Friday, August 10, 2012

Job Security, Law School, and the Bigger Picture

UPDATE: There are so many comments that the blog hasn't been displaying all of them. To comment on this post or its comments, click here to the Comment Glitch post.

It is extremely rare that we engage in navel gazing on this blog, although we do talk about university and law school employment issues on occasion. Each one of us also rarely promotes our own institution or own work, instead leaving it to our co-editors or to others entirely, but I'd like to make an exception to those cultural norms given some of the extraordinary things going on connected with people at my own institution, Saint Louis University School of Law, or SLU. And before I begin, please note that the contents of this post reflect only my own views, not those of my co-editors, my school, my colleagues (all of whom are fabulous teachers, scholars, mentors, administrators, and people), or our wonderful students and alums (who are smart, hard working, and will make or already are great lawyers).

I'm sure many of you have read about how our Dean, Annette Clark, resigned and you may also have read the letters she wrote to President of the University and to us, and his response to us and appointment of our new Interim Dean -- or at least read about them. You may also have read, like I have, some of the reactions to these letters and actions. This controversy is not the only one that touches people connected to SLU. Jeff just posted about the recent Sixth Circuit case concerning my colleague Lynn Branham, holding that tenure provided no job protection unless it was defined in the annual contract between the faculty member and the school. Both of these developments show us that even those with tenure in powerful positions don't necessarily have any job security or protection.  

I'm not going to talk about the details of these events or the letters related to Dean Clark's resignation (I have strong feelings, but this is not the place to discuss those), but I do want to have a conversation (or contribute to an ongoing one) about how it all fits into bigger changes and what they might mean.

One of the most compelling pieces of this for every law professor, student, or person thinking about going to law school is the way these events are seen as having some relationship to the problems law schools and universities face right now: the high cost of higher ed. and especially law school, declining enrollments, declining financial support from sources outside of tuition, and the "worth" of earning a law degree. Above the Law (I'm sorry, I can't link to it because the comments give me Auto-Admit flashbacks) saw the resignation as resistance to university efforts to use the law school as a cash cow, and much of the debate in the comments there (shudder) and at least some to Paul Caron's initial post have focused on whether, to the extent the fight is over money, the money is for the benefit of students or faculty.

Implicitly, and sometimes explicitly, the message on one side is that if the money was to be spent on research stipends for faculty, that expenditure is not legitimate and should not be made by the law school (or the university) in the first place. Sometimes that's expressed as skepticism that any research actually is done, hostility that it should be separate from and in addition to the "regular" salary a professor earns, or hostility to the value of research period. In the events at SLU it has at least partially been suggested that those who engage in scholarship or encourage students to do so are not teaching students what the students need to learn. On the other side, there seems an unspoken assumption that research is not only a legitimate part of what a law school should do, but that it's imperative to engage in a lot of it. These themes resonate with the larger scamlaw narrative so popular at the moment -- and no links here either because I don't want to promote that narrative -- which has us "stealing" from students for our own selfish desires, or the more measured critiques by people who call our attention to the problems with the current "business model" of the law school. 

Absent from all of this debate, at least what I have seen of it, is much real progress with the pressing issues that we individually and institutionally are all struggling with. In particular, what it is a law school should be doing for students, what they need to know or have mastered by the time they leave, who else is served who wouldn't be if we didn't exist, and how to structure it all to serve those constituencies. And of course I'm thinking of many of these things in employment terms (like job security and status) as well, considering that it's the kind of workplace I am in and because that's just how I see lots of things (hence the whole Workplace blogging). Increasingly, I'm frustrated by what looks like the same old dualistic tropes --teaching v. research, skills v. doctrine, doctrine v. theory, academic v. professional school, liberal arts v. technical education, tenured v. contract, at-will v. job security -- without digging into these labels or categories in the first place. And the rhetoric that puts what we do in business terms -- business model, deliverables, outcomes, opportunity costs, returns on investment -- troubles me too because it seems to already presume that some things may not have value unless they are easily commodified.

