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July 14, 2014

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anon

So many of the prof comments above discredit the profession. They reflect an amazing combination of ignorance and hubris, manifested in the muddled-headed, ill-informed and illogical arguments that too often pass for wisdom in legal academia. Add a gratuitous cheap shot at Brian. Shame!

The present crisis in legal education is not due to the economy, or scam bloggers, or the weather or the stars. This crisis can be directly attributed to management failings by law school faculties of late. Chief among these failings in hiring policies.

These faculties are woefully ignorant about the practice of law, and about the changing dynamics in the market for legal services. Good economic times or bad economic times, the chickens are coming home to roost.

Add to that ignorance a disdain - the unmistakably holier than thou attitude exuded by so many on legal faculties toward legal practice and practitioners - and one starts to get the big picture.

Institutions designed to train and produce lawyers have been increasingly populated and managed by persons who hold lawyers in contempt and increasingly by persons who have run away as far as possible from the study of law to pursue doctorates in completely unrelated fields! Is it any wonder that these persons question the “motives” of someone who has practiced “too long”?

Add to this toxic mix a sort of uncanny array of plain old prejudices (list the suspect classifications for an invidious discrimination claim and then do a check list) and we have the priorities in hiring in legal academia of late in focus.

In legal academia, this toxic combination that has driven law schools in general down several pegs and may terminate the work of many law schools completely in the process. Law schools have deservedly garnered an increasingly bad reputation in the public at large because law schools are failing to achieve their prime mission, and those managing these schools seem entirely clueless about how to address this crisis.

Brian hits it on the head. "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."

To get back on track, law schools must either realize that there is no choice but to begin hiring persons with an affinity for and meaningful experience in the practice of law or continue to suffer the consequences of the misguided hiring practices of recent years.

Take a few of the well-worn canards mindlessly repeated:

1.) "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."

First, practice, at least at the more responsible levels that most law profs have never known, involves daily teaching responsibility and constant honing of communication skills. Second, if you are in legal academia, and have access, you’ll know that this point, in reality, is complete nonsense. There is no hard data to show that “experienced practitioners” are not “excellent teachers.” (And, because of the total lack of respect and security afforded to adjunct faculty, those who are not “excellent teachers” need not be and usually are not retained.)

2.) Experienced practitioners want to “retire and teach”

Let’s face another reality: that description accurately fits most senior law faculty. How many senior faculty rest on past accomplishments, some in the so distant past as to be irrelevant? New faculty members tend to work hard, no matter their age, and if they don’t, tenure will not be afforded. Any other conclusion is, as someone pointed out above, invidious age discrimination (which, of course, is tolerated and even applauded openly in legal academia, as most law profs are so divorced from the reality of the community at large that they have no clue about the rules applicable to others that make such expressions actionable.)

3.) Practitioners don’t think very hard about the law

How can any serious observer of legal practice utter such nonsense? Law professors record their every essay and their every utterance on a cv, often over a period of decades, and then are quite impressed with themselves based on the long list. Practicing attorneys, over a like period, especially in litigation, have written hundreds of briefs, spoken hundreds if not thousands of times in court, presented to clients at the highest levels and when the stakes are real and substantial. They often have studied and written about the law in ways that law professors often haven’t and often cannot, because of lack of experience and exposure. Law professors, owing to arrogance and ignorance, seem to think that no practitioner ever thinks “academically” about anything. Nothing could be further from the truth, and anyone with an affinity for and meaningful experience in the practice of law would likely never think about an issue in so risible a manner.

4.) 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."

No. The correct answer is: “We need to think about hiring faculty with more practice experience.”

susan

Thanks for including the debt owed by students as a large factor in the decision to leave big law for academics.

I made an error in my previous post. I said that if students were on IBR they needed to hold a qualifying job for 10 years. Actually, it is PSLF that allows loan forgiveness after 10 years.

(By the way, I am not being sarcastic when I say thanks, I know it might read that way.)

And I agree with anon above at 4:35. The correct response to a student is to consider the point they are making, not to tell them they should have gone to another school.

ATLprof

" This crisis can be directly attributed to management failings by law school faculties of late. Chief among these failings in hiring policies."

