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Thursday, December 01, 2011

Tenure Review Standards and Educational Reform

Greetings prawfs, it’s nice to be back.

 As a junior, untenured guy who has recently made a lateral move, I have become interested in the nature of the tenure/retention process at different schools.  And as I follow (somewhat anxiously) David Segal’s and others’ sustained attacks on contemporary legal education, I have also begun to wonder about the potential intersections of tenure reform and pedagogical reform.   I don’t mean to rehash or reopen the debate here about whether the institution of tenure should continue to exist in law schools, rather I am wondering about whether the standards for tenure might shift as schools respond to criticism of the “overtheoretical” legal academy.

 I consider myself very lucky to be at a school that places a high value on research and writing of all stripes—theoretical, doctrinal, empirical, practical, etc—and which provides ample time and support to junior folks like myself.   The prospect of a standard three-course load and a semester of research leave every three years was very attractive to me as I made my decision to move.  With freedom comes responsibility, however, and I am preparing myself for a pretty rigorous tenure review process that will focus both on the originality/quality of the work I have produced AND on that work’s reception among the established academic intelligentsia in my field.  To that end, I do feel a certain pressure to engage in the kinds of theoretical (what critics seem to like to label “useless”) scholarship that is the status quo.

 I should first say that I like the current model.  Call me traditionalist, self-indulgent, overeducated, or whatever, but I truly enjoy the kinds of theoretical work I get to do, and I think it pays off well in my classroom teaching as well.  I think that the much-ballyhooed dichotomies between theory/practice, scholarship/teaching are generally false.  Theory informs practice, scholarship informs teaching and vice versa.  BUT having said all that, I do wonder if the educational reform movement—which seems, to me at least, focused on outcomes and results over process (“no law student left behind”)—might result in changes to the general character of tenure review standards. 

I realize that most (all?) schools consider “teaching” as part of tenure review.  But my impression is that this is kind of a fuzzy and probably less weighty part of the calculus.   But, if we do become more focused on outcomes—on students’ ability to pass the bar, get a job, and fold seamlessly into a practical workplace—might we also become more focused on empirical measure of faculty “outcomes” as well?   Might we start looking at things like bar performance among our student re the subjects we teach?  The data are certainly available to determine my students relative success on the Con Law portions of the MBE.  Do we seek feedback from hiring firms about which students were well or poorly prepared to draft motions or keep track of billable hours, and then track those stats back to their legal writing/lawyering profs?

 Personally, I shudder to think about these kinds of changes.  To my mind they could soon leave us asking—to paraphrase Tony Kronman—when our law schools stopped teaching the meaning of law.  But maybe that’s because I’m insecure about the practical value of my teaching.  Maybe tenure review changes are an appropriate and efficient way to incentivize needed reforms in legal education; maybe these are ideas whose time has come.  Thoughts?

 

Posted by Ian Bartrum on December 1, 2011 at 04:43 PM | Permalink

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I am a long-time practitioner. I do not buy into all the theory versus practice noise. I received a traditional legal education and have enjoyed what I consider to be a very successful career. As a law firm partner, I saw skills training for young lawyers as my responsibility, recognizing that law faculty can do little of it and, frankly, that I would rather train my junior lawyers as I saw fit rather than relying on law professors to attempt to train them. There are many, many other lawyers in my shoes. But the academy continues to defend itself in the wrong places. Blogs such as this one are echo chambers. If the current assault on legal education bothers you, then you must find some way to articulate your positions to more mainstream audiences. It is fair for someone to ask, for example, why you should be teaching law students when you have never practiced law (at least I read your CV as reflecting a lack of practical experience). It is equally fair for you to explain why, in your fields, a lack of practical experience isn't damning. But the second half of that debate must take place where it matters, which isn't on a blog read mostly by legal academics.

