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Sunday, March 16, 2014

What is/should be a law professor?

As I mentioned in my introductory blog post, I want to wade into the morass of the law schools-today discussion.  The theses, from most negative to most positive, are that (1) law schools are a scam akin to a ponzi scheme, intentionally created by greedy institutions; (2) law schools have recklessly fed off of the often unrealistic aspirations of law students, and with the recession have been revealed for what they are; (3) law schools have negligently failed to keep up with the times, and now offer a staid structure of education that doesn't correllate well with student needs; (4) law schools are essentially the same as they always were, in terms of offering value to students; and (5) law schools are doing great, and the legal market is poised for an incredible comeback.

Instead of focusing on macro-economic market forces and whether law schools as institutions are deserving of praise or blame, what can individual law professors do now, to begin/continue a sort of grassroots evolution of law schools?  In general, we can revisit our core requirements--teaching, scholarship, and service--and ask what they really entail or what they should entail.  I imagine that most of us do this, but bringing this converstation out into the open can do a few things: it can show people what professors actually do, and the value they bring to their students, schools, and communities; it can remind us that we are more than writers of esoteria who visit with students for an hour or two a day in class; and it can inspire law professors to do new things.  

So, I have identified, from my own work in the past couple of years, categories of work that may not neatly fit into the teaching-scholarship-service triumverate:

  • drafting amicus briefs in appellate cases
  • counsel of record in cert petitions before SCOTUS
  • CJA appellate work (involving students in representation)
  • service on statewide committees to oppose certain legislative measures
  • drafting op-eds regarding statewide issues
  • serving on university committee involving privacy issues in drone research
  • substantive work as member of NACDL committees
  • consulting with groups and interviews with media on legal issues

So the questions I'd like to pose are these: in more detail than "teaching/scholarship/service", what do law professors do, and what should they be doing?  Instead of offering praise or blame--and there's plenty of each to go around, I suppose--how can we contribute to make our institutions, students, and communities better off?


Posted by Steven R. Morrison on March 16, 2014 at 02:00 PM | Permalink


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I don't think existing academics understand just how difficult it is to produce traditional scholarship while in high level practice. Firms are happy to have you write bar journal articles, CLE manuscripts, etc. but you certainly do not have the freedom to write a law review article that cuts against the interests of the firm's clients (or prospective clients). And the time it take to write a decent article is significant. It is basically like working a part-time job for several months (minimum). I wrote dozens of practice-oriented articles, op-eds, CLE manuscripts, etc. when I was in practice -- not to mention briefs on very sophisticated and intricate legal issues at the trial and appellate levels -- and all that counted for exactly jack when I went on the market. I had one law review article placed when I went to AALS (in a T50 main law review) and, of course, my dance card was not exactly full. I have put out a couple more well placed pieces since with a very full pipeline to work through over the next 2 years. In short, law schools really need to (1) rethink the qualities and experience they seek in faculty and (2) rethink the proxies they use to measure those qualities.

Posted by: AnnOnY | Mar 22, 2014 5:06:06 PM

It is an interesting point. The ideal is faculty who are both capable scholars and also have significant practice experience. But it's very rare to find that combination, especially at top schools (though there are some notable exceptions).

Posted by: Anon2 | Mar 22, 2014 12:47:55 PM

Interesting point, Orin, though I think that just raises the ever-looming questions regarding the value of legal scholarship, particularly given the poor quality of so much of it and the lack of peer review. I also note that a lot of purported "legal" research actually in other fields, particularly philosophy and history that is better addressed by trained scholars in those fields rather than amateurs in the legal field.

Also, experienced practitioners frequently have a much more nuanced and "scholarly" understanding of legal scholarship than law professors. Someone with 20 years of experience may not have ever produced a law review paper, but may have produced numerous appellate briefs that address complicated issues better than someone with only a few years of experience.

Posted by: Anon | Mar 19, 2014 2:09:39 PM

"Maybe one of them can explain to me how someone who is a year or two away from being a 3L is now qualified to teach 3Ls? It truly boggles the mind."

In my experience, most schools require a few years of legal practice or a Ph.D. before teaching, or at least look very favorably on it. It's really rare for someone to go straight into teaching from law school or right after a clerkship. When it happens, the usual thinking is that the person is such a promising scholar that they will generate insights in areas that don't require extensive practice experience. For example, if a person wants to teach and write in the area of jurisprudence, it's not like they can go to BigLaw and be an associate in the firm's Jurisprudence practice group.

