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Wednesday, June 06, 2007

Ageism and the Meat Market: On Being “Too” Young for AALS

Every year, in the midst of the hiring season, concerns are raised that law school hiring is discriminatory, at least with a lower-case “d,” against those too long out of law school. Some practice experience is good, the conventional wisdom goes, but schools seem to be (increasingly?) suspicious and/or skeptical of individuals who, after over a decade in private practice, have decided that the academic calling is the right one.

There’s another kind of ageism that occurs in the hiring process, as well. Every year, lots of aspiring candidates struggle on the market because they are too soon out of law school. For many (if not most) schools, practice experience is an absolute must, and applicants who have gone straight from law school to a clerkship to the market are simply passed over, without any regard to whatever else may be on their resume, including other graduate degrees, extensive publications, or pre-law school experience that might otherwise separate them from their peers on the market.

Especially given the ever-increasing focus on writing and scholarly publications in law school hiring, I guess my question is why law school publications don’t make up for a lack of practice experience in many of these cases, especially for those candidates who aspire to teach and write in fields where meaningful practice experience is hard to come by. What does a year or two of document review at a big corporate law firm do for an aspiring constitutional law professor beside further convince him or her that academia is a much better lifestyle? Why do schools seem to think that those candidates are inherently more qualified, even if their writing is, at best, only comparable to those coming straight out of school?

This post, of course, is informed by my own experience of going right on the market after clerking. As I tell anyone who asks, it was difficult. Notwithstanding a fair number of publications (although I leave any assessment of their quality to the reader), I only had a handful of interviews at the meat market. What’s more, the interviews were all with “good” schools, suggesting that they were more willing to take a chance on a young Turk than those further down the proverbial totem pole, where my chances of actually getting an offer on the merits might have been higher.

Moreover, every interview invariably turned into a conversation about why I was in such a hurry… my response was simple: I knew that teaching was what I wanted to do, and wanted to get started as soon as possible. (I refrained, fortunately, from quoting Billy Crystal’s line at the end of When Harry Met Sally).

But I was incredibly lucky. And as a result of my own experience, I tell anyone who will listen that it’s not a very good idea to go right on the market. Even the most impressive candidates will find not nearly as much interest as they will after a fellowship, a few years at a New York or D.C. firm, or similar real-world experience.

That such is the reality doesn’t make it “right,” though.

And so, the question motivating this post: Why don’t law schools take more chances on “young” junior academics? In many cases, won’t these candidates have a more extensive written record than their junior associate colleagues, and won’t their references be in a better position to comment on their academic work than supervising partners at law firms, or other professional bosses?

To be clear, I'm not suggesting that younger, less-experienced candidates are any better than those coming from the real world. Nor am I suggesting that all real-world experience is equal. Surely, someone who wants to teach labor law and who spent five years working in-house at a union or the Department of Labor has immensely valuable experience that can--and should--factor into their appeal. Rather, what I'm trying to get at is simply whether a lack of significant practical experience should be disqualifying in all (or nearly all) cases, as it currently seems to be...

Posted by Steve Vladeck on June 6, 2007 at 12:57 AM in Life of Law Schools, Steve Vladeck, Teaching Law | Permalink


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For Derek, I think the conventional wisdom is that institutions have some memory, and are unlikely to re-interview in a subsequent year someone who they rejected in a given year. The usual advice is to wait until one is ready to go on the market and, if possible, avoid going on the market more than once. There are, of course, some people who've succeeded a second time when they failed the first, but often it is after a more than one year hiatus, and after some significant change in their credentials (i.e., completed a Ph.D or fellowship, published a really great new article). That's my two cents.

Posted by: U.N.Owen | Jun 7, 2007 10:30:44 AM

As an aspiring academic I'm always eager to read what others who have been through the AALS process or already tenured faculty may have to say on the topic. I think I would be a typical candidate who may be "too young". I graduated from law school in 2005 with very average grades and rather than practice, which is something I knew would not be personally rewarding, I moved to Scotland with my wife to undertake a PhD in law.

