Changing Law Professor: Job Security and Governance

Following up on a recent post on the "changing law professor," let me comment on what the phenomenon of what might be called the separating of the law professioriate, as law schools look to experienced lawyers to teach and work full-time in the experiential (clinical and more) space and increasingly-credentialed academics to do more interdisciplinary teaching and writing.  As a couple commenters noted, this is not a brand new phenomenon; nor is it absent elsewhere in the academy.  But my claim is that the pressures on law schools to carry out two fundamentally different objectives simultaneously --   to be traditionally and successfully "academic" and to be increasingly practical -- points toward a model of a twin full-time faculty, with law teachers following more or less the principle of comparative advantage.

What implications does such a model, well underway at a number of American law schools, for important matters of security and governance?  The "job security" issue has gone through accreditation twists and turns for a number of years.  The ABA walked right up to the precipice just this past year of removing what is essentially a tenure requirement for full-time faculty members, deciding at the last moment to maintain existing accreditation standards in this area.  Yet, the requirement of tenure for full-time ladder rank faculty has not swept in the large numbers of full-time faculty whose work is principally teaching and who, usually although not always, are teaching practical, skills-training courses.  It has to a substantial degree done so with respect to full-time clinicians.  But not all faculty members who are carrying out the experiential and practical-skills parts of the academic program are rightly labeled clinical faculty.  So, the maintaining of the current structure of ABA standards does not settle the matter.  Far from it.

In any case, the crucial matter here is not whether tenure exists and persists as a requirement for "non-traditional" full-time faculty.  We could and should debate this issue, and this debate is highly to continue as the ABA (and perhaps the AALS) revisit their standards in the current environment of law school instabilities.  Rather, the internal institutional question is how best to construct a regime of job security for faculty members who continue to be deeply invested in the law school and, moreover, are carrying out major parts of the focused, innovative skills training which both the profession and academy views as essential to law schools' contemporary missions?  Let me put the point more sharply:  It makes little sense to see one big hunk of what I have called the two faculties represented by the "changing law professor" as not having the job security befitting this role and earned by the impactful work they do in the institution.  The traditional case for weak job security was flexibility in hiring, in promotion, and in administrative and financial structure.  While such flexibilities are (here putting my dean hat on) very appealing indeed, such flexibiity is at odds with a faculty configured to do both high-level research and publication and to implement a curriculum which trains skillful lawyers for the new legal economy.

And, as to governance, here the direction is toward expanding the tent to ensure that all those who are invested in the well-being of the institution -- its mission, its students, and its culture -- have a say in the key decisions that matter.  These decisions include the scope and contours of the curriculum, the shape of its programs and, consistent with university rules and practices, input into the selection of its leaders.  Governance is a tricky issue, not only because changing the rules can unsettle existing expectations of some faculty members who think of themselves (or, past tense, thought of themselves) as being the ones central to enterprise decision-making, but also because it must be exercised responsibly.  The paradox here is that, with some sharper distinctions between the role, functions, and expertise of two faculty cohorts, it is harder to find the kind of common ground on essential expectations that makes responsible governance possible.  "What do experienced lawyers know about empirical research in law and social sciences?"  "What do JD-PhDs with minimal practice experience know about how to best try a civil case?"  These are difficult, important questions and ones that can drive a wedge between the ideals of collective governance and community-building.  But it is important to the well-being of law schools that these conflicts be effectively managed.  And, lastly, it is important that governance regimes be in the service ultimately of building a community of faculty who are committed in their work, their research, and even their affect, to improving legal education at their respective law schools.