The problem with candidates who have a lot of practice experience is not that they have the experience -- the experience is great -- but that they usually haven't established that they are scholars, too. A candidate who has practiced for ten years and written lots of articles during that practice time has an advantage over a candidate who has practiced for two years and written one article. But a candidate who practices for ten years and writes little or nothing is likely to come across as a lawyer who didn't make partner and is now looking for Plan B. Schools are usually reluctant to hire that kind of candidate because they fear that the candidate doesn't have an interest in writing scholarship. (My sense of how schools perceive these things, anyway; YMMV.)

Posted by: Orin Kerr | Mar 19, 2014 2:51:27 AM

Ugh, mangled that. Second sentence should have read "Someone who graduated then spent only a year or two working before entering the academy is effectively only nominally better educated than [their students.] I actually don't think hiring PhDs is a bad idea per se; at least getting a PhD typically requires a lot more effort than a mere JD."

Posted by: Anon | Mar 19, 2014 12:52:12 AM

AnnOnY has it right; it's insane that practical experience counts against you in applying for a law professor job. Someone who graduated then spent only a year or two working before entering the academy is effectively only nominally better educated than I actually don't think hiring PhDs is a bad idea per se; at least getting a PhD typically requires a lot more effort than a mere JD.

I know law school administrators and hiring committee members visit this site, so maybe one of them can explain to me how someone who is a year or two away from being a 3L is now qualified to teach 3Ls? It truly boggles the mind.

Posted by: Anon | Mar 19, 2014 12:51:23 AM

Abel, this is one of the tremendous conundra in legal ed at the moment. Most highly ranked law schools do not hire folks with significant practice experience as full time prawfs [I was told that with 10+ years of practice I was per se unqualified to teach] and are increasingly looking for law professors with Ph.D.s and little (if any) practice experience. Harvard is Harvard and Yale is Yale, so they and their ilk have no incentive to change. W&L was roundly criticized within the academy for changing its 3L curriculum to more practice based (and it still will not hire actual practitioners as anything other than clinical or adjuncts). It is in the lower ranked schools where there is both incentive to change and the ability within the ranks of the FT faculty to teach both doctrine and skills (either at the same time or in separate classes). My school is replete with experience practitioners of all stripes who are excellent teachers. We even have some solid scholars (myself included). Yet, the lower ranked schools (incl mine) are those most consistently under attack from within the academy and from the outside.

Posted by: AnnOnY | Mar 18, 2014 10:15:38 AM

AnnOnY: I think you're right--it's impossible to be teacher/mentor/practitioner/scholar at the same time. We shouldn't ask this of professors. We need division of labor. Some law profs will be scholars, other teachers. Practice courses/mentoring should be provided by active practitioners on a part-time adjunct basis.

My concern is what professors can do to aid students. The current model doesn't do much for students. It is an expensive, ineffective model. Until we change this, there is little profs can do to help.

My earlier comment about closing the bottom 125 schools wasn't directed at profs (necessarily). I am a Tier 4 grad, and I had a few very smart professors, some of which produced scholarship that gained traction in wider legal circles (cited by SCOTUS/Appellate Circuits; published in higher rated journals). But the concept of a Tier 4 school operating in the same way as Yale is, to me, a wasteful enterprise. Most T4, T3,and even T2 grads will be unable to find jobs, meaning they will have to hang shingles and "sink or swim" (or find non-legal employment). Without a practice focus at the lower ranked schools, these schools are inviting failure and malpractice.

Closing the bottom 125 would save these students many tens of thousands in debt and employment struggles. It would also correct the oversupply of lawyers.

But I dare to dream. In the absence of such action, I would highly advise T4/T3 law profs to ditch the case book and delve into practical training. No need to teach anything above the minimum black letter law (Barbri will do the rest). Property law? Forget RAP, make them draft a lease. Torts? Forget the hypo-ridden IRAC exam; make them draft a complaint (based on the local state statute). This sort of stuff will be more useful to the lower tiered lawyer.

