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Wednesday, January 17, 2018

Merritt:  Faculty Salaries And The Extraordinary Cost Of Research At A Top 25 Law School

Merritt (2018)TaxProf Blog op-ed:  Salaries and Scholarship, by Deborah J. Merritt (Ohio State):

Law professors teach a wide variety of subjects: Property, Civil Procedure, Legal Writing, Law & Economics, Business Associations,  Feminist Legal Theory, Law Clinics. Professors bring diverse backgrounds to this teaching. Some hold JDs, some hold PhDs, some hold both. Some have practiced law, while others have not. Some earned high salaries before joining a law faculty, while others drew more modest paychecks in government, legal aid, nonprofits, or other academic fields.

Despite this variety, there is one constant: professors who focus their teaching on legal writing or clinical courses earn significantly less money than those who teach other types of classes. This is true regardless of degrees, prior professional experience, or past salary level. What explains this pay gap? And what does the gap tell us about our values in legal education?

Before answering those questions, we have to understand the size of the gap. Academics shy away from salary discussions, but silence can hide inequity. To break that silence, I have been gathering information from salary databases released by public universities. I don’t have information on every public law school, but a surprising amount of data is available.

In this post, I will refer to salaries at one leading law school. US Newsranks this school among the top 25 schools nationally, and it is a clear leader in legal education. The salaries at this school, which I’ll call the Myra Bradwell College of Law, do not reflect salaries at every law school. They do, however, illustrate the type of salary gap our schools maintain between professors who teach clinics/legal writing and those who teach other subjects.*

Junior Faculty

For junior faculty, Bradwell’s salary database lists both assistant professors and clinical assistant professors. Professors in the first category teach no legal writing or clinical courses; professors in the latter category teach almost exclusively those courses.

The salary gap between these two groups is substantial. Bradwell’s assistant professors earn a median annual salary of $168,840. The school’s clinical assistant professors draw a median annual salary of $86,226. Assistant professors, in other words, earn almost twice as much as assistant clinical professors.

In absolute terms, the difference amounts to $82,614 a year. Bradwell’s assistant professors can afford homes, investments, private schools for their children, and other goods or services that are far out of reach for the school’s clinical assistant professors.

The salary gap of $82,614, moreover, is a conservative estimate. Bradwell’s assistant professors are paid on a 9-month basis, while most of the clinical assistant professors are paid on 12-month contracts. Assistant professors, in other words, are paid twice as much for three-quarters of the time. Because of their 9-month status, the assistant professors are eligible for summer funding from Bradwell or other sources.

Senior Faculty

This pay differential does not disappear over time; a similar gap exists between Bradwell’s full professors and its clinical full professors. The median salary for the former group is $272,322; for the latter, it’s $175,000. In percentage terms, the gap is smaller than among junior professors: clinical full professors earn about 64% of other full professors. But as an absolute matter, the gap widens from $82,614 among junior faculty to $97,322 at the more senior levels. That’s almost $100,000 per year or, combining the junior and senior differentials, more than $3.2 million over a 35-year career.

What Causes the Gap?

What justifies such a large pay gap among full-time colleagues at the same institution? It’s not years in the academy: at both the assistant and full professor ranks, Bradwell’s writing and clinical faculty have at least as many years of service as other professors. Indeed, the writing and clinical faculty often have more years of professional or academic experience.

Nor is it the importance of the courses that the two groups teach. Most contemporary faculty–along with most employers—agree that legal writing and clinical courses are essential components of the curriculum. It’s hard to imagine a successful law school without writing and clinical courses. In fact, the ABA won’t accredit a school that lacks faculty-supervised writing experiences or substantial opportunities for clinical/externship work.

Nor, finally, is it differences in course difficulty. Teaching writing and clinical courses requires a heavier time commitment than teaching other courses; clinics and writing courses also demand special teaching skills. Professors who teach other courses rarely feel qualified to teach legal writing or clinics; nor are they willing to invest the time required for effective teaching in those courses. Writing and clinical faculty, in contrast, often teach other courses in the curriculum.

Defenders of the pay differential usually point to two factors: (1) the market, which I discussed in my last post; and (2) scholarship, which I examine here.

Scholarship, Expectations, and Workload

A simple version of the scholarship explanation goes like this: “Clinical and writing professors teach, while other professors engage in both teaching and scholarship. Professors who pursue two institutional missions deserve more money than those who pursue just one goal—maybe even twice as much money.”

The rationale, like the market one, may seem plausible at first. But like the market explanation, this rationale one weakens with scrutiny. There are three problems with using scholarship to explain the substantial pay gap described above.

First, many clinical and writing professors do publish scholarship; Bradwell’s website lists many publications by its clinical and writing professors. There are differences in the focus and quantity of scholarship produced by the clinical/writing faculty and their higher paid colleagues, but there is no clear line–certainly not one that suggests a $100,000 difference. Bradwell’s clinical/writing faculty are publishing original insights on important topics—and they are reaching audiences interested in those topics.

