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Editor: Paul L. Caron
Pepperdine University School of Law

Friday, January 6, 2017

Rethinking Faculty Hiring At Fourth-Tier Law Schools

Meat MarketPhilip 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.

Legal Education, Scholarship | Permalink


The unstated assumption in this article: students in top-tier law schools receive some kind of articulable, concrete benefit from faculty scholarship. Really? Prove it.

Posted by: Publius Novus | Jan 6, 2017 6:13:01 AM

4th tier? This should apply to every school outside the very few at the top that contribute significant numbers of new professors to the law school industry.

Posted by: Lonnie | Jan 6, 2017 9:22:05 AM

To stay alive these fourth-tier law schools are having to admit large numbers of students who are not qualified to be in law school. No professor - whether a scholar or practitioner - will be successful at a law school with a median LSAT score of 142 or 143. They simply do not have the raw materials to work with.

The ABA, albeit with prodding from the DOE, appears to be finally starting to enforce its Standard 501(b), which requires law schools to only admit students with a reasonable chance of succeeding in law school and passing a bar exam. At many of the truly bottom feeding scams, I mean law schools, a majority of the students - in some cases as high as 60% or 70% - are failing the bar exam.

The focus should be on putting these predatory institutions out of business, not on the type of professors they should be hiring.

Also let's be honest: Regardless of whether they are scholars or practitioners, what quality professor would accept a position at one of these fourth-tier law schools in the current climate? I am sure that the poor quality of the professors teaching at these institutions is doing more to cause their problems than to cure them.

Posted by: John C. | Jan 6, 2017 4:46:05 PM

As Hillary Clinton might phrase it: "At this point, what difference does it make?"

Posted by: Head Honcho | Jan 6, 2017 4:47:52 PM

At last, some common sense.

4 decades too late.

Posted by: cas127 | Jan 6, 2017 6:32:52 PM

If a law school wants to focus on filling Society's big need (in 1974 and in 2014) for lawyers happy and challenged by providing legal services to the middle class by not taking students with top 30% LSATs and ambition to be securities lawyers or to represent General Motors, the ABA will not accredit them. I know. My law school tried. As the mission changed our hiring did. As the faculty became more traditional the old mission was lost. And with it went the opportunity to meet an unfilled Societal need and to develop a specialized nitch for the long term. BTW, our earlier graduates with lower LSATs, more life experience, more Drive, and a practice-orientated curriculum have done better than our latest (even those few who slipped into Big Law). But the ABA couldn't abide "marching to a different drummer". Maybe they will now as the crisis of this decade continues to ERASE lower tier schools trying to compete (with an identical product) with state funded institutions and the well-endowed top tier schools. The ABA must allow law schools to provide what the market needs not what Big Law wants. I fear the ABA will dither for too long crushing the lives of many fine young men and women. In fact, based on my decades of experience, IMHO the ABA's self-perpetuating Council on Legal Education, will spend itself on trivia while the Titanic sinks.

The students are not too stupid. Er, perhaps so in 2016 because all the schools up the line have been cherry picking those below them. I taught at a lower 3rd tier school. Our students required more hands on teaching and personsl attention than a "well published scholar" has time to provide. I know. I wrote nothing for my first 7 years while the school's mission was educating students. When the mission changed to impressing other professors, I wrote a book and several articles in short order and then caught on that the Dean was only counting red beans so I produced red beans. And I got paid for red beans. I was less interesting in class (even to me) but I became a "well published scholar". The students were the losers but they did graduate from a school that "made" it into the next tier. Not that it did them any good.

Posted by: 30yearProf | Jan 6, 2017 10:54:48 PM

This information could not be more true. I am a current J.D. candidate at a 4th tier law school, and I very much plan on dropping out. Many of the reasons include a flat legal market, terrible job prospects given my school's ranking, the terribly outrageous cost of attending this institution (despite a 75% scholarship, which is ultimately why I decided to attend in the first place), an administration that refuses to address any of my questions regarding bar passage rates and so forth, and a reputation that seems to pervade much of the legal community as a whole.

My second semester starts this upcoming Monday (1/9); however, my grade for Contracts has YET to be released, even though my final was taken on the second week of December. There is absolutely no excuse whatsoever for the delay in posting the grade. Not one. It is my theoretical contention that this is done on purpose so as to leave students very little time, if any, to withdraw if they are to lose their scholarships. I will use myself as a hypothetical: In order to maintain my scholarship, I need to have a 2.6 GPA, and right now I have a 2.35. My school has notified me that it has already received the financial aid, and yet, until I know what I have gotten for Contracts, I may start the semester with a 75% scholarship or having to take out an additional loan to make up for that 75%, which amounts to over $9,000. But with the semester starting in two days, even if my grade is posted today, that would leave me with a little over 1 day to withdraw, and given that the school is closed on weekends, I will have a lot of hoops to jump through to figure out this situation. Granted, the 2.6 GPA is the overall year GPA, not the overall semester GPA, but I genuinely question why it takes so long for grades to post. Many, many of my peers (2Ls and 3Ls) are finding themselves in the same situation.