Anyone who has talked to me recently is already tired of hearing me say it, but I think each of us and each of our institutions needs to be able say what students and the public gain from what we provide and how. Fundamentally, if we can't articulate that, then why are we doing it? The next challenge will be to make our explanation explicit enough -- devoid of jargon and assumptions as insiders -- so that someone outside of our environment will understand, but we can't hope to get there if we don't start internally.

Here's my take. I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients.

Teaching, of course, is vital, but teaching requires learning, and learning is not something that occurs within the teacher. Learning occurs inside the head of the student, and students have to learn, not just information, but more importantly to perform a process that is fluid and adaptable, and to master a number of difficult skills, internal and external. We can't just open the top of a student's head and pour in the learning.  Most of the law professors I know and have worked with take this very seriously and constantly work at ways to accomplish this for their students who have different needs and abilities, but we don't talk much publicly on how we do that.

Finally, there are many ways in which different members of the law school community contribute to teaching and mentoring students, serving the public, and contributing to the growth of their professions. Those need to be identified, explained, and valued too.

I'll end here because I've rambled quite enough, but I see this debate also fitting into other debates right now, some of which only seem to have one side:

  1. the view that elementary and high school teachers are the enemies of students, obstacles to their education and lacking any expertise on how to help kids learn or what they should master;
  2. the debate over public employee pay and benefits;
  3. the debate over unions in both the private and public sectors;
  4. the debate over the worth of higher education;
  5. the push to marketize everything.

I'm sure I'm missing some, but in all of these debates, there are assumptions about value (to whom), cost, and support that are unspoken and unexamined.


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Fantastic post, Marcia. Thank you,

Posted by: Jason Solomon | Aug 10, 2012 3:39:17 PM

With respect, I just read a book that you recently co-authored about Becoming a Law Professor and the book makes very clear that being a law professor is more about writing than about teaching. While I am glad to see that you view teaching as vital, that does not appear reflect the values of many full-time members of the legal academy that I have come across. Being a law professor is primarily about scholarship and only a certain type of scholarship-that is scholarship that focuses on legal theory. It is also about the journal ranking of the publication. Who cares if it is not cited?? Well, I care and in my view, it is a waste of resources to put so much of a focus on legal scholarship.
Most law professors who get hired today have very little teaching experience and their is a significant amount of legal scholarship on legal education (a practical subject) which recognizes this problem.
In my little fifth class world as an adjunct law professor (after tenured, tenure track, clinicians,and legal writing profs), it seems to me that the ivory tower is starting to fall. Whether this is at all relevant to your school, I cannot comment on, but I know that many share my views. Tell me that I am wrong. I want to be wrong, but I do not think that I am.

Posted by: Mitchell Rubinstein | Aug 10, 2012 6:54:36 PM

Thank you for this, Marcia. As to Mitchell -- you express a sentiment that is common, but mistaken in the world I live as faculty member. Teaching is a central component of the job; we routinely pass over faculty candidates who don't express enthusism for students and show some promise of outstanding teaching and would pass over for tenure someone who didn't do at least very well in the classroom. In the world we now live, where there are so few slots for faculty and so many people who show extraordinary promise as teachers and scholars, schools are able to hire entry-level candidates who have great promise as both.

Posted by: Alfred | Aug 11, 2012 8:56:50 AM

Marcia, thank you for setting out your ideas amid what I'm sure is a tumultuous time at your law school and university.

I fear that, like our national politics, a lot of the important big picture issues in legal education are avoided or neglected, including many of the items you discuss in your post. And, as you note, too much of our discussion is framed within those business models that so many appear to be worshipping -- oblivious to the irony of how business models have led us to the meltdown from which we have yet to recover!

