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Monday, July 02, 2012

The Experiential Sabbatical?

First, thanks to Dan Markel for this opportunity to guest blog.  (I am embarrassingly late to blogging world, but figured I’d better get on the technological bandwagon before I end up like my dad, wondering what those “new CD machines” are.)

I have read numerous posts on this site about sabbaticals, but I come at the issue from a (hopefully) novel angle.  Here’s the set-up:  I teach criminal law.  I write about criminal law.  I direct my school’s institute of trial and appellate practice.  And yet, although I have a fair amount of civil litigation and trial experience, I have never handled a criminal case.

This fall, I will apply for my first sabbatical, and I plan to use the time off to work as and hopefully try a case as a prosecutor.

  (Local city prosecutors’ offices already have regular rotations of unpaid interns, who often end up conducting one or more trials; and I might even be able to reach a similar short-term arrangement with a district attorney’s office.)  Not the most relaxing way to spend a leave, I know, but it could greatly enhance both my teaching and scholarship.  Indeed, since I am interested in “experiential learning” (define that overly-used and abused phrase as you will), I could envision writing an article about how my practical experience changed or informed my approach to teaching. 

Moreover, I am sensitive to the “homogenization” problem identified in the recent ABA Journal article, as just commented on by Paul Horwitz.   I went straight from an elite law school to an elite law firm to teaching at a lower-ranked school where many of the graduates work as prosecutors or criminal defense lawyers, not associates in white-shoe firms.  If I had experience doing the type of work that my students are likely to do, it could help me better integrate into the classroom the skills or knowledge they would need to succeed in that environment, or at least give me a more informed basis to advocate for other appropriate changes within the institution.

When I attended the Workshop on the Future of the Legal Profession and Legal Education at the AALS Annual Meeting in January, one of the speakers asked the audience if their schools would approve a sabbatical for the purpose of engaging in some sort of practical work.  Roughly a quarter of the room indicated their schools would approve such a sabbatical, well over half indicated they weren’t sure, and only five percent or so indicated they were confident their schools would not.  An encouraging sign.

Here’s the catch.  Several months later, during a faculty discussion about revising my school’s tenure policy, I mentioned my intention to apply for a sabbatical to do prosecutorial work.  To my surprise, a number of faculty members were dismissive, indicating such an application clearly would not be approved.  Others came up to me afterwards and tried to reassure me that if I “sold” it the right way—i.e., that I would be doing legal work for the purpose of generating scholarship, not work for its own sake—my application would easily be approved.

So I am curious:  Have others engaged in “experiential” sabbaticals?  Does your institution support them, and under what circumstances?  Any other insights on the pros or cons, or how better to navigate these relatively untested waters, would be greatly appreciated.

Posted by Martin Pritikin on July 2, 2012 at 01:31 PM in Life of Law Schools | Permalink

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I've had a similar idea, and I've been assured by those in the know that I too must "sell" this plan as one that will directly lead to scholarship. Even then, it is unlikely to be approved.

FWIW, my hope is that more schools will accept this approach, particularly for those who haven't worked in the field in which they teach.

Posted by: AnonProf | Jul 2, 2012 3:06:32 PM

This is a great issue, and one that seems discussed a lot lately on PrawfsBlawg. I do criminal law as well, and have experience as a criminal defense attorney prior to joining my school. I've been lucky enough to land at a school that has welcomed my plan to continue to represent indigent clients at the appeals stage under the Criminal Justice Act. My dean and fellow faculty members consider this to count as "service to the profession" and because I involve students in representation, it can count as part of my "teaching" requirement. In the ten months I've been a CJA attorney/law professor, two students have been integral parts of this real world work experience. I hope that I've also done my job as a professor in teaching them how to do appeals and be professional and dedicated attorneys.

I've spoken about my work with colleagues at other schools, and almost invariably they think it's a really good idea, for teaching and service, but also for scholarship. I do get the sense, however, that if I ever intended to look for a job at a different school, my CJA work would be seen as a negative or, at best, neutral. So individually, we all like the idea, but there's institutional pushback.

I should add that my school fully expects me to continue to perform well as a teacher, scholar, and member of the law school faculty.

Posted by: Steven R. Morrison | Jul 2, 2012 3:25:30 PM

I don't know my school's policy, but I wouldn't criticize my Dean if his policy was to reject applications for "experiential" sabbaticals. We law professors are paid to teach students and conduct and publish research, and the premise of a sabbatical leave is that we are spending a semester or a year with a different balance: Less teaching to do more research. If we think it would be fun or interesting to get more experience, we can take an unpaid leave of absence to do that. But I'm not sure it makes sense for the university to pay for us to get that experience through a paid sabbatical leave, at least absent some indication that it would really advance our teaching and or scholarship.

