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July 14, 2014

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curious

Whys should Yale/Harvard/Standford be immune? Just because they can? If so, that seems like a very poor reason.

AProf

Brian, The conventional wisdom seems true for, maybe, the top-50 law schools. I have worked at three law schools in the bottom 150 and each of those schools value practice experience. Of course, there are a number of schools in the bottom 150 that are chasing the top-50, but many use practice experience as a differentiator and a marketing bullet point.

So, I think there is diversity, it is just among schools. You can go to a top-ranked school and get an academic, theory-based education, or you can go to a school like Charlotte and get taught, mostly, by practitioners.

On the point of how much experience is ideal, there is widespread disagreement among faculty members, which usually comes down to, "the amount of years I practiced plus or minus a few years." There is some really worry on the "couldn't cut it" point if the applicant worked for 6-10 years and never made partner or hopped from a larger to a smaller firm. Also, there is some worry that lawyers are trying to retire and teach and are not dedicated to academic life, otherwise why didn't they leave earlier? Obviously, there are exceptions, like Jeff, but for every Jeff there may be 5 or 10 duds.

FWIW even first year BigLaw grads take a 50-60K pay cut (and 110K pay cut for a fellowship).

honest question

How much of this is just plain old age discrimination?

BDG

The explanation is signaling. It's very difficult to monitor output once you hire a junior faculty member, especially if your institution tends to tenure most of them. You therefore want to hire someone who is highly self-motivated. Someone who literally cannot wait to start her academic career is the kind of person who is more likely to write 6 papers before tenure instead of 2. It's certainly possible that someone who has been doing deals for 12 years was secretly wishing all along that she were writing articles, but her self-serving claim to that effect is not credible. This also helps to explain why faculties that don't prioritize scholarly output as highly are more willing to look at candidates with longer non-academic careers. Having said all that, agreed that a faculty that mixes people with different skills & backgrounds is a stronger one.

terry malloy

Why does self-motivated = 6 papers?

Scholarly output is such a terrible metric for performance.

It reminds me of the e-meters from Scientology or steel workers given promotion based on how many chicken wings they can eat.

In-groups create all sorts of bizarre metrics for performance that bear no relation to the job.

Former Editor

While I agree with most of what Prof. Clarke has written here, there's an aspect of this which I don't see talked about much: teaching. It seems to me that one of the most important criteria in faculty hiring ought to be (note: I'm not saying that it is) the potential teaching ability of an applicant and anticipated return on investment to the institution for training those with potential. Being able to effectively impart doctrinal information to a class of very bright young adults is a different skill set from being able to marshal that information to a client's advantage in litigation or transactional practice. Both skill sets take years to master. Thus, it seems to me that one legitimate reason for a hiring preference toward younger (and necessarily less experienced) faculty is the institutional investment required to turn the candidates into excellent teachers. The earlier in their full career that a professor can get over the learning hump required to manage a classroom, write fair and effective exams, and productively mentor individual students, the more excellent teaching years that the institution can expect to get out of the hire before the hire retires.

I'd like to think (note: I'm not so sure this is the case in practice) that this is one of the reasons that many hires come from fellowship/VAP programs and PhD programs. Participants in such programs have, for the most part, already been thrown into the classroom and started to learn to teach. As a result, hiring an applicant from that pool represents a smaller institutional investment on the part of the TT hirer with a potentially longer period of return.

Please note, I'm not saying that this should be an all important consideration. Expertise in an area of law, which younger hires will mostly lack because of their lack of practice experience, is also extremely valuable to a school. Longer term practitioners in a particular area may have a serious leg up on knowledge of the material they are teaching, if not necessarily on how to best teach it. Thus, a long term practitioner who also has teaching experience, either as an adjunct, through CLE programs, through their firms training programs, or the like might well be a better choice than a recent graduate.

Jeff Lipshaw

I wondered why my ears were burning this morning. I'm guest blogging at Prawfs this month, so I think I'll chime in over there in a bit. But in the meantime, Brian, thanks for the kind words and the link to the sequel to "Retire and Teach."