I also believe there are kernals of truth in what Mitch is saying, though as Al suggests they differ widely from institution to institution. I do think there is an unfortunate trend at regional law schools to mimic the hiring criteria, scholarly orientations, and attitudes toward teaching that have characterized some of the elite law schools. It is leading us to less diversity in scholarship, less understanding of the challenges facing our students, and more homogeneous faculty demographics beyond the check-the-box diversity categories.

David Yamada

Posted by: David Yamada | Aug 11, 2012 1:09:35 PM

I wish you were right. Maybe things are different at your school. And then again, maybe at some schools the faculty will never admit that teaching is only of secondary importance. And just for the record, I believe in legal scholarship and have published 16 law review articles and have been widely cited. Marcia quoted Cornell Law Professor Brad Wendel in her book about a year ago who explained:
"Teaching is of secondary importance only. In fact, I sometimes tell students not to think of their goal as getting a "teaching" job at all. It's really a writing job. You will be hired, evaluated, given tenure, promoted, and recognized in the profession based almost entirely on the quality of your scholarship. Even at law schools that make a big deal out of classroom teaching, you will be expected to produce good scholarship. If you are wondering whether a teaching writing job is for you, try this acid test: Do you have several, maybe even dozens of good ideas for law review articles that you really have to write? Do you find yourself reconceptualizing some theoretical question pertaining to law while you're taking a shower? Do cases, articles, or books you read make you mad, make you wonder how seemingly intelligent people can think such silly things? Are you someone, as Max Weber says you must be, who believes that "the fate of his soul depends on whether or not he makes the correct conjecture at this passage of this manuscript"? If the answer to at least one of these questions is yes, you may be enough of a law geek to make it in this profession."

Posted by: Mitchell Rubinstein | Aug 11, 2012 1:30:47 PM

As for the quotation from Wendel: His acid test is perfectly consistent with good classroom teaching--all of that intellectual passion and engagement he talks about is precisely what good teachers bring to the classroom. As to the first part of that, that's his take on things and I have no idea how we establish, beyond anecdotal, which view is more common or pervasive.

FWIW, my experience as a law student and a member of three faculties comports with Al's: The overwhelming number of faculty care about teaching and genuinely put forth a lot of effort, even if they are not regarded, objectively, as the top teachers. And I have repeatedly seen a positive correlation between good teaching and good scholarship.

Posted by: Howard Wasserman | Aug 11, 2012 3:18:28 PM

Judging from the reports I have seen of the recent events at SLU, the University's objective seems to be to divert resources from the Law School. I fail to see how this can improve the quality of legal education in any respect. Thus, I do not see how these actions can serve the interests of any of the law school's stakeholders. That said, I worry that Professor McCormick's post reflects a kind of complacency that is all too prevalent in legal education.

Seemingly in passing, Professor McCormick mentions her colleagues, "all of whom are fabulous teachers, scholars, mentors, administrators, and people." Can this possibly be true? Is SLU the kind of Lake Woebegone in which "all" faculty are not merely above average, but "fabulous"? Even if this was intended as a kind of pro forms comment that is not to be taken literally, it reflects a mindset that should be of concern.

Professor Mccormick believes that legal scholarship benefits both the public and our students, by improving the quality of our teaching. We hear sentiments like this frequently among legal academics, rarely supported by anything approaching rigorous proof. Those who have systematically studied legal education, such as the Carnegie Commission, rarely reach similar conclusions.

As legal academics, we labor under a rather potent conflict of interest in assessing the value of our scholarship. Resources that enable us to produce scholarship frequently advance our own careers in a fairly direct way, making us all too liable to overestimate their value to our students. We usually view with great caution the opinions of others who labor under conflicts of interest when they defend commitments of resources to themselves (think of corporate officials who defend their lavish compensation). We should be similarly suspicious of our own motivations.