Mine is a pretty non-traditional route I think, with a lot of unique risks and rewards. I've taken on a pretty hefty debt burden, but I've been able to teach, organize symposia, publish 2 articles and write a thesis which notionally makes me an expert on my small topic. I'll be throwing my name into the hat at the AALS this fall, but I feel like getting a position may be a long-shot because I don't at all fit the traditional law professor criteria.

My question is, are you risking anything other than the conference fee and airfare by showing up to the AALS and not getting hired or even callback interviews? Should I wait until I have had a couple of years teaching in the UK and more articles to my name rather than risk a fruitless trip to DC in November?

Posted by: Derek Fincham | Jun 7, 2007 5:54:46 AM

Very interesting discussion. I wonder whether there's an extension of the not-enough-practice ageism about which Steve writes, that of *too* much practice experience? As Jeff noted earlier, there's practice and then there's practice. Yet, my perhaps-inaccurate perception is that we don't see a huge number of people entering the teaching market with the numerous years of practice experience that most lawyers I know would see as necessary for an attorney to become, well, an experienced practitioner. Do some law faculties see too much pre-teaching practice experience as a negative indicator of *academic* potential?

Posted by: Brooks | Jun 6, 2007 6:38:59 PM

Interesting post, Steve. I tend to think a few factors are at play, some of which have been covered above. Beyond those discussed above, here's one more possibility: schools want to know if a person will write over the long haul, and a person who has practiced has had more time to establish a long-term track record of their writing abilities. The thinking would be, whether accurately or not, that a student who writes 2 articles during law school or clerking and then goes on the market may be a worse scholarly bet than someone who graduates, clerks, becomes a law firm associate, and then writes two articles while practicing law.

Posted by: Orin Kerr | Jun 6, 2007 4:24:26 PM

to what extent might it be that you're suffering from a huge selection bias. the top talent who might become law school profs would also be the top talent being sought after by law firms. therefore, a few years experience at a very high level should be a very powerful signaling device to hiring committees of the desirability of those persons. those grads have alot of debt, so the very best of them take their 150k+ salaries for a few years but find that the academy is really the life for them. when they then enter academia, they should naturally be more competitive than the lower-tier grads who might be trying for academia because they weren't offered the 150k+ starting salary. what is the going bonus rate for US circuit and supreme court clerks entering private practice?

Posted by: Colin | Jun 6, 2007 3:45:31 PM

Steve Lubet--that's a great point, and I think it highlights some really interesting distinctions on this thread, which I'm going to try to break out here. Discrimination is at least in part about preferences, so I'm going to try to reframe the various issues that have been raised in terms of preferences. I also note some objections that could be raised to each kind of preference (though I do not necessarily agree with all of the objections I list).

Preference (1): A plainly irrational preference for not hiring people who are younger than a certain age, because, say, the hiring committee hates young people. (Possible objection: this is wrong is some moral sense, in the same way, say, discrimination against women is wrong, though note that the ADEA is an asymmetrical statute that does not protect young people who are the subject of age discrimination.)
Preference (2): An arguably rational preference for not hiring people who are younger than a certain age, because, say, the hiring committee doesn't think that students respect people who are younger than 30. (Possible objections: this is using age as a proxy, which is wrong; or, this is using age as a proxy, which is ok, but this is not an accurate proxy.)
Preference (3): A preference for hiring people with work experience. (Possible objection: having work experience doesn't make someone a better law professor.)
Preference (4): A preference for hiring people with academic experience. (Possible objection: having academic experience doesn't make someone a better law professor.)

Notice the different kinds of discussions that might arise from each different kind of preference, and each different kind of objection. I take "ageism" to refer to the sort of irrational discrimination in Preference (1), which raises almost a moral claim. Preference (2) might also be characterized as ageism, which would raise really interesting and complicated issues about rational and irrational discrimination. Preferences (3) and (4) raise empirical questions, which in turn raise questions of classification (e.g., what kind of experience, if any, helps? what does it mean to be a better law professor? does it make a difference what kind of school the person is teaching in? and many more). I do not, however, take Preferences (3) and (4) to raise issues of ageism or of bias against young people, unless we are concerned about disparate impact (which we might be, but issues of disparate impact against young people can, as Steve Lubet points out, get very messy).