And yet these choices by some/many faculties are the choices demanded (indirectly, but demanded no less) by prospective students, current students, alumni and the most sought after employers of graduates. Each of these constituencies through both their voices and their actions demand higher law school rankings. Faculty hiring policies at the criticized faculties are directly aimed at that.

Yes. The correct answer is: "We need to create a system where prospective students choose to go to a school with practice experience among its faculty." (Instead of the current system where a faculty hiring for practice experience instead of rankings is punished by prospective students who choose based on rankings.)

The easiest step to correct that is to have faculty practice experience calculated as a factor in the rankings, and the first step to having that done is to have the ABA mandate the collection and publication of that information (since that is the data USNEWS relies on).

Kyle McEntee

"The easiest step to correct that is to have faculty practice experience calculated as a factor in the rankings, and the first step to having that done is to have the ABA mandate the collection and publication of that information (since that is the data USNEWS relies on)."

Huh. That's such an interesting idea. I've had a number of conversations with Bob Morse about what to replace the expenditures per student with, and this might be the best candidate to date. (He's open to changing that component.)

Request for TFL (Brian, or anybody else): post an open thread where we can discuss and debate the positives and negatives of such a component. The purpose of the expenditures component is to provide a proxy for educational quality, under a theory that spending more is better than spending less. Any replacement should serve the same purpose.

I hate the rankings as much as the next person, but they exist and, while in power, we might as well try to align the incentives the rankings create with what's best for the legal profession and society. I'm not sure this component is the best alternative, but it could be.

anon

ATL

Your argument is entirely circular.

Faculties at elite law schools disdain practice experience and they control opinion about the value of new hires. Therefore, faculties at "lesser" law schools should hire folks with practice experience (as this is needed) and students should be so informed in order to make an informed choice.

Where is your data to show that "prospective students, current students, alumni and the most sought after employers of graduates" disdain practitioners and hold them in the low regard that you seemingly do? (And, please don't say "some of my best friends are lawyers"!) Where have you acquired the notion that your prejudices are shared by these groups?

The group in this mix that demonstrably holds practitioners in contempt includes those law faculty members who seem to consider themselves above and superior to the practice of law. USNWR doesn't control these perceptions of value.

Hence, the problem. Your solution: create a two tier system, with "inferior" law schools hiring practitioners.

Just how dense is this suggestion? It presupposes that there are no problems for the "elite" law schools, which are immune from the problems created by the arrogant and stubborn self regarding hiring policies described above.

One thing is true, ATL. The ratings are self perpetuating. Notable studies have shown that the ordering was in place long before USNWR, and has stayed remarkably steady (with some notable exceptions, of course.) This is not the answer, however. This circumstance is part of the problem.

The problem is the disrepute that attitudes like yours is creating for the legal academy. The legal academy is failing in its primary mission, and more and more, the word is getting out that there is something deeply wrong.

Change attitudes like yours, adjust to the demands on the practice of law as those demands now exist, and perhaps perceptions about a legal education will begin to change as well.


Orin Kerr

Two thoughts:

1) Although I agree that a diversity of backgrounds is good, to some extent Brian's thesis is undercut by the existence of so many experienced practitioners who are teaching in law schools as adjuncts. They're part-time, not full-time. But at many schools they play an important role in ensuring that students can learn from professors who are not only experienced but also have experience that is current.

2) I think some of the bias against folks with lots of practice experience reflects a sense that relatively few academic rock stars had a lot of practice experience before becoming acadeimcs. Consider Leiter's recent list of most-cited profs, with the # of years of practice experience before teaching added:

Cass Sunstein -- 1 year at OLC
Erwin Chemerinsky -- 1 year at DOJ, 1 year at firm
Richard Epstein -- 0 years
Eric Posner -- 1 year at OLC
Mark Lemley -- 2 years at firms
William Eskridge, Jr. -- 3 years at firm
Mark Tushnet [unknown]
Akhil Amar -- 0 years
Daniel Farber -- 1 year
Laurence Tribe -- 0 years

Of course, some of these professors have practiced since becoming academics, most notably Tribe and Lemley. But I suspect part of the bias reflects the notion that the Cass Sunsteins, Akhil Amars, and Richard Epsteins of the academic world managed to be reasonably successful academics with little or no practice experience.