It may well be the case that our own scholarship helping us to explain to our students how to "start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients." The is, however, a seriously incomplete account of what clients expect from their lawyers. There is also considerable reason to doubt that developing the skills required for success in scholarship means that one understands the skills required to meet one's clients needs. I recently published an article about the relationship of success in scholarship to the ability to impart professional skills to one's students, focusing on the legal career of John Yoo, who was considered rather a scholarly superstar but proved to be quite a poor lawyer (see He represents a good example of someone who enjoyed great success as a scholar without evidently developing the skills required to meet the needs of a real world client. As I spend perhaps too many words demonstrating in my article, the Bush Administration itself found it necessary to repudiate an extraordinary volume of Professor Yoo's legal work.

With respect, I think we need to be a good deal more skeptical about our own motivations, the value of our own scholarship, and a good deal more concerned with the kind of skills that our graduates will need to succeed in the marketplace. That is what a rapidly changing market is now demanding of legal education, and we ignore the demands of the market at our own peril.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Aug 11, 2012 3:55:57 PM

“Summer research stipends are a standard part of faculty compensation at the vast, vast majority of law schools," he said. "The president's actions are going to send productive faculty out the door.” – B. Leiter, Chicago Daily Law Bulletin, 8/9/12

I am sure that each and every law professor believes that his or her research is of immense value to students, the profession, and the ungrateful public. Generally, that is a self-serving lie--witness the rarity with which law review articles are cited by reviewing courts and administrative agencies.

However, even placing tongue-in-cheek, and accepting the immense value of your law review articles, have you considered doing your summer research projects on a pro bono basis? Must your palms be greased with even more of your students’ money? If you look to the practitioners in the field you purport to “profess,” you will find that many do pro bono work; indeed, some state bars require it. You will also find that many, such as legal aid lawyers and public defenders, do work of immense value for a fraction of what law professors “earn” (from money that your students borrow and will spend many many years paying back).

Law professors, with their six-figure salaries, meager workloads, and freedom from the stresses and frustrations of practice, are the last persons who should be complaining that they are unappreciated or unrewarded. And that is especially the case when those law professors “teach” at poorly regarded law schools such as St. Louis University, where the scamblog “narrative” (as you call it), will become horrifying reality for most of your graduating students.


Posted by: dybbuk | Aug 11, 2012 6:41:42 PM

Thanks to all of you for reading and engaging in the substance of my post, and I especially appreciate the support of Jason, Al, David, and Howard, whose work I admire very much. I'll try to address the critiques raised, but I think that actually, many of them get at why it is I think each of us needs to be able to do this for our own kind of work. I'm not interested in justifying my salary or job security (tenuous as it is), and I think that lots of the distinctions that get made among people who work in law schools are not defensible. I also think that tuition is too high, that law schools and lawyers have a responsibility to the communities they are a part of, and that there is a gap between the need for legal services and people willing/able to provide them. My goal by arguing for some articulation of value for scholarship is as first step to discussion and change, not an end point for rationalization. I also want to get people to talk about what techniques they use to teach and why. If they don't know, then maybe those techniques aren't valid. And if they do, then people need to hear about them so that they know the value of those techniques.

Mitch, you are right that my co-authors and I described what law professors do as writing. We also talked about teaching but we emphasized writing partly because that's the piece we believed most of those who made up the audience for our book would not realize was so important, and partly because it does seem to be what schools focus on in the hiring process and often what gets rewarded once a person is hired. That book was not a defense of that, nor did we weigh in on what "counts" or why. In fact our refusal to talk about what scholarship should be was Sam Buell's main critique in the review of the book he published in the Michigan Law Review. At the same time, we thought that the shift from looking at credentials alone to looking at what people were writing had tremendous potential to open doors for people not traditionally hired to be law professors. People like me who may have gone to state schools or non-elite private schools, not clerked for a judge, and had significant practice experience.

And you may very well be right that a certain kind of theoretical scholarship looks like it's privileged in decisions about hiring and about tenure or compensation once someone is hired. If that's true, I want to know why, and I'd like to hear someone explain a defense of it. If no one can, then no school should be doing it. It is possible that part of the answer is that this kind of scholarship is popular, it makes other law professors and second year law students at elite schools think the writer sounds brilliant, which causes the writers to get published in elite law journals, all of which leads to a good peer review score and higher rankings in U.S. News. Lots of people think that's valuable--even to students. Lots of people don't. But if we name that value then we can argue about whether to adopt the value, which is what we should debate for purposes of transparency at least.

