Caste Revisited
August 13th, 2021 / By Deborah J. Merritt
I’ve written several times about the caste system in legal education: a hierarchy that favors professors who teach torts, contracts, and other legal “doctrine” over those who teach legal writing, clinics, and other legal “skills.” This favoritism includes higher pay, more job security, and greater respect. Many schools maintain third and fourth classes that rank even lower than the second class citizens of clinics and legal writing. Academic support professors, teaching fellows, contract faculty, adjuncts, librarians, and other staff members often occupy those lowest rungs of the academic hierarchy.
California Western Steps Up
I’m returning to this topic because several related items recently hit my inbox. First, I received a press release from the California Western School of Law announcing that it had adopted a unitary tenure track that “creates opportunities for its clinical, Legal Skills, and other skills professors who were hired as full-time faculty to achieve tenure, with the same faculty governance and voting rights that come with an existing tenure-stream faculty position.” Kudos!
The press release, however, leaves several open questions. Will pay be equalized for professors on this unitary tenure track? Or will some professors still be more equal than others? How much research will be required for professors to join this unitary tenure track? Will the currently tenured professors turn their noses up at the scholarly focus of their new colleagues? And what about professors who choose not to join the unitary tenure track? Will the school recognize their ongoing contributions through higher pay and respect?
I’m not trying to rain on California Western’s parade: they have taken a hard step that many other schools are still resisting. I hope they will also find answers to these remaining questions, which schools face whether or not they embrace a unitary tenure track. What type of distinctions are appropriate among employees in a single organization? How do we value different types of contributions to the overall enterprise? Are the answers different for an academic institution and a manufacturing plant?
(more…)Professional Skills
May 2nd, 2018 / By Deborah J. Merritt
Robert Kuehn has written a thoughtful review of the history of professional skills education in legal education. As Bob notes, the ABA has been notably reluctant to require law schools to educate students on the skills they will use in law practice. Our accrediting body did not require any instruction in professional skills until 2005 and, even then, the accreditors required only “one solid credit” of that training. More recently, the ABA mandated six credits of experiential work for every law student–a total that still seems grudging for skills that lawyers use heavily in practice.
Students and some law schools have been more foresighted. As Bob documents, one-fifth of law schools now require all students to complete a clinic or externship; ninety percent have enough clinic or externship spots to accommodate all of their students. Students, meanwhile, show increasing interest in learning professional skills: enrollments in clinics, externships, and simulation courses have all climbed during the last decade.
This is a good news/bad news report. Student demand for professional training has increased, schools have shown an ability to meet that demand, and the ABA has finally imposed a meaningful requirement for experiential education. At the same time, tenure-track faculty continue to distance themselves from these educational experiences and the six-credit requirement is unrealistically light for students who will build their professional success on their skills.
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.
» Read the full text for The Market for Legal Writing and Clinical Professors
The Second Class Among Us
January 4th, 2018 / By Deborah J. Merritt
Bob Kuehn has posted a sobering analysis of the status and salaries of clinical, externship, and legal writing faculty. It should be no surprise that most of these professors lack tenure–and that they earn significantly less than the faculty who teach courses without significant writing or clinical components. The size of the differences, however, may take some tenure-track faculty aback.
Who are the colleagues who suffer lower pay and status? Overwhelmingly, they are women. More than 70% of legal writing professors and externship supervisors are women; about 60% of clinical professors are female. These are striking differences in a profession that is still male dominated in many ways.
I will have more to say about these differences over the coming days. For now, take a look at Bob’s data and think about some new year’s resolutions.
Update: I did not mention professors who teach academic support or bar preparation courses in this post, because I do not have the type of national data Bob gathered for legal writing and clinical professors. Academic support and bar preparation are among the most essential courses we offer in law schools–yet the faculty teaching them are at best second class. I will write more about these key professors soon.
What Do Students Do in Clinics?
May 17th, 2017 / By Deborah J. Merritt
Douglas Kahn has posted an article criticizing the “proliferation of clinical and other experiential courses” in legal education. These courses, he argues, reduce the number of “doctrinal” courses that students take, leaving them “ill-prepared to practice law as soon after graduation as law firms would like.” The TaxProf Blog posted a summary of the article, and a baker’s dozen of readers have offered pro and con comments.
It’s an old debate, one that has bristled for more than 50 years. The discussion doesn’t surprise me, but Professor Kahn’s ignorance of clinical education does. His bold assertions about clinics reveal little familiarity with the actual operation of those courses. Let’s examine some of Kahn’s claims.
Clinics and Costs
May 6th, 2017 / By Deborah J. Merritt
Bob Kuehn has written an incisive article about the relationship between law school tuition and clinical education. Contrary to many educators’ assumptions, Bob finds that there is no statistically significant relationship between the tuition charged by schools that require a clinical experience and schools that do not. Requiring students to complete a clinic before graduation, in other words, does not correspond with increased tuition.
Similarly, schools that guarantee students a clinical experience–should they choose to take one–do not charge significantly higher tuition than schools without that guarantee. Accounting for tuition discounts did not change these results: Schools with clinical requirements or guarantees did not acquire significantly more tuition revenue per student than those without those requirements or guarantees.