Second, expectations affect conduct. To justify the pay gaps on our faculties, highly paid faculty often stress the fact that clinical/writing faculty are not expected to produce scholarship. Some of these statements imply that clinical/writing faculty are not capable of producing good scholarship, so it’s just as well that they don’t try. More benign comments acknowledge that clinical/writing faculty must devote a lot of time to their teaching, so that it would be difficult for them to produce scholarship.

These comments and expectations matter. Stereotype threat isn’t limited to students; it also affects faculty members. If deans and senior faculty members repeatedly tell clinical/writing faculty that they’re not expected to produce scholarship, that they probably don’t have time to produce scholarship, and that they may not be capable of producing good scholarship, then very few clinical/writing faculty will undertake scholarship.

Finally, law schools don’t give most clinical/writing faculty sufficient time to produce good scholarship. We lighten teaching loads for junior faculty handling other courses, provide ample summer research grants for those other faculty, and keep teaching loads as light as possible for all faculty teaching courses other than clinics or legal writing. Legal writing and clinical faculty, in contrast, carry teaching loads that more than fill a forty-hour work week—often without sabbaticals or other time off.

These heavy teaching loads are not inevitable. We could structure our curriculum and faculty workloads to provide more scholarship time to writing/clinical faculty; we just don’t choose to do so. Instead, we maintain two classes of faculty: one that engages full-time in teaching and another that divides its time between teaching and scholarship.

How Much Do We Pay for Scholarship?

This leads to one final question for today: If we consider just faculty salaries, how much do law schools pay for scholarship? What percentage of faculty salaries support that institutional mission?

A common response to that question is: “Schools devote much more money to teaching than scholarship because (a) writing/clinical faculty devote substantially all their time to teaching, and (b) other faculty divide their time evenly between teaching and scholarship.” A variation on this response acknowledges the role of service by combining it with teaching duties. I.e., “writing/clinical faculty devote all of their time to teaching/service, while other faculty divide their time evenly between teaching/service and scholarship.”

These responses, however, overlook some important evidence: the salaries paid to clinical/writing professors reveal the value that the school and market attach to full-time teaching and service. Bradwell, for example, can hire a junior professor who will provide full-time teaching and service for $86,226; at a senior level, the price is $175,000. Bradwell undoubtedly could hire full-time faculty to teach any group of courses (not just legal writing or clinics) for these amounts.

If Bradwell’s “scholarly” faculty devote only half their work week to teaching and service, then those services are worth just $43,113 (at the junior level) and $87,500 (at the senior level). The lion’s share of the salaries paid to these faculty members supports their scholarship: $125,727 per year for the median assistant professor and $184,822 per year for the median full professor. And that’s without counting summer research grants, released time, or other types of salary support.

Conclusion

Bradwell’s pay gap may be larger than at many law schools, partly because few schools can afford to pay what Bradwell pays any of its faculty members. But Bradwell is not alone in its salary rates; I have no evidence that it is a particularly wealthy top-25 law school. More important, Bradwell is not alone in its salary structure. My examination of salary databases reveals sharp discrepancies at many schools; I will explore more of those gaps in future posts.

Meanwhile, what do these pay gaps suggest about legal education? They tell us, first, that we greatly devalue legal writing and clinical education. The skills and knowledge taught in these classes lie at the heart of professional service; they place students in professional roles and require them to respond as professionals. Failing to value these courses demeans both our profession and the clients we promise to serve.

Second, these gaps reveal that tenure-track law faculty are comfortable with high levels of income inequality. We may criticize income inequality in other contexts, but we are comfortable with that inequality in our own workplaces. We work daily with colleagues who share our academic and professional backgrounds, as well as our institutional aspirations and much of our workload, but who earn substantially less than we earn. It surely bothers them, but it doesn’t trouble us much.

Third, as suggested by my previous post, legal educators are willing to capitalize on a gender-biased market to maintain these discrepancies. We condemn gender discrimination in the classroom, but leverage it in hiring.

Finally, law schools should heed what clinical/writing salaries tell us about the amounts we spend to support scholarship. If excellent junior professors will teach full-time for $86,226 per year, then a salary of $168,840 for someone who will devote only half their time to teaching implies an extraordinary premium for scholarship. Given the high cost of legal education, reduced class sizes at many law schools, and the ongoing crisis in access to legal services, can we justify such high payments for scholarship? High-quality scholarship is essential to support the legal system, but how much scholarship and at what price?

____________________________

* Professors who teach academic support classes or supervise externships also suffer from low salaries at most law schools. I do not yet have enough information about those professors, but I hope to discuss their pay rates and status in later posts.

http://taxprof.typepad.com/taxprof_blog/2018/01/merritt-faculty-salaries-and-the-extraordinary-cost-of-research-at-a-top-25-law-school.html

Legal Education, Scholarship | Permalink

Comments

Could credentials make a difference? Regular faculty tend to have multiple clerkships, including SCT, and are grads of T-15 law schools. Clinical faculty tend to have few if any clerkships (more likely with state courts), and are less likely to be grads of T-15 law schools.