And in response to Mitch, David, and Larry, I also didn't mean to offer blanket justifications for anything, presume that good scholars are automatically good teachers (or good lawyers--or that good teachers are good lawyers or vice versa), or assert that students are the only beneficiaries of law schools or of scholarship. On this last point, I think there is public value in lots of kinds of research (not just legal research and not a single kind of legal research), and that research should be supported by public and maybe donated funds (not solely or maybe even mostly by student tuition, although maybe partly). I also didn't mean to define what scholarship is. There is a lot of research and writing that many wouldn't include under the traditional definition of scholarship that is hugely beneficial to the bench, bar, students or the public more generally.

The point about our motivated cognition to overvalue our work is well taken. That's why I'm urging critique. And again, if we can't explain why what we do (the techniques we use to teach, the kind of research we do, and where and how we write about it and with more particularity than I did in my own post because I was trying just to get things started) then there is no reason to do it, much less to get paid to do it.

Larry, I didn't mean to offer a complete account of what lawyers do, either, but I stand by my characterization as that being the essence of what lawyers do. We teach students who are going to practice in a wide variety of contexts and who may have no idea what kind of practice they will have. And different practice areas obviously require different skill sets. Yet there must be some common ground or law school has been doing it wrong for a very long time (and actually, the Carnegie report found that law school was doing lots of things right). Imposing order on chaos and communicating that to a court, to my supervisors, and to my clients is what I did as a litigator (my practice was nearly identical to yours) by researching and writing briefs, persuading courts of appeal of my position, and by helping my government clients decide whether to pursue enforcement actions, settle, or defend suits brought against them. Of course there were a lot of additional more concrete skills needed to do the kind of work I did, some of which may be true of lawyers generally, and some of which may not. I do think think that transactional and in-house lawyers impose order on chaos and communicate that when they structure deals, write plans or policies, or help their clients navigate the law. Lawyers are constantly learning and mastering new skills as they progress in their fields. The ability to do this for themselves is vital.

The only thing that I'll say about my characterization of my colleagues is that "fabulous" is a qualitative term that does not have a comparative connotation. Things have been rough, and I want those outside of SLU to know that these are people who don't deserve to be considered selfish, lazy, incompetent, callous, or indifferent to students or our community. And I'm not talking just about the tenured/tenure track faculty, but our legal writing, clinical, and academic support faculty along with our administrators and staff.

I've worked now at three schools where the MacCrate and Carnegie reports are taken very seriously, where there is a good system of training, peer review of class performance, support, and reward for good teaching, I doubt that these three are the only schools in the country that is true for, and I want to hear more about it in public.

So my main point is to challenge us to provide an explanation of why we do what we do. That will mean also figuring out who we serve, what they need, and whether what we do provides that. It's a beginning; as long as we keep assuming value, though, and not talking about what we actually do, we're lost.

Posted by: Marcia | Aug 11, 2012 7:21:05 PM

And I didn't mean to leave Mitch and Prof. Rosenthal out of the list of people whose work I admire.

Posted by: Marcia | Aug 11, 2012 7:24:38 PM

Marcia, I thought this was a wonderful post. Thank you. To respond to your call to examine "what students and the public gain from what we provide and how":

It seems obvious to me that scholarship contributes in important ways to the quality of teaching. Scholarship requires us to stay current on cutting edge legal issues. It requires us to remain curious, excited about the material that we teach, and intellectually nimble -- and if we ourselves lack these qualities, we stand very little change of inculcating them in our students. Engagement with scholarship also helps communicate the social importance of law to our students. Without that broader frame, our students become narrow-minded legal technicians who never pause to think about the normative implications of what they're doing.