Posted by: Orin Kerr | Jul 2, 2012 3:53:55 PM

If you take time off to write an article that you and a handful of individuals interested in the subject may ever read, then that's a good use of the school's time and money. If you take time off to work in the field where a majority of your students may find themselves in three years, that's unproductive.

This may be one of the best unintended summaries of what's wrong with law schools ever.

Posted by: Morse Code for J | Jul 2, 2012 4:00:19 PM

Martin, we're alums of the same law school (so I would like for your reasoning to apply as much to academics at "elite" schools as to "lower-ranked schools"). I would have considered it a much better use of my tuition dollars for professors to use their sabbatical time/income to gain practical experience in the fields that they were teaching us than to write law review articles that were useless to me as a student and are now useless to me as a litigator. There were so many times that we had questions about how litigation played out in the real world that our professors were not adequately experienced to answer. The better professors understood their limitations and brought in practitioners as guest lecturers to teach us how their fields really functioned.

This to say: I agree with Morse Code for J. I think that your (Martin's) idea is a sound one. However, I find it very upsetting - and greatly indicative of legal academia's problems and inadequacies - that you would have to cast your getting practical experience as somehow relevant to "scholarship." It should be blindingly obvious that that practical experience as a prosecutor will prepare you to be a better criminal law professor and mentor to your students. And it should be blindingly obvious that where students are paying the bills, their needs and instruction must come first - not the academy's self-gratification via law review articles.

I hope that you will update as to the outcome of your sabbatical attempt. I see it as a positive development that you are acknowledging a deficit in your practical experience and are actively trying to remedy it; this is something that professors do far less often than they should. Your proposed post-"internship" paper - on the ways in which your sabbatical experience as a prosecutor have informed your teaching - is of strong interest to me.

By the way, I think you are likely to be able to arrange things with a local DA's office without much difficulty. I know that in my state, the DA's and PD's offices - and the federal USAOs - have been delightedly soliciting volunteer DDAs/DPDs/SAUSAs to help shoulder their caseloads, particularly in light of public sector hiring freezes. Typically, they want a 3-6 month (state) or 6-12 month (federal) commitment, but you can probably tailor the experience to the length of your sabbatical. Also, you will probably make practice contacts as a result of this experience to whom you can recommend future top students of yours for employment.

Posted by: HLS | Jul 2, 2012 6:18:00 PM

3:06 here. I guess, Orin, that it depends on what your definition of "is" is. I'm not so sure that it's fair to say that all law professors are or should be paid solely to teach and write. There certainly are and should be schools where that's the case, but having 200 law schools all following that same model doesn't seem productive on the aggregate.

If the top 50-75 law schools subscribed to that approach, that would be just fine. But, a fair point in the recent criticisms of the legal academy is noting that Law School #199 following the same approach as Harvard, Yale, and Stanford is neither sustainable nor practical.

I could certainly see why a school such as GWU Law would (and should) expect its faculty to concentrate primarily on scholarship and teaching. Would it be so wrong, though, for schools 101-200 to permit their faculties to spend sabbaticals in a way that connects professors to the practice of law and to the experiences their students will encounter? I think this sort of diversification would benefit the more regional/ local schools in general and the legal academy as a whole.

But, assuming your definitions for the moment, I'm not so sure that "experiential sabbaticals" fail to enhance teaching. Particularly in a field like criminal law, the realities experienced in such a sabbatical would allow a prof to appreciate doctrine through a different lens. It would also help develop a set of anecdotes to diversify the prof's classroom teaching methods.

I think my experience explaining the felony murder rule to a jury enhances my teaching of the subject, and I know that my students' eyes momentarily stray from Facebook when I tell the story of that case. (Like that jury, though, their interest is fleeting).

Posted by: AnonProf | Jul 2, 2012 6:38:58 PM

HLS, I think the potential disagreement as to what is obvious depends on what options are available. If you take it as fixed that professors don't know what they're talking about, that they won't learn it on their own (say, over the summer), but that they must have sabbaticals, then I can definitely see the case for allowing experiental sabbaticals as a sort of remedial program. On the other hand, if you don't take that as fixed, isn't the better answer for schools to hire professors who know what they're talking about, so students don't have to pay for professors not to teach?

