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Sunday, July 31, 2011

Litigating One's Way to a Faculty Appointment

Two years ago, I posted (after being tipped by Usha Rodrigues) over at Legal Profession Blog about the age discrimination lawsuit filed against the University of Iowa Law School by a "seasoned" lawyer who didn't get hired through the AALS Faculty Recruiting Conference process.  Courtesy of Paul Caron, I see there's a 2011 version, this time against Michigan State, filed by a fellow who was a couple years ahead of me at my alma mater - Nicholas Spaeth, a Stanford Law School alum (1977) and the former AG of North Dakota.  (I just noticed that Paul was tipped to Spaeth's lawsuit by the guy who filed the Iowa suit.)

I have the same reaction I did two years ago.  I haven't seen this complaint, but likely this is a debate about the nature of legal education dressed up as an age case.   As I said in the comments back then, it doesn't take much to make an initial prima facie  age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all the defendant has to satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA.

So now the claimant has to prove that the proffered reason (lack or quality of scholarship, no curricular need, better qualified candidate, etc.) for not getting the nod of the appointmenst committee and/or the faculty vote is false and that the real reason was that the school just didn't want an old person. I suppose if you were just trying to squeeze by a summary judgment motion so as to get to a favorable position to settle for damages, we could debate whether this has more than nano-thinness.  Or perhaps it's a way of making public his dissatisfaction with the system.

As I said in "Retire and Teach", there doesn’t seem to be any way out of getting long experience without at the same time getting older. Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive it is, based on my own teaching adventures. But it's not the only element to be considered in the management of law school hiring, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring.  The debate over the role of experience is warranted, but putting this all in the context of the burden shifting of an age discrimination case trivializes the issue, because, unless there's something really dumb in the file, the mere existence of the debate over qualifications kills the claim.

Posted by Jeff Lipshaw on July 31, 2011 at 01:38 PM | Permalink


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Teaching ability is no better predicted by scholarship than it is by litigation prowess. Anon's claim that it is, is self serving nonsense. The best way to measure teaching ability is to measure teaching ability. The litigant in question has been an adjunct for several years. The data is there for examination without resort to inaccurate proxies.

Of course, all that is only relevant if the those that hire tenure track professors actually cared about teaching quality, a demonstrably false proposition. If the trial serves no other purpose it will be nice to have that fact put baldly on the record.

Posted by: Brad | Aug 4, 2011 12:53:13 AM

I agree that law students need exposure to practicing attorneys and to persons with decades of experience in the law, but that experience alone is not sufficient for teaching law. Some of the worst professors I've ever had were persons with long and illustrious legal careers. Many wandered into class unprepared, believing themselves capable of simply pontificating aloud about any topic. They expected the students to tap their deep knowledge by asking questions that the students simply lacked the basic awareness to ask.

I think law professors benefit from having some experience relevant to their courses. 5-10 years of experience is probably ideal. I don't necessarily think this helps them in the classroom all that much (other than perhaps as a confidence boost and as a means of providing enrichment discussion as time permits). But I do think it helps professors in their capacity as advisors and mentors to students. A law professor with practice experience is probably more likely to form inroads with local bar organizations, attorney groups, etc., and such contacts can help students obtain jobs.

Ultimately, teaching law requires a pedagogical skill set. Writing quality law review articles demonstrates a set of skills that are, in my opinion, much more closely aligned to the skills needed for teaching. A strong, high quality law review article evidences deep awareness of the various ideological and theoretical divides that manifest in the law. (For instance, textualism vs. contextualism), and the various paradigms, subtexts and societal interests that transcend a great number of legal subfields. Stripped of their theoretical and philosophical complexities, these paradigms are essentially the logical frameworks of legal arguments. These arguments form the dialog that re-occurs in all forms of legal discourse: everything from legal briefs and court opinions, debates regarding the passage of legislation, to the drafting of deal documents for sophisticated corporate transactions. When a professor understands these core arguments, and can juggle them seamlessly in the classroom setting, he or she can cut to the very heart of students' confusions or discomforts with reading assignments and help them to gain a very rich understanding of the law.