Posted by: Doug Richmond | Dec 2, 2011 8:02:25 AM

Yes because all Con Law professors should be experienced constitutional litigators. Meaning we could have have how many Con Law courses in the country? And they should be interested in teaching - but of course any training in teaching itself is less relevant as teaching law is ontologically the same thing as practicing law just with funny word changes. And all the nonsense like doing legitimate historical research or even economic analysis can provide students with few synthetic insights, as opposed to funny stories about cases and the rich catalog of anecdotes that make experience ontologically identical to generalized scholarly knowledge production like so many other fields embrace - again with just funny word choices. This is why this debate is so filled with so much empirical data from teaching evaluations - like why we would ask Ian to produce those when we just know spontaneously that all adjunct practitioner instructors have amazing teaching evaluations? Unless one has actually been on an adjunct hiring committee and realize how damn difficult it is to get a consistent adjunct who isnt completely out of his/her depth in a classroom. But classrooms are just ontologically identical to courtrooms with just some funny letter choices!

Posted by: ConLawAnon | Dec 2, 2011 9:03:13 AM

Doug Richmond writes: "As a law firm partner, I saw skills training for young lawyers as my responsibility, recognizing that law faculty can do little of it and, frankly, that I would rather train my junior lawyers as I saw fit rather than relying on law professors to attempt to train them." Until recently, I think this view was common, especially in elite law firms, and was the expected consequence of a professoriate with limited experience in practice and correspondingly little ability to impart practice-related skills. I respect Mr. Richmond's view, borne of his experience, but for smaller firms, government and public interest firms less able to bear training costs, this state of affairs has posed a serious problem. Moreover, there is increasing evidence that the model utilized by elite firms has proven unsustainable. These firms are increasingly unwilling to bear training costs in a market in which clients prove unwilling to pay fees that reflect those costs. In short, there is plenty of reason to believe that the market will push law schools to produce a more cost-effective graduate. Over time, that is likely to influence the tenure process. In the long run, even the academy cannot defy the market. Unless someone is willing to pay for the current level at which what Professor Bartrum calls "the kinds of theoretical (what critics seem to like to label 'useless') scholarship that is the status quo" is produced, the market will eventually force law schools to produce less of it.

As for Professor Bartrum's perspective, it is all well and good to believe that "theory informs practice," but given Professor Bartum's lack of experience in practice, Professor Bartrum of course has a powerful incentive to take that view. Like most academics, he is hardly an impartial arbiter of the value of theory to practice. And, given his lack of experience in practice, there is also reason to question his ability to assess the question. One also wonders what is meant by the oft-repeated claim that "theory informs practice." I have recently published an article about the legal career of John Yoo, whose theory informed his practice, though not for the better: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

In short, it may be that the model described by Mr. Richmond is passing from the scene, to be replaced by a market that demands less theoretical scholarship and more legal education that produces sound professional judgment.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Dec 2, 2011 10:35:28 AM

Larry, whenever I see a comment from you, I first ask myself, "will he be pushing that John Yoo paper again?" I'm almost never disappointed, though I do think you've missed one or two cases to do so.

Posted by: Matt | Dec 2, 2011 11:40:47 AM

I guess I should have expected to be reminded about my lack of practice experience when I posted this. Somehow I didn't, but oh well.

It may well be that my lack of practice makes me less able to teach practical skills, but, as Con Law Anon points out, that may not be the case. It might be that my years of experience as a classroom teacher (going back to high school in urban DC) end up producing students with better practical outcomes than those a highly experienced practitioner with no teaching experience can achieve. Again, maybe not.

One upside, I guess, of an "outcomes based" tenure review process would be to start to answer that question in some kind of empirical way...

Posted by: Ian Bartrum | Dec 2, 2011 12:03:15 PM

Ian, my guess is that, as Doug Richmond says, there's probably a fair explanation why lack of practice isn't a problem.

To answer your larger question, I'd hope that the lower ranked law schools undertake some aspect of re-aligning their value-add proposition in light of the new economic reality. That may or may not include having 1L courses taught by people with practice experience -- and I for one don't see why that would be necessary to the right value add solution. There has to be more than one way for law schools to adjust to the new normal.

(Urban DC? I went to hs in urban DC and then taught Street Law at Anacostia High while at GULC.)

Posted by: John Steele | Dec 2, 2011 2:28:01 PM

I often wonder when I see this debate what it is we should expect law schools to do, even if we all agreed that the goal was "practice-ready" graduates. I am a law professor and I also have substantial practice experience (nearly 10 years). I teach Civil Procedure, but I can tell you that there is virtually no way that I could teach students how to be practice-ready litigators even if all 90 credit hours in law school was devoted only to civil procedure.

