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Monday, June 16, 2014

Changing law professor? Changing law schools?

Interesting article in The Harvard Crimson two weeks ago notes what we have long known already:  Expectations of hiring faculty have grown, especially with regard to more published writing.  In turn, law schools are demanding more advanced academic training -- what Harvard's James Greiner says is "essentially requiring them to do a Ph.D." 

Looking principally at the positive, rather than normative, side of this issue, is it likely that these priorities will withstand turbulence in the current law school environment?  Is such a focus on ever-accumulating academic credentials a luxury in these present circumstances?  A difficult question, without an obvious answer. 

The push toward experiential learning may result in law schools looking at more legal experience, perhaps to go along with the advanced academic training.  After all, it is not uncommon to find joint degree holders with clerkships and at least a couple years of big firm or governmental lawyering experience under their belt.  At the same time, law schools are understandably skeptical of the great added value of such highly-credentialed folks in providing sophisticated experiential skills to a demanding audience.  Surely some idea of comparative advantage would see law faculty who have substantial (5+?) years of increasingly impressive legal experience as more suited to these practice-oriented educational initiatives.  Moreover, a PhD holding academic is going to see these many years of highy academic training as better amoritized through serious scholarly production, rather than designing and implementing complex experiential courses and simulations and in engaging her students principally on the terrain of practical lawyering.

So, another way to see the evolution of law faculty hiring is in the intentional development of two faculties:  Those made up of law teachers who principally write, and whose teaching is doctrinal and theoretical (understanding that these are two very different modalities), and those who are doing much more practice-focused, experiential work.  Even Harvard, the main subject of the Crimson article, builds out its experiential and clinical curriculum principally through the use of lecturer-rank, adjunct, and clinical faculty.  This is not only not a criticism, it may well be the wave of the present, and also the future.

More tricky is whether less-well-resourced law schools can make a similar investment in what are essentially two faculty cohorts.  In other parts of the university, some of this predicament is handled through truly part-time teachers; indeed, in other professional school settings, there has long been a deliberate divide between those are contributing significantly to the scholary objectives of the institution and those who are drawing upon a wealth of experience to build skills and provide practice-oriented instruction.

Yet, the interesting part of this story is, to me, not so much the dichotomy between full and part-time faculty (although this is of increasing controversy in the higher educ world in any event), but that between a full-time faculty who are brought aboard largely on the basis of scholarly acumen -- and, to put a finer point on it, interdisciplinary chops -- and those who are brought on full-time (albeit not necessarily with tenure) in order to configure an experiential program.

Such moves, well underway at various law schools, including mine, raise myriad issues.  One is job security; another is governance.  In future posts, I will offer some thoughts about these issues separately.  

Posted by Dan Rodriguez on June 16, 2014 at 04:27 PM in Life of Law Schools | Permalink


I also like the diversity approach. I fear that by overemphasizing the theory/practice dichotomy we undermine the notion of the practice of law as a learned profession, along with the related notion that the training of lawyers belongs in the university.

Posted by: Jennifer Hendricks | Jun 17, 2014 2:27:28 PM

This is a little depressing. Certainly a Ph.D. provides value but it also limits opportunities to practice, in as much as, in a tight market, big firms are looking for those who can do more with less and an academic approach to practice is not necessarily appreciated. On the flip side, I would hope that schools would find value in professors with a scholarly mind and the experience to back it up. As such, I’m supportive of Brian’s fleshing out of these false premises and encouraging schools to find value in experience.

[Of course, my support is also ultimately self-serving as a practitioner with “substantial” experience trying to break into the teaching/scholarship market].

Posted by: Aaron | Jun 17, 2014 1:28:04 PM

I am planning to flesh out my thoughts on a related issue over at The Faculty Lounge, but for now my basic thoughts are these: it seems both unnecessary and unwise for the vast majority of law schools to start drawing a distinction between "real" professors (i.e., tenure track scholars with Ph.D.s and little to no practice experience) and "other" professors (i.e., non-tenure track teachers with practice experience).

This distinction flows from at least three false premises: (1) that one needs a Ph.D. to do valuable scholarship; (2) that no one with significant practice experience and without a Ph.D. can do valuable scholarship; and (3) someone with significant practice experience is primarily suited for "experiential" teaching of some description.

I see this as an issue of faculty diversity. Just as there should be a mix of races and genders on any law faculty, there should be a mix of legal backgrounds -- Ph.Ds, experienced practitioners, etc. Each will bring a different point of view to the classroom, the faculty lounge, and the faculty workshop. They will produce different type of scholarship with different audiences (potentially). Each type can inform the teaching and scholarship of the other. That seems desirable to me as long as there is mutual respect.

Bottom line, there should be room for variety in the legal academy without creating second class citizens among the legal professoriate.

[Of course my thoughts are ultimately self-serving as I practiced for 11.5 years before becoming a full-time professor. I teach doctrinal and experiential courses. My practice experience certainly informs my teaching. But it also informs my scholarship. However, I have grown as a scholar thanks to exposure to folks doing more empirical work, theoretical work, and the like.]

Posted by: Brian Clarke | Jun 17, 2014 12:41:08 PM

If a Phd in a social science discipline is going to be a de facto requirement for a tenured law professor slot, then perhaps it makes sense to move the faculty into the schools of arts and sciences. Can probably save quite a bit of money that way.

Posted by: brad | Jun 17, 2014 11:36:23 AM

Dan, wasn't this a big issue for legal academia back in the 1970s, when schools established law school clinics and hired clinical professors who had different backgrounds than doctrinal profs? Or do you mean something different by "experiential learning"?

Posted by: Orin Kerr | Jun 16, 2014 6:16:00 PM

It's been around in other disciplines and ares for a long time. For example, my wife teaches social work and runs the internship program. She is non-tenure-earning "clinical" faculty.

Posted by: Howard Wasserman | Jun 16, 2014 5:41:09 PM

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