Practice Experience: A New Facet of Faculty Diversity?

With a new faculty hiring season approaching (presumably . . . hopefully), I want to discuss the value of significant practice experience for tenure track ("TT") law professors. 

My thoughts on this topic are ultimately self-serving and informed by my own experience as I practiced for 11.5 years before becoming a full-time professor.  I was unpleasantly surprised by the prevailing wisdom regarding practice experience when I went to the meat market in 2010.  Back then the conventional wisdom seemed to be as follows:  Ideal:  zero to 3 years of practice; Acceptable: 3-5 years of practice; Potentially Disqualiying: more than 5 years of practice up to 10 years of practice; Disqualifying: more than 10 years of practice.  [Of course, the conventional wisdom does not hold at all schools and for all candidates -- I got a job; Jeff Lipshaw practiced for 25 years; many others in the academy have significant practice experience.  However, if you read through the comments on the linked post above, profs from the T14 to the fourth tier made similar comments and acknowledged the prevailing view.]   

The primary justifications I have heard for disfavoring those with significant practice experience are (1) that there are often questions regarding the motives for leaving practice (i.e., couldn't cut it, looking to "retire and teach" [HA!], etc.); (2) that "practice rots the brain" (HA! again); (3) that practitioners will not be able to produce "valuable" scholarship (which reflects the perceived bias against doctrinal scholarship in the academy); and (4) that a practitioner will just tell a bunch of war stories in the classroom and not actually teach.  I think each of these justifications reflects a broad, unfair, and inaccurate stereotype of experienced practitioners.  

This issue has taken on added relevance over the last year or more given the changes taking place in legal education and in the larger legal economy.  (See, for example, this post from PrawfsBlawg, and this one and this one from Conglomerate, this one and this one from ProfessorBainbridge, and, of course, a vast number of message board comments [including some on the foregoing posts]).  There is a greater focus on the need for experiential education for all law students (due to ABA mandates and otherwise) and on the aspiration that law schools produce something close to "practice ready" lawyers.   

Yet, despite these changes, many schools seem to remain hesitant to hire experienced practitioners (see the various hiring reports on Prawfs for details), although there were a number of hires last year of folks who were 10 to 20 years out of law school.  [Prawfs does not track practice experience per se, just year of initial law school graduation.]  Yet, in the last cycle, 51% of the self-reported hires had advanced degrees and 84% did at least one fellowship, neither of which may be an option for an experience practitioner (I, for example, went on the market with 4 kids, a mortgage + other debt, and was looking at a $50k to $60k paycut to move to a TT position [which would have been a $110k+ paycut to take a fellowship]).  

While the hiring of 17 or so new profs who were 10-20 years out of school shows some positive movement, there can be little dispute that over the last decade (or more?), the dominant trend has been to hire primarily folks with minimal practice experience (a year or 2 post-clerkship in a BigLaw firm) for tenure track positions, often with a preference for those with PhDs in other disciplines. 

There is absolutely nothing inherently wrong with hiring folks who fit the paradigm above.  Hundreds of law professors with minimal practice experience and/or PhDs are wonderful teachers, scholars, and colleagues who have provided significant value to their schools and their students.  Such folks should unquestionably continue to be a large part of the legal academy.  But should most law school faculties be made up primarily of such folks?  Given the current environment, my answer is no. 

Ultimately, I see this as an issue of faculty diversity.  Few would dispute that there should be a mix of races and genders on any law faculty, because of the variety of life experiences and perspectives that will exist in any heterogenous group.  [I am also a believer in diversity of political, philosophical and other viewpoints as well.] 

Likewise, there should be diversity of legal backgrounds -- Ph.Ds, "traditional" academics, and experienced practitioners -- in the tenured/TT ranks of EVERY law faculty (with the possible exception of Harvard, Yale, Stanford, etc.). 

Each will bring a different point of view to the classroom, the faculty lounge, and the faculty workshop. They may produce different types of scholarship with (potentially) different audiences.  They may collaborate in new and exciting ways.  Provided there is mutual respect among those of different backgrounds, each can inform the teaching and scholarship of the other.  Further, a diversity of backgrounds allows a diversity of perspectives for counseling and advising and supporting students.  All of this seems highly desirable to me, especially in the current environment.

Bottom line, diversity on any given law faculty should encompass not just race, sex, national origin, etc., but should also embrace differences in experience in the law.  There is certainly room for this type of diversity in the legal academy (and without creating second class citizens among the legal professoriate).

[Just FYI, I will moderate the comments so keep them on point.]