It took me about five years of practice (with 2000+ billable hours of practice per year) before I felt that I was competent enough that I could have litigated complicated cases on my own. Given that creating a qualified litigator takes about 10,000 hours of practical experience in addition to law school, how realistic is it to expect law schools to produce "practice-ready" litigators? I don't see any way around the fact that young lawyers are going to need training and guidance to become fully-developed professionals.

Law schools can and should provide an experience that is more relevant to what young lawyers are likely to do. But young lawyers will still need further training and guidance beyond law school.

Posted by: Stuart Ford | Dec 2, 2011 2:30:38 PM

If the tenure process included a serious focus on teaching it seems to me someone with a long background in teaching, at any level, would have a serious advantage over both long time practitioners and the college - YLS - 2x clerkships - fellowship - tenure track hire candidates. Of course teaching only 10 courses in 4 years is going to erode that experience advantage.

Posted by: brad | Dec 2, 2011 4:14:52 PM

ConLaw Anon's argument about adjuncts is a red herring. ("when we just know spontaneously that all adjunct practitioner instructors have amazing teaching evaluations? Unless one has actually been on an adjunct hiring committee and realize how damn difficult it is to get a consistent adjunct who isnt completely out of his/her depth in a classroom. ")

Adjuncts are usually practicing law full-time; the amount of time that they have available to prepare for class is severely curtailed. I've never applied to serve as an adjunct partly because I suspect I could not do justice both to teaching and my daytime practice. I've heard from several students at local law schools that their adjunct professors, while very nice and knowledgeable about their fields, often seemed unprepared for class or distracted by pending litigation. I don't think it's reasonable for law professors without practice experience to use adjuncts' teaching deficiencies to make the argument that practically inexperienced professors are more qualified to teach future attorneys than people with practice experience. Put differently: adjunct teaching quality is not predictive of the teaching quality of long-time practitioners-turned-academics who are paid to teach full-time.

Similarly, while I respect your opinion, Stuart - as it is informed by both practice and academic experience - I still question whether you're setting up a strawman. I agree that it is probably not realistic to expect law schools to produce fully "practice-ready litigators," but I think that law schools could bear a lot more of the burden to train future attorneys than they currently do. And I think Larry makes one argument for why it's desirable, in pointing to the inability of small law firms, government offices, and nonprofits to shoulder this training burden. This means that some jobs are needlessly off-limits to new attorneys, which is often a source of anger. (It's legitimate for an attorney to feel frustrated when told, "You'll need to go to a corporate firm for a few years before you are even eligible to apply for the job you really want to do, because the office you want to join needs someone else to do the lion's share of your training." There is no reason for this to be the state of affairs - other than law schools' recalcitrance in failing to hire enough faculty with practical experience and failing to offer enough practically-oriented courses.)

Posted by: ConLaw Practitioner Anon | Dec 2, 2011 4:37:29 PM

I have to say I'm a bit disappointed that this thread seems to have strayed from my original question, which was about whether tenure review should include practical faculty "outcomes".

The question of whether profs with practice experience are more likely to get successful practical outcomes is a separate one--one that we are not currently in a position, empirically, to answer. Maybe a tenure review process that tracked these things would provide some grounds for a more meaningful conversation on that point.

In the meantime, though, my thoughts are more along the lines of the costs and benefits of adding these kinds of things to tenure review. Would it incentivize profs (with or without practice experience) to teach practically useful material? Or would it result in more "teaching to the test" with little emphasis on deeper thought?

And, I can't help noting, as an aside, that Con Law Practioners suggestion that law schools "fail to hire enough faculty with practical experience" is a "red herring." The majority of profs do, in fact, have practice experience...

Posted by: Ian Bartrum | Dec 2, 2011 5:20:42 PM

Ian - when I referred to "faculty with practical experience," I meant more substantive experience than a couple of years at a big law firm (or, honestly, a couple of years anywhere) - e.g. developing litigation strategies, first or second-chairing significant trials, authoring full appellate briefs, etc. - work that is not usually given to junior associates at major firms (which seems to be the extent of many faculty members' practice experience). I should have expressed myself more clearly.

