Tuesday, December 09, 2014
Who Would Hire Kingsfield?
Over the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty. It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set. With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers? Are seasoned lawyers wasting their time by going on the market? If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?
Kingsfield is said to have been based on Edward "Bill" Warren, who joined the Harvard faculty a mere four years after his law school graduation (spending the intervening time as an associate at Strong and Cadwalader). So maybe things weren't so different.
Posted by: Jon Weinberg | Dec 9, 2014 1:50:36 PM
Sorry -- that's Edward "Bull" Warren.
Posted by: Jon Weinberg | Dec 9, 2014 1:51:19 PM
I was on the market a while back after 10+ years of practice. I think I had a decent CV -- feeder school, clerkship, top firm, high end non-firm job, and a handful of decent publications (including two top 75 articles). I'm not sure if it was the experience, the market, the lack of profs going to bat, or what, but the interest was pretty minimal. Oh well. I like practicing law, so it's all good.
Posted by: Anecdata | Dec 9, 2014 2:02:36 PM
And if you meant would he get hired in his "older" position, probably so as a lateral, if he were still producing scholarship.
Posted by: Michael Risch | Dec 9, 2014 2:09:48 PM
Yes, I meant as an "older" candidate. Even if he were still producing scholarhip, I question whether he would be hired as a lateral.
Posted by: Kelly Anders | Dec 9, 2014 2:50:30 PM
I'm still confused about the question and its assumptions, even with your clarification. I believe you mean to ask whether Kingsfield, at the age and with the skills depicted in the movie/television series, would be hired into an entry-level position . . . and you assume that the only way he would get that way and be an entry-level candidate is by virtue of having had years of practice (as opposed to, say, going to law school later in life).
To the best of our knowledge, that isn't Kingsfield at all -- his talents lie in his years teaching, not in practice -- so it becomes a proxy for a question about age discrimination, or whether someone completely different from Kingsfield, with no demonstrated teaching ability but lots of experience, might be hired. Kingsfield might illustrate a question about whether a proven but old-school teacher would be hired, perhaps as a professor from practice. Or whether someone who taught like Kingsfield would be successful in the classroom. But otherwise it seems like an arbitrary invocation of an older dude.
P.S. Lots of places would hire "Kingsfield" as such, if he existed and had been so famously depicted. The media mentions and student curiosity would pay off, at least for a few years.
Posted by: Confessor | Dec 9, 2014 3:38:05 PM
"...whether someone completely different from Kingsfield, with no demonstrated teaching ability but lots of experience, might be hired."
In essence, Confessor, what we're discussing is whether (some? many?)schools may prefer to hire candidates with little to no proven teaching ability or experience over older candidates, regardless of their teaching ability or experience. The issue is age.
Posted by: Kelly Anders | Dec 9, 2014 5:35:46 PM
" If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?"
Well, he'd be, what, more than 100 years old today (the actor portraying hi was born in 1902) so I assume almost no one would hire him. Maybe there are a few people that old who can still teach, but why risk it?
Posted by: Matt | Dec 9, 2014 7:13:45 PM
In a heartbeat, but only on the assumptions in Matt's comment.
Posted by: Marc DeGirolami | Dec 9, 2014 7:56:13 PM
I wonder if some of the resistance to hiring "experienced" lawyers as professors might be mitigated by giving them a different (non-tenure) title, and perhaps not full governance rights, but with a salary that was more or less commensurate with tenured professors. Maybe something like "Professor of Practice". I think one of the big and legitimate issues here lies in hiring a long-term practitioner into a tenured (or tenure-track) position, without much expectation that they will be producing research. This tends to piss off (quite understandably, in my view) those faculty who have "played by the rules" and worked hard to establish themselves as scholars. I don't mean to open a debate about whether scholarship is something law schools should be privileging; assume for the sake of argument that it is. In that case, hiring a 55-year-old partner on the same "track" as the research faculty, or as tenured coming out of the gate, seems problematic, except in the rare cases where the ex-partner is likely to be able to "produce". This happens sometimes (see Kleinbard at USC) but is probably pretty unusual.
Posted by: jason yackee | Dec 10, 2014 2:17:52 PM
After a good chuckle about Matt's comments, I thought I would respond to Jason's because they raise another interesting issue -- whether scholarship should trump practical experience. Conversely, a tractitioner might view scholars as "having it easy" by being able to teach and write without the difficulties involved in daily practice. Scholars might disagree with this notion because of all of the unspoken and time-consuming requirements of faculty on the tenure track. Ultimately, my question boils down to whether older candidates experience discrimination in law faculty hiring. Sure, there are many practitioners who have not published, but what about those who have? Do they get hired? Unfortunately, it appears that they do not.
