Do Law Schools Seek the “Wrong Stuff”?

The faculty hiring season is well under way.  The first distribution of AALS FAR forms are out, appointments committees are dissecting reams of resumes and scheduling interviews, and pre-meat-market anxiety is building.

Do faculty hiring committees focus on the “right stuff” in prospective faculty hires?  Georgetown adjunct (and Sentencing Commission deputy staff director) Brent Newton thinks not.  In a new paper he argues that too many schools are obsessed with impractical scholarship at the expense of student education.  As summarized here and here, Newton argues that law schools over-emphasize elite academic credentials at the expense of practical knowledge and experience.

Writes Newton:

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.

Newton asks: “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?”

Professor Bainbridge thinks Newton is on to something, but that he misunderstands the problem in law school hiring.

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

Bainbridge continues:

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.

As Bainbridge notes, the question today is whether the collapsed legal market will cause law schools to reevaluate their priorities and recommit themselves to preparing students for the practice of law (as opposed to providing little more than a sorting mechanism for potential employers).

My own view is the problem is less the emphasis on strong theoretical and interdisciplinary scholarship than it is the devaluation of practical experience and knowledge and the failure to connect theoretical insights to the practice of law. The ideal faculty candidate should have the ability to bridge the worlds of academic theory and actual practice, much as law schools should aspire to be both practical professional schools and truly liberal academic institutions at the same time.  At too many schools, however, substantial work in the “real world” is not plus, and may even be a negative.  I have no problem with discounting practitioner-oriented writing in the tenure process, but practical engagement with the practice of law in one’s field is a definite asset and should be treated as such.