Anon

Kyle,

I say this sincerely and without sarcasm: if you have been successful in getting Bob Morse to consider eliminating the asinine and perverse expenditures per student metric, you have had more success than the legions of deans, law professors, the ABA (by eliminating this from their annual data collection and calling it out in their Task Force's report) and other observers of legal education who have been urging him to do so for well over a decade.

anon

Orin

I believe that you participated in a debate that occurred some time ago here in the FL about the "respect" afforded to adjuncts. As I recall, you mentioned that you felt welcomed, admired, included, respected and most important, valued appropriately. Suffice it to say you were an exception. A big exception.

Arguing from exceptions is always a bit problematic. You cite academic citations as a marker of the "value" of certain academics. Again, circular reasoning, Orin. Why not measure citations solely based on briefs and judicial opinions? Why not then compare this citation rate to other sources of authority?

And, if you speak to most law faculty members candidly and off the record, I think you'll find that even with respect to the unbelievably select and highly exceptional names you mentioned (please see, citations stats for legal scholarship), there are many well known instances of the over rated nature of many pieces produced by this group: pieces that even legal academics have found useless and poorly reasoned.

As important as the tiny group you mentioned is to themselves ("Mirror mirror on the wall ...") the plain fact is, Orin, that you are proving the point of this thread, in terms of the relevance of their scholarship to the larger legal community and to the practice of law.

Orin Kerr

Anon @7:11, I'm confused by your comment. How is it relevant to my two points how many adjuncts feel valued, whether citations to articles are the best measure of value, and whether top scholars write some really bad articles? I'm not sure how the validity of my comment is questioned by any of those issues.

anon

Orin

You argue that the ill effects of hiring practices that tend to skew the direction that Brian has identified are mitigated by the presence of adjuncts on the "faculty."

In most law schools, however, adjuncts are definitely not considered to be part of the "faculty" in anything but the loosest sense. This disrespect is communicated in innumerable ways to students and to the adjunct faculty themselves, who typically have no say in anything concerning the management of the law school. That is part of the lack of diversity that Brian addressed. Your point about adjuncts doesn't make any sense in this context, and does, in fact, suggest confusion.

Again, I realize that your time as an adjunct was apparently blissful. Perhaps you were invited to faculty meetings, and you were asked to participate on the hiring and curriculum committees, etc. But exceptional as you are Orin, your personal experience doesn't really prove any overall point. Again, I refer you to the lengthy debate some time ago on this topic, in which you, IMHO, unconvincingly participated.

As for citations, your point was this: "I think some of the bias against folks with lots of practice experience reflects a sense that relatively few academic rock stars had a lot of practice experience before becoming acadeimcs." [sic]

It is the way that you measure "rock star" status that is the problem here addressed. In fact, that you consider these persons to be "rock stars" in the present context is so disappointing, as I thought of you as a fairly astute and fair minded commenter. If you are confused about this issue, I am even more perplexed and disappointed. Perhaps this claimed "confusion" was just a lazy way out of sort of bad arguments in favor of the present biases in hiring.

Please read the post and the comments above. With all due respect, I don't think your arguments are even close to a good defense of the status quo and certainly don't refute Brian's point and the many others amplifying his position in the comment section.

anon

Orin

If you are still confused about your citations point, remember: you claimed that citations are the best measure of "rock star" law prof status, and then used a statistically insignificant sample of law profs, and a skewed measure that favors certain well known names in academia, to demonstrate that practice does not a "rock star" professor make. Again, arguing from exceptions and using data of this quality is sort of mind boggling coming from you.

And, as for "rock star" and "meat market" and "best athlete" and the other juvenile euphemisms bandied about in legal academia, all one can say is: these reflect the aspirations of a teenage male, and as such can truly be referred to as the "Revenge of the Nerds."

Orin Kerr

Anon,

There seems to be a misunderstanding here, so let me try again.

1) Brian argued in the post that schools should hire experienced practitioners on the tenure track in part because "there is a greater focus [today] 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." I understood his point to be at least in part about the classroom experience for students: Students can learn some things best from experienced practitioners. To the extent that's the argument, though, it runs into the problem that students already can take classes from experienced practitioners -- and not former ones, but current ones -- who are adjuncts.

