Friday, August 21, 2009

How Not to Retire and Teach - Litigation Approach

Posted by Jeff Lipshaw

Over at Conglomerate, good friend Usha Rodrigues has a post mulling over a lawsuit reported on by Debra Cassens Weiss of the ABA Journal - a Troy, Michigan lawyer by the name of Donald Dobkin filed a lawsuit against the University of Iowa Law School for age discrimination because he didn't get the job when Iowa advertised (I presume in the AALS bulletin and other normal avenues) for a professor specializing in immigration law.  I just sent Usha a note, but it seems worthwhile to comment here as well, given that I'm the author of the iconic "Memo to Lawyers:  How Not to 'Retire and Teach,'" an essay that may highlight some of the issues in Mr. Dobkin's travail.

Here's how Usha poses the question:   "was Dobkin clearly 'more qualified' than the 2 other prospectives offered the job, given academic hiring as we know it?"  With all due respect to Usha, while I share her sympathy for Iowa, I'm not sure that's the right question.  I think she's highlighted the wrong thing, namely, a focus on the quantitative (publications divided by years).  Moreover, the question does the same thing Dobkin's case seems to do, which is to conflate the age issue with the "experience" issue.  Is his claim that he was the victim of age discrimination, or is he asking the court to impose on the school a hiring policy based on experience over scholarly bona fides?  The simple answer to Usha's question is that unless a court is prepared to undertake the latter, there were all sorts of reasons that Iowa could have reasonably passed on Mr. Dobkin without having considered his age.

Without getting all Thomas Kuhn-ish here, Usha's proviso "given academic hiring as we know it" is another way of acknowledging that academic law isn't just about training new lawyers.  It is an academic paradigm that, for better or worse (actually, in my experience of several years now, better AND worse), is determined largely by them who is already in the paradigm.  It's just a fact of the academic world.  I have a book proposal in at a major university press that has passed every hurdle except a late request by the philosophy overseer that it be sent out for a pure philosophy review.  It's possible I don't write (or think) in the au courant philosophy paradigm, and I will be wrongly rejected.  But that doesn't give rise to a legal claim.  As I said to my editor, que sera, sera. 

If you look at the several oldsters who've gotten jobs recently - Bill Fisher (Richmond), Chuck Whitehead (Cornell), me - and, without flyspecking Dobkin's resume, you will see some things that this fellow doesn't have:

- Mega-elite school J.D. and other credentials in addition to "expertise"
- Time spent as visiting professor (Bill Fisher was with me down at Tulane)
- A showing of real commitment to the task of becoming a law professor (say, by being active in the blogosphere, going to academic conferences, etc.) by persevering through more than one rejection at one school

That's apart from the question whether his publications were any good (I'll accept sight unseen that they were okay but not earthshaking).  And being an adjunct prof teaching undergraduates at Central Michigan University is even more meaningless than the meaningless adjunct LAW teaching chops I discuss in the "Retire & Teach" essay.

I think somebody who files a lawsuit after being declined at one school is completely naive about the academy and the legal process, which is a better reason to pass on him than his age.  (See the Brad Wendel test in the Big Rock Candy Mountain essay Usha cites, quoted in full below the fold.)  The balance of teaching non-academic professionals, on one hand, and contributing to the advancement of knowledge in the research university setting, on the other, is a serious subject, one that deserves to be considered apart from matters as trivial as the ratio of publications per years of practice as the sole determinant for the job as among competing candidates.

"If you don't believe me, do the Wendel Test.  I always recommend that teaching candidates demonstrate for themselves how ferocious the market is.  The Wendel Test is simple.  Go to the Web site of the Association of American Law Schools (AALS, about which more later), specifically their list of member schools.  Now, scroll down through that list and find the goofiest-sounding law school you've never heard of – the kind of place you'd sort of snicker if you told people you worked there.  Go to the page, which they're sure to have, listing their faculty profiles or bios.  Look around until you find a relatively recent hire – they'll have the title of assistant or associate professor.  (More senior faculty may have been hired when the market wasn't nearly so competitive.)  Read his or her bio.  I'll bet you dollars to donuts that their resume resembles the classic pattern described above and is probably even scarier."

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A single rejection from a single school may not evidence age discrimination, but, on the other hand, it might. We simply don't know enought at this point to make an informed judgment. It is a bit difficult to fault him for not having, say, your academic pedigree, however, given that he is Canadian, and thus ought not be expected to have an Ivy League or near-Ivy background. Besides, he has an LL.M. from Northwestern, which would seem to qualify as an elite school. Finally, while I am pleased that three experienced lawyers have deservedly secured faculty positions in the past few years, the fact remains that hiring law school faculty with more than 2-3 years of practice remains the exception rather than the rule. Whether "the rule" is a good or bad thing of course depends on your perspective, and on the people selected either to prove or disprove it. Regardless, this has the potential to be an interesting lawsuit.