Howard mentions that he has seen a correlation between good teaching and good scholarship. I tend to agree. Of course this sort of thing is very difficult to measure empirically, but I am familiar with data from two different institutions (not necessarily my own) that found a strong correlation between scholarly output and student evaluation scores -- that is, more productive scholars tend to get better evaluations. Of course there are all kinds of limitations to these data, but I mention them as one item in a suite of measurements that schools might consider examining internally as we think through the important issues that Marcia has raised.

And scholarship also adds considerable value to the legal profession and to the public. Thinking just about the junior faculty at my own institution: our scholarly work has been cited by multiple district and circuit courts; it has prompted practicing lawyers to contact us for input and assistance; it has caused journalists to consult with us in writing pieces for general audiences; it has informed amicus briefs; it has provoked novel legal arguments in state and federal court; it has been cited in treatises and excerpted in casebooks; it has been included in materials for CLE classes; it has shaped the practices of admission committees at multiple law schools; and it has influenced the policies of student-edited law reviews. Scholarship matters in tangible ways -- that is, we can point to concrete things that scholarship accomplishes.

Two other brief points:

1. I see very little value in questioning Marcia's assessment of her own colleagues.

2. I see very little value in reasoning by anecdote. The assertion that one person who is (arguably) a good scholar is (arguably) a bad lawyer proves next to nothing about the overall relationship between scholarship and teaching.

Posted by: Nancy Leong | Aug 11, 2012 8:14:41 PM

The notion that law schools value scholarship more than teaching may well be true (for all I know) at the schools where students are still likely to get six-figure jobs.

But it doesn't necessarily follow that this is the case in lower-tier schools where students have to fight to pass the bar and to get jobs. In those schools (in my experience) we focus on teaching more, tend to teach different subjects and teach them in different ways.

Posted by: Michael Lewyn | Aug 11, 2012 8:18:52 PM

"[O]ur scholarly work has been cited by multiple district and circuit courts; it has prompted practicing lawyers to contact us for input and assistance; it has caused journalists to consult with us in writing pieces for general audiences; it has informed amicus briefs; it has provoked novel legal arguments in state and federal court..."

The pronoun "our" generally includes the declarant, does it not? However, your scholarly work, Nancy Leong, has never been cited in any published district or circuit court decision. Moreover, the vast majority of practicing lawyers have never contacted a law professor for assistance, let alone for "novel arguments." Law is a learn-by-doing profession and it is a sad fact that many law professors have meager practice experience or none at all, and would not know a courtroom from a faculty lounge. You can be proud of your amicus briefs, if you wish, but your clerkship should have taught you this: reviewing courts consider "amicus" to be latin for "please deposit in the nearest recycle bin."

Of course, we should all be concerned that, absent six figure salaries plus sweeteners such as summer stipends for law professors, students will become "narrow-minded legal technicians." However, in the case of poorly-regarded schools such as Sturm, most of its graduates will not become legal practitioners of any sort, narrow-minded or otherwise.


Posted by: dybbuk | Aug 11, 2012 9:03:45 PM

I received a respectable legal education at SLU. In part, the education was due to the professors. In larger part, my efforts made the difference.

How much a professor published was not important to my education or understanding and certainly had no demonstrable correlation. At least one professor, who is no longer active, was well published in the selected field and could not teach his way out of a paper bag. In another class, I learned more from BarBri than I did from the syllabus or class. Yet in other areas (like labor/employment), I received an excellent education. The argument therefore should be how to teach law, not as much as how much does one publish.