Comments

[anon]

Brad

"Deans" (these decisions are rarely made by the "Dean" but rather by an Associate Dean) review in advance the syllabus for a proposed course, discuss with the adjunct the text and plans for classroom participation, and then review evaluations in making retention decisions. Many speak with students directly, and solicit information in that fashion.

Peer review is not the ideal that you seem to think it is. Peer review is often more fraught with politics than any adjunct hiring decision.

I didn't realize that you are unfamiliar with general law school practice.

[Anon]

The problem with adjuncts is simple - they are not academics, do not know how to do research and do no understand the intellectual culture that animates academia. Thus, they cannot possibly expect the same kind of treatment as non-adjuncts. Not all tenure track faculty "get it" either - largely because law faculty generally do not have the kind of training that academia demands today. But most do and many adapt quickly.

It is clear from the discussion at FL over many months that the scambloggers have a very limited and distorted understanding of what drives the modern university and so their comments here largely miss the mark.

[brad]

> Peer review is not the ideal that you seem to think it is. Peer review is often more fraught with politics than any adjunct hiring decision.

Peer evaluation has a lot better support in the literature than student evaluations. Is this yet another manifestation of the unwillingness of law faculty to take social science research seriously?

>> It is clear from the discussion at FL over many months that the scambloggers have a very limited and distorted understanding of what drives the modern university and so their comments here largely miss the mark.

What drives the academy and what ought to drive the academy are two very different things.

[Brian Clarke]

[I started writing this first thing this morning, so it is not responsive to anything after "Anons"'s post at 3:17 am]

Despite the snark that crept into the comments overnight -- which I regret -- I wanted to chime in to clarify one point and respond to another -- and I hope Orin has not abandoned the thread, as these thoughts focus on a couple of the point he raised, which were echoed to a degree in Jeff's extended comment at Prawfs.

First, I thesis is not that ALL law professors (or even ALL new law professors) should have substantial, meaningful practice experience. As I say in the original post, econ etc. Ph.D.s, "traditional" law prof rock star candidates, etc. "should unquestionably continue to be a large part of the legal academy." And I would never question the overall value of folks with these backgrounds (as opposed to mine background) in the academy -- and certainly not the bona fides of Sunstein, et al.

My point is that there should be greater diversity of background -- so more experienced practitioners -- in the tenure track ranks of law schools (especially those that are not HYSCC etc), especially considering the changes in legal ed and the legal economy. [I think this distinction got lost in some of the comments, and I admit to burying the lede a bit as it was below the fold so to speak -- but I did put it in bold].

From I normative standpoint, I think greater diversity of backgrounds in the law would produce stronger faculties and result in a better educational experience for students. Why? Because -- assuming mutual respect among folks of different backgrounds -- I think we can always learn from people with different backgrounds and perspectives. I have learned a lot about pedagogy and scholarship from colleagues (both internally and externally) who did not practice for long, if at all. I am a better teacher and scholar because of it. I hope the same is true from the flip side (and I know it is internally at Charlotte), that folks who did not practice as extensively as I did have learned a thing or two from me that has made them better professors.

And I do think there is the student point of view. At least in my experience, my students (both at W&L and at Charlotte) have always commented (both formally and informally) and how much better they understood the material when I could explain the theory, but also put it into realistic, practical context. Could someone with minimal practice experience do this? Sure! (probably by discussing the issues with an experienced practitioner). But I do think it comes more naturally to those who have practiced at a high level for a decent amount of time.

Now, as to adjuncts, this is an issue that I discussed in the (much longer) original draft of the post, but decided to save my thoughts for the comments, so I am very glad Orin brought it up.

Adjuncts serve an absolutely critical role in any school, which Orin articulates. I had a wonderful experience as an Adjunct (as did Orin). However, as anon(s) note, the role of adjuncts in any school is inherently limited. They teach and they go back to their day jobs. They are not involved in governance. They are not generally as immersed in the issues of legal education as FT, TT folks (because they lack the vested interest we have). They do not generally interact with the FT TT faculty (other than perhaps with a liaison or friend) on questions of pedagogy, curriculum, or scholarship.