Posted by: Orin Kerr | Jul 2, 2012 6:53:02 PM

As a person with a PhD (plus the usual credentials: JD, Coif, 9th Cir clerkship, 3yrs at Sidley), I'm not as academic as the next guy - I'm a bit more academic than the next guy. But it was precisely for that reason that I used my first chance at a leave to do exactly what you propose. I worked as a temporary Deputy DA in Orange County, CA. I have a PhD, and I've done some scholarship, but now I've put people in jail. It was a fabulous and fabulously useful experience. It made me a much better professor and teacher, and had a tremendous impact on my ability to contribute to the development of the curriculum and degree programs at the law school. (I am faculty but also the LLM director.)

One caveat: I did not use a conventional "sabbatical" for this. One semester when I was scheduled to teach only one 2-credit course, I arranged to teach the course for 3 hours a week, which allowed me to finish teaching obligations early (and the students liked getting one course out of the way early). My Dean (a PhD/JD himself) was very supportive of the idea, but it was easy because it didn't "cost" him anything. But it did great things for me and how I think about the law. And it has earned me major street cred with the local and state criminal bench and bar, and that has had a lot of knock on effects - jobs for students, finding good adjuncts, getting input on curriculum, and many more. Unreservedly, this is a very good idea. (And, Martin, if you'd like some pointers on how to hook up with the OC DA's office, I'm happy to assist; I know exactly who you need to talk to. Feel free to contact me over at Chapman Law.)

Posted by: Ron Steiner | Jul 2, 2012 6:58:26 PM

Orin,

"If you take it as fixed that professors don't know what they're talking about, that they won't learn it on their own (say, over the summer), but that they must have sabbaticals, then I can definitely see the case for allowing experiental sabbaticals as a sort of remedial program."

I'm not singling out professors. I think it's impossible for any JD-holder to "know what they're talking about" as to criminal trials and/or appeals without actually completing some. None of us can "learn it on our own" without doing - i.e., it is inadequate to study appellate cases or law review articles as a proxy for practice experience. And I apply this same criticism to myself, as an appellate lawyer who has not handled trials (apart from the obligatory participation in large trial teams that most of us did during our associate stints in biglaw). I see this as an experience gap that I need to remedy just to be a well-rounded attorney. I would feel still more strongly that I needed to eliminate this experience gap if I was an academic heavily involved in teaching future attorneys trial advocacy, as the writer of this post is.

That many academics need this "remedial experience" does not point to any individual professional failing on their part. Rather, it points to the academy's failures in not requiring, and indeed stigmatizing, substantial practice experience of its entrants (i.e., something more than the aforementioned trivial 2-4 year biglaw stints). My hope would be that "experiential sabbaticals" would ultimately point the way towards more experience-driven hiring. I.e., of Ron Steiner's credentials above, right now his PhD is quasi-mandatory for new hires, but his DDA experience would be viewed as optional or superfluous by many hiring committees. I am advocating that this should be reversed, since Dr. Steiner is teaching future attorneys, not future political scientists. It's thus utterly unsurprising that he found the experience of direct impact practice - of actually working on cases involving real people - to be "fabulous and fabulously useful" to his teaching ability.

"On the other hand, if you don't take that as fixed, isn't the better answer for schools to hire professors who know what they're talking about, so students don't have to pay for professors not to teach?"

So, to answer the second half of your question, yes, I strongly agree with you that the better answer is for schools to hire professors who know what they're talking about - i.e., those who have practiced in the fields they are teaching. However, if a professor wishes to add additional fields to their repertoire once they've joined the academy (e.g., an IP litigator turned criminal law scholar), I think that an "experiential sabbatical" should follow. And, to the extent that you are otherwise suggesting abolishing (scholarship-driven) sabbaticals "so students don't have to pay for professors not to teach," I have absolutely no objections to your proposal.

Posted by: HLS | Jul 2, 2012 7:20:20 PM

Orin,

Although you're often dead on, you might be taking an unnecessarily reductive view here. Law schools perhaps should hire doctrinal folks with more practical experience, because it's useful in both teaching and understanding the law (a subject that is by definition both theory and practice) and because it's a helpful safeguard against all sorts of weird fishbowl perspectives that professors develop when they spend all of their time prepping for or being in the academy.

Just the same, however the hiring calculus evolves (or doesn't), the academy will always (rightly) consist of some mix of people with varying degrees of academic and practical chops, and it seems to me likely that, in any future legal academic world, there'll be some significant set of professors who would benefit -- in ways appreciated by students, the institution, and society at large -- from the option to take an experiential sabbatical at some point. No?

Posted by: Brendan Maher | Jul 2, 2012 9:10:44 PM

Note to Orin: I was unsuccessful in hyper-linking "Although you are often dead on" to http://www.youtube.com/watch?v=oHg5SJYRHA0; the intended hyperlink did not show. Cripes.