Posted by: Kelly Anders | Dec 10, 2014 5:18:31 PM
Please excuse any typos. As an example, not "tractitioner," but "practitioner."
Posted by: Kelly Anders | Dec 10, 2014 5:20:30 PM
I think "tractioner" is an excellent word. Defn: someone in practice who tries to get on the tenure track.
Posted by: Thomas Gibbons NZ | Dec 10, 2014 6:16:44 PM
The spelling bug is catching. I meant "tractitioner".
Posted by: Thomas Gibbons NZ | Dec 10, 2014 6:40:34 PM
I went on the market after a little more than 10 years of practice. I had published four law review articles over that period. It was definitely hard to get a job and I am pretty sure I would have been a more attractive candidate with less experience. I did get a tenure track position but I remember being told a couple times during the process that I was too old including during an interview at the meat market in DC.
Posted by: Anonymouse | Dec 10, 2014 8:51:26 PM
I don't think many law schools would hire the young Kingsfield today, as he represents an outdated model of law teaching and scholarship. It's interesting that one would leap to a relic like Kingsfield to embody what a seasoned lawyer might look like if allowed inside the academy.
Do law schools place high value on practice experience or the seasoning that comes with age? Obviously not. Hierarchies tend to replicate themselves, and for many generations now the academic hierarchy has not been based on practice experience. Besides that, age discrimination applies almost everywhere, and there's no reason to think that law schools are exceptional.
That said, having come from a very non-traditional background (equity partner at a major firm followed by founding and running a venture funded internet start up) I think it's not a simple issue as to how much schools should value seasoned lawyers. People who make the leap have to understand at a very deep level that it's a different kind of job, and they have to be willing to learn whole new skill sets to adapt to the new setting. Not all experienced lawyers get that. On the other hand, I think practice (and, for me, business) gives a different perspective that can be quite useful, and I think for most institutions a diversity of perspectives is a good thing.
Posted by: Ray Campbell | Dec 11, 2014 6:26:55 AM
If the question is whether there is an implicit or explicit bias against long-term practitioners, I think the answer is yes (from my own observations and things I've heard from others).
FWIW, Jeff Lipshaw has written extensively on this topic.
Posted by: Michael Risch | Dec 11, 2014 7:33:51 AM
I think there are two issues with anyone who's been in practice more than about 5 years. First, if they're not already a partner, there's the worry that they are going into teaching because they have been or will be turned down for partnership. And whether or not they are a partner, there is the feeling that if they had the "real" academics' "fire in the belly" to write (and teach) they would have done so earlier. Delaying entry into academia is seen as a signal that your heart is not in it. If you have a good enough story about why you delayed, you can often overcome that.
Posted by: Suzanna Sherry | Dec 11, 2014 3:03:16 PM
I agree with Suzanna Sherry. Schools knows that, over the long run, academic accomplishment requires consistent self-motivation. For better or worse, those on hiring committees assume that the applicants who are going to sustain that self-motivation over decades are the ones who love academia so much that they won't want to do anything else. So profs who decided not to go into academia for a long spell have to have a good explanation for why they decided not to do the thing that they are now saying that they will have a lifetime commitment to do.
Posted by: Orin Kerr | Dec 11, 2014 4:05:51 PM
Suzanna and Orin --
Isn't the fact that a practitioner likes writing so much that he or she has written two to four law review articles while working 50+ hours a week far more indicative of self motivation to write than someone who needed a VAP or fellowship to do that sort of publishing?
Also, Suzanna, setting aside the fact that many or even most experienced practitioners go on the market from government or public interest practice, isn't it a bit unrealistic to think a big firm associate could time going on the market like you suggest? It's a multi-year endeavor, right? A couple of years to amass a sufficient publication record, then you go on the market in August to start a year later. You'd have to know that you weren't making partner waaaaay in advance to be able to time it like that.
Posted by: Huh? | Dec 11, 2014 5:38:56 PM
I second what "huh?" says. If I were on my school's appointments committee (alas, we are not even thinking about hiring any time soon), I would be much more impressed by someone who wrote two articles while working in a full-time job as a practitioner than someone who churned out three or four during one or two cushy fellowships/clerkships. But my sense is that is not the prevailing view. That's really unfortunate, because it reinforces the socioeconomic disparities in academia that many have observed.
Posted by: Junior Prof | Dec 11, 2014 6:23:21 PM
Ha. My ears were burning. Mike Risch is correct: I've written about it twice. Here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=992489 and here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302228.