Apologies for straying from the original question; I was jumping into a thread that had already wandered. As you can tell, a big theme for me is practical experience, and unfortunately I lack the experience to comment on modifications to the tenure review process because I've never witnessed it first hand. Even though I'm skeptical of much tenured/tenure-track professor teaching, however, I'm not sure that the practical reforms you suggest - like linking tenure to bar or practice performance - would really be fair to the professors.

First, many law offices are not going to be willing to comment on personnel performance to law schools, at least on an employee-by-employee basis - there is little benefit to them in taking the time to do so, and possibly significant downsides. (Many employers refuse to confirm more than ex-employees' titles and the dates of employment even to future legal employers, after all.) Even if larger law offices would be willing to comment in the aggregate about the performance of graduates from a particular law school, it would not be fair to link that commentary to specific professors' tenure, since we could not determine whether those professors were the cause of the particularly good or bad performance the employer has observed.

Second, I'm not sure what state you're in. In my state, successful candidates do not receive their bar examination scores, and I don't believe that score breakdowns are provided to their law schools - again making your proposal infeasible. Even if the disaggregated data are available, I'd have a hard time penalizing individual professors for the poor results of their students, except in the most extreme circumstances (e.g. if 90 percent of a particular professor's students failed, year after year, there would probably be something really wrong with the professor's efforts.)

With that said, I seriously question whether law schools with bar passage rates lower than 90%+ should enjoy the benefits of continued accreditation. The bar is a very elementary test, the test of minimum competence in this field. If schools are unable to prepare their students to pass it near-universally, it suggests that they should not continue to exist, either because their teaching methods are defective or because they are admitting students of very low caliber.

Posted by: ConLaw Practitioner Anon | Dec 2, 2011 8:57:24 PM

One correction: I should have written, "e.g. if 90 percent of a particular professor's students PERFORMED PARTICULARLY POORLY ON THE SECTION OF THE BAR THAT S/HE HAD TAUGHT THEM, year after year, there would probably be something really wrong with the professor's efforts."

Posted by: ConLaw Practitioner Anon | Dec 2, 2011 8:59:26 PM

Having just skimmed the California bar exam statistics disaggregated by school, I regret that 90 percent would be too high a number to be feasible in California; perhaps 80 percent would be necessary for outlier bar exams like CA (and NY?) But I stand by my point that if schools aren't preparing 80-90 percent of their students to pass the bar exam on the first try, something is going seriously wrong.

Posted by: ConLaw Practitioner Anon | Dec 2, 2011 9:04:30 PM

I am not sure whether my argument is a strawman or not. I have seen a number of articles that say something along the lines of "law firms are no longer willing to subsidize the training of young lawyers and this must now be done by the law schools." I am not sure what this means, but I am pretty sure it does not mean that law firms are actually unwilling to train young lawyers.

My point above was that "training" a young lawyer to the point where they can operate independently in all aspects of litigation is simply not something that can be accomplished in three years at law school. There is no way that law schools can graduate lawyers who are going to be the equal of a senior associate with five years of experience.

Therefore, I think we must accept that law firms will continue to have to train, mentor and supervise young lawyers. (I suppose that some law firms could simply stop hiring recent grads and only cherry-pick senior associates from other law firms, but somebody would still have to be doing the on the job training of the lawyers they are cherry-picking). The question then becomes, if we cannot expect law schools to produce lawyers that can handle all aspects of the job without supervision, what is it we actually expect law schools to do.

Here, I think that recent graduates are in fact getting a far more practical law school experience than I received when I graduated just 13 years ago. I took one semester of legal writing, no clinic, no externship and all of my classes were highly academic and theoretical. My civ pro class (which was wonderful by the way) did not involve any writing of actual litigation documents and the class was graded entirely based on a single four hour exam.

