The Market for Legal Writing and Clinical Professors

January 5th, 2018 / By Deborah J. Merritt

Why do professors who teach legal writing and clinics earn significantly less than professors who teach other courses? Why are the writing and clinical professors less likely to hold tenure-track status? And why, finally, are these lower-paid, lower-status professors disproportionately female?

A common answer is: the market. Applicants for legal writing and clinical positions are plentiful, the argument goes, so the market drives their salaries and status down. Professors who teach other courses are more scarce and have more lucrative options; law schools must pay more (and offer tenure-track status) to attract them. Law schools also demand scholarship from professors teaching those other courses, and the pool of people capable of outstanding scholarship and good teaching is very small indeed. Salaries and status must be generous to land those rare individuals–but not so generous for legal writing and clinical professors.

This explanation (which I’ll call the “market hypothesis”) has some initial appeal, but thoughtful examination reveals several flaws. The most striking defect is this one: The market hypothesis doesn’t explain the very high percentage of women teaching legal writing and clinical courses. 62% of the faculty teaching clinics or externship courses identify as women; 72% of those who teach legal writing do so. The pool of law school graduates, in contrast, includes roughly equal numbers of men and women. So why don’t the hiring nets for clinical and legal writing positions pull up a more equal number of male and female professors?

If the market hypothesis is correct, it has to explain why an abundant applicant pool yields such gendered results. I explore below four ways in which the market hypothesis might coexist with our disproportionately female writing and clinical faculties.

Women Are More Qualified

It’s possible that women, on average, are significantly more qualified than men to teach legal writing and clinical courses. If that is true, then a large applicant pool would push salaries and job status down–while still buoying female candidates to the top of the hiring ladder.

This explanation, however, seems implausible. To explain the very disproportionate number of women among clinical and writing professors, women would have to significantly outshine men in both of these fields. I know of no evidence, either research-based or anecdotal, to support that conclusion.

Available evidence, in fact, suggests that men are just as qualified as women in these fields. When law schools hire faculty for short-term legal writing positions that serve as a pipeline to tenure-track jobs, men significantly outnumber women. Since 1999, for example, 60% of the Bigelow Fellows hired by the University of Chicago have been men. Harvard’s current Climenko Fellows include ten men and just three women. Law schools may compromise on the quality of writing instruction when filling these slots, but it seems unlikely that they foist seriously deficient men on their first-year students.

Law Schools Discriminate Against Men

Another way to square the market hypothesis with women’s dominance in legal writing and clinical positions is to argue that law schools discriminate against men when they fill these positions. Applicants for legal writing and clinical positions are so plentiful, this explanation goes, that law schools can indulge their preference for women–while still keeping salaries and status low.

This type of bias would not reflect animus toward men. Instead, it most likely would stem from two sources:

• An assumption (perhaps unconscious) that women are better than men at the one-on-one mentoring required when teaching legal writing or clinics. This bias would make female applicants seem more qualified than males with similar experience and credentials.
• A desire to increase the percentage of women on the school’s full-time faculty, without devoting tenure-track slots to women.

Either (or both) of these factors could help explain why law schools choose a disproportionate number of women from the large candidate pool assumed by the market hypothesis. Sadly, there may be some truth in both of these factors. I don’t think faculties pursue either of these agendas consciously, but their hiring preferences for legal writing and clinical positions may reflect some implicit biases that favor women for these low-status jobs.

But if law schools prefer women for legal writing and clinical positions, that should raise the salaries and status of successful candidates. A bias for women shrinks the applicant market significantly. The pool of applicants for these positions would have to be very large to support both gender bias and the low salaries/status accorded legal writing and clinical professors.

It’s the Mommy Track

The most common explanation for the demographic profile, salaries, and status of legal writing and clinical faculty is that these positions constitute the “mommy track” of legal academia. Women disproportionately seek these positions, according to this argument, because they are low-stress jobs with flexible hours that will allow them to devote significant time to their families. Indeed, women are so eager to take these family-friendly jobs, advocates claim, that their oversupply pushes salaries and status down.

There are several problems with this explanation. First, although clinical and legal writing positions are less demanding than many types of law practice, they are at least as demanding as tenure-track positions on law faculties. Legal writing professors devote long hours to designing problems, developing teaching strategies to reach diverse students, commenting on papers, and conferencing with students. Clinical professors devote similar hours to working with clients, formulating case strategies, teaching students the cognitive skills they need for effective practice, mentoring those students, and responding to client crises.