Posted by: Doug Richmond | Aug 22, 2009 8:53:23 AM

Doug, I have no idea as well what Iowa's state of mind was, nor am I sure of the liability standards in this kind of case (my last dealing with this was years ago - assessing adverse impact in large-scale reductions in force). I do suspect that far more "young" candidates than old were rejected.

The problem still is the conflation of the hiring standard issue with the age issue. The fact is that even an optimally experienced lawyer not in an age-protected classification (say a 33 year lawyer with 8 years of intense experience) with this resume could expect at best to make several trips through the meat market before getting a job. I don't fault him for being Canadian or going to University of Windsor - and I don't take any particular credit for my academic pedigree; I suspect I couldn't get into my own law school any more. How law schools should balance "pure" scholarship with training lawyers is a tough issue; assessing in the context of a thin age discrimination claim just muddies the issue.

Posted by: Jeff Lipshaw | Aug 22, 2009 1:08:41 PM

But why is is this, in your words, a "thin" age discrimination case? Is it because this fellow does not fit the hiring profile that Brad Wendel so accurately captured in his "Big Rock Candy Mountain" essay? The fact that he doesn't may be nothing more than a pretext for a discriminatory decision. I suspect that the fellow was not hired for legitimate reasons, but there is no shortage of universities (or schools within universities) with unflattering employment law track records. Long story short, I am as yet unwilling to conclude that this lawsuit conflates hiring issues with age issues. I hope it does, because law schools ought to behave lawfully. I am, however, interested to see how this case develops.

Posted by: Doug Richmond | Aug 23, 2009 7:41:07 AM

I usually don't debate this stuff online, but that's a fair question. I just went back to see if the law is still pretty much the same, and I don't warrant this, but I think it is. 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.

It only takes two clicks to get to this fellow's resume, and let's assume that his several publications in the 2006-08 are in fact quite good (contrary to my inference before, they probably are!). Nevertheless, all Iowa has to do is articulate a legitimate non-discriminatory reason, most of which candidates probably don't have anything to do with the volume of publication, which is what Usha referred to in her post. Were they really just looking for an immigration person, or was it this wide-ranging search? Just speculating, but do they have a curricular need for a first year class, and are other candidates better qualified to cover it? Do other candidates have more impressive academic credentials? Lots of other questions occur to me as well. Again, there are hundreds of resumes schools see in response to these ads (over 600 applicants in this year's FAR pool for what is usually something like 150 slots); my guess is the list of people Iowa interviewed stacks up pretty well.

So now he has to prove that the proffered reason is false and that the real reason was they just didn't want an old person. I suppose if you were just trying to squeeze by a summary judgment motion so as to get to a favorable position to settle for damages, we could debate whether this has more than nano-thinness, but from the reported comment, it appears to be that the plaintiff's goal is to have a court order that he be given a job at Iowa. That's pretty ambitious (or naive).

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. The debate over the role of experience is warranted, but putting this all in the context of the burden shifting of an age discrimination case trivializes the issue, because, unless there's something really dumb in the file, the mere existence of the debate kills his claim.

Posted by: Jeff Lipshaw | Aug 23, 2009 8:47:56 AM

My experience in hiring committees shows no discrimination on on the basis of age. A 56 year old with a great record of scholarship and teaching will have no problem obtaining employment as a lateral, and a 56 year old who graduated from law school three years ago, and since then clerked, wrote a couple of smokin' papers etc., I suspect, would do fine in the market. However, I've heard through the grapevine that there has been suspicion at other schools based on applicants' being out of law school for a long time without doing first rate scholarship during that period. Perhaps under the ADEA that counts as age discrimination, but the underlying motivation--discrimination because the person is old vs. discrimination because the person has a demonstrated record of something other than sustained, intense interest in scholarship--is different.

Posted by: Jack | Aug 23, 2009 8:43:14 PM

This is a thin age discrimination case because there is basically no way that Dobkin can prove causation--that but for any age discrimination he would have got the job. Even if Dobkin was an 18 year old prodigy with a record of 7000 immigration cases, I seriously doubt that Iowa would have hired him.

Is age possibly a motivating-but-non-determinative factor? Given the black box that is faculty politics, who knows? But the test case for that is the 50-year-old former Supreme Court clerk with an astonishing record of publications and a Ph.D.; not Mr. Dobkin.

Posted by: TJ | Aug 25, 2009 11:40:56 AM

Well (and concisely) put, TJ!

Posted by: Agreed | Aug 26, 2009 11:05:01 AM

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 noboby 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?

Posted by: Donald Dobkin | Jan 2, 2010 2:37:50 AM

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