Unfortunately, this pedagogy isn't always learned to the fullest degree in law school, and certainly isn't gained in most areas of legal practice. It is gained by preparation of law review articles, and it is showcased either in these published articles or in discussing/defending an article at a conference or jobtalk.

Posted by: anon | Aug 1, 2011 9:59:45 PM

I've read the full complaint and it suggests that the drafter of the complaint might be unaware of what academic scholarship actually is. The complaint not only suggests that Mr. Spaeth has had no prior interest in academic scholarship during his lengthy and quite impressive legal career, it would seem to also suggest that he has not expressed any current or future interest in academic scholarship as part of his efforts to convince MSU of his interest in and qualifications for the position. Tenure track positions are heavily (indeed, primarily) focused on hiring qualified professionals who will produce academic scholarship going forward in their careers. I don't see anything in the complaint that indicates that the plaintiff has even tried to make that case.

There are a number of references to the number of amicus briefs Mr. Spaeth has written, but that may be either an attempt to plug something into the hole created by his lack of a record of academic scholarship or an indication of not understanding what academic scholarship actually is. I don't know which.

Posted by: David Case | Aug 1, 2011 6:48:54 PM

An interesting question is whether Mr. Spaeth is a less attractive candidate than a rookie with his same age-27 credentials. That is, if we count experience as worth zero in academia, might we want to go further and count it as negative? It does show that for many years he was not interested in academic scholarship.

I wonder what would happen going the other way. Suppose a 60-year-old law professor wanted a job as an associate at a big law firm. Would they hire him? Probably not-- mainly because they would fear he lacked the physical stamina, which I gather would count as age discrimination. Or would a judge be satisfied that it's tougher for us old guys to stay up all night?

Note, too, that it's unlikely a 60-year-old would stay up all night writing journal articles either, and unlike in the law firm, he can't be fired for "laziness".

Posted by: Eric Rasmusen | Aug 1, 2011 3:31:58 PM

I think Spaeth's complaint alleges that two of the three people hired in his stead also had never a written traditional law review article, though I haven't checked to see if those allegations are true.

Posted by: WPB | Aug 1, 2011 6:57:07 AM

Orin, you may be right about this particular man's credentials, but as you probably know from being a seasoned professor and probably serving on faculty committees ... being an older applicant is basically a shut-down in terms of the faculty hiring process. I have blogged about this before at Concurring Opinions, http://www.concurringopinions.com/archives/author/Marcy-Peek in a blog titled "Wasting Genius?"

Posted by: Marcy Peek | Jul 31, 2011 11:40:12 PM

Orin, from what I read, that seems to be the case.

Posted by: Jeff Lipshaw | Jul 31, 2011 8:52:34 PM

Am I right that Spaeth graduated from law school 34 years ago but has never written a traditional law review article?

Posted by: Orin Kerr | Jul 31, 2011 8:36:37 PM

Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive it is, based on my own teaching adventures. But it's not the only element to be considered in the management of law school hiring, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring.


That's too polite by half. Teaching value isn't one of a few different elements considered in hiring and tenure decisions, it is - at best - a tiebreaker between two identical candidates along the criteria hiring committees and deans actually care about. On this very blog a couple of years back there was a thread where not a single professor could say that his/her school would deny tenure on the basis of poor teaching alone - no matter how poor (so long as there was good faith effort.)

Posted by: Brad | Jul 31, 2011 8:12:35 PM

I have no idea whether Nick Spaeth's lawsuit has any merit, but his apparent qualifications (Rhodes Scholar, clerk for a Supreme Court Justice) make this an interesting case. Having read the complaint, his biggest weakness seems to be a sparse (perhaps even non-existent) publication record. The school's curricular needs may prove to be too big a hurdle, as well, although to some extent the school's defense on that point is potentially hampered by its position announcements. We'll have to see how things develop.

Posted by: Doug Richmond | Jul 31, 2011 7:01:02 PM

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