The Wrong Stuff: What Law Schools Value in Law Prof Candidates

Via Paul Caron, comes this rant from Brent E. Newton (Adjunct Professor, Georgetown; Deputy Staff Director, U.S. Sentencing Commission):

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. ... Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L‟s, and preferably ones taken at elite „national‟ law schools.”

Maybe 20 years ago law schools valued things like high grades, law review membership, and prestigious clerkships. Not any more, however. As far as I can tell, what is valued these days are:

• Ability to network with people you knew in graduate school that got hired last year
• Having a PhD
• Having multiple publications, even if they demonstrate the author's utter lack of doctrinal knowledge or inability to do basic legal research
• Knowing what Rawls (or Dworkin) would think of X
• Being able to run linear regressions
• Being able to run regressions about what Rawls would think about X

Not that any of this has a goddamn thing to do with the practice of law. Hence, while I disagree with the factual claim, it's hard for me to disagree with the next part of Newton's rant:

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?

One good thing about UCLA, I think, is that we don't treat clinicians differently than other faculty. And we have some great ones. I can think of several of our clinical faculty whom I would be delighted to have defend me in a lawsuit or criminal case. On our non-clinical faculty, moreover, I can think of maybe three of my colleagues who I would want to represent me in a transactional or other negotiation setting.

Even so, I take Newton's point. Indeed, in the spirit of Matthew 7:3-5, let's admit straight up that I would be a disaster in the courtroom. And so, I suspect, would a lot of my other colleagues.

Indeed, I think Newton understates the problem. He focuses on litigation. If you think about transactional lawyering, however, law school does an even worse job. What part of the case method gets somebody ready to handle a complex leveraged lease?

To my way of thinking, whatever flaws the old criteria may have had, at least they valued basic legal skills, something the new criteria utterly ignore.

The big question is whether the collapse of the legal hiring market will eventually lead to a backlash that finally forces law schools to think seriously about hiring criteria.

PS: I don't use rant pejoratively. A good rant is a thing of beauty.

Update: I highly recommend Why Can't Johnny Research Practice Law? Or, would you hire a law prof to represent you?, a long post that basically supports Newton's argument and provides lots of useful background.

Comments

[save_the_rustbelt]

I have worked with hundreds of lawyers, and taken some night law courses and sat through CLE courses to supplement my knowledge.

What puzzles me is:

A student can get an A in contract law without ever reading an actual contract.

A student can get an A in property law without ever seeing a deed.

A student without a single accounting class can get an A in tax law, and worse yet, become a tax lawyer or a tax law prof.

What is amazing is that so many lawyers overcome their educations and become great practitioners.

[Patrick H. Stiehm]

I for one particularly enjoyed the points that are being made in this particular post. That they come from a faculty member at eight top 20 law school, who is himself a member of the academic elite, makes the points doubly powerful.
I graduated from a top 20 law school in 1967. A law school’s rank was far less meaningful at that time than it is now. Even at that time however, the leading edges of the professorial elite, as opposed to just plain good lawyers, was beginning to emerge on our faculty. The faculty at my school, at the time, had a tiny handful of younger faculty members who had never practiced law in any form. Virtually every other member of the faculty had law practice experience, some quite expensive. Indeed most of the faculty members who had employment away from the law school were involved in activity advising real clients, as opposed to just hopping from visiting professorship to visiting professorship. The law school has enjoyed construction of a cutting-edge facility, greatly expanded library facilities and a substantial increase in the number of faculty members. All enjoy very good salaries. The law school budget as well as tuition has exploded. The number of students being educated at law school has increased only slightly since I graduated. It appears that significant resources are devoted to keeping the school in the top 20.
It does not appear to me, however, that the students attending the law school or the public has enjoyed much benefit from the "progress" the law school has made over the years. So much for top 20 status.

[Roger Byrne]

I like the post a lot because it points out some the structural problems within our society. There are similar problems in the field of finance as well.

In addition I have read numerous posts where the ivy education is not what it claims to be, the the big hurdle is getting in, but then you are golden. I am beginning to believe this as the current administration is stocked with people from Harvard and Yale. Yet they are not very adept at figuring how to solve our counties problems...Example....Saved jobs...too cute by half...

[Clay Boggess]

Perhaps it's because good lawyers don't always make good teachers any more than good teachers make good lawyers? (I know this rule applies to sales people and their managers)

[Mike]

There is just no pleasing you. In this post you slam law schools for hiring law professors with no experience as practicing lawyers. In prior posts you have slammed UC Irvine Law School for hiring Bill Lerach,a man who knows his way around a court room and a jail cell better than most, as a law professor. Picky, picky, picky.

[Larry Rosenthal]

As it happens, I have recently completed a paper on much the same subject, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574 I use the example of the ill-starred legal career of John Yoo (it bears noting that the Bush Administration itself repudiated an extraordinary number of Yoo's legal positions) to demonstrate that scholars who have not had the occasion to develop the kind of professional judgment that is so central to the practice of law are unlikely to be able to impart this most critical of skills to their own students. Although Newton may go too far in expecting a professor who teaches criminal law to be able to try a criminal case, for example, I think it is quite right that the ascendance of the theoretician has had the unfortunate consequence of removing from the legal academy those who are familiar with the type of professional (and eminently practical) judgment necessary in the practice of law. Although Holmes taught us that the life of the law was not logic but experience, the legal academy seems to have forgotten that lesson.

Larry Rosenthal
Chapman University School of Law