The latter piece is a more nuanced view of legal scholarship. I have decided (almost seriously) that the trick for a long-time practitioner is to be preemptively theoretical about really mundane stuff like security interests and negotiable interests. If you can do it without too many people calling "bullshit", you have a shot. From ""Retire and Teach' Six Years On":
"The level of abstraction in which I wanted to wallow is not for everyone in the law school environment; it entails some professional risk, and not everyone has the freedom to pursue it. I know that the kind of often recursive, paradoxical, or even metaphysical things I like to think about are not to every taste, even among my academic friends, many (or even most) of whom view themselves not as seekers of mystery; but as practical problem-solvers identifying particular social issues and offering judicial, legislative, or policy solutions. Indeed, the great irony is that— notwithstanding the razzing about impracticality that legal scholarship has taken from the Chief Justice on down to the anonymous commenters on the anti-law school blogs—the range of what law professors write about runs from the very earthbound to the very stratospheric; but with the bias, in my casual observation, running far more to the former than the latter."
Also my timing was good. 2006 was a lot different than 2014.
Posted by: Jeff Lipshaw | Dec 11, 2014 7:21:14 PM
I wonder if it has anything to do with the fact that many people on the hiring committee feel ill qualified to comment on the quality of a candidate's scholarship?
If so, it may test the assumption implicit in Huh?'s comment, which I take to be that the practitioner and the VAP produce articles of comparable quality. It's my (anecdotal) impression that there is a view that practitioners write articles geared toward bar journals instead of "academic" articles. Even if they write a law review length piece, it may be thought likely to be inferior than someone coming from a VAP. And if committees don't feel well qualified to judge the merits of a person's scholarship that outside their expertise, then they may fall back on these assumptions (regardless of whether or not the assumption is a fallacy).
Posted by: newly minted | Dec 11, 2014 7:35:33 PM
BTW, Bill Fisher at Richmond is another old guy - former Pillsbury Madison partner - who succeeded in making the transition.
Posted by: Jeff Lipshaw | Dec 11, 2014 7:38:56 PM
newly minted --
Isn't that what placement is supposed to be a proxy for? Or is it your impression that even if a practitioner were to place multiple pieces in top 100 or even top 50 mainline law reviews, he or she was somehow putting one over on the articles editors for those journals?
Posted by: Huh? | Dec 11, 2014 7:45:57 PM
(Sorry, meant to say "would be seen as somehow putting one over." Don't mean to attribute that view to you.)
Posted by: Huh? | Dec 11, 2014 7:47:08 PM
Just to elaborate on what Orin said, it isn't just writing. Schools also look for tremendous internal motivation as a way of identifying good teachers. Teaching is very difficult to monitor and evaluate, and sanctions for poor performance range from the relatively blunt and hard to employ (tenure/no tenure) to non-existent. So the candidate's ability to signal internal motivation for both writing AND teaching is very important (which is why adjunct teaching actually is a useful signal, from my point of view). Writing a couple of articles on the side is helpful, for sure. But writing them 15 years into your career, or in order to drum up client business, not so much.
Also keep in mind that many existing faculty members are looking for good colleagues, which can include people who are prepared to have sophisticated questions and comments on the existing faculty's work. Even very practical areas like civ pro have fairly dense layers of theory and jargon. It's hard to overstate how much reading it takes to get up to speed for someone who has been out of law school a long time.
Posted by: BDG | Dec 12, 2014 9:33:03 AM
BDG - IMO, most law schools are not preparing their students to be legal academics. If you accept this as being true, it's not clear to me why the amount of reading to get up to speed in an area would be different for a long-practicing lawyer than it would be for a relatively new graduate.
Posted by: Matthew Bruckner | Dec 12, 2014 10:12:48 AM
To the extent BDG's point is that the knowledge a lawyer might bring from practice will not be enough for either scholarship or teaching, it's a valid point. Practicing lawyers tend to know way more than they need about some topics and less on others. Put differently, the purely doctrinal knowledge that one accrues in practice is a lot less useful than you might think because it doesn't map all that well to the law school curriculum. A practicing lawyer might also not know all of the theories in vogue in law schools at any given moment, although I would caution against assuming that practicing lawyers aren't up the curve on theories that have applicability, whether those theories relate to economics, psychology or whatever. Good lawyers are pretty quick to grab the tools that work for them.
To the extent BDG's point is that older people are just dumber than younger people and can't read well or learn new ideas, well, I'll refrain other than to note that assuming you are stuck in place when you pass, say, forty, is a very poor way to envision a well lived life.
Posted by: Ray Campbell | Dec 12, 2014 10:59:53 AM
Although my first comment was, in my opinion, already clear on this, let me repeat: I did not say anything about theory being necessary for preparing students, and I certainly did not say anything like (or, indeed, in my view, anything that could even be fairly read as intimating) the 2d paragraph of the Ray Campbell comment.