Posted by: Brendan Maher | Jul 2, 2012 9:15:08 PM

They're doing it in Wisconsin:

http://fox6now.com/2012/02/23/marquette-professor-spends-sabbatical-as-assistant-da/

And I, for one, think it would be a mitzvah¹ to both your community and your students. Legal education needs more thinkers like you, Pritikin!

______________
¹And with that remark, I out myself as neither Wisconsinite nor O'Toole.

Posted by: Peter O'2L | Jul 2, 2012 10:29:14 PM

I take Orin's point that the law professor's primary job is to teach and do scholarship. To that end, here is a selection of ways that my work as a CJA panel attorney has helped my teaching and scholarship:

I'm currently working on a huge mail fraud case. It's an appeal from a sentence. I'm teaching sentencing in the fall, and now have a great fact pattern that I can have my class dissect. I will include, for example, the propriety of applying a number of Guidelines sections and how we calculate loss and number of victims and why we calculate it that way.

Criminal law is all about foreseeing procedural outcomes: at charging, pretrial, trial, sentencing, and appeal, attorneys need to look to how their work will affect later steps in the process. As a panel attorney, I'm able to bring this reality home to my students, who tend to see only the problem in front of them.

With my mail fraud case, I've seen connections between mail fraud indictments, criminal conspiracies, and the war on terror (specifically Obama's policy of targeted killing) that will make the basis for a very theoretical article on the nature of many alleged crimes in the age of the Internet/terrorism/globalization. I won't bore you with the details...

In short, as professors we spend a lot of time learning how to be better teachers and scholars. Not all of this time, obviously, is spent actually teaching or researching/writing. How can it be that engaging in practical legal work is less productive to improving teaching and scholarship than reading the latest Harvard Law Review? There's great value in the latter, but it seems to me that there's no less, just different, value in the former.

Posted by: Steven R. Morrison | Jul 2, 2012 11:04:33 PM

I understand the arguments for sabbaticals and for tenure in the traditional scholarship model. I am somewhat skeptical of them, but I understand them.

For those arguing for the practice alternative here, I would be interested in hearing why either a sabbatical or tenure is necessary. I firmly believe, actually, in the value of practical experience to teaching, but the issue for me is why the school and students should subsidize what amounts to basic experience.

As to sabbaticals, I am not sure why CJA and other work can't be handled during the term; if it can't, I don't see why a professor can't clear space by taking an overload or buying out his or her time. As to tenure, if practical experience is as valuable to the position and to the school as scholarship is, it's more of a challenge as to why schools should have tenured or even full-time faculty.

P.S. Upon reflection, I think the different reactions to the sabbatical idea depend in part on the aspirations for scholarship. If the potential result of the experience is "an article about how my practical experience changed or informed my approach to teaching," and that counts as scholarship, it's indeed hard to see how one could prefer such collateral scholarship about the practical experience (or its equivalent) and its benefits to the practical experience and its benefits themselves.

Posted by: Me | Jul 2, 2012 11:58:52 PM

Brendan, yes, I agree with you. I suppose the next question is whether the crowd that really needs to take an experiential sabbatical would take one: My guess is that it's the more practical people who would find that useful. But who knows.

Another underlying question is whether we should measure sabbaticals based on the ideal theory of them or the reality of them, which I think is a serious challenge to my argument.

Posted by: Orin Kerr | Jul 3, 2012 12:02:46 AM

FWIW, In the last 5 or 6 years at least one of the HLS untenured folks was allowed to work for 6 months (or maybe even more) at the U.S. Trade Representative as a way of furthering her research and also enrich her teaching. I don't know the exact details, but I think HLS treated it as leave in addition to her sabbatical/pre-tenure leave and was willing (at her election) to put her tenure clock on "pause" during that period. My impression was that this was something she negotiated with then-Dean Kagan on being hired rather than application of some general policy, but the school does work hard to give our faculty opportunities for service (usually in the federal government) through leaves and the like.

Posted by: I. Glenn Cohen | Jul 3, 2012 9:50:45 AM

It's great when law schools hire faculty with practical experience. They arrive with capability. Mid-stream, it's great when faculty log overtime to gain practical experience. It's also great to for schools to permit faculty to take leaves without (school) pay to serve in government or in private practice, if it can be done without harming course offerings. These practices encompass several of the examples given upthread, and most leaves with which I am familiar.

