Scholar or Practitioner? Rethinking Qualifications for Entry-Level Tenure-Track Professors at Fourth-Tier Law Schools

Author:Philip L. Merkel
Position:Professor of Law, Western State College of Law, Irvine, California. The author has taught for many years at Western State, a fourth-tier law school. Thanks to my colleagues? especially Edith Warkentine?for their thoughts and suggestions. Thanks also to Christine Loewe, Virgil Loewe, and Quigley Merkel for their support.
Pages:507-549
SUMMARY

The mission of a fourth-tier school should be to teach its students how to practice law, prepare them for success on the bar examination, and help them find jobs. A school should hire professors who have skills to meet the practice-centured mission and who entuhsitically embrace it.

 
FREE EXCERPT
508 CAPITAL UNIVERSITY LAW REVIEW [44:507
highly-ranked, law school. Since graduation, she has been with a local law
firm specializing in medical negligence cases. She is licensed in the state
and is active in state and local bar associations. Her only publication is an
article for the county bar journal. She has lived in the community for most
of her life and knows many lawyers and judges.
Who is likely to get the job? Recent studies show the applicant from the
elite law school with promise as a legal scholar is a serious candidate, while
the person with the practice background will likely not be considered.
3
When it comes to hiring professors to teach core courses
4
on the tenure track
in todays law school world, there is a bias in favor of scholars”—
individuals whose main qualification is the ability to produce academic
scholarship
5
and against practitioners”—persons with substantial law
3
BRANNON P. DENNING, MARCIA L. MCCORMICK & JEFFREY M. LIPSHAW, Introduction
to BECOMING A LAW PROFESSOR: A CANDIDATES GUIDE xiii (2010).
4
These individuals are sometimes referred to as “doctrinal faculty or “podium
professors.”
Doctrinal faculty are those faculty who teach the bread-and-butter
courses of the law school curriculumtorts, contracts, constitutional
law, property, criminal law, and so on. “Doctrinal” simply refers to the
fact that the vast majority of the classes they teach are introductory
survey courses covering the court -made (or statutory, regulatory, and
court-supplemented) body of law of a particular subject. Doctrinal
faculty may teach small upper-level seminars that are specialized,
covering a topic in greater depth than the entry-level survey course, or
one that is not usually covered in doctrinal surveys at all. Doctrinal
faculty are usually on a career path that will end in receiving tenure and,
eventually, promotion to full professor . . . .
Id. at 3. Doctrinal professors are at the top of the law school hierarchy. “These are the
coveted jobs in the law school. They usually pay the most money, hold out tenure for those
who meet the minimum qualifications, and (according to legal writing professors, clinicians,
and some administrators) do the least work of anyone at the law school.” Id. at 7.
5
A typical scholar is a graduate of an elite law school, has an advanced degree in law or
another discipline, has fellowship or visiting assistant professor experience, possesses a
record of scho larly publications, or has a combination of these credentials. See Lucille A.
Jewel, Tales of a Fourth Tier Nothing, A Response to Brian Tamanaha’s Failing Law
Schools, 38 J. LEGAL PROF. 125, 144 (2013).
2016] SCHOLAR OR PRACTITIONER? 509
practice experience.
6
Although lawyer groups
7
and judges
8
complain that
law schools are doing a poor job of teaching everyday practice skills, law
faculties are hiring professors with impressive academic credentials whose
main qualification is the ability to write theoretical law review articles.
9
This bias is puzzling because the purpose of most law schools is to teach
students how to practice law, not to serve as academic think-tanks.
10
Teaching students is what fourth-tier schools certainly should be
emphasizing. Their niche in the law school world is training lawyers who
6
See Daniel Solove, Law P rofessor Hirin g: Statistics on JD P lacement, CONCURRING
OPINIONS (May 19, 2008), http://concurringopinions.com/archives/2008/05/law_professor
_hiring.html.
7
There is a general perception of a “gap between the teaching and practice segments of
the profession . . . .” A.B.A. SEC. OF LEGAL EDUC. AND ADMISSION S TO THE BAR, REPORT OF
THE TASK FORCE ON LAW SCHOOLS AND PROFESSION: NARROWING THE GAP 5 (1992)
[hereinafter MACCRATE REPORT]. “Most law schools give only casual attention to teaching
students how to use legal thinking in the complexity of actual practice. Unlike oth er