Further, as Orin (and anon?) raised this issue in the realm of experiential education [and I did to an extent as well], having taught an experiential class [a practicum as part of W&L's Third Year Program] as an adjunct, my opinion is that it is neither realistic nor desirable to rely on adjuncts to teach the vast majority of experiential classes (and here I am talking primarily simulation-based classes). It is extremely time consuming to create and teach such classes well and, for a full time practitioner, will severely tax their other responsibilities. Creating a case file or deal file from scratch is profoundly time consuming (and any such class needs multiple files for each semester the class is offered). Working with the students on the file is very intensive, often because of the multiple skills one is teaching and the combinations of multiple subject-matter areas. Giving feedback on extensive written work product is extremely time consuming. There are simply not many adjuncts able or willing to dedicate the time and effort to do all of these things and do them well. [W&L has had a lot of success with this model, but I don't think it is scalable.]

In my experience, both as an adjunct and now as a TT faculty member who works closely with adjuncts, the best use of most adjuncts is teaching specialized doctrinal classes or skills classes like Trial Ad, Pre-Trial Ad, and such where the commercially available case file offerings are both fairly robust and not overly complex. We are doing something like the later across a variety of subject matter areas here at Charlotte as part of our curricular overhaul (which I am responsible for implementing and about which I am planning to blog fairly soon).

In short, good adjuncts are critical to any school but, given their status, role and the limitations on their time, I don't see them as the solution to this particular issue.

So, back to my original bottom line, there should be diversity of legal backgrounds -- Ph.Ds, "traditional" academics, and experienced practitioners -- in the tenured/TT ranks of EVERY law faculty.

[GS]

An alternate idea is that all or almost all law professors be expected to have at least some meaningful practice experience.

[twbb]

May I offer another suggestion; to maintain ABA accreditation every school should have a requirement that all faculty members qualified to be admitted to the bar get admitted and maintain that admission, and that they also be required to do a substantial amount of pro bono work. And no grandfathering in; every current faculty member, no matter how long ago they let their license lapse, should be required to do follow these requirements.

[Kyle McEntee]

Why should student tuition pay for pro bono work?

[twbb]

Kyle, this would be pro bono work in addition to what the students are already paying for (and in addition to the increased workload that law professors should be handling). Teaching 3 classes a semester plus doing pro bono work plus "research" still results in an enviable lifestyle far easier than most practicing lawyers experience. Additionally, the pro bono work will benefit students by: (a) teaching their professors about how the law actually work, and (b) giving the students an opportunity to get real-world experience by assisting with pro bono cases.

[CHS]

TWBB, why no grandfathering? Seems more grandstanding than anything that would be constructive. But lots of current professors are involved in activities that could already count as pro bono work, if broadly defined. I could see having such requirements that would be a part of the expectations of people coming in, however.

[twbb]

Because considering the dearth of hiring now it would be a minor change, if any, to only require it of new hires. Plus both the benefits to students I list above would be equally applicable to late-career faculty as new hires.

[speakingupforstudentevals]

Brad says: "Peer evaluation has a lot better support in the literature than student evaluations."

Is that right? People like to dismiss student evals, but I think there is a robust empirical lit. showing strong correlation between student eval scores and learning outcomes, detected by comparing exam performance of different sections of the same course to respective teacher ratings.

From a quick web search:

“Cohen (1987), in his summary of 41 well-designed studies, reported that the mean correlations between students' achievement and different SET [student eval.] components were .55 for structure, .52 for interaction, .50 for skill, .49 for overall course, .45 for overall instructor, .39 for learning, .32 for rapport, .30 for evaluation, .28 for feedback, .15 for interest/motivation, and -.04 for difficulty, in which all but the last two were statistically significant.” Making Students' Evaluations of Teaching Effectiveness Effective the Critical Issues of Validity, Bias, and Utility Herbert W. Marsh and Lawrence A. Roche University of Western Sydney, Macarthur

Is there a similar literature for peer evals?

[CHS]

Maybe. But all change does not have to be immediate to be meaningful or important. Overnight is not always the way to go, particularly since there are other reforms that might be more helpful. But, so long as pro bono is defined broadly, it might make sense. My professors did different things -- worked in government, were involved with not for profits, did actual cases, myriad things-- that would be beneficial to students. No narrow definition.

[Anon]

Again, people like TWBB show their ignorance about the purpose of law schools and universities. The last thing you should want is faculty to do pro bono work. Some practical experience in some areas makes sense but the primary purpose being an academic is contribute new knowledge to the world and that requires an exceptional skill set and focus. While some "field work" can help with research it generally should not require actual legal practice

[Jerome Frank practiced]

The original post says: "Likewise, there should be diversity of legal backgrounds -- Ph.Ds, "traditional" academics, and experienced practitioners -- in the tenured/TT ranks of EVERY law faculty..."