Today, graduates at my school will have taken four semesters of legal writing and will have written a number of litigation-related documents during those four semesters. Virtually all of our students take either a clinic or an externship, and many do both. My civil procedure students have to write one of the following: (1) a complaint, (2) an answer, or (3) basic discovery. (I used to require all students to do all three, but they complained so bitterly about the workload that I relented after a few semesters.) And all of the students see me dissect individual complaints/answers/discovery in class and we discuss what mistakes people made and how to improve. (Other civ pro professors at my school do similar things.) In short, I think that today's graduates are much better prepared to practice than graduates were just 10 years ago. And law schools are getting better at this all the time. I don't know of any law schools that aren't taking a close look at their curriculum to see how to give their grads more of the skills they need. On this point, the academy seems to be improving rapidly. (Admittedly, I have not done any research so maybe there are law swathes of legal academia that are not responding to these issues, but I haven't seen it.)

A completely separate issue appears to be that (partly due to the downturn although the change may now be permanent, I don't really know) there are now more law school graduates every year than there are jobs in the legal profession. It seems to me that this problem lies at the heart of complaints that law schools are doing their students a disservice. And it this point that no amount of curriculum reform can change. Unfortunately, the solutions appear to be: lowering class sizes at law schools or fewer law schools. I suspect we may see some combination of both if the shrunken size of the legal market persists after the economy improves.

To try and tie things back to Professor Bartrum's point, I think this will eventually have an impact on tenure review (and perhaps more importantly for many law professors - post tenure review). We may well see more emphasis on trying to measure professors' teaching performance beyond student evaluations. The issue of trying to measure what effect individual professors have on their students' GPAs and bar passage rates has been raised at my school, although trying to figure such things out appears to be next to impossible.

In the long run, we may see a transformation of the profession similar to what happened to the partnership track at big law firms. As I understand it, (this was before my time at a law firm) it used to be that once you made partner you could relax and take it a bit easier. Maybe play golf during the week occasionally. That is no longer the case (or at least it wasn't at any of the firms I worked at). Once you make partner, the pressure just ratchets up. You are expected to bill more hours and start bringing in clients. Partners who slack off are let go.

Something similar may happen at law schools as professors will be continually evaluated to make sure that you are producing what the school needs (even after tenure). I am not sure this result is inevitable, but I certainly see it as possible.


Posted by: Stuart Ford | Dec 3, 2011 10:48:50 AM

The most intriguing part about this post is that--at its essence--Ian expresses anxieties similar to the thousands of law students who have struggled to find work in the new normal of the legal world.

For law students, the rules suddenly changed: getting good grades at a good law school no longer guaranteed legal employment. With sky-rocking costs and structural changes in the profession, the truth is the market will force the rules to change for the legal academy too. Maybe that will be changes in pedagogy, maybe that will mean reductions in costs or the length of training, or maybe some schools will shut down, but one thing's for sure: the times they are a-changin'.

After investing so much in a certain form of pedagogy, Ian's worried how the coming changes will effect him and whether his preferred academic focus will pay off. I would argue that law students, after investing so much in their educations, have been experiencing these same worries much more acutely and painfully and for some time. They too made career bets based on assumptions that didn't work out in the end.

Certainly entrenched faculties with experiences similar to Ian's would resist any changes like those he outlines above. But it's simple math: the legal academy cannot continue to produce twice as many students each year than the market can absorb. Admittedly, for students, there's a bit of schadenfreude at watching this conversation unfold.


Respectfully,

Mark Erikson
Boalt '06

Posted by: Mark Erikson | Dec 3, 2011 4:59:21 PM

That's an interesting perspective, Mark. And maybe it's fair. Kind of reminds me of that great Randy Newman tune "I Just Want You To Hurt Like I Do"...

But, just to be clear, I'm not really worried that much about my preferred academic model, or my right to do theoretical scholarship, or be lazy, or whatever. I'm actually worried about what is best for legal education.

Should the desire to produce better bar results, more practically-trained students, etc (which hopefully translates into more students getting hired? at least it addresses the bar part of that problem, which is not insignificant) actually get us thinking about monitoring faculty outcomes along those lines? Or would such a move actually hurt the quality of the overall education we give to students? That's really my anxiety...

