Paul L. Caron

Monday, August 29, 2011

At Law Schools, Age Bias Co-exists with Outdated Practices

Spaeth Following up on last month's post, Former AG Sues Michigan State, Files EEOC Complaints Against 100 Law Schools, for Age Discrimination in Hiring: the plaintiff, Nicholas J. Spaeth (age 61), has published an op-ed in the National Law Journal, At Law Schools, Age Bias Co-exists with Outdated Practices:

The alarming decline in recent law school graduate placement has received much attention lately, including an instructive July 11 article in The Wall Street Journal, Law Schools Get Practical, noting that more than twice as many people passed the bar exam in 2010 (54,000) as there were legal job openings in the United States. Perversely, at the same time, law schools are prospering financially on the backs of their students by substantially increasing both tuition and enrollment, as The New York Times found in a July 17 article, Law School Economics: Ka-Ching!

The current recession is, of course, a prime reason for the diminution in available jobs. But The Wall Street Journal article also correctly focuses on another major issue — the disconnect between contemporary law school education and the skills needed to be an effective, and therefore employable, lawyer. Unlike other professional schools, such as medicine and business, law schools continue to teach primarily based on a 19th century theoretical model that is good at developing critical legal thinking but severely lacking in teaching practical skills. That void is particularly acute in the business and corporate area.

I should know. For the 25 years I have spent the vast majority of my career as the attorney general of a state (North Dakota) or the chief legal officer of Fortune 500 companies (including H&R Block and Intuit). In that capacity I have supervised the hiring of scores of young lawyers and discovered that it is very difficult to hire someone straight out of law school and find anyone adequately prepared to step in and be effective. ...

Beginning last year I decided that, in a small way, I would try to do something about it. I accepted a one-year visiting professorship at the University of Missouri at Columbia to teach business-related classes with a skills component embedded in them. ... Because the experiment was by all accounts highly successful, I decided to try to continue teaching. In order to do so I had to enter the gauntlet of the AALS annual hiring conference. ...

I was aware that the usual ticket to law school faculty positions includes graduation from a top law school and other academic credentials — law review editorship, prestigious clerkships and perhaps some publication. I had all that — Stanford undergraduate, Rhodes scholar with first class honors, Stanford Law School and law review editor, clerkships in a U.S. court of appeals and the U.S. Supreme Court (for Byron White) and some publication. I also had a rich professional life that I believed would be helpful to teaching ...

To my chagrin, however, what I do not have is the ability to roll my age back. ... [O]nly a single school offered an interview, and needless to say, no job offers were forthcoming. While the AALS and its members proudly boast of their nondiscriminatory policies — including those against age discrimination — the truth of the matter is that they do discriminate, and pervasively so, on the basis of age. ...

The globalization of our economic and regulatory structure has put a premium on lawyers who have sophisticated skills and training that enable them to operate in an increasingly nuanced environment. This requires a changed curriculum to prepare students for an increasingly competitive and global practice. ... [A]n increasingly imperative need is for skilled and experienced practitioners teaching transaction-based classes. ...

In short, law schools must change their model of instruction if they expect to see an increase in hiring of their graduates. ... Finally, law schools either need to live up to their stated ideals and confront the practical implications of their hiring practices or else abandon the charade that they do not discriminate on the basis of age.

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interesting - he "supervised the hiring of scores of young lawyers". is he also guilty of age discrimination? or is this just an acknowledgement of the fact that it is easier to hire a malleable younger less-experienced person and shape him or her into the kind of employee you'd prefer. which is likely what happened when Mr. Spaeth applied for teaching jobs.

Posted by: skeptical | Aug 29, 2011 4:03:13 AM

This is not just about age. It is also about gender and race. If he had been a 61 year old African American female, with credentials even close to those that he has, he would have easily received a dozen or more interviews and at least one offer. I know that is not PC, but it is the truth. In my experience, the reverse discrimination against gender and race is far worse than age discrimination. I suggest he amend his lawsuit.

Posted by: Joe | Aug 29, 2011 7:11:50 AM

Age discrimination is overwhelmingly present in legal hiring and promotion. So much so that I seriously doubt any efforts to combat it can be even marginally successful.

Posted by: Publius Novus | Aug 29, 2011 7:24:00 AM

I await The King's decision. This case is of such magnitude that the King should decide, not the subservient courts.