The professors do seem to fit the general trend of the ivy educated brand. Many have several published articles under their belt, and are very much focused on their scholarship and prestige. Yes, there are some professors who are so focused on the theory, not the practical application, that they are undermining a practice-ready education. But from what I’ve seen, the professors aren’t the problem; it’s the administration. The administration has yet to answer any of my (or my peers) concerns regarding their status in the legal community, their refusal to answer any questions regarding bar passage rates, and the empty platitudes they offer regarding the outlook of the school. Only one dean, one out of several, has taken the time to speak to me, and even he acknowledged that the school is dealing with some very deep rooted issues that will not be resolved any time soon. Further, I have been reprimanded on many occasions (by the student clubs that I am an officer in, no less) because I keep bringing up these issues.

I will be the first to acknowledge that law school is difficult. My LSAT was just a 150, and that was after several months of studying to bring it up from a 146. I cannot imagine how students with a score of 144, 145, 146 or so are possibly dealing with the material. Yes, there is most definitely a correlation between LSAT score and student success in law school. The LSAT is very much Stanford-Binet’s estranged cousin, and having the raw IQ to handle the coursework matters. By having low admission standards, these 4th tier law schools are doing a great disservice to not only the students, but to the legal community as a whole, because no one wants to hire a lawyer who barely made it out of law school, or had to retake the bar exam several times, or who graduated from a 4th tier law school to begin with.

I am glad that the DOE finally mustered up the courage to put an end to some of this practice, with CSL from Infinilaw being an example. This is long overdue and needs to continue, with other 4th tier law schools either entirely revamping the way things are done (hint hint: raise your admission standards, offer much more bar prep, etc.) or gutting them entirely by taking away their ability to receive financial aid. Further, transparency MUST be enhanced, with these law schools offering the actual employment outlook, including the types of jobs their graduates are getting, the odds of a student realistically passing the bar given several factors before he or she begins law school, NAPA statistics, and so forth.

Sorry for the long post. Professor Paul L. Caron, thank you for speaking up and addressing the issues that you see in 4th tier law schools. You are doing a great service for the legal community!

Posted by: David | Jan 7, 2017 8:40:12 AM

The assumptions built into this article are wrong. Even at top tier law schools there is a serious effort made “to teach its students how to practice law, prepare them for success on the bar examination, and help them find jobs.” Those goals are hardly in competition with the pursuit of academic research and scholarship. In fact, if you teach in certain areas (like business law) they are closely woven together. Outside of a small handful of schools (and even there) a substantial number of faculty have practice experience. And of course there are healthy clinical and adjunct programs at most schools (even at the very top).

The author seems to have ignored the fundamental reason for the current dominant law school model: the need for students to be trained by faculty who are independent of the profession and the market forces that shape that profession. That is the key reason for placing law schools (for the most part) in autonomous universities which have a distinct culture and rule set. A key component of that culture and rule set is academic freedom, faculty governance and the tenure system. Those, in turn, are grounded in the requirement that faculty generate and share knowledge about their field.

Clearly the demand side of the equation (what do aspiring law students demand) favors the dominant University based academic law school model – if it were otherwise then the sustained attack by the critics over the last several years would have had some noticeable impact. But it turns out that the most talented students prefer more academically serious and productive schools. The market place offers students, nonetheless, a wide range of choices of types of law schools outside that dominant model, including apprenticeship (e.g., California), for profit schools outside academia, and non-ABA accredited schools.

Posted by: Steve Diamond | Jan 7, 2017 4:46:14 PM

David: Your reading comprehension is very poor. The individual who is "speaking up" is Prof. Philip L. Merkel.

Posted by: Publius Novus | Jan 7, 2017 7:13:09 PM

My only correction is that this could apply to the 150 or so "first tier" law schools as well

Posted by: mike livingston | Jan 8, 2017 5:25:37 AM

Is it a question of academics versus practitioners or of good teachers versus poor ones? At the time I attended, my non-fourth-tier school had announced an effort to get more practitioners into the classroom, even in doctrinal classes. The AUSA who taught my evidence class was probably the worst teacher I had in college or in law school; we learned evidence in spite of him. The bankruptcy judge who taught my Bankruptcy class the same semester was one of the most effective teachers I had in law school. Perhaps a focus on hiring academics is not harmful if those academics are also effective teachers. By the same token, hiring practitioners is not helpful if those practitioners do not teach well.

Posted by: Chicago | Jan 8, 2017 7:02:59 PM

I actually agree with Steve Diamond. My only caveat is that law school critics, to my knowledge, have never really clamored for skills training. That call has come from the law schools themselves, as they search to change the focus from cost-cutting. Curricular reform is apparently more palatable than shedding salaries.

Posted by: JM | Jan 9, 2017 6:46:48 AM

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