Brian Clarke

Curious, I (personally) don't think they should be immune. Certainly at Harvard, Stanford, Columbia, Chicago, etc., the vast majority of grads go on to practice law, rather than pursuing a JD for purely intellectual reasons, as a precursor to a Ph.D., or in order to teach. So, I honestly think their faculties and students would benefit from this type of "diversity." But, at the end of the day, they are Harvard, Yale, Stanford, U Chicago, etc. and can do basically what they want.

AProf, there are certainly schools that value practice experience (which I noted), Charlotte does and many others in the "bottom" of the US News Rankings. However, if you take a look at the post to which I linked, there were folks from schools deep the fourth tier agreeing with the conventional wisdom at least as to the "10+ years is disqualifying." Just to push back a little though, your comment seems to reflects some of the bias against practitioners inherent in the "conventional wisdom." To wit, "you can go to a top-ranked school and get an ACADEMIC, theory-based education OR you can go to a school like Charlotte and get taught, mostly, by practitioners." (all caps emphasis mine). Perhaps I am reading too deeply, but you seem to say that the "practitioners" at "a school like Charlotte" do not (or cannot?) provide an "academic, theory-based education." Nothing could be further from the truth. Speaking for myself only (of course), I think something that experienced former practitioners bring to the classroom is the ability to combine the "academic, theory based" traditional legal education with a keen understanding of how that theory translates to practice -- how students can use the theory for the benefit of future clients. Now, I do not mean to say that ONLY experienced former practitioners can do this, just that having done it ourselves for many years, it may ... perhaps ... come more naturally. Bringing this back around to the overall point of the post, I think this is a benefit that having experienced former practitioners on the faculty can bring -- namely discussions about translating theory to reality in the faculty lounge in "best practices" settings, or over drinks. [My original post delved a bit deeper into some of this, but I edited it a bit as it was getting over long].

-- [Lots to respond to, but trying to keep it readable]. As to the partnership thing, to say that it is a black mark if someone does not make partner after 6-10 years -- in this day and age -- is pretty silly. No "BigLaw" firm is making anyone a partner at 6 years (unless he or she has a huge book, which is unlikely). Plus, "partnership" is virtually meaningless in this day and age given the massive stratification of equity and non-equity ranks in most big firms. Many wonderful lawyers may never make partner in a big firm, because for partnership purposes the primary considerations are often financial rather than based on legal skill or knowledge. Add to that the opportunity costs of an aspiring academic diverting potential billable time to working on an article or two ... or teaching as an adjunct (and doing a good job) ... and the goals are almost mutually exclusive. In short, what law firms are looking for in partners and what law schools should be looking for law professors are so different as to make the former absolutely worthless for consideration in the latter.

-- Oh, and one last point, I think a first year Biglaw associate would be looking at a bigger pay cut that I was (coming out of a specialty firm), but the critical point there is that a stereotypical first-year BL associate (especially one who knew she wanted to join the academy) would not be nearly as, shall we say, encumbered as someone who has practiced for 10 years (i.e., likely would not have bought a house, likely will not have kids, may not even be married), so the paycut is less of an issue.

BDG, of course hits the nail on the head as far as why the "conventional wisdom" exists. It is all about signaling. Schools don't want to blow a hire. Very legitimate. [This is another thing I went into in an earlier draft of this post, but cut hoping it would arise in the comments.] And I think schools MUST critically examine a candidate's background to see if the person will be a good teacher and productive scholar (depending on what the latter means to that school). But I think it is a mistake to focus primarily on the things law schools value when looking for signals from a practitioner's career -- because law schools and law firms value different things, and those things are not always transferable.

I'll use myself as an example here ... I HAD always wanted to write, but TIME was a big factor (I did not have a lot of it) and my firm valued more practical writing (practice-centric articles, CLE papers, etc. -- none of which anyone cared about when I went on the teaching market). And I wrote a lot of practical stuff. But it was not until Fall 2009 (right at my 10th anniversary as a practicing lawyer), when I taught as an adjunct for the first time that I had *the epiphany*.