In your response, you say that many adjuncts do not feel respected,. You claim that I am "arguing from an exception" because my argument is based on my experience feeling respected when I was an adjunct. But my argument has nothing do with whether adjuncts feel respected, and I don't understand why you think feeling respected is important to the classroom experience. How does whether an adjunct feels respected impact student learning?

2) On the second point, Brian tried to characterize and then refute the arguments on the other side. I think his characterization is missing a significant part of the argument on the other side, though. So I tried to articulate that missing argument: that the professors who are generally considered the leading scholars in the field -- the ones who any school would hire, and who the top schools fight over -- usually didn't have much practice experience (and some had none) before they became professors. I used Leiter's list not because I think citation counts signal merit, but because that struck me as a list of people who are considered stars within academia. To be clear, I didn't endorse the argument or say that it is based on the normatively correct view of what academics should be. I just expressed the argument, in the interests of making sure we're not arguing against straw men.

In your response, you butchered my argument pretty badly. You said that I was arguing that citation counts are the best measure of status and that I was trying to defend the status quo. But I was doing neither. I was just articulating the argument that those who favor the current system make in its favor. If you want to say that the argument doesn't work because people like Cass Sunstein and Mark Lemley are actually bad scholars, then feel free. Similarly, if you want to say that law professors lack your maturity and (worse) are nerds, then that's great. But that seems really far from anything I was arguing.

anon

Orin

Limiting what I said about adjuncts to an issue of "feeling respected" is disingenuous. I suspect you know this.

As you say, Brian's post concerned hiring on the tenure track. As I said, this distinction is meaningful, for among other reasons, insofar as having a say in the management of the law school, including participation on the hiring and curriculum and admissions committees, etc., is typically limited to faculty other than adjuncts. That is part of the lack of diversity that Brian's post addressed.

Your point about adjuncts didn't make any sense in this context. The discussion here isn't limited to or even primarily concerned with teaching, Orin (although some above have sort of unbelievably claimed that practitioners don't make excellent teachers).

As to the second point, you said: "I think some of the bias against folks with lots of practice experience reflects a sense that relatively few academic rock stars had a lot of practice experience before becoming acadeimcs." YOu then went on to identify academic "rock stars" by reference to their academic citations and lack of experience in practice.

I responded by saying, among other things, that "you claim that citations are the best measure of 'rock star' law prof status, and then use a statistically insignificant sample of law profs, and a skewed measure that favors certain well known names in academia, to demonstrate that practice does not a 'rock star' professor make." That was a fair reading of your point, if you had any point.

You sure fooled me! Mea culpa. I thought you were saying that because the "rock star" professors have lots of academic citations and little practice experience, therefore bias against practitioners is rationally based. You certainly inferred that practitioners don't seem to be "rock star" legal academics.

It now appears you had no point at all. Now, you say: "To be clear, I didn't endorse [my] argument or say that it is based on the normatively correct view of what academics should be."

As your point had nothing to do with this debate (about providing diversity in academia by hiring more professors with an affinity for and meaningful experience in practice on the tenure track) I'll reconsider your comment and ignore it, after noting that your "bait and switch" gambit has been sort of, well, Freedmanesque.

You say, "If you want to say that [my] argument doesn't work because people like Cass Sunstein and Mark Lemley are actually bad scholars, then feel free." Wow. That sort of emotional outburst ("you say they're no good, no good at all!") is sort of the end of the argument, no? This comment is made even more risible by reason of the fact that you accuse me of butchering YOUR arguments. Pure projection.

As for maturity, you claim to know what makes a "rock star" law prof (or, perhaps it is more accurate to say that you said you do; now, I'm not sure.) So, I'll defer to your own view of how others should perceive your language, and thought processes that lead to use of terms like "rock star" and "meat market" and "best athlete." C'mon! Do you really deny that these juvenile expressions reflect the mentality and emotional maturity of a crass teenage male?

Or, do you actually think the law profs you named are just like "rock stars" Perhaps you do! If so, sorry.