Posted by: Ian Bartrum | Dec 3, 2011 10:30:57 PM

*Should the desire to produce better bar results, more practically-trained students, etc (which hopefully translates into more students getting hired?*

I know this is not the point of this post, but I wanted to flag this point (and Mark's initial post): I don't believe the supposed absence of practically trained students (which is actually less of a problem than many suggest) is the cause (or even correlated to) the difficulties graduates are having getting jobs. They're not getting jobs because there are fewer jobs available in light of the economy and, perhaps, too many law students flooding the market at the wrong time. But none of that would change if law school consisted of three years of mandatory clinics. Students did make "career bets" that, unfortunately, have not worked out, at least not so far. But that is not about the content of legal education.

Posted by: Howard Wasserman | Dec 4, 2011 7:10:28 AM

Howard, you have, perhaps unintentionally, stumbled on the very reason so many people are upset with the legal academy. For the students who invest so much in your institutions, what is the purpose of the legal education about if not to secure employment and have a meaningful career? This choice to pursue a legal education is not simply a form of conspicuous consumption. The idea that the content of legal education is not somehow not inexorably connected to its purpose comes as a fairly disturbing surprise to those without much familiarity with law schools.
Of course, the academy likes to think is much more grandiose terms. Creating an ethical profession, expanding access to justice, and creating a more just society may be what you refer to when you reference what the content of legal education is about--all very noble and important goals. But under a spotlight, when students and the New York Times realize how disaggregated these goals (and therefore the teaching) have become from the ability of your students to get jobs, they are starting to question the utility of your enterprise, especially if the results are real, devastating damage to the students who made those "career bets."
Perhaps practically-trained students won't directly lead to more students in the aggregate getting hired. But let me offer two points. In a declining market, and outside the penumbra of elite schools and law firms, practically-trained students have a comparative advantage vis-a-vis their peers. And in a world where study after study shows access to justice is still so limited, students who were practice-ready from Day One could service this unmet demand--of course, only if they billed at a price their debt burdens do not currently allow.
From the outside, it seems like the academy's approach to this crisis is to pray that it's cyclical. I would argue that's not a very good strategy for reasons Bill Henderson and others have outlined. If you want the pedagogy to remain unchanged, you're going to have to reduce costs and/or the number of schools. Neither of those options are attractive to the academy, hence we find ourselves at this very uncomfortable moment for legal education.

Posted by: Mark Erikson | Dec 4, 2011 4:55:40 PM

What studies show that "practically trained" graduates have a comparative advantage over their peers? What kind of training and in what fields?

Posted by: Anonymous | Dec 4, 2011 10:53:59 PM

Anonymous, the study is called "the experience of trying to find a job outside of biglaw after graduation." Or did you not experience this becasue you went to HYS, did a clerkship and maybe a year at a firm, and then went straight into acadamia?

Posted by: Anonymous | Dec 5, 2011 9:52:50 AM

"With that said, I seriously question whether law schools with bar passage rates lower than 90%+ should enjoy the benefits of continued accreditation. The bar is a very elementary test, the test of minimum competence in this field."

I completely disagree. The bar exam tests your ability to memorize 20 different subjects, most of which a student may never be exposed to. Real life is open book, not closed book, and often involves a much narrower range of subjects.

In other words, the bar is (1) not job related and (2) not "elementary." (And its not just me who feels this way- I think the thousands of students paying for bar review courses must agree).

Posted by: Michael Lewyn | Dec 5, 2011 9:27:18 PM

Michael, I agree with your assessment of ConPract's claim. But I did want to say to take at least partial issue with your suggestion that the bar exam is not job related.

Anyone who works in career services or similar offices at a law school will tell you that bar failure is a significant problem for job placement. If 25% of your graduates don't pass the bar the first time, they usually can't get a "legal" job within the first year after graduation. That means the BEST you can do on that kind of placement is 75%. So, in a sense, passing the bar is first hurdle to employment, and I think that this is one area in which more targeted/practical teaching can help students get jobs--even though I basically agree with Howard's point above...

Posted by: Ian Bartrum | Dec 5, 2011 10:06:15 PM

There are schools that dramatically increased their bar passage or that routinely have higher passage than one would predict from their students' incoming credentials? (NYLS; NC Central; etc.) It's no mystery. We all know what those schools have done to increase those passage rates. NYLS laid out their program in detail in the Journal of Legal Education. Other schools don't do that because other schools have other priorities.

Posted by: John Steele | Dec 6, 2011 5:34:03 PM

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