professional education, most notably medical school, legal education typically pays relatively
little attention to direct training in professional practice.” WILLIAM M. SULLIVAN ET AL.,
EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 6 (2007) [hereinafter
CARNEGIE STUDY]. “While law schools help students acquire some of the essential skills and
knowledge for law practice, most law schools are not committed to preparing students for
practice. It is generally conceded that most law school graduates are not as prepared for law
practice as they could be and should be. Law schools can do much better.” ROY STUCKEY
ET AL., BEST PRACTICES FOR LEGAL EDUC ATION: A VISION AND A ROAD MAP 5 (2007)
[hereinafter BEST PRACTICES REPOR T]. See a lso John S. Elson, Address, Why and How the
Pra cticing Bar Must Rescue American Legal Educa tion from the Misguided Pr iorities of
American Legal Academia, 64 TENN. L. REV. 1135, 1135 (1997).
8
See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Educa tion and
the Legal Profession, 91 MICH. L. REV. 34, 34 (1992) [hereinafter Edwards, Growing
Disjunction]; Harry T. Edwards, Another “Postscript” to “The Growing Disjunction Between
Legal Education and the Legal Profession”, 69 WASH. L. REV. 561, 561 (1994); Katherine
Mangan, At Meeting, Federal Judge Hands Down a Shar p Opinion About Law Schools,
CHRON. HIGHER EDUC. (Jan. 8, 2012), www.chronicle.com/article/Federal-Judge-Hands-
Down-a/130264.
9
See Michael J. Madison, The Idea of the Law Review: Scholarship, P restige and Open
Access, 10 LEWIS & CLARK L. REV. 901, 906 (2006).
[L]egislators, judges, and lawyers complain all the time that law
professors don’t write articles that matter in the real world of law. And
law professors don’t care. They’re too busy articulating the background
assumptions of the law, reconcep tualizing the law in terms of theories
borrowed from other fields, and pointing out that you can’t be a real
lawyer (or at least an effective lawyer) without situating your client’s
position in a theoretical context.
Id.
10
See Randolph N. Jonakait, The Two Hemispheres of Legal Education and the Rise and
Fall of Local Law Schools, 51 N.Y.L. SCH. L. REV. 862, 864 (20062007).
510 CAPITAL UNIVERSITY LAW REVIEW [44:507
are well qualified to serve their communities.
11
In the last few decades, there
has been a major growth spurt in the number of law schools.
12
Of the 201
fully-accredited ABA schools in the United States,
13
twenty-nineover
one-eighth of the totalearned full approval during this period.
14
Most of
these new law schools are in the fourth tier.
15
Most are affiliated with private
universities or are owned by for-profit corporations.
16
These schools have
given individuals who once were unable to go to law schoolbecause of
lower academic credentials or geographic restrictionsthe opportunity to
11
Id.
12
See Historical Data : Total Number of Law Schools and Students, 19642012, FACULTY
LOUNGE, http://www.thefacultylounge.org/2013/02/historical-data-total-number-of-law-
students-1964-2012.html (last visited Mar. 24, 2016).
13
See ABA-Approved Law Schools, A.B.A., http://www.americanbar.org/groups/legal_
education/resources/aba_approved_law_schools.html (last visited Mar. 26, 2016). As of
March 2016, the ABA website listed 201 fully-approved law schools and five provisionally-
approved schools. Id. This study does not include three fully-approved schools (Inter
American University of Puerto Rico School of Law, Pontifical Catholic University of Puerto
Rico School of Law, and the Judge Advocate General’s Legal Center and School) or the five
provisionally-approved schools. Id.
14
See ABA-Approved Law Schools by Year, A.B.A., http://www.americanbar.org/
groups/legal_education/resources/aba_approved_law_schools/by_year_approved.html (last
visited Mar. 26, 2016). The law schools in this group, and the years they received provisional
ABA approval, are: Widener University School of Law-Harrisburg (1988), St. Thomas
University School of Law (1988), Regent University School of Law (1989), University of
District of Columbia, David A. Clarke School of Law (1991), Quinnipiac University School
of Law (1992), Texas Wesleyan University School of Law (1994), Seattle University School
of Law (1994), Roger Williams University School of Law (1995), Thomas Jefferson School
of Law (1996), Chapman University School of Law (1998), Flo rida Coastal School of Law
(1999), University of Nevada-Las Vegas William S. Boyd School of Law (2000),
Appalachian School of Law (2001), Barry University Dwayne O. Andreas Scho ol of Law
(2002), Ave Maria School of Law (2002), University of St. Thomