Monday, March 13, 2017

The Role of Legal Writing Professors in the Academy: A Reply to Professor Jason Yackee

On International Women's Day last week, the Legal Writing Institute and the Association of Legal Writing Professors launched an initiative aimed at correcting gender and related disparities among U.S. law faculty.  (here)  The announcement, called "the “Full Citizenship Project for All Law Faculty,” was based on "the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women."  The announcement noted, "The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the many women and men who teach in skills-based positions."

In reaction to the announcement on the TaxProf, Professor Jason Yackee made two comments there that showed an egregious ignorance of the role of legal writing professors in the academy.  This post's purpose is to examine the role of legal writing professors in today's law schools.

(more after the fold)

To begin, here are Professor Yackee's comments:

"The equal pay argument makes no sense. LRW faculty, like tenure-track faculty, are recruited in a free labor market. At my school, we get a hundred applications from local attorneys every time we advertise an LRW position. Those folks are thrilled to escape legal practice for a job that pays half of what a tenure track faculty job would pay. Tenure track faculty, in contrast, are recruited on a very competitive national market. If you tried to hire a tenure-track faculty member for $75,000 per year, you would get only the worst of the bunch to accept your offer. On the other hand, you very well would be able to get a very fine LRW instructor. Raising LRW salaries to tenure track levels in that circumstance would be a financial travesty. You would, in essence, be telling students that they need to pay much more in tuition than they otherwise needed to pay, in order to give a salary windfall to people who very willingly would have worked for much less."

"Yes, you could run a law school that hires its tenure-track professors from the local legal market, and it would be a lot cheaper than hiring them through the AALS. But would this be a good law school? It certainly wouldn’t be one that does a particularly good job of engaging in the study of law at an intellectually high level. We make fun of law prof research quite a bit, but it is still hard to do, and most practicing lawyers don’t have the interest in or capability to do it. For law schools attached to major research universities, such a model of hiring would be hugely problematic as well. How would you ever get your law professors through the University tenure committee?

Anyway, the case for “equal pay” for LRW faculty would be more compelling if LRW faculty (and clinicians) were hired through the AALS process, and held to the same standards of prior academic accomplishment and promise of engaging in intellectually serious and interesting research, held to the same tenure standards, and so on. I guess, though I don’t know for sure, that most LRW faculty are recruited from the local legal market. I guess, though I don’t know, that most LRW faculty aren’t expected to conduct legal research at a high level. And so on. The point is that LRW faculty candidates and tenure-track faculty candidates compete in very different markets (usually), and have very different expectations placed upon them. Neither “deserves” a particular salary though. The suggestion that this is what I meant is just silly rhetoric. Tenure-track faculty get higher salaries because they compete in a market in which there is a lot of demand for candidates that have a particular, and relatively rare, set of attributes, skills, and interests. LRW faculty compete in a market in which there is less demand for a different and more common set of attributes, skills, and interests."

I will first respond to Yackee's specific comments, then I will discuss the role of legal writing professors in the 21st-century law school in general.

I said above that Professor Yackee’s comments showed an egregious ignorance of the role of legal writing professors in the academy because his view of legal writing professors is 25 years out-of-date. First, today, most of the hiring of legal writing professors is done nationally and much of it is done through AALS. Yackee makes the odd statement that “I guess, though I don’t know for sure, that most LRW faculty are recruited from the local legal market.” If you don’t know, don’t guess. Second, most legal writing professors do considerable writing on a variety of topics. Third, many law schools do hold legal writing professors to the same standards as doctrinal professors. While many of the law schools that do so give their legal writing professors tenure, others employ their legal writing professors by contract with lesser status and pay.

Here, Yackee makes another ignorant statement based on his lack of knowledge of what legal writing professors do: “Tenure-track faculty get higher salaries because they compete in a market in which there is a lot of demand for candidates that have a particular, and relatively rare, set of attributes, skills, and interests. LRW faculty compete in a market in which there is less demand for a different and more common set of attributes, skills, and interests.” This statement couldn’t be more wrong. Legal writing professors are specialists just like doctrinal professors. It takes special expertise to teach students how to write like a lawyer. Not every attorney can teach legal writing. For one thing, a legal writing professor has to know how to teach–to be an expert teacher. This is one skill that many doctrinal professors lack.