Posted by: moron | Aug 29, 2011 8:16:46 AM

The guy is right, law schools don't teach much that is of value and trial and practice-management skills (leadership, organization, business development) are hardly taught at all. Yet that is 80% of what we do. Perhaps raising alumni money is easier with the latest zero-practical skills dork from Yale? That wouldn't surprise me. Eliminate the requirement of going to law school to take the bar exam and the market would fix these problems.

Posted by: jdd | Aug 29, 2011 8:26:17 AM

Why hire a brilliant lawyer who wants to teach young students and share his immense store of practical lessons about how to solve problems with the law, when you can hire a brilliant lawyer with two clerkships, a year in the Supreme Court Clerk Pen of a big firm, and great ideas for some publishable esoteric papers?

Posted by: Joe Blow | Aug 29, 2011 8:39:17 AM

I don't know what Mr. Spaeth means by "some publication", but a Westlaw search doesn't show a single law review publication in his entire career (unless he wrote an unsigned student note in the 70s.

Posted by: Avi99 | Aug 29, 2011 8:57:30 AM

Age discrimination is pretty commonplace.

My 50 year old sister in law is having trouble finding a teaching position as a math teacher. She originally had an engineering career- you'd think a math teacher with real world experience would be very attractive- no they want the 23 year olds they can mold.

Engineering is notorious for this- the business people who run (mess up) things don't like the 20 years of experience engineers- they want a 20-something they can bully and motivate with a small bonus.

Posted by: Mastro | Aug 29, 2011 9:05:12 AM

I would be interested to hear him indicate further what "some publication" consists of on his resume. I understand that law review editorships and Supreme Court clerkships are very key credentials, but that was a long time ago in his case. His 25 year career as a practicing/managing attorney is impressive for someone who would be continuing on that path. But he sounds like he is looking to change careers at this point, and schools may be looking for recent scholarship from someone like him.

Posted by: Kenny | Aug 29, 2011 9:10:34 AM

While there is age discrimination in IT hiring as well, it appears not so rampant as in Law. In fact, you don't even need a college degree, let alone certification, to earn 5+ figures in IT (Michael Dell, Bill Gates) or to teach it.

The problem is that universities and lawyers are subject to gummint certification. The answer is to kill off all certification, licensing, etc, that are barriers to entry, as Milton Friedman never tired of pointing out.

Posted by: Jimbino | Aug 29, 2011 9:21:54 AM

I am missing the logic of Spaeth's intro here, trying to latch on to the NYTimes and WSJ pieces to support his cause. If there are more than twice the number of legal grads as legal jobs, how is a more practical legal education going to create more openings? It may shift around which lawyers get hired, but it does not expand the pool of available jobs.

Perhaps he should apply to the proposed new Indiana Tech law school, where the President ducks questions about whether there is a need for more law graduates by suggesting his school will not add to the glut because it will offer something different.

Posted by: Drin | Aug 29, 2011 9:24:03 AM

I am sympathetic to Mr. Spaeth's problem. At my AALS Recruitment Conference (over 20 years ago), the first question out of one interviewer's mouth was "You're too old. Why are we looking at you?" At hiring meetings, I am often a vocal advocate for more experienced candidates.

The problem, however, is not as simple as Mr. Spaeth seems to think. Law professorships are apprenticeships. For better or worse, law schools mold new professors to think, speak, and write in specific ways. My guess is that at least some schools anticipate that Mr. Spaeth will resist being molded. I note parenthetically that Mr. Spaeth does not have a single work posted on SSRN. It is rare for my school to hire someone who hasn't already circulated at least one piece with some degree of theoretical sophistication.

This may be a bad thing. It may well be that law schools should hire primarily for teaching, not for scholarship. Hiring for scholarly potential, however, is not actionable.

Posted by: Theodore Seto | Aug 29, 2011 9:24:55 AM

"I know that is not PC, but it is the truth."

Well of course it isn't PC, precisely because it is the truth.

PC is the systematic rejection of truth.

Posted by: Lee Reynolds | Aug 29, 2011 10:26:11 AM

"interesting - he "supervised the hiring of scores of young lawyers". is he also guilty of age discrimination? or is this just an acknowledgement of the fact that it is easier to hire a malleable younger less-experienced person and shape him or her into the kind of employee you'd prefer. which is likely what happened when Mr. Spaeth applied for teaching jobs." - skeptical

It depends what you are hiring for.

If you are hiring for basic law work, a young lawyer will do. Apprentices do apprentice work.

If you are hiring someone to teach, that person should be older. Masters do master work.

