Oil and water: how legal education's doctrine and skills divide reproduces toxic hierarchies.

• Author: Jewel, Lucille A.
• Position: The More Things Change ... Exploring Solutions to Persisting Discrimination in Legal Academia

INTRODUCTION

The longstanding categorical distinction that elevates doctrinal teaching over skills teaching (1) continues to harm the profession of law. In this Article, I consider two distinct effects produced by the doctrine/ski 11s dichotomy. First, the dichotomy is responsible for reinforcing class, gender, and race segmentation in legal education, which limits the quality of instruction that law schools can provide and abets the reproduction of existing power relations in the legal profession and society at large.

Second, the antipodal positioning of doctrine and theory over skills and practice harms law schools' ability to prepare a new generation of law students to engage in both critical lawyering and law reform. As American society becomes increasingly unequal and as its criminal justice system barrels well past the breaking point, we desperately need the next generation of law students to participate in a new era of structural law reform. But unlike the last major era of reform in the United States (the Progressive Era), where ill-conceived top-down solutions were theorized and implemented by a small subset of elite lawyers, this time, reform should emerge from a coalition of lawyers hailing from all law schools and all levels of society. Even in legal education's current situation, with tenure for law professors on the chopping block due to declining student enrollment and legal employment prospects, law schools should commit to collapsing the false binary between doctrine and skills.

In this Article, I will first describe the disparate treatment and conditions that make the skills professorate the "other professorate." I will then explain how the dichotomy (1) reinforces harmful race, class, and gender hierarchies in the legal academy and (2) produces an elitist knowledge hierarchy that prevents students from obtaining a holistic legal education. Finally, I will argue that bridging the skills/doctrine divide is necessary to prepare all law graduates to participate in civics-based law reform.

1. The Other Professorate

   As so many authors have pointed out before, legal skills teachers are treated as second-class citizens, receiving lower pay, fewer faculty governance rights, and lesser titles than teachers hired on the tenure-track to teach doctrinal courses. (2) Legal skills teachers are "something other (or less) than tenured or tenure-track doctrinal professors in the overwhelming majority of American law schools." (3) A legal skills teacher is often physically separated from his/her doctrinal colleagues, occupying offices in a law clinic's basement or a windowless office in some far-flung wing of a school's faculty suite. (4) Skills teaching is often perceived as unrewarding "donkey work," with a teacher's time better spent researching and writing scholarly articles or preparing for a doctrinal class. (5) When we think of the professional identity of a law professor, the dominant conception of the law professor is the "heroic" doctrinal professor, an identity that excludes skills teaching. (6)

   The skills/doctrine binary first began to appear in American legal education around the time that Langdell's casebook method took hold. Langdell and the professors who adopted his casebook method used appellate opinions in conjunction with incisive questioning of a few students in the class to produce dialogue designed to help students think like lawyers. The casebook method caught on so quickly in part because of its efficiency--it allowed one professor to reach large numbers of students. (7) Rather than the passive lecture method, Langdell's method was interactive and, surprisingly, skills focused. (8) A little known fact is that Landgell himself remained committed to teaching skills to law students in an intensive way; in his civil procedure course, his students drafted pleadings and argued in simulated court hearings held every week. (9)

   Thus, the skills/doctrine divide did not initially appear with Langdell and his casebook method. (10) However, later law professors, adopting Langdell's casebook method, began emphasizing their expertise with legal doctrine as a way to establish professional prominence and distinguish themselves from professors molded in the older law teaching style, the lecture method. (11) One of the ways the Langdellian professor distinguished himself from older law professors (most of whom were practicing lawyers) was to emphasize legal doctrine and theory and de-emphasize skills and practice. (12)