Posted by: Sarah L. | Jun 6, 2007 3:08:56 PM

Following on Steve Lubet's comment: Is age as such relevant to the hiring process? If so, how young is too young to go on the market?

Posted by: Adil Haque | Jun 6, 2007 2:57:55 PM

"I do think it's a form of ageism, because the kind of folks who tend not to have rich practical experience are younger."

That definition is not very helpful, since all experience requirements would therefore constitute ageism, given that experience by definition requires time to accumulate.

The more meaningful question is whether the experience has some significant value, in which case its incidental impact on age would be irrelevant.

Posted by: steve lubet | Jun 6, 2007 2:08:43 PM

Just speaking from the criminal law context, I would argue that at least a year of two of practice is essential to be a good scholar and teacher. Until you've actually been in court and worked on some real cases, you don't truly understand how the criminal justice system works.

Posted by: Laura | Jun 6, 2007 1:46:06 PM

At the risk of revealing my true nature as a spineless, love-starved accommodationist, I will suggest that, of course, a diverse set of backgrounds is probably the best of all possible worlds. To Christine's point, if the faculty truly constitutes a college, one can imagine a brown bag session on a topic in which there is somebody who is capable of questioning another's pre-conceived notion. I can be disingenuous about an academic topic, for example, but I bring a whole set of mental models about the world that should rightly be challenged by the mature disingenuity of a seasoned professor. (That was the story of my delightful semester with Michael Kent Curtis at Wake Forest!) I can see a role for immature disingenuity as well.

To be slightly more acerbic about it, there is practice and there is practice, particularly when you are looking back from almost thirty years to the difference between no practice and two years' practice. Somebody who has done first and second year associate level work in a large financial center has practiced, but generally speaking has a long way to go before being able to say he/she is a fully-developed lawyer.

Posted by: Jeff Lipshaw | Jun 6, 2007 12:25:06 PM

Steve, I think you've hit on a controversial topic, but I also think there's another angle to it. Whether practice experience makes one a better scholar/professor is a question subject to endless theoretical debate and tricky empirical study. However, I think there is also an argument that previous employees make better employees than candidates who have never been employees. In law firm hiring, law firms tend to see law students with previous work experience as superior to law students with none, all else being equal. (I say this as someone who graduated from law school at 24 with nothing on my work resume but Baskin-Robbins and the public library). I can see why law schools might do the same. Although clerkships and VAPs are paid employment, jobs in the profit-seeking sector might give candidates a different kind of life experience and perspective. Law schools are looking for scholars and teachers, but they are also looking for employees, people who will be institution builders, mentors and internal citizens.

Posted by: Christine Hurt | Jun 6, 2007 12:08:09 PM

Steve -- I do think it's a form of ageism, because the kind of folks who tend not to have rich practical experience are younger. Of course, there are those who go to law school after a break, and so are older when they graduate, but my suspicion from seeing the hiring process from both sides (as candidate and as member of appointments committee), is that the categorical exclusion is targeted at those who didn't do much (if anything) between college and law school, as well.

As for "Dave!"'s point, I'm not bothered by the general predisposition to assume that those with less experience are less qualified to teach. I'm bothered by the notion that that's categorical. Entirely _because_ I'm not sure there is a direct correlation between practical experience and teaching ability, I'm bothered by the assumption by law schools that it's always true.

More to the point, I think schools lose something in not looking at younger scholars. There are ways in which younger profs can energize and vitalize student-faculty interactions at schools where they have stagnated to a degree more difficult for their older peers. I'm not saying that's worth ignoring the lack of experience, but it's a suggestion that maybe there's a unique benefit to younger scholars that's underappreciated in the market as it currently operates...