I know this will sound incredibly hokey and ridiculous (but that has never scared me off before), but my first day in the classroom as an adjunct at Washington & Lee was a revelation. That day I KNEW down to the core of my being that I was put on this earth to teach the law. Mock me all you want, but I say with no shame that this is my calling. Period. So, I commuted 9 hours (round trip), twice a week to Lexington (from Charlotte, where I practiced) in Fall 2009 -- FOR FREE (W&L reimbursed mileage, but I did not get paid). I agreed to continue teaching as an adjunct at W&L (for pay, thank goodness) the next academic year, in spring of 2011. In the spring of 2010, I dedicated ALL of my free time to writing ONE article ["free time" being used fairly tounge-in-cheek here as I was practicing full time and had 4 kids, including a toddler and an infant]. I got the article finished by late summer, got it placed [very well -- Utah L. Rev.] the day before my FAR form was due (so I could put ONE accepted paper in my FAR) and officially went on the teaching market.

At the meat market, I got ... wait for it ... 4 interviews -- one of which was purely a courtesy [I later realized] as I knew the Dean. AALS all-star I was not. From those 4, I got 2 callbacks (both at "lower tier" schools, Charlotte and a T3) and got a TT job here at Charlotte (where I already lived). I then commuted 9 hours round trip to Lexington again in Spring 2011 to teach as an adjunct.

Now, what signal could one reasonably take from that set of facts? I was in no danger of making partner at my firm -- my billables sucked in 2009 and (especially) 2010 -- even though my expertise was second to none. So what was more valuable from a signaling standpoint? Whether I made partner or the rest of the story above? I'd say the [true] story above is a far better signal that I was going to be a dedicated teacher and scholar. Charlotte at least was sold, and I think the folks at the other 2 schools who legitimately interviewed me were as well (as was the W&L faculty after helping me with mock interviews and job talks) -- and I had a blast at the meat market as a result, it was fun because I was (finally) on the road to doing what I was put on this earth to do. Again, schools should be careful about the things to which they give credence when it comes to signaling.

Not to toot my own horn (too much), but I will have 6+ articles before tenure (all but the most recent of which have been cited by courts, by more senior scholars, or in a SCOTUS amicus brief [that I did NOT write]) and I am an excellent teacher, who works very hard to give my students an academic, theory-based education but also to provide a practical context and explain how the theory translates to practice and the representation of actual clients.

Sorry if I got a defensive anywhere in there [and sorry as well for the inevitable typos or lapses in grammar] ... now, I have a class to teach in an hour (make that 50 min) and need to finish my prep so I will respond to more comments later.

Thanks to all for engaging in the discussion so far!

Jeff Harrison

I agree on this but note that whatever diversity may be offered will tend to depreciate. In particular, in someone practiced 25 years ago and is still telling the same war stories, has the diversity vanished? If so, your point is even stronger.

AProf

Agree that no BigLaw firm is making partner at 6 years these days, but most will let you know by then if you have a decent chance of making it or not.

I've never met a 6th year associate who left BigLaw after being told that he/she had a very good chance of making partner. Yes, there are those who, by year 6, have made themselves valuable enough to have a "very good chance," even if no 1st year can claim to have a "very good chance" of making BigLaw partner without connections.

Even if someone is passionate about teaching, I imagine that few would leave just a few years before the promise of a 7-figure pay check. I would not go back into practice for 7 figures, but making that claim and actually turning a real offer and chance down are two different things.

As to your accomplishments, I don't doubt them and am glad you found your calling. And, for the record, I think significant practice experience can be a very good thing. I do wonder about the ethics of teaching at a school like Charlotte where most, if not all, of your students are making a poor financial decision by attending the school. From the outside, the school seems to be putting profit ahead of ethics. They are not alone, but they may be one of the worse offenders. But if you are happy, I am sure you will find a way to rationalize.

Jeff Lipshaw

I did end up with a lengthy commentary at PrawfsBlawg, but closed comments over there so as not to hijack the thread. http://prawfsblawg.blogs.com/prawfsblawg/2014/07/practice-experience-vs-scholarly-chops-in-legal-academia.html.

shg

Every time I read about a law school claiming to produce "practice ready" students, I involuntarily giggle. Your use of "something close to 'practice ready' lawyers" is therefore very much appreciated.