I personally think no one should be a teacher of any class unless he is twice the age of the average person of that class, or at least 40.

Posted by: Marc Malone | Aug 29, 2011 11:50:27 AM

I am wondering whether, in his past life as a law firm partner, or as a state Attorney General, Mr. Spaeth would have hired for an entry level position a law school professor who had an impressive 35 year career doing law school professor-type things -- teaching, writing articles, etc. -- but had never practiced law?

Posted by: Lester | Aug 29, 2011 12:18:54 PM

The truth of the matter is that law schools have become more arrogant than ever, in their hatred of Republicans, and their disdain for anything that doesn't follow the liberal orthodoxy. I would not be surprised if the real reason he didn't get a job offer is because he was a Republican more than his age.

Posted by: Brian G. | Aug 29, 2011 1:31:14 PM

He had a teaching position at Missouri which he describes as "by all accounts highly successful." Does that means the students he taught had better employment outcomes, or their employers found them to be better prepared than others? Or did he just mean he received good evaluations from students or other professors, as a lot of professors who teach non-practical courses often do as well?

Posted by: RJeff | Aug 29, 2011 1:35:37 PM

Stop trying to scam poor college kids, and get a real job.

Posted by: anon | Aug 29, 2011 9:47:15 PM

well if i say no age bar should be implemented on law colleges.....
i f you have knowledge then you can do anything

Posted by: new jersey dui | Aug 30, 2011 2:56:58 AM

The longer I'm in practice, the more happy I am that I'm in practice and nowhere near a law school - 3 years at a Top 5 was enough (common type of quote from a prof - "we're not here to be lawyers, we're here to be philosopher kings!").

The legal profession is pretty sick, but legal education is a pointless morass. Philosopher kings being so useful in the real world.

Posted by: Tax Lawya | Aug 30, 2011 5:54:39 AM

"I am wondering whether, in his past life as a law firm partner, or as a state Attorney General, Mr. Spaeth would have hired for an entry level position a law school professor who had an impressive 35 year career doing law school professor-type things -- teaching, writing articles, etc. -- but had never practiced law? "

So the conclusion is that law professors are utterly unemployable as lawyers. Which must be why they are fit to teach lawyers. I cannot think of another profession where the faculty teaching the field not only lack experience in it, but are often proud of their inexperience.

I can understand the refusal to hire Spaeth in psychological terms. What if he'd gone in for teaching years ago, with no experience at all? Degree from Stanford, law review, Rhodes scholar, MA from Oxford, Supreme Court clerkship. He'd have had offers by the dozen, *so long as he had no experience.* With it, he becomes unhireable. So experience must not merely be irrelevant, it must be a powerful negative. Why?

Because it makes him intimidating to many existing faculty members. They are teaching subjects where they have zero experience, mentally compensating for that by claiming that they have no experience because they are superior to that, and here's a fellow who's qualified in normal academic terms but has major experience as well.

Posted by: Whitebeard | Aug 30, 2011 7:44:10 AM

A guy who files EEOC complaints against 100 potential employers is simply abusing the system. His lawyers have not researched which employers actually hired someone in his field that year, and for those that did, whether they hired someone younger than him.

If he took this same approach to his job search -- just generically carpetbombing the same resume to all potential employers without doing research into their hiring needs or his fit with the organization -- I can understand why his job search failed so miserably.

Posted by: Kipper | Aug 30, 2011 8:46:52 AM

Unreal-He is the type of person a school should be hiring. He can even help a school place applicants- because he knows a lot and knows a lot of people.

Posted by: Nick | Aug 30, 2011 9:20:31 AM

I cannot opine on why he complained against 100 law schools unless he had personal knowledge. I did review the CVs of the Michigan State "team" and concluded that they would be intimidated with a person like him on their faculty. I think many academics are intimidated by people who are sucessful outside of the world of academics and they use their only weapon..."I've been published by Jones Law Review" which no one reads except other academics. Many people who are in the position to hire do not want to hire people that could really take their position.I think he could easily replace the Dean at that school (in tech language an "Upgrade"). Hence, to avoid this confrontation (or possible contfrontation)- just don't grant him an interview.--When your CV is better thatn the Dean's you may have a problem getting hired...
What is the end result? The students receive a "substandard education" based on educational methodologies developed in the 1800s a/k/a the "case method" of study as opposed to useful practice techniques. If I was the Dean I would step aside an offer him my job...oops now I have to get a real job! Never mind!.

Posted by: Nick | Aug 30, 2011 12:41:11 PM