Posted by: Steve Vladeck | Jun 6, 2007 11:08:56 AM

I think the "reverse discrimination" against potential professors who have little "real world" practice experience is completely justified. I understand that many law professors see themselves as pure academics--researching and writing. The reality is that a law degree is a *professional* degree: the goal of law school (with very few exceptions) is to train students to be professional lawyers.

Legal history, legal theory, etc. are great, wonderful, and obviously have a place in law school. But the bulk of our educations should be grounded in the practical--and I'm sorry, it's much harder for someone who has never practiced law to impart that practical knowledge and application of the theory.

Practical experience won't *always* make someone's scholarship more relevant. However, with all due respect, many law professors seem to have a very inflated view of their own "scholarship". I would wager that the number of young, inexperienced lawyers who _happen_ to be outstanding scholars is so small that giving them a chance without practical experience isn't worth the risk of getting a bunch of duds.

Posted by: Dave! | Jun 6, 2007 10:57:42 AM

"What does a year or two of document review at a big corporate law firm do for an aspiring constitutional law professor?"

Law firmst aren't the only post-clerkship employers. There are plenty of con-law relevant jobs available to top notch graduates: You could work as a state or federal prosecutor, or in a regulatory agency, or for a legal services organization, or on a congressional staff, or for an appellate defender office.

In any event, a preference for experience (if there is such a preference) is not "ageism," just as a preference for a clerkship (or indeed, a law degree or phd) is not ageism. Otherwise, why not hire extremely bright undergraduates? That would truly be taking "more chances on “young” junior academics."

There is another reason to prefer practice experience, even document review. Law school teaching involves (or should involve) more than publication. We are also training future lawyers who will need to function ethically and honorably in an increasingly alienating and high-pressure environment. Some actual experience with those demands will help us teach our students how to navigate that environment, perhaps even to change it for the better.

Posted by: Steve Lubet | Jun 6, 2007 10:56:26 AM

Anthony -- I think it's safe to say that other factors were also at play in Kiwi's case.

As for Andy's point, I guess I just don't see how practice experience will _always_ make one's scholarship more relevant. Of course, we can imagine examples, but faculties are in a position to evaluate scholarship on its own merits, no?

The harder question raised by U.N. Owen's point, which, as s/he notes, I hinted it in my own post, is the extent to which the ageism seems more apparent at schools not in the top 15 or 20. Surely, at least _some_ of those schools want cutting-edge scholars. It may still be true that those with practice experience are a better fit, but I'm not convinced that that explains the near-categorical exclusion of those without...

Posted by: Steve Vladeck | Jun 6, 2007 10:07:32 AM

This reminds me of this article from a couple of months ago about Kiwi Camara's difficulties on the job market. I wonder if the separate reasons mentioned in the article involve his lack of non-clerkship/fellowship work experience.

Posted by: Anthony | Jun 6, 2007 9:53:09 AM

This is an interesting post, if only because my sense was that if anything the trend was the other way -- a preference for J.D./Ph.Ds had squeezed practice experience beyond a clerkship out of the market, at least at the high end of the market.
To use one example, none of Harvard's entry level hires I can think of over the past few years (Matt Stephenson, Adriaan Laani, Jed Shugerman, Rachel Brewster) had any non-clerkship working experience. All also had Ph.Ds.
So perhaps what Steve is saying has to be qualified either by saying that this alleged practice requirement only applies to (1) non-Ph.Ds, or (2) applies with greater force the further down the rankings one goes (which I think Steve's post hints at).

This second qualification may reflect larger truths about how school ranking effects entry-level hiring preferences. For example, it may be that lower ranked schools look for people who can more effectively teach with a practice focus, for which having actually practiced is very useful. (I will leave it to others with greater knowledge to evaluate its claim.)

Posted by: U.N.Owen | Jun 6, 2007 9:44:25 AM

Don't you think someone should have some experience with practicing law before teaching future lawyers?

Also, one of the major problems (or at least controversies) in the academy is the general irrelevance of much legal scholarship. Don't you think expecting candidates to go through the "real world" mitigates that problem somewhat?

Posted by: andy | Jun 6, 2007 1:25:00 AM

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