   The skills/doctrine dichotomy gained a deeper foothold in the 1960s and 1970s when clinical legal education emerged. At this point, established casebook professors differentiated themselves from this alternative style of law teaching by placing clinical education in a separate and unequal category--legal skills. (13) In this manner, legal skills teachers became "otherized." (14) Practical law teachers--clinical legal faculty and legal writing faculty--were (and are) not treated the same as doctrinal teachers, in terms of hiring, compensation, faculty governance, and job security. (15) In addition to the disparate treatment of skills teachers, the dichotomy placed (and continues to place) a high value on knowledge connected to legal doctrine and theory and a low value on knowledge related to skills acquisition. (16)

   The skills/doctrine dichotomy has become cognitively imprinted in the minds of legal educators and remains firmly ingrained in legal education's institutions and culture. (17) However, because categories are a construct of the institutions that give birth to them, they are never final; categories shift when institutions adopt new mindsets. (18) As set forth in the next Parts, the skills/doctrine dichotomy has produced palpable harm to our students, our professorate, and our profession. Relevant to where we are as a society, the dichotomy prevents formation of a critical mass of new law graduates who will be armed with both the theoretical and practical knowledge necessary to reform and transform our law.

2. Class, Gender, and Racial Hierarchies and the Skills/Doctrine Divide

   In terms of class, gender, and race, the divisions within the legal academy mirror the unequal divisions within the rest of American society. As set forth in more detail below, these cleavages threaten the legal profession in several ways. (19) Less elite law professors (who are probably more socioeconomically diverse) are relegated to teaching skills and writing, subjects that have been labeled as non-substantive and perceived to lack power and punch. More elite law teachers (who most likely hail from privileged backgrounds) enjoy a professional identity that connects doctrinal teaching to intellectualism, complexity, and ideas that have a bearing on large-scale social issues. The end result is that legal education's hierarchy makes it so that the production of legal knowledge is controlled by a small subset of advantaged individuals, elite law teachers, and their students. For elite lawyers in a position to influence government and society, too much social distance creates the risk that legal solutions will be shortsighted and tone-deaf, in terms of the people affected by the decisions. (20)

   The structure also institutionalizes gender segmentation in the professorate, with the vast majority of tenured professors being male and the vast majority of skills professors being female. (21) The feminization of skills teaching is another way that skills teaching is devalued and kept separate from conceptions of power as it relates to law. Finally, the hierarchy raises very serious obstacles to achieving a sustainable diversity for racial and ethnic minorities teaching legal skills and legal writing. (22) The resulting lack of diversity in the skills professorate continues to harm the legal academy, students, and the profession.

   1. Class Hierarchy

      As a general matter, professors who obtain positions as traditional doctrinal teachers are most likely to hail from a privileged background. (23) This general premise can be validated with two analytical steps. First, a recent formative study on law professor credentials found that 86% of professors hired onto a tenure-track between 1996 and 2000 received their J.D. degrees from a top-twenty-five law school. (24) Earlier studies replicated this finding, although the percentages were not as steep (60% of all professors received a J.D. from a top-twenty school). (25) Redding's 86% figure reflects that law school hiring committees are using law school alma mater in an increasingly narrow way. If anything, law schools are becoming more rigid in their approach to credentials, not less so. The top-twenty (or twenty-five) schools are often referred to as "producer" or "feeder" schools for the law professorate. (26)

      The second step necessary for this analysis requires a look at the socioeconomic status ("SES") makeup of students who matriculate at the traditional law professorate's feeder schools. Richard Sander's empirical work captures the truth that in the United States, the top law schools are the realm of well-off students. (27) Sander writes,

      Across the spectrum of law schools, there is a lopsided concentration of law students towards the high end of the socioeconomic spectrum, which becomes more lopsided with the eliteness of the law school. At the most elite twenty law schools, only two percent of students come from American households with low SES (that is, SES in the bottom quartile), while more than three-quarters come from households with high SES (SES in the top quartile) and well over half come from households with very high SES (SES in the top decile). One way of describing this disparity is that roughly half the students at these schools come from the top tenth of the SES distribution, while only one-tenth of the students come from the bottom half. (28) Thus, socioeconomic under-representation exists on law school faculties because law school hiring...