I have taught legal writing and clinical courses, as well as a wide variety of the courses commonly taught on the tenure-track, and I would never identify legal writing or clinical courses as less demanding or more family-friendly than the other courses I have taught. Let’s just say that when I teach Evidence, I rarely get calls at home from a client in jail or a witness threatening suicide.

Equally important, most of the clinical and legal writing faculty I know supplement their salaries with other work. They either teach overloads for additional pay or work part-time at outside jobs. This behavior, which I suspect is typical across law schools, conflicts with the theory that legal writing and clinical professors are happy to trade status and pay for “mommy track” jobs.

Women Work for Less

The most plausible explanation for the salaries, status, and female dominance among clinical and legal writing professors is this: women will work for less money and status than men. Among salaried lawyers working full-time, the median weekly wage for men is $2,086 while for women it’s just $1,619. Women in our profession, in other words, currently earn just 77.6% of what men earn.

That pay gap means that women seeking faculty positions have less lucrative options than their male counterparts. They will accept a teaching position that pays just $80,000 per year, without any prospect of tenure, while many men will not.

Putting It All Together

Advocates of the market hypothesis might seize my last point as confirming their perspective. “See,” they might say, “it’s just the market. Law schools can’t help the fact that other employers discriminate against women–or that women are willing to work for lower pay than men. If women are willing to accept low salaries and status for legal writing and clinical positions, that’s the end of the story. Law schools have an obligation to watch the bottom line and keep tuition in check. We can fill these positions with very qualified women who are willing to work for the salaries and status we offer. Are we supposed to give them gratuitous bonuses?”

There are three problems with this formulation of the market hypothesis. First, this is no longer a pure market defense of the salaries and status accorded to legal writing and clinical faculty. This is a “market tainted by gender discrimination” defense. If the market worked properly–without gender biases–law schools almost certainly would pay more to attract legal writing and clinical faculty.

Second, if law schools want to use the market to explain status and pay gaps on their faculties, they need to acknowledge the gender discrimination at play in that market. Saying simply that “the market” justifies low pay for legal writing and clinical professors suggests that those faculty members are deficient and easily replaceable–while faculty teaching other courses are precious gems. It’s more appropriate to say, “a market tainted by gender discrimination allows us to offer low salaries and status for these positions, while still hiring very qualified women.”

Finally, if law schools are willing to leverage a gender-biased market to fill legal writing and clinical positions, why don’t they take the same approach to other faculty jobs? We almost certainly could fill tenure-track positions at significantly lower cost if we were willing to hire predominantly women for those jobs.

Tenure-track positions in legal education are scarce; candidates compete fiercely for these jobs. It is somewhat dubious to claim that the “market” requires the salaries we currently pay. Let’s assume, however, that these salaries are necessary to attract many male candidates. What would happen if we lowered salaries by ten or twenty percent? I suspect we would still fill our tenure-track jobs with highly qualified candidates; demand for those jobs is high. But most of our new tenure-track hires would be women–they are the candidates who would be most willing to accept lower salaries.

If we lowered salaries for tenure-track positions, in other words, gender-tainted market forces would affect those positions in the same way that they currently shape legal writing and clinical positions. Fewer men would apply for tenure-track positions, because they would be unwilling to work for those lower salaries. Women, with less lucrative options in the workforce, would continue to apply–and would rise to the top of the applicant pool.

For tenured professors, this result may seem ludicrous. Tenure-track positions are important, influential, and high-status jobs. Why would we design those jobs in a way that favors hiring women? It seems obvious that we need to price these jobs in a way that appeals to both men and women. Otherwise, we might not get the very best candidates!

That response, however, makes clear that the “market” doesn’t explain the lower pay and status given to clinical and legal writing professors. Instead, the explanation lies in a gender-biased market for lawyers, combined with an institutional perception that legal writing and clinical jobs aren’t important enough to price in a way that will attract a significant number of male candidates. Let’s at least be willing to say that–or, better yet, change our tune.

Next Up: Scholarship and Salaries

 

 

 

 

 

 

Faculty, Clinics, Legal Writing, Salaries