Philip L. Merkel (Western State), Scholar or Practitioner? Rethinking Qualifications for Entry-Level Tenure-Track Professors at Fourth-Tier Law Schools, 44 Cap. U. L. Rev. 507 (2016):
[M]any fourth-tier law schools have lost their way. Rather than embracing their responsibility to educate practitioners, they are trying to look, act, and spend like elite schools. They operate as if they are research centers whose purpose is to produce academic scholarship, not places where future lawyers learn their trade. The research center model creates costs for fourth-tier law schools that ultimately fall on the students. Because most fourth-tier schools rely on tuition for operating expenses and capital budgets, students are paying more tuition and taking on more debt to support their professors’ scholarship. Students subsidize these activities but receive little benefit. They are further short-changed when they graduate and discover their professors taught them little about the actual practice of law.
The obsession with the production of scholarship has affected the hiring of entry-level tenure-track professors. Most law schools, including those in the fourth tier, are filling tenure-track slots with scholars. There is a presumption in today’s law school world that scholars make the best professors. Likewise, there is a strong bias against hiring practitioners to teach doctrinal courses. Law faculties view a substantial practice record as a taint on a candidate’s resume and strongly suspect a practitioner will not be productive when it comes to publishing. This emphasis on hiring scholars has led fourth-tier schools to narrow the job applicant pool from which they hire and to devote substantial resources for scholarly activity, including research grants, paid leaves, conference expenses, and reduced teaching loads. Law faculties wary of hiring practitioners who they fear will retire into teaching are choosing scholars whose main interest is academic writing. Courses that focus on the practical side of the law—those most relevant to the work students will do when they graduate—are taught by instructors who are not on the tenure track and adjuncts.
This Article challenges fourth-tier schools to rethink the criteria they use when hiring tenure-track professors. Tenured and tenure-track professors are the most powerful group at any law school. They have the strongest voice in shaping the school’s mission and in directing how educational resources are spent. A school’s mission is the justification for its existence. The mission of a fourth-tier school should be to teach its students how to practice law, prepare them for success on the bar examination, and help them find jobs. Energy and resources should be directed to meeting these challenges. A school should hire professors who have skills to meet the practice-centered mission and who enthusiastically embrace it. When a school hires professors based primarily on academic credentials and the ability to write law review articles, the mission is endangered. These individuals may not have the knowledge or desire to prepare students for law practice. They may even undercut the practice-centered mission when that mission conflicts with their vision of what a law school should be. To prevent this from happening, faculties at fourth-tier schools should diversify the pool of eligible tenure-track candidates and recognize the benefits of hiring tenure-track professors with substantial, relevant practice experience.
This Article has four parts. Part I examines entry-level tenure-track hiring at fully-approved ABA law schools for the years 2006–2009 and 2011–2015. This Article explores the credentials of new tenure-track professors at American law schools in general and at fourth-tier schools in particular. The available data show that there is a credentials arms race at American law schools, with tenure-track jobs mainly going to scholars possessing the most impressive academic backgrounds. Fourth-tier schools are following this practice by favoring scholars with elite law school pedigrees and post-J.D. academic accomplishments. Part II identifies some of the reasons why fourth-tier schools may be hiring scholars rather than practitioners for tenure-track positions. One reason is the legal academy’s historical antipathy toward teaching practical skills and how the ABA accreditation process perpetuates the bias against practice-centered legal education. Another is the influence of the U.S. News “one-size-fits-all” ranking system that pressures fourth-tier schools to look more “academic.” Part III identifies reasons why scholars may not be a good fit at a fourth-tier law school and explains how they can actually frustrate the school’s mission of training practicing lawyers. Part IV argues that fourth-tier schools can benefit by appointing individuals with substantial, relevant practice experience to tenure-track positions. It explains how practitioners with ties to the local legal community are uniquely qualified to prepare students to be lawyers and help them find jobs after they graduate. This part also discusses practical steps fourth-tier schools can take to find and hire qualified practitioners on the tenure track. ...
These are challenging times for all law schools and for lower-ranked schools in particular. For a fourth-tier school, its success—and perhaps even its viability—depends on its students’ success. Positive student outcomes, not the number of law review articles its professors publish, is the best measure of a succeeding mission. This is why having a faculty with the qualifications to advance the practice-centered mission is so critical.