The same story emerged when Bob analyzed clinical course availability (rather than requirements or guarantees). Enhanced clinical opportunities never correlated significantly with higher tuition (either list price or discounted). On the contrary, several analyses found a significant relationship between clinical opportunities and lower tuition rates. Bob summarizes the results of his research in a post on the Best Practices for Legal Education blog.
How could this be? Aren’t clinics incredibly expensive to run? Well, yes and no. As Bob explains, the availability of clinical education depends more on the choices that law schools make than on the direct cost of clinics.
Prices and Priorities
May 11th, 2016 / By Deborah J. Merritt
Bob Kuehn has written a terrific essay refuting the notion that clinical courses are too expensive for law schools to offer. His online piece includes plenty of hard data; some he gathered and some he drew from other sources.
Kuehn’s essay reminds me of a conversation I had a few years ago with a member of my university’s board of trustees. I alluded to the challenges that public universities like ours face with reduced tax support for higher education. He responded differently than most trustees or administrators, who are happy to bemoan losses of public support. “There’s plenty of money,” he said. “It’s just a question of your priorities in spending it.”
And, of course, he was right. For the current fiscal year, my university predicted revenues of $6.1 billion dollars and expenditures of $5.5 billion. Even if revenues fell to match expenditures, that’s a lot of money to distribute.
Most universities, let alone law schools, are considerably smaller than Ohio State. About half of our budget, furthermore, stems from the medical school and health care center. (This is an interesting fact about many university budgets, that health care research and delivery is matching or exceeding other educational expenses.) Still, my board member’s comment is apt: Law schools operate sizable budgets and they have considerable discretion in allocating that money.
We don’t favor LSAT scholarships over need-based ones because budgets force us to do so; we make that choice to pursue higher rankings. Similarly, we don’t cater to the demands of tenured research faculty, rather than expanding clinical education, because our budgets are limited. We make that choice because it suits us (the tenured faculty) and because we hope, once again, that our choice will propel higher rankings.
Bob provides a welcome antidote to these ingrained choices. Expanding clinical education wouldn’t actually raise tuition; it would simply require faculties to change their priorities. And even those changes would be relatively small. We have to ask ourselves: What is the real root of our resistance to clinical education?
“Little Staff Attorneys”
January 21st, 2016 / By Deborah J. Merritt
At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.
This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people. (more…)
The Value of Clinics
January 9th, 2016 / By Deborah J. Merritt
I just returned from the AALS annual meeting, where I attended a session sponsored by the section on clinical education. The program, notably, was assigned to the “Bowery” conference room. For those not familiar with NY geography, the Bowery is a “city district known for cheap bars and derelicts.” It’s not clear why the Sheraton Midtown decided to name a conference room after that checkered locale.
We “derelicts” of legal education, however, assembled in our Bowery room to discuss the value of clinical education. We heard numerous thoughtful evaluations of clinics, including survey evidence about the value that students and employers place on this experience. We also listened to a particularly incisive presentation by Bob Kuehn on the costs of clinical education. As Bob has written in a forthcoming paper, clinical courses are not as expensive as many observers believe.
A particularly eloquent statement, however, came from a member of the audience. Every professional, he observed, develops lifelong values, attitudes, and habits of mind in their first professional workplace. Why wouldn’t law schools want to shape those values? Classroom discussion, Socratic questions, and exams go only so far. Don’t we want to shape our graduates as professionals? Why would we forego the chance to make those impressions?
Beneventan Writing
December 17th, 2013 / By Deborah J. Merritt
My university library recently announced its acquisition of a rare piece of Beneventan writing. The acquisition is just a page fragment, literally a scrap of paper dating from the eleventh century. Why does this small piece of paper matter?
Ohio State has a Center for Epigraphical and Palaeographical Studies; our Classics Department supports courses and research projects related to medieval manuscripts. Because Beneventan script is so rare, faculty doing this work have relied upon digital images and photographs to study the writing. “[T]here’s nothing wrong with that,” Ohio State’s rare books curator acknowledged. “But it’s awfully nice to have a genuine example to show the students because you can see the grain of the parchment and the way the ink has skittered across the page because of the way the scribe has drawn his quill across it.”
As a scholar, this makes sense to me. I learn a lot from digital images and photographs, but original artifacts have special power. I don’t need to study everything in the original, but access to some originals greatly enhances study and teaching.
As I reflected on this, I realized that the same rationale supports clinical teaching in law, medicine, and other parts of the university. We can show students photographs of courtrooms; we can engage them in digital simulations; we can assign them thousands of appellate opinions. But if we want our students to understand law as deeply as a Classics scholar strives to understand Beneventan writing, then we need to let our students work with originals.
A real client, with a real problem, in a real world setting–that’s the the law school equivalent of the manuscript fragments in the library’s rare books collection. The rare books room and law school clinic seem to lie at opposite poles of the campus world. But at root, they share an essential attribute: they both enable deep learning through engagement with originals.
Postscript: For those who are curious about Beneventan script, the writing was used in Southern Italy between the eighth and thirteenth centuries. The Monastery of Monte Cassino, founded by St. Benedict, used this script; that enhanced the script’s importance in Benedictine writing.
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