Posted by: Abel | Mar 18, 2014 9:27:13 AM

You might differentiate among different kinds of consulting. The Administrative Conference of the United States frequently hires law professors (at very low contract rates--surely below market) to act as "consultants" as the first step in the process of crafting recommendations to improve administrative processes. (If you're not familiar with ACUS, please see http://acus.gov/about-administrative-conference-united-states-acus. In brief, it is an independent federal agency that operates as an in-government think tank on administrative process issues.) Our consultants prepare independent research reports on subjects selected for study, and our six committees use those reports as the basis for the recommendations. Consultants typically publish their reports as law review articles after the Conference finishes its work on the project.

It's really part service (in the sense of service to the profession, as opposed to service to the consultant's particular law school community) and part scholarship. Since the scholarship is directly used to inform a recommendation that Conference staff then work to implement throughout the federal government, it is often a particularly effective avenue for giving scholarship real-world effect. It seems to me that this type of "consultant" work (which admittedly may be unique) fits squarely with the notion of law professors as public intellectuals.

Posted by: Emily S. Bremer | Mar 18, 2014 9:14:53 AM

Anon@10:27 (and practice practice), do you expect a prof to be all of those at the same time? Being a great teacher and willing mentor is a full time job. High level practice is a full time job. I practiced in BigLaw for 10+ years and I work longer hours as a professor (focusing primarily on the teaching and mentoring bit ... I'd love to write more, but it is tough to find the time). I am (honestly) an excellent teacher and willing mentor and I WAS a skilled practitioner, but no way to be all 3 at once. And, of course, I teach at a T4 school which most of the scam commenters think should be closed. Maybe it is not the schools at the bottom of the USNWR rankings at which your collective ire should be directed.

Posted by: AnnOnY | Mar 18, 2014 8:18:14 AM

What we need is for our professors to be great teachers, willing mentors, and skilled practitioners.

Posted by: anon | Mar 17, 2014 10:27:39 PM

The free CLEs and bar prep courses are the tip of the iceberg on cost, but they're an important one. It's absurd that students have to spend thousands of dollars to prep for the bar, and absurd that young lawyers must pay hundreds more over their first few years of practice to keep certification. The latter isn't the fault of the law schools, obviously, but you should be affirmatively looking for ways to help save students money (open source, free casebooks would be another huge money saver and would also benefit practitioners).

Part of being the profession's gatekeepers involve doing your best to ensure that law school remains economically attractive for students. On that front, law professors have failed miserably. Applications are not only down, they're down disproportionately among the people with the highest scores and from the best undergrad schools. The profession is losing out on very qualified candidates because of the high cost, exacerbated by every little extra thing you have to pay for.

And ultimately, I think there would be a lot more goodwill among students and alums if they would see tangible ways you're easing the financial burden on them aside from lowering tuition. Whether that will translate into higher donations later on in life is a different question.

Posted by: BoredJD | Mar 17, 2014 3:30:33 PM

Affordable and up to date area practice manuals would be nice as well. In my field the "bible" is written by a practitioner who occasionally adjuncts, and costs $900 (worth every penny, but still it'd nice it was implicitly subsidized by my alma mater instead of law review articles I have no professional need for).

Posted by: anon | Mar 17, 2014 3:16:02 PM

Free bar prep and free CLEs are a fine idea.

Posted by: Jojo | Mar 17, 2014 11:35:03 AM

"Instead of offering praise or blame--and there's plenty of each to go around, I suppose--how can we contribute to make our institutions, students, and communities better off?"

The better question would be what individual law professors can do for the narrow slice of the American population representing their school's current student population (e.g., the source of its tuition income) and its alumni (e.g., the source of its endowment income). Since the esteem in which those two categories of individuals hold one's school also directly affects one's job and income security at most schools, it would make more sense to focus on them than other categories of people with little or no such impact.

Strengthening your ties to these two categories of individuals could happen in many different ways, but the ones for which law professors are best suited are bar review courses and CLEs taught at very low cost to its graduates. Volunteer your time for that. This would have the additional benefit of teaching professors where new graduates' comprehension of doctrinal subjects is weakest during bar summer, and what local practitioners in his field care about.

Posted by: Morse Code for J | Mar 17, 2014 9:16:52 AM

Law school administrations (and by extension law professors) need to focus on the best interests of students. Roughly speaking, this means (1) reducing costs, and (2) increasing skills. Reduce costs by eliminating tenured faculty positions in all but the best schools. Use technology to make up the difference. Hire more part time adjuncts to teach practice oriented classes. For the vast majority of students, knowing how to evict a tenant or draft a lease is more important than the fee tail male and William the Conqueror. Eliminate scholarship for all but the top 15 schools. By this I mean no school ranked lower than 15 should have a law review. Blogs will replace law reviews to keep scholarship alive.