First, I doubt the case for diversity is comparable -- race and gender diversity are not just about abstract viewpoints, but about resonance with student identity. The argument for or against ex-practitioners is not nearly the same. If it happened that most existing faculty were ex-practitioners, would anyone lobby for adding PhDs on the basis of diversity?

Second, this is swimming against the tide. Adjuncts are not prized as they should be (though a lot said upthread about disrespect, politicized appointments, absence of decanal supervision, etc. is inconsistent with my experience), but the odds that they will get increased job rights are de minimis. Practice-hardened TT applicants will either succeed on traditional university criteria, including publications, or get hired solely on contracts with fewer rights. There is no clear business case for handling appointments differently save for recruiting, and unless things change those interested in entering academia are rarely in a strong bargaining position. Expanding the range of those subject to tenuring now is not only a pipe dream, but it's facially inconsistent with the need to reduce personnel costs. So the only thing at issue is whether otherwise eligible faculty, including with today's portfolio of publications, should be disqualified solely based on experience, and I don't think that's a risk at all (and doubt, frankly, that it ever has been, again assuming proven scholarly chops . . . the problem arose more when scholarship was speculative).

Third, while I agree with hiring experienced attorneys and favor experiential courses, how strong is that correlation? Some of the most abstract and academic teachers I had were highly experienced. Besides, offering practical wisdom in a traditional course is not the same as offering experiential courses.

[anon]

Anon, in classic Anon style, states:

"the primary purpose being an academic is to contribute new knowledge to the world and that requires an exceptional skill set and focus."

This is reminiscent of the "knowledge generation" claim made some months ago here in the FL.

I would like to hear more about "new knowledge." This phrase, as applied in scientific contexts, makes sense. We discover the arrangement of the human genome, for instance.

As applied to the work of the vast majority of legal publications, a claim to be engaged in the discovery of "new knowledge" strikes me as so ignorant as to be farcical.

Anon, if you are serious, please provide some example of the "new knowledge" of which you speak.

Jerome Frank practiced

I think your comment, like many above, suffers from the perception that this thread involved a demand for an "either or choice." It didn't. It's hard to imagine the reason so many argue against the straw man that substantial experience in practice be required of every faculty hire.

What is also so remarkable is the fact that, in an environment where substantial experience in practice is generally viewed as a disqualifying factor, so many in legal academy protest so vehemently against ANY modification in their views, to allow more inclusion of persons with an affinity for and meaningful experience in practice.

"Diversity" works in this context, as these attitudes (and others at play in faculty hiring) are blatantly ageist and prejudiced in innumerable other ways.

[Jerome Frank practiced]

anon6:14, it is actually my view that one *can* have both, which is why I think this is fighting yesterday's battle. I do not think it is any longer the case that "substantial experience in practice is generally viewed as a disqualifying factor," if ever it was -- as I said, the problem used to be that we wouldn't see candidates who had both experience and publications, and now we can have it all.

I am however skeptical of the need to hire, for tenure, people with practice experience who have not demonstrated scholarly potential. I am also undoubtedly willing to trade off some experience for talents in teaching or scholarship, as I don't think there's much basis for supposing that years 8-15 of practice (say) have the same impact. We should make exceptions when it does.

You continue to argue for diversity, but again, I am not sure how there is a diversity interest in, say, those without experience; this is just a plea for experienced faculty that *incidentally* add diversity to some faculties, and it's simply confusing to put in those terms. I'm sure ageism, which you cite, might be involved in applications of those with long records in anything, including practice. Have due regard, however, for the costs of combating it: fear of ageism gave us tenure that approaches lifelong job security and has meant an aging faculty that is expensive, leaves few opportunities for hiring, and tends to replicate itself. Hard to see how a pitch for swelling those ranks goes anywhere or solves much.

[anon]

JF

"I do not think it is any longer the case that "substantial experience in practice is generally viewed as a disqualifying factor," if ever it was"

See, Brian's original post above. You seem to be taking issue with his principal point. In fact, you may claim otherwise, but most folks in legal academia would not consider this point even debatable.

"tenure that approaches lifelong job security ... has meant an aging faculty that is expensive, leaves few opportunities for hiring, and tends to replicate itself. Hard to see how a pitch for swelling those ranks goes anywhere or solves much."

Unbelievable! This is just the sort of plain old bigotry that passes as conventional wisdom in the law academy. Just because senior faculty "retire and teach," and exhibit the ills you identify, doesn't mean that new hires with more meaningful experience in practice will do the same. See, comment above.

