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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, October 26, 2016

The Market Myth And Pay Disparity in Legal Academia: We Should Amend The Equal Pay Act To Prohibit Market Excuses For Pay Differentials

Paula A. Monopoli (Maryland), The Market Myth and Pay Disparity in Legal Academia, 52 Idaho L. Rev. 867 (2016):

The definition of merit in academia is highly subjective, based in large part on the rank of the journal one publishes in and how often one publishes. ... There have been two high profile cases in legal academia in the past several years. ... The first case is that of Professor Lucy Marsh ... of the University of Denver Sturm College of Law. Marsh was the lowest paid faculty member at the school after forty years of teaching. The second case involved the release of documents pursuant to a Texas Public Information Act request by faculty members at the University of Texas School of Law documenting previously undisclosed compensation in the form of six-figure forgivable loans to certain faculty members, very few of whom were women. A discussion of the two cases ... illustrates why market excuses are so pernicious in terms of gender pay disparities in legal academia. ...

Legal education is in crisis. The New York Times and the Wall Street Journal continue their drumbeat that it is overpriced and underperforming in terms of jobs for its graduates. That critique has been refuted by some, but it generally resonates with the public and much of the professoriate itself. The arms race for U.S. News rankings has had much to do with distorting the functions of the law school itself. The heart of that enterprise sits in the classroom but the clamor to move up the rankings, a dominantly masculine form of competing for status within hierarchy, has brought legal education to its knees.

I have argued in the past that the undervaluation of teaching at the expense of certain kinds of scholarship is linked to that arms race. I have also argued that it is connected to the influx of women into the legal academy in significant numbers and the association of teaching with feminine norms. In this piece, I have argued for amending one of the major legislative enforcement mechanisms available to remedy pay discrimination based on gender. I would go one step further and predict that if the Equal Pay Act market defense were amended, we would see a healthier, more robust focus on the heart of the law school enterprise—the classroom. No one is being given six-figure salary supplements in legal academia because they have won teaching awards. Such supplements are linked to perceived value of certain kinds of scholarship in the narrow market of law schools themselves.

The U.S. News distortion of that market is in large part to blame for this odd world where a degree from one particular law school and fewer years of practice experience are valued more highly than more years of such experience when faculty hiring is at stake. And where scholarship alone has become the singular measure of value in terms of faculty compensation. If we look at whether scholarship alone has much to do with “performing the job” as the Equal Pay Act requires, I think the argument is clear that it does not. If we moved away from such singular measures of value and toward a more holistic approach to defining what it means to perform the job of a law professor, legal education as a whole would begin its long, slow climb back to health and students, most faculty members and the public as a whole would be the beneficiaries. Both women and men in academia should support the Paycheck Fairness Act amendments as a means to that end.

Legal Education, Scholarship | Permalink


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Posted by: Theodore Seto | Oct 26, 2016 2:21:06 PM

So the way to avoid bias is by basing pay on how good a teacher you are rather than how influential your research is, because research is too subjective? I don't think the author will be happier with the subjectivity level of teaching rating, or by hiring made on the basis of how good a teacher the committee thinks the recent J.D. will be. Or, maybe, she think that that subjectivity means it is more likely race and sex will override more objective criteria.

Posted by: Eric Rasmusen | Oct 27, 2016 7:11:22 AM

Eric, I for one await the day when the disparate impact theory governs every facet of our lives. Differences shall not be tolerated comrades, equal outcomes for all!

Posted by: todd | Oct 27, 2016 8:11:21 AM