Posted by: BDG | Dec 12, 2014 2:19:57 PM
"It's hard to overstate how much reading it takes to get up to speed for someone who has been out of law school a long time."
As everyone who has tried to write on a topic knows, there is indeed a lot of reading involved in getting up to speed.
Matthews' point, which did seem sufficiently clear to me, was that given the way most young professorial candidates have been taught in law school, they have the same mountain to climb. As many commentators have noted, the methodologies and theories that underlie much legal scholarship are not part of what is taught in law school, and those with merely a law degree have the same task in front of them, whether they are young or old. I didn't read his post as being about how JD candidates ought to be taught, but bringing the reality of how they have been taught into the conversation.
You make it a unique issue for older professors, however, which is what led to both my comments. Giving you the benefit of the doubt, I assumed you might have run into practicing lawyers of the same kind I sometimes meet, who feel that having practiced securities law or civil litigation gives them a leg up in that in all their years of practice they've learned things that callow young lawyers just out of school don't know.
Since neither that nor my second comment seems not to be what you meant, I'll go back to Matthew's point: why is this a problem exclusively for older candidates?
Posted by: Ray Campbell | Dec 12, 2014 6:43:03 PM
I also think BDG understates (some) practitioners' inclination to keep up with current academic theories and jargon in their field. And this is just a guess, but I'd suspect that the overlap between that set of practitioners and the set of practitioners who write law review articles (not trade pieces -- 20k+ word pieces submitted to and placed in mainline law reviews) is pretty substantial.
Posted by: Huh? | Dec 12, 2014 7:11:29 PM
BDG - To write engaging and thoughtful law review articles, people seem to generally believe it's necessary to read a lot of what's already been written. It's far from clear to me that this is a more challenging task for older candidates than younger candidates. In fact, as Huh? suggested, in some ways, it would seem that older candidates are advantaged because they have read steadily since graduating from law school (because they've been writing their own law review articles or otherwise). But you suggested the opposite. Perhaps you're correct but you've not convinced me so far.
Posted by: Matthew Bruckner | Dec 13, 2014 10:56:30 AM
Oops, yes, I did misread Bruckner's first post, but only because the factual premise seemed so off base that it didn't make sense to me. It may be true that "most" law schools are not preparing their students for the academy, but 90%+ of professors come from 5 schools. At mine (Columbia) we had two required theory classes, and it was a fundamental part of almost every other course. If not an A to Z coverage, we at least read Akerlof to Williamson, Ackerman to Thucydides. And that's not even touching law review editing, reviewing submissions, or researching notes and seminar papers.
Of course practicing lawyers can pick up this stuff, and some (Thucydides...) hardly go out of date. My only point was that the contemporary stuff is fresher for recent graduates, and less-recent graduates will often be out of date on some fronts. Not all of them, and I never said all of them. But I think about one of the smartest lawyers I know, who is working now as a Professor from Practice after many years in gov't and at a firm. Even in this, his third year or so, he mentions whenever I see him how much of the jargon and theory he's laboring to catch up on. At best, other commenters have argued that veteran lawyers *could* get up to speed on topics outside their core practice area. Sure. But it takes a while, and in the meanwhile, at screening interviews and (especially) callbacks, there are a lot of questions that the candidate can't anticipate or even understand the lingo behind. Maybe that's a failure of the interviewers, in not recognizing that this is someone who could succeed in time.
Is this even the third or fourth largest obstacle for more experienced professionals? Probably not. But you wanna know why the market does what it does? This is one of the reasons. Sit in on some meat-market interviews if you don't believe me.
Posted by: BDG | Dec 13, 2014 4:17:08 PM
To echo Brian's last comment, at least about jargon, we had a distinguished practitioner, one who has written treatises and is recognized as a leader in his field, spend a year as a visitor a while back. He said something to the effect that his brain froze every time somebody used the word "normative."
Honestly, you can experience this just working across academic disciplines. I was describing how I felt about something to somebody with a Ph.D. in philosophy, and the response was something like "oh, you are a constructivist." The point, of course, isn't whether or not I was, but that "constructivist" is meaningful within the discipline as a classification, and helps frame the communication for the listener.
And you can experience it outside academia. When I left the law firm to be the GC of a manufacturer company I started a glossary in the back of my Franklin Planner (anybody remember those?) of business and manufacturing lingo. You didn't need words like "normative" and "constructivist" but it helped to know that "bubbling up" was the opposite of "cascading down" and that "take-away" referred to a conclusion, not to how you ordered your fish and chips in London. If you refer to the result of your project in a faculty meeting as a "deliverable," you sound a bit odd.
Personally, I still sneak a peek at my iPhone when somebody says "stochastic" or "heteroscedastic."
Posted by: Jeff Lipshaw | Dec 14, 2014 11:36:22 AM