Michael Risch

"Someone who literally cannot wait to start her academic career is the kind of person who is more likely to write 6 papers before tenure instead of 2."

Falser words have never been spoken. One need only look at the number of people hired in the academy who write 2 or 3 articles pre-tenure and never write again to see that.

Is there a study on experience at entry v. productivity? That would be worth doing, because I suspect that there's little correlation.

I'm not saying that there's no reason for the bias (my own productivity after 8 years of practice and walking away from a partnership may be an outlier, or I may just be a hack in the classroom), but this supposed productivity signal isn't a good justification for it.

ATLprof

I've been considering something similar to these lines of thinking - only I think that the approach that should be taken is creating a structure that informs potential law students of the amount of practice experience various faculties have. So that it can, as one of many factors, be more easily taken into account by students choosing between different law schools.

So my proposal is this: the ABA should make disclosure of average faculty practice experience a mandatory reporting requirement. Then that information will make its way into other publications that compare law schools, even potentially into USNEWS.

Yes, I know the devil would be in the details. What counts as a year of practice experience? What about professors who continue to practice on the side? Etc. And I know the ABA is actually moving away from faculty related disclosures (see for examples student-faculty ratio).

I regularly see former students complain about the lack of practice experience of their faculty, and my initial response is, "Well, we need to think about why you didn't choose to go to a school where the professors had lots of practice experience." I don't necessarily think those former students made irrational choices, all factors considered, but faculty practice experience needs to be more transparent to law school applicants.

AProf

"What about professors who continue to practice on the side? Etc." This is actually a very important question. As a student, I would have greatly preferred a professor with relatively little practice experience who was still "in the game," either through expensive consulting or part-time practice, to a professor who had 10 years of experience 15 years ago but hadn't kept up with the profession.

susan

Thank you for deleting my comment because you felt it was off track.

I would like to correct your factual error. Most 1st year associates have 6 figures of non_rechargeable debt, some owe that much even with full scholarships.

You cannot assume it is easy for them to give up their job for the uncertainty of academics. Even if they can get IBR discharge of their loans, they have to work for ten years in a qualifying job.

So please don't assume it was harder for you to leave a firm, when you had assets, than it is for a student mired in debt.

anon

"I regularly see former students complain about the lack of practice experience of their faculty, and my initial response is, 'Well, we need to think about why you didn't choose to go to a school where the professors had lots of practice experience.'"

I'd guess the answer is pretty straightforward:

(1) US News disproportionately drives students' choices of where to go to school;

(2) Schools where the professors have a lot of practice experience (and/or are currently practicing on the side) are not, on the whole, ranked highly in US News, since 25% of the US News ranking is based on academic reputation (the "peer assessment score"), which tends to be built by having a large cadre of people who don't have much practice experience but rather have the kind of backgrounds and prior publications that impress other academics.

susan

Regarding the impact of professors with practical knowledge, I am all for it. Students go to law school to get jobs, the more practical skills that can be taught, the better.

Or, make law school 2 years.

ATLprof

anon @04:03:

Precisely. That's why I didn't say it was irrational on the former students' parts. Especially once you throw in the fact that the same (arguably poor) reputational factors are used in post-graduate hiring decisions.

That's why the system has to change - everyone is making more or less rational choices but it is leading to much less than optimal outcomes and perverse incentives.

Bringing practice experience as one measure of a law school is one step in correcting the system (even if it is a small one).

Brian Clarke

Jeff and AProf, I definitely agree that practice experience (even extensive practice experience) can get stale and "depreciate" as Jeff put it, I try to stay engaged in practice (some consulting, some pro bono, Bar Association stuff, amicus brief input), but it is hard. An article from Emily Zimmerman at Drexel last year had a very interesting suggestion: A "Continuing Practice Experience" requirement for law professors. See http://ssrn.com/abstract=2165551.

And susan, I did not adequately account for the student loan debt loads many new prospective profs have (I am still paying mine 15 years out), which is certainly nothing to sneeze at.

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