The issue is whether schools, and students, should subsidize faculty to gain practical experience via sabbaticals -- losing class time for sake of enrichment. This should be a last resort because it is relatively expensive and probably unnecessary, unless the experience must be full time and the professor can't earn a living wage as a practitioner (a bad sign). Pursuing this pre-tenure seems especially unwise for a school, which rather should be taking a cold-eyed view as to whether the faculty member deserves and will capitalize on such extraordinary security in the respects for which it is designed . . . tenure not being merited simply in order to facilitate inverse CLE.

Put to one side cases in which a faculty member is being repurposed by a school from, say, teaching torts to teaching bankruptcy, and needs a primer in the real world that could not have been anticipated. Put aside too any of the people involved here, who I assume are doing the best they can for their schools and their students -- I really mean that.

If practice matters to the classroom, why not hire on that basis, and avoid assigning classes to those lacking the requisite experience?

Posted by: Me | Jul 3, 2012 10:32:45 AM

One of the shocking things to reflect on is the fact that, after his 4-5 month stint as an apprentice ADA, the OP may be one of the most experienced criminal practitioners on his school's faculty. A bit shocking, given the paucity of experience those few months (presumably handling petty crimes) will provide.

Posted by: Observer | Jul 3, 2012 11:39:24 AM

I don't have a strong quarrel with "Me's" concern about students subsidizing experiential sabbaticals. I see experiential sabbaticals as a necessary evil given the academy's practice of hiring consistently inexperienced, lapsed attorneys. The better option is to recognize practice as directly relevant to the classroom and to hire on that basis. If, however...

(1) The academy is determined to continue hiring inexperienced attorneys; and
(2) The academy is determined to continue with the practice of sabbaticals, i.e., to force students to subsidize faculty sabbaticals which are lost class time

... then I see experiential sabbaticals as the lesser of two evils - as providing professors with experience that at least stands a chance of helping and benefiting their students.

And yes, I also agree with Observer's comment.

Posted by: HLS | Jul 3, 2012 12:53:48 PM

What I would love to see is a study of the post-experential sabbatical's effect on teaching. So much of the assumption that some amount of practice makes one a better teacher doesn't usually go beyond the above "war story" assertions. As someone who works in law and education, I'm amazed that people think practice is so definitively linked to classroom teaching outside of clinics. Teaching is a craft, and sometimes a natural talent. One year of practice makes you that much better a teaching in a doctrinal class? More charismatic, empathetic, or any of the traits people who actually study effective pedagogy emphasize? Hmm...

Posted by: pedagogicalanon | Jul 3, 2012 4:48:00 PM

Great post with insightful comments. I too expect to apply for a first sabbatical next year, in what I hope will be an international experiential program. I plan for the experience to broaden the subject matter I feel competent to teach, and I also plan to pursue more comparative research and scholarship--something I have not felt confident enough to do yet. I suspect my school will support the idea, but good food for thought here. Thanks!

Posted by: Brooks | Jul 3, 2012 5:25:55 PM

I agree with pedagogicalanon. I am not ready to blindly accept the assertion that practice experience--either its existence or absence--necessarily affects doctrinal teaching.

Posted by: Wayfarer | Jul 4, 2012 5:28:50 PM

Thanks to everyone for the spirited discussion; I didn't expect there to be so many comments on this topic, but I'm glad to see so many people express so many different views on this. Just a couple of points of clarification. First, I was asked to start teaching criminal law shortly after being offered my teaching job, so I did not know going into it that criminal law experience would have relevance. Second, to clarify, when I thought of the idea of taking an experiential ssabbatical, I had always contemplated that I would generate scholarship based on the work; so it wasn't really more of an issue of emphasizing that fact in my application than changing the substance of it. But the comments to my post raise a larger question, which will be fodder for my nextt post: what IS the value of practice to teaching?

Posted by: Martin Pritikin | Jul 5, 2012 8:55:27 AM

pedagogicalanon said:
What I would love to see is a study of the post-experential sabbatical's effect on teaching. So much of the assumption that some amount of practice makes one a better teacher doesn't usually go beyond the above "war story" assertions. As someone who works in law and education, I'm amazed that people think practice is so definitively linked to classroom teaching outside of clinics. Teaching is a craft, and sometimes a natural talent. One year of practice makes you that much better a teaching in a doctrinal class? More charismatic, empathetic, or any of the traits people who actually study effective pedagogy emphasize? Hmm...
------

The very same critiques apply to scholars. Perhaps educational institutions of all levels should hire and retain educators based on their pedagogical skills, and have their main responsibility be teaching.

A shocking idea, I know.

Posted by: Brad | Jul 5, 2012 6:52:41 PM

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