was drafted while Patrick H. Gaughan was on a Fulbright Scholarship to the Socialist Republic of Vietnam, he would like to thank the J. William Fulbright Foreign Scholarship Board, Hanoi Law University, and The University of New Hampshire Law Review for their flexibility in enabling the completion of this article. Any and all defects are solely the authors’. 174 FACILITATING DISTINCTIVE AND MEANINGUL CHANGE (PART 2) INTRODUCTION ............................................................................................ 176 A. Overview ..................................................................................................... 176 B. The Seven-Stage Process and The Implementation Challenge ...................... 178 I. PURSUING SUCCESSFUL PLAN IMPLEMENTATION THROUGH BETTER RESOURCE MANAGEMENT ..................................................... 181 A. The Theoretical Foundation for Managing the Implementation Process ....... 182 1. The Resource Based View .............................................................. 182 2. Three Types of Firm Resources ...................................................... 184 a. Physical Capital Resources ...................................................... 187 b. Organizational Capital Resources .......................................... 188 c. Human Capital Resources ....................................................... 189 3. RBV and Strategic Human Resource Management ..................... 190 a. The Concept of Vertical Fit ...................................................... 191 b. The Concept of Horizontal Fit ................................................. 194 4. The Critical Role of Engagement and Leadership During Implementation .............................................................................. 197 B. Four Key Questions Related to Achieving an Optimal Implementation ........ 199 1. Does Your School Have a Clearly Understood and Supported Strategy? .......................................................................................... 199 2. Does Your School Have Objective Goals Linked to a Timetable? . 202 3. Does Your School Align Its Operations with Its Strategic Priorities? ....................................................................................... 204 4. Does Your School Pursue Characteristics that are Both “Meaningful” and “Distinctive”? .................................................... 207 C. Modeling the Impact of Faculty Alignment on Implementation Success ....... 214 1. Scenario 1: Neither Faculty Alignment Nor Leadership ............... 218 2. Scenario 2: Incomplete Faculty Alignment and Leadership ........ 220 3. Scenario 3: Complete Faculty Alignment and Leadership ........... 221 4. Implications of the Different Scenario Outcomes ....................... 222 CONCLUSION ................................................................................................ 223 175 THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 1 8 : 2 (2020) INTRODUCTION A. Overview Undoubtedly, in recent years, U.S. legal education has been under mounting pressure to change. The practice of law has changed.2 The needs of the public have changed. 3 The demographics of U.S. lawyers and judges have changed. 4 The geographic reach of the law has changed.5 The depth and scope of law in daily life has changed.6 The technologies used in the practice of law have changed.7 The demands upon lawyers have changed. 8 And, the market for legal services has changed.9 Curiously, within the broader context of extensive environmental change, U.S. legal education has remained largely constant. This relative intransigence is 2 See Julie MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law 2 (2008). See also Ray Worthy Campbell, Law School Disruption, 26 Geo. J. Legal Ethics 341, 353–56 (2013). 3 See Jason M. Dolin, Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession, 44 Cal. W. L. Rev. 219, 220–21 (2007). 4 See Gaughan, supra note 1, at 298. See also Robert L. Nelson, The Futures of American Lawyers: A Demographic Profile of a Changing Profession in a Changing Society, 44 Case W. Res. L. Rev. 345, 346 (1994); Ashley Hart, Note, Sexism “Related to the Practice of Law”: The ABA Model Rule 8.4(G) Controversy, 51 Ind. L. Rev. 525, 525–26 (2018); Danielle Root et al., Building a More Inclusive Federal Judiciary, Ctr. for Am. Progress (Oct. 3, 2019, 8:15 AM), https://www.americanprogress.org/ issues/courts/reports/2019/10/03/475359/building-inclusive-federal-judiciary/ [https://perma.cc/ NU5W-L8TE] (last visited Feb. 20, 2020). But see Steven A. Ramirez, Foreword: Diversity in the Legal Academy After Fisher II, 51 U.C. Davis L. Rev. 979, 980 (2017). 5 See generally Tonya L. Putnam, Courts Without Borders: Law, Politics, and U.S. Extraterritoriality 6 (2016); Patrick Emmenegger & Katrin Eggenberger, State Sovereignty, Economic Interdependence and US Extraterritoriality: The Demise of Swiss Banking Secrecy and the Re- embedding of International Finance, 21 J. Int’l Rel. 798 (2018). 6 See generally Robert A. Kagan, Adversarial Legalism: The American Way of Law (2d ed. 2019). 7 See John O. McGinnis & Russell G. Pearce, The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services, 82
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