Finally, apparently, in your view, the entirety of legal academia should be governed based on the perceptions of a very few about a very few, whom they laud based often on skewed, self referential measures that fail to take into account properly the principal obligations of law schools and the practical realities now facing almost all law schools and almost all law professors.

Orin Kerr

Anon, you figured me out: I'm deceitful and disingenuous in addition to being immature, emotional, nonsensical, and confused. And I would have gotten away with it too, if it weren't for you meddling kids. Oh well.

anon

Well played, Orin. Your last comment is, in fact, the epitome of a calm, mature response.

To be clear, I don't endorse anything I've said above or say that my arguments were based on the correct view of what this debate is really all about.

Actually, based on your last comment, it is clear to me now that you are indeed absolutely correct.

Your arguments make much more sense to me now.

Having adjuncts teaching law undercuts Brian's thesis and bias against practitioners in hiring reflects the sense that "rock stars" in legal academia, based on their academic citations, don't have much practice experience.

Brilliant!

Anons

One thing perhaps worth adding is the cyclical nature of it all -- i.e., because current faculty don't have or significantly value practice experience, they will not see the value in hiring those who do, thus perpetuating the cycle.

Also, this is very valuable post. While the tenor of the past few comments perhaps can be improved, this tread is a fine example of how reasoned discussion has the potential to result in answers to important questions in legal academia and also enhance the educational experience and outcomes of its students.

brad

Former Editor wrote:
"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."

This may well be a legitimate concern, but I don't think it's one that employers are legally allowed to consider, at least with respect to applicants 40 years or older.

---

Jeff Lipshaw wrote:
"5. One of the canards that floats around, however, is that law professors don't care about their teaching, and I react to it about the way I did to the canard that corporate board members were toadies, lackeys, and butt-kissers to the CEO. Simply: not in my experience. Skill and effectiveness levels may vary, but I have yet to run across a law professor at any school anywhere on the food chain who didn't care about being a good teacher."

That's my experience too -- except perhaps for the most burnt out senior faculty, professors really do care. But deans, hiring committees, tenure committees and so on don't. It's not a serious part of whatever institutional calculations of value are made.

To make a sports analogy, a pitcher may well care how well he bats and try his hardest, and at least when playing in an NL park it's part of his job, but it isn't how he is measured or valued as an employee. So you can't a broad range of batters from frankly awful to not too bad at all. You don't see the same thing in any field position, even short stop which is the position where fielding is most important. I'd argue that tenure and tenure track professors are like pitchers rather than short stops, scholarship is the alpha and omega of job performance -- teaching and service are required parts of the job and can't be skipped, but they aren't "about" how the players are hired, retained, tenured or paid.

To extend the metaphor perhaps a bit too far, adjuncts are the designated hitters who are at supposed to be teachers above all. But they are paid way less than everyone else, not given office space, not given tenure, etc. On top of that, at least in my experience they aren't even really rigorously selected for teaching ability either. More like who happens to be around, willing, and has connections with the dean.

anon

Brad

"On top of that, at least in my experience they aren't even really rigorously selected for teaching ability either. More like who happens to be around, willing, and has connections with the dean."

What a shame. A good comment ends on a bad note. Either you have a terrible dean, or work in an unusual law school.

Adjuncts have no job protection. Unlike tenured faculty, who often "retire and teach" on the law school payroll (and this is obvious to everyone, including the students), adjuncts enjoy no such privilege and are simply not invited back if performance slips.

Your disrespect, and this is an awfully disrespectful comment that reflects a shared perception among too many law faculty, relates to the "conversation" with Orin above.

Because your comment embodies the prevailing values of the legal academy, your flippant disregard for the value of the teaching done by adjuncts demonstrates just how wrong Orin was about their contribution uncutting the thesis of this post.

brad

I don't see how it's disrespectful to adjuncts to criticize the process of how they are selected. That they have to go through a highly politicized process, are treated and paid poorly and yet still power though is a testament to -- at a minimum -- their motivation.

It *was* disrespectful to deans, advisedly so. When was the last time you saw a dean do a classroom observation (either himself or solicited another professor to do so) in making an adjunct hire or retention decision?

anon

I've taught at multiple law schools and each one routinely did classroom observations of all adjuncts.

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