In fact, the ills you identify generally would not apply at all to new hires with an affinity for and more meaningful experience in the practice of law. Moreover, the tenure process means that new hires could not do as little and get away with as much of most senior faculty in most law schools.

It is loose thinking in the law academy that has led to the dysfunction we see in almost every aspect of it. Another great example:

"I am also undoubtedly willing to trade off some experience for talents in teaching or scholarship."

Again, a statement with an embedded "either or" that is sort of nonsensical in the context of this discussion. This statement presupposes, contrary to evidence, that those with meaningful experience in practice do not talented scholars or teachers make. This is just plain old bigotry and prejudice.

Brian chose the word "diversity" because it evokes a sense that any bias that is so strong as the bias against practice in legal academia will always result in a weaker group, more insulated and more likely to go astray. The present "managers" of legal academia have surely gone astray and appear unwilling, in the main, to reconsider some of the tired old tropes that pass as received wisdom.

It is almost like Wall Street. The managers on Wall Street can never learn and improve because they are able to recognize the value only of their own flawed and grossly unsuccessful points of view. They personally profit, but the institutions they manage are rotting to the core.

[Jerome Frank practiced]

anon, one last try. Yes, I am taking issue with a principal point of the post -- some comments work that way. Practice experience is easy to misdiagnose as disqualifying, when the problem is the absence of demonstrated scholarly aptitude; the acid test is what happens when those with practice experience also have demonstrated scholarly chops. What has happened, certainly, is that some have practiced but not had the time to publish, but perhaps now we can have both, and in such candidates I will be very surprised if we see anti-practice bias. I will leave you to your certainty about what "most folks in legal academia . . . consider . . . debatable."

As to ageism, you surprise me and, I would think, most of your allies -- though now you turn on conventional wisdom in the academy, so very recently your bulwark. I am simply saying that because it is illegal to cap tenure at a given age, we have a faculty that does not retire readily, leaves fewer spots open, and is likely to hire other academically-focused individuals (one of your own points, I thought), and so forth. Also, tenure is expensive and antithetical to cost-savings. Perhaps you are right that the tenure process, once extended, would shape human behavior in unprecedented ways.

As to "I am also undoubtedly willing to trade off some experience for talents in teaching or scholarship" and your reply, I don't know how much plainer I can make it that I advocate hiring for all three. I was acknowledging that candidates are often stronger in one regard than another, so that choices might have to be made that revealed different emphases, but unwittingly committed the "either or" fallacy yet again. Tell me of your experiences on hiring committees when Golden Mean Esq. was so ubiquitous.

I don't know where the stuff about bigotry and prejudice comes from, save perhaps from reading with an over-jaundiced eye. I believe law schools should hire folks with practice experience. Unlike Brian, with his personal experience, I am less concerned with bias against experience as such nowadays than I am with suggestions that law schools should award tenure more widely, and potentially by relaxing standards in the sake of what is being called diversity. Good luck with funding that and charging students correspondingly. Better to hire those who succeed on all fronts, giving tenure when warranted by conventional standards, when necessary, and when compatible with cost-cutting.

[anon]

" in such candidates I will be very surprised if we see anti-practice bias"

I can only suggest that published statements by members of hiring committees, and reams of statistical evidence does not support your lack of awareness. Whether you are "surprised" or not isn't really a point that we can debate.

Not sure what you are saying about tenure. I would think we agree about too many senior law faculty have essentially retired to teach, while remaining in their lofty and expensive perches.

You seem to be missing the point entirely. New hires either produce, or they don't. Tenure isn't in the cards for many years and NO standards should be relaxed: pre or post tenure (with respect to the latter, a joke in every sense).

you appear to assume that those with substantial practice experience (i.e., older) will be unable to produce, and will behave just like senior faculty (who are taking advantage of a misguided view of tenure, which was designed to protect academic freedom, not the freedom to enjoy a lifetime appointment with little or no ongoing contribution in any way commensurate with salary, etc.). That is just bigotry. Demonstrably false!

But, here comes, perhaps, your true underlying concern: " potentially by relaxing standards in the sake of what is being called diversity"

That, JFp, is what some feel has happened on the watch of the present "managers" of legal academia. Hence, the widespread perception that law schools have lost their way in scholarship, in community involvement, in practical usefulness, etc. Bring in some experienced members of the legal community, and you might be able to open your mind and leave some of the narrow views that you seem to be unable to perceive as narrow behind.

[CHS]

I am sure missed it in this long thread, but anon, what qualifies as "experienced"--what minimum of years