This model is sustainable and in the best interests of students. We need a 2-tier system. One is academically elite for future SCOTUS clerks etc. One tier is for practitioners. This system is bad for professors on the short term but needed for the future of the profession.

Also, the ABA should close the bottom 125 law schools immediately.

Posted by: Abel | Mar 17, 2014 7:36:49 AM

2L, they are tone deaf. Things won't change until they are forced to.

Mr. Morrison, most of the critics are law graduates. They saw how the sausage was made, and aren't happy about it. A post and comments about writing op/eds and being a busy "public intellectual" between bar meetings reinforces the distance between law school and practicing law.

You have unhappy customers because you charge far too much, collectively have twice the output than the market can absorb (which isn't changing much despite the crash in applicants - standards just fell), and students who entered the door reasonably expecting to learn to be lawyers walk out three years later with a diploma and best wishes that somehow they learn to be lawyers or get a job with someone.

Can't you see why so many view legal education as screwy, especially those who've been through it?

Posted by: Practice practice | Mar 17, 2014 7:16:51 AM

Jack Chin:
> I also think that an expectation that faculty work 40 hours per week is the key idea.
What salaried professional works 40 hours a week in this day and age? Certainly none of your students will work that little when they get out of school and have to try to pay back the money they borrowed to pay your salary.

>Letting people do what they enjoy most and are best at, within limits, will lead to good results.
40 hours a week, doing what you enjoy while avoiding what you don't. What's good for General Motors, is good for the USA, eh?

Posted by: classof03 | Mar 17, 2014 1:08:27 AM

While it's neat, we law students really don't care if our professors are public intellectuals or write amicus briefs. Instead, we want our professors to teach us how to be be good lawyers and to prepare us for our jobs after graduation. Most of my professors have never done the work that most of us aspire to do after graduation, e.g., practice law, and that's why we increasingly view it as a scam that does not serve our interests.

Posted by: 2L | Mar 16, 2014 11:53:44 PM

I agree that the post and comments so far are primarily circling around scholarship (I file "being a public intellectual" here, myself) and service, especially as service tends to be a catch-all for everything that’s harder to categorize. But it's worth elaborating on what "teaching" entails beyond showing up in a classroom and imparting wisdom about doctrine and then grading final exams at the end. Teaching, especially for junior faculty members, includes an enormous amount of preparation, and even for veterans it encompasses an obligation to keep knowledge current on a particular topic. It also includes (for many) thinking deeply about questions of pedagogy and staying abreast on new theories there too. It requires not just preaching, but practicing and modeling for students, what we deem important when it comes to professionalism, mature judgment, collaboration, knowledge of career paths, ability to self-assess, and other soft skills related to success after graduation. Many of us also aspire to teach and provide feedback on legal research and writing skills and critical thinking via traditional doctrinal courses. While these functions (and more) are known among those who engage in them, Steven’s suggestion to “bring the conversation out into the open” reminded me there is value in making some of the non-obvious components of teaching more explicit.

Posted by: alex roberts | Mar 16, 2014 10:33:42 PM

It is difficult for me to see how paid consulting, even at below market rates, can be considered service or that any "credit" should be given. Maybe if someone collects statutory attorney's fees as part of a civil rights statute, but only maybe because I think if someone wants to count this work as part of their duties towards their paid academic salary, they ought to donate the fees that they recover or earn. I don't have a problem with people doing the work only trying to get credit for it, which seems like a pretty blatant case of double-counting, and I think likely falls into the "only in a law school" basket, which is pretty full already.

Posted by: MLS | Mar 16, 2014 10:28:37 PM

Practice practice, I think we are seeing exactly what you want from Steven himself. And while I think he presents an excellent example, he is not unique in his engagement with practice in addition to being a prolific scholar. http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=958005

Steven, I agree that faculty should be able to do what they want in their off hours. Once they have done 40 hours of work, they should be allowed to consult at market rates as they please. But I am deeply reluctant to allow this to count as part of their day job, because the conflict of interest is so evident and difficult to resolve. It is extremely unlikely that the best intellectual development or social contribution happens to coincide with who is willing to pay the most. I would be much more open to the idea if faculty waived their consulting fees or gave them to the law school.