Posted by: Andy Patterson | Jan 17, 2018 6:53:53 AM

If I understand Deborah's analysis correctly, her conclusions understate both the differences in compensation and the amounts paid, in effect, for scholarship. At many schools, total amount booked for compensation is salary plus some percentage for benefits, commonly in the range of 30%-35%. Taking book charge for benefits into consideration would magnify her findings. (Technical note: At some schools, there are differences between book charges and cash flows. Not at mine.)

Posted by: Theodore Seto | Jan 17, 2018 7:45:55 AM

1. There's this thing called "supply and demand." It causes some things you buy to be more expensive than others. 2. Every time a LR&W or clinical position opens up at such an elite school, there are dozens to hundreds of applications for it. 3. Most of the applications for LR&W and clinical are from women, which is why most of the people hired are women. 4. The biggest pay gap is that between junior and senior faculty of all types. Especially in lockstep-ish systems, this is most likely the largest gap between pay and performance.

Posted by: enderman | Jan 17, 2018 7:58:50 AM

Wait till someone tells her about the difference in compensation of New York partners and New York paralegals with the equivalent number of years of experience--- and they both work for the same law firm!

Posted by: Eric Rasmusen | Jan 17, 2018 9:37:11 AM

@Enderman,

Do you really want to get into supply and demand re: legal education? I didn't think so. And of course, as sites like Prawfs makes clear, every time a junior prawf opening appears, they also get dozens to hundreds of applications for it.

On another note, I wonder if there a way to incorporate the costs stemming from the high percentage of never-cited legal scholarship into the analysis. It's around 45%, isn't it?

Posted by: Unemployed Northeastern | Jan 17, 2018 10:07:50 AM

Andy Patterson's points about credentials make sense-- but they're also self-fulfilling. If you pay dramatically less, you'll end up with people who aren't as competitive, either because of lack of training or lifestyle choice. In other words, if they paid the "clinical" professors more, they would have more T15s and former clerks.

Posted by: Bob | Jan 17, 2018 11:05:44 AM

enderman, but perhaps that is the problem. Why should salaries be determined by the same invisible hand system that says diamonds are somehow worth more than water? Wouldn't it be better for salaries to be determined by an elected committee of workers approved by a government agency that is accountable to voters and whose decisions could be appealed to that governmental agency? Such an intelligent system could also alleviate the over-supply of young lawyers so many commenters here complain about!

Posted by: Mike Petrik | Jan 17, 2018 11:12:47 AM

There is a major difference in most cases between the teaching required for skills courses and doctrinal. LW for example basically requires continuous one-on-one meetings with individual students to discuss outlines, drafts, and rewrites of assignments throughout the semester. In doctrinal classes a teacher mainly addresses questions to the class as a hole, with very little individual critiques or meetings, and the most intensive work is grading the exam, which often is at least in part multiple choice. In addition, as Prof Merritt points out, most scholarly faculty are provided extra compensation during summer or semester off for doing what supposedly is half their required work.

Posted by: Ralph Brill | Jan 17, 2018 2:52:43 PM

Is 2X "high" inequality? As Eric points out, it definitely is not compared to the inequality between law firm partners or associates and paralegals, or say between doctors and nurses.

Law profs aren't exactly communists, but income inequality is pretty tame compared to the outside world.

Posted by: relative | Jan 17, 2018 9:45:24 PM

"Second, these gaps reveal that tenure-track law faculty are comfortable with high levels of income inequality."

Wait a minute, this must be fake news, there is absolutely no way my social justice heroes are complicit in a caste system under their very noses?

Posted by: Anon | Jan 17, 2018 9:51:19 PM

The thing that always surprises me is that law schools value 'non-teaching activity' at all. Unlike the STEM fields, legal research doesn't really attract substantial grant money; there aren't any federal agencies dedicated to funding it, and the few private grants that law profs are even eligible for, tend to be focused on larger fields (e.g., the humanities). And I can testify that actual legal practitioners don't care a bit about legal scholarship.

The only fundamental explanation I can think of is the old 'peer ranking' component in the (in)famous USN&WR rankings....is that driving all this madness?

Posted by: OldCurmudgeon | Jan 18, 2018 8:08:49 AM

People tend to assume that their own personal experience can be generalized to everyone else.

Professors who exclusively write mediocre research that no one reads and no one cares about--or are too lazy or over the hill or depressed to even bother--tend to think the same is true of everyone else's scholarship as well.

Professors who write interesting, innovative research realize how important their work is.

In my experience, journalists and policy makers are intensely interested in the opinions and views of scholarly and knowledgeable faculty about current events, like say Tax Reform. Courts cite and quote law professors, both their scholarship and their amicus briefs. Law firm partners practically beg scholarly and accomplished law professors to write or join Amicus briefs that are sympathetic to their clients views on important research.

And litigation consulting firms bill expert witnesses at hourly rates that suggest their expertise and authority is quite valuable.

Forget citation counts or teaching evaluations. If you want to know whether a Professor is good at their job, just ask them honestly what they think of research.

Posted by: research | Jan 20, 2018 12:37:32 PM

"Courts cite and quote law professors, both their scholarship and their amicus briefs.... Forget citation counts or teaching evaluations."

Written with a straight face too, I bet.

Posted by: Unemployed Northeastern | Jan 20, 2018 3:15:32 PM