Professor Yackee also presents an out-dated view of the legal academy: “It certainly wouldn’t be one that does a particularly good job of engaging in the study of law at an intellectually high level.” This is Langdell’s concept of law as a science. This is like saying we should still light our home by candles or that we should travel by horse and buggy.

Yes, law school is intellectual, but in the 21st century, law school’s major purpose is to prepare students to practice law. (I would argue that preparing law students to practice law is intellectual.) Law students demand it, and our society requires it to function. Our students will practice law, not just sit around the agora having philosophical discussions. You say “We make fun of law prof research quite a bit, but it is still hard to do, and most practicing lawyers don’t have the interest in or capability to do it.” If this is so, why do you spend your time preparing lawyers to be researchers rather than practicing attorneys?

While Professor Yackee’s picture of the legal writing profession is accurate circa 1990, legal writing professors have forged their place in the legal writing academy over the last 25 years through hard work and dedication to their students. In other words, legal writing professors have given law schools much more than was required of them and they were paid for.

Legal writing professors are dedicated teachers who are experts at teaching. Knowing how to write is one thing; knowing how to teach is another. Teaching requires a great deal of time. Legal writing teachers spend a considerable amount of time designing assignments. These assignments reflect the doctrinal expertise of the drafter in constitutional law, civil procedure, torts, statutory analysis, etc. Correcting these assignments requires even more time. Legal writing professors don’t just slap a grade on a paper. They minutely comment on the doctrinal analysis and the presentation. Legal writing teachers also spend many hours on campus meeting with students. How many hours a week do you meet with your students, Professor Yackee? During busy weeks, I have met with students 20 hours, taught my classes, and corrected assignments till late at night. Most legal writing professors would say the same.

Legal writing professors (as well as clinicians and other skills professors) contribute significantly to the scholarly output of their law schools. In the beginning, legal writing teachers mainly wrote about legal writing topics, but today they write on all kinds of topics, including subjects doctrinal law professors write on. In particular, legal writing professors have shown how the law can be taught much better than it has been under the Socratic and case methods. These professors have gone outside the law school to see how teachers in other fields help their students learn. What they have discovered is a mountain of evidence on how students can learn better. These professors have then brought these new learning and teaching techniques into the law school.

Finally, legal writing professors have contributed immensely to the intellectual lives of their law schools. At most law schools, they interact significantly with doctrinal professors. They give presentations and participate in faculty meetings. Many legal writing professors head faculty committees, and some have become deans and associate deans.

In sum, legal writing professors have contributed greatly to their law schools and legal education. Many faculties have accepted legal writing professors as full members, but many have not. Considering the strain that law schools are under today, doctrinal faculty and skills faculty must work closely together for law schools to survive.

Professor Yackee, if you still doesn't see the value of legal writing faculty, just ask students at law schools with top legal writing programs what they think about their legal writing professors.

(Scott Fruehwald)

P.S. I have been very critical of Professor Yackee above. I considered toning down some of my criticism, but I decided not to because of the importance of my message. I would like to point out that by “ignorance,” I mean lack of knowledge, nothing more. As usual, this blog welcomes comments.

http://lawprofessors.typepad.com/legal_skills/2017/03/the-role-of-legal-writing-professors-in-the-academy-a-reply-to-jason-yackee.html

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Comments

Yes, law schools hire lateral legal writing professors all the time.

Posted by: Scott Fruehwald | Mar 20, 2017 2:22:44 PM

Has one law school ever recruited a lateral hire of a legal writing professor from another law school? If the practice is not common, then either they aren't underpaid or there is a golden opportunity for some law school to leap to the front ranks by hiring those underplaced writing professors.
One must not confuse market price with true value. Law schools would become unbearable except for the good efforts of the janitors, but that does not mean the janitors and professors should have the same salary.

Posted by: Eric Rasmusen | Mar 20, 2017 11:54:58 AM

A solid, well-reasoned reply to Professor Yackee. LRW faculty are indeed not only specialists teaching a highly important, essential skill, but in my judgment, they are among the most important members of the legal academy. The reply is on target.

Posted by: Emil A. Ricci | Mar 14, 2017 9:03:38 AM

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