Sub-market honoraria, like a fee for being a reporter on the UCC, or doing a CJA case, seem different, more like royalties for a book or an honorarium for giving a lecture. And it also seems different if a professor is working with students, or otherwise doing the consulting as part of coursework. That could be a very valuable form of clinical-ish teaching.

Posted by: Jack Chin | Mar 16, 2014 9:40:56 PM

Thanks, all, for these posts! This subject is important to me, and I'm glad that others share my concern.

Howard, the notion of a "public intellectual" is, to me, an important one, perhaps especially because my school is (1) a public institution and (2) the only law school in the state. I hope that my skill set as a law professor makes an impact not only at the state level, but also at the local and national levels. It's important to keep all three in mind and try for some synergy among them.

I think that occasionally this work can be service (as serving on an ABA/AALS/NACDL committee) and sometimes it can count toward scholarship (as when one writes a lengthy report that will be published, as a part of committee work). One thing that law schools should perhaps reconsider is their definition of scholarship. There is great value in publishing in traditional law reviews and trying for the highest placement one can get, but there are other avenues for insightful legal writing as well.

Mike, your question about paid consulting work is an interesting one, and one I've thought a lot about. I think that faculty should absolutely do paid consulting work if it's in their field (or related to it) and if they can fulfill their other duties as a professor. This can only help their teaching, scholarship, and their school's standing, and they should have the freedom to do what they want in their off hours. The question then becomes whether they should get "credit" for this as service. To the extent that they get paid less than the going market rate for a private consultant of their stature, they perhaps should get some credit. My work as a CJA attorney is a case in point. I get less than what I could bill hourly, and I always exceed the amount of hours the court is willing to pay, so a majority of my work is actually performed pro bono. I'm also serving an underserved population located in my state--all factors supporting it counting as service.

But what if a professor were to receive the market rate for her consultation? There's still an argument to be made for it to "count," though a less strong one, and one I don't necessarily endorse. Even if one is receiving the market rate, (1) the professor is still building connections with the legal community that can help students get jobs/connect them to internships, etc.; (2) the professor is making her school look better; and (3) the professor is continuing to practice her trade, which can help her be a better teacher and scholar.

One possible qualification here (and there are more, I'm sure) is that not all consulting may be viewed as equal. A Second Amendment expert who helps the NRA or the Brady Campaign draft effective, constitutional legislation is one thing. A professor who studies false eyewitness identification and is asked to serve as an expert witness at a trial (and is "paid for her time," as they say) is another. The former serves to progress society and the law; the latter primarily reiterates the finding of work she's already done. Arguably, the Second Amendment scholar's work should "count" more than the trial expert's. But I would be interested in others' opinions on the subject of paid consultation.

Posted by: Steven R. Morrison | Mar 16, 2014 8:49:53 PM

I hope to see the torts profs list "lead trial counsel in personal injury action," the crim pro prof list "three suppression hearings," the family lawyer list "10 contested property distributions," etc.

I doubt we'll see such things. The problem is not that law professors aren't doing such things. It's that the people doing such things aren't law professors. That is the problem (or a problem) with legal "education"

Posted by: Practice practice | Mar 16, 2014 8:47:53 PM

Some of these touch on the question of how we categorize and value being a "public intellectual," using our knowledge and our academic gravitas to affect public debate. Is it service, broadly defined? Is it a sub-category of scholarship?

Posted by: Howard Wasserman | Mar 16, 2014 5:46:23 PM

Great question Steve. And I like your list. Of course I would add service to ABA and AALS Committees (accreditation, etc) testifying before legislatures, serving on rule-making committees (reporters, etc.) and helping to select state and federal judges.

But I think all this raises another important issue that the academy needs to address during times of great economic pressure. Should faculty be doing paid consulting work?

Posted by: Michael Cassidy | Mar 16, 2014 5:27:23 PM

This is a great question. It seems like what you are doing fits neatly into service, except your work with students which seems to be teaching.

I also think that an expectation that faculty work 40 hours per week is the key idea. Letting people do what they enjoy most and are best at, within limits, will lead to good results.

Posted by: Jack Chin | Mar 16, 2014 3:19:27 PM

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