Posted by: Sharon | Aug 12, 2012 9:34:51 AM

Marcia and others: Another important part of your book (besides describing the importance of scholarship), was how to get a FT job if you did not go to an elite school. The answer was to get a VAP, which would give you the opportunity to write some more.
The system is completely backwards. We are teaching lawyers folks. Lawyers practice law and for the life of me, I cannot understand how any rational system would have professors with little practical experience teaching future lawyers. The individuals who write law review articles should be teaching those students how to write. To rely on adjuncts, who receive no respect and recognition at most schools, is completely wrong. I have been an adjunct at 2 law schools for 8 years.
Maybe what is going on at St. Louis is correct. Maybe those summer research grants for legal scholarship needs to end. But, will St. Louis and other law schools start to hire individuals with significant practicial experience?? I fear not, because people hire others that look like them and very few full time law professors today, particularly recent hirees, are competent to practice law. Think I am joking? Take a look at your own faculty and count how many of them are not even members of the bar where they teach. States like NJ, where professors can waive in, do not count. Then please explain why law schools hire P.hd's. How is that going to possibly help a student learn to practice law? It all comes back to the emphasis on scholarship.
BTW, the answer to all of this, is not to write more law review articles about legal education. The market is already flooded. It is time for some real change. Change is going to have to be forced. So, it will be interesting to see what happens in St. Louis.

Posted by: Mitchell Rubinstein | Aug 12, 2012 10:15:43 AM

I tend to agree with most of Mitchell's criticisms, although I don't think adjuncts are a great solution. As a student, I took 10+ classes with adjuncts, almost all of which were poorly taught. Frequently, the instructor would teach at night, after working in the office until 7pm, and then rattle off whatever was in or her head for a couple hours -- not "teaching," in my view.

That's not to say that all adjuncts are bad or can't teach. (I suspect Mitchell is a highly committed teacher). But there are good reasons to favor permanent, tenure/tenure-track professors over adjuncts. And when it comes time to request rec letters, supervision of student notes, and so on, the unavailability of adjuncts poses serious problems.

I'm also skeptical that one needs e.g. 15 years of practice in an area to effectively teach it. In my view, the problem is a lack of interest in the law, not a lack of experience in it. A J.D./Ph.D with no practice experience and no bar admission could potentially write articles useful to the real world, although that person frequently has no interest in doing so. At the same time, there are many instances of legendary "practical" legal scholars who practiced briefly or not at all.

I think someone with a Ph.D in (say) economics who used that background to complement her analysis of antitrust law would be terrific. I admit, however, that some (many?) Ph.D law professors write primarily in their Ph.D field and don't contribute to the advancement of the law.

Posted by: andy | Aug 12, 2012 11:16:49 AM

As we debate this important points, the ABA is examining them as well. Karen Sloan, One More Task Force On The Legal Profession's Problems (National Law Journal Aug. 8, 2012). The only way for real change to occur is for the ABA to significantly change the accreditation standards to mandate that law schools hire professors who know how to practice law and shun away from those who do not. I cannot wait to see the report.

Posted by: Mitchell Rubinstein | Aug 12, 2012 11:55:55 AM

Could someone point me to one -- one! -- study that suggests that law professors who practiced for a long period of time are better teachers that those who didn't? I'm tired of this meme. I think back to my own law education, and some of the best profs I had were those who followed the old path of getting a JD from Harvard or Yale and then began teaching right away, in some cases without even clerking. I look at my colleagues, and good teaching doesn't seem to be associated with long periods of practice. I do think there is some link between good scholarship and good teaching, not so much because of any intellectual link as because people who work hard to be good scholars will tend to work hard at other areas, like teaching (and yes, there are exceptions). You know why we're skeptical of longtime practitioners who suddenly discover that they want to teach? Because these are people who decided, much earlier in their careers, that there were things they'd rather do that teach! None of this is to dismiss adjuncts, some of whom are wonderful teachers; or to claim that people who've practiced for a long time cannot be good teacher/scholars. Nor do I think the legal academy is perfect (many schools do over-emphasize scholarship compared to teaching). But I call bullshit on the idea you have to have practiced law for years and years before you can teach it.

