Saturday, January 2, 2010
Posted by Jeff Lipshaw
Back in August, the ABA Journal ran a story on a Michigan lawyer and academic aspirant, Donald Dobkin, who was suing the University of Iowa Law School on an age discrimination theory. Usha Rodrigues commented over at The Conglomerate, and I opined as well, generating some debate about whether he had alleged the basis of a good claim. Mr. Dobkin has responded in a comment to the August post, and I thought it deserved not being buried back in the comments.
First, some context. As I read the reports, this is an age discrimination claim. Here were some of my comments back then:
Much as I think it's questionable policy, it doesn't take much to overcome the initial prima facie burden in an age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all Iowa would have to do is satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA. According to one of the news releases I saw, the complaint is based on his response to the posting in the AALS Placement Bulletin. I don't know which one, but it happens that the AALS posts a sample placement bulletin on its website, this from 2006, and it happens that Iowa had an ad in that issue that is very typical of these kinds of ads: "Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College. Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in administrative law, business law, constitutional law, criminal law, disability/health law, immigration, intellectual property, law and economics, property, regulated industries, and taxation." Apropos of my comment about naivete, that's the classic laundry list, probably reflecting a myriad of conflicting views within the faculty about the school's top hiring priorities. As applicants and faculty members know, that's often not sorted out until the last debate among the whole faculty, and is one of the reasons I suggest in the "Retire and Teach" article that you not assume anything until you actually have a call from the dean extending you an offer.Here's Mr. Dobkin's comment, posted this morning (the text, as well as the metadata on the post, satisfy me that it really is Mr. Dobkin!):
Now having read all of the posts from this blog as well as many others it is readily apparent how one sided the comments are from members of the academy and just how insular the entire community appears. The posts reflect several errors which I shall note as follows. First, I can assure all that I am not naive. I spent 5 years at this academic endeavor since retiring from active practice. I published 5 law review articles in less than four years. I am halfway through a significant book on the US immigration mess. I presented papers several times at scholarly meetings. I spent a year at Johns Hopkins in the graduate program in PoliSci only to be told that it was a waste of time since nobody would hire a 60 year old. I am a graduate of a mega-elite law school, Northwestern, in case no one has noticed. I am a member of the Martindale Bar Register of Preeminent Attorneys (which I assume counts for nothing with all of you). I registered 4 years in a row with the FAR and never got an interview. I applied for visiting professorships and was rejected. My conclusion after going through all of the above is that unless one meets the academy's gold standard profile, as I call it, i.e. Harvard, Yale, Stanford J.D., Sp. Ct. clerkship and 1-3 years with the Justice Dept. your chances of becoming a law professor counts are slim. Long experience and knowledge as an accomplished professional counts for nothing in the hiring process. Quite amazing given the fact that law professors are given the awesome responsibility of preparing law students to become future lawyers. Accordingly, I concluded that I could not get a fair shot at landing a position under the paradigm currently utilized by the academy and that I needed to shift the playing field to one where I would have a chance, i.e the courtroom.
Assuming we can get to a jury, Iowa has a problem, because at the end of the day we will turn the trial into a question of who is more competent to teach immigration and administrative law. Is it the two younglings who had no practice experience in the field, had no or few publications in either field or myself--a candidate with 7000 cases under his belt, a graduate degree in law from an elite school, and more publications in the field than both candidates combined? Can you imagine a prospective juror, let's say a plumber from Iowa working 6 days a week to put his son through law school listening to all of this. Who do you think he is going to favor to teach his son to become a future lawyer--someone with mega practice experience and the scholarly credentials to boot--or the two neophytes who were offered the position?
Some comments below the break.It's not my place to defend the University of Iowa Law School, nor do I dispute the general idea that the legal academia could do a whole lot better balancing what legal academics want out of their careers with what needs to be done to educate new professionals (see Andy Perlman's gaze into the future). We are working on a transactional curriculum at Suffolk for just that reason. (I hope I haven't gotten insular or co-opted in my five years in the academy, but I'll claim at least equivalent real world practice bona fides, and something less than the gold standard of academic qualification!) My issue continues to be the trivializing of a serious issue in the guise of an trial, which Mr. Dobkin seems to concede needs a pretext of an age discrimination claim to get to the real issue he wants to try: whether he's more qualified or competent than a newbie prof to teach immigration law. Personally, were I litigating the case, I'd stipulate that there is nobody more qualified in the world to teach and write on immigration law than the plaintiff! That's not the issue, however.
The only question in the litigation is whether Iowa had a legitimate, non-discriminatory basis for not interviewing (much less hiring) a candidate whose admittedly superior qualifications are nevertheless restricted to an extremely narrow field, and one that is not untypically covered by adjunct professors. From my earlier comment: "As I said in "Retire and Teach", there doesn’t seem to be any way out of getting long experience without at the same time getting older. Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive based on my own teaching adventures that it is. But it's not the only element in the management of law schools to be considered, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring."
I have to add that, in my view, the hoary strategy of "getting to the jury" to be able to nullify, emote, or punish beyond the strictures of the claim itself is an ethical issue that goes beyond pure legal ethics, but that's for another time.