(Sorry to hijack your thread Marcia)

Posted by: anonprof06 | Aug 12, 2012 12:40:24 PM

Professor Leong:

As an author of a fairly detailed article on this issue, I am afraid that I feel some obligation to respond to the claim that I am "reasoning by anecdote," and offering an "assertion that one person who is (arguably) a good scholar is (arguably) a bad lawyer" in order to question "the overall relationship between scholarship and teaching." Whatever else can be said of the claims I have advanced, they rest on the typically bloated number of footnotes that offer documentation for the claims I make. In the perhaps unlikely event that you have read my article, you will likely find much with which you disagree, but I think you will be hard-pressed to characterize it as an assertion. Nor does my position rest on a single anecdote. Although the single example of Professor Yoo may well be sufficient to demonstrate that what is regarded as scholarly success is neither necessary nor sufficient to offer assurance that a scholar is conversant the standards of professional craft that we should impart to our students, my article endeavors to go beyond this example by considering the views of those who have systematically studied the relation between law school pedagogy and the profession, such as the Carnegie Commission. These analyses rather consistently conclude that law school frequently comes up short in teaching students who to develop professional judgment and the kind of problem-solving skills of particular importance to clients.

As the book that Professor McCormick co-authored demonstrates, in recent years law schools have come to champion the theoretician in the hiring and promotion process. There is, however, good reason to doubt that the skills necessary to succeed as a theoretician have sufficient overlap with the skills that faculty be able to impart to their students. This no doubt explains why the kind of views about legal education expressed -- inelegantly to be sure -- by the new interim dean of SLU are so commonly held by practicing attorneys. Indeed, the Chief Justice of the United States has expressed similar sentiments. That is something that we in the academy should take most seriously, at least in my view. If the views of the academy on legal education are not widely shared by those who lack the interest that most incumbent academics have in championing scholarship and theory at the expense of professional craft, then perhaps we would to interrogate our own confirmation biases with greater care.

Posted by: Larry Rosenthal | Aug 12, 2012 1:56:19 PM


You ask an important question. Please permit me to endeavor to address it.

There are, of course, enormous difficulties in defining what is "good" teaching. Sometimes student evaluations are used to study this question, but the literature documents many problems with reliance on student evaluations. Given these difficulties, it is quite hard to determine whether there is any relationship between experience in practice and the quality of teaching. Even if it were possible to reliably measure the quality of teaching, I doubt that there would be much of a relationship between practice experience and the quality of teaching. Many practitioners would likely make bad teachers for any number of reasons.

There is, however, some empirical evidence that I regard as suggestive with respect to your question -- much of it is cited in Part II of my article. Surveys of law students and recent graduates consistently report that they believe law school did not sufficiently prepare them for practice. Moreover, as they proceed through law school, students develop an increasing preference for instruction that focuses on practice-oriented skills. This preference persists after graduation.

There is, of course, reason to question whether faculty that have been hired because of their facility as theoreticians, and who have limited experience with the practice of law, are likely to be able to impart practice-oriented skills to their students. In this respect, consider this conclusion of the Carnegie Commission: "The expert's knowledge is well grounded in subtle, analogical reasoning achieved through a long apprenticeship to more expert practitioners. In this process of learning, formal models and rules play an essential role ... but the formal models are themselves based on practice. Put another way, in the teaching and learning of expertise, practice is often ahead of theory. Formal knowledge is not the source of expert practice. The reverse is true: expert practice is the source of formal knowledge about practice. Once enacted, skilled performance can be turned into a set of rules and procedures for pedagogical use, as in the cognitive apprenticeship. But the opposite is not possible: the progression from competence to expertise cannot be described as simply a step-by-step build-up of the lower functions. In the world of practice, holism is real and prior to analysis. Theory can--and must--learn from practice."

These studies may not clinch the case for a relationship between experience and the quality of teaching -- and even I do not contend that every faculty member must also be an experienced practitioner -- but I do not think it a stretch to conclude that they at least "suggest" a relationship between experience and teaching effectiveness.

Posted by: Larry Rosenthal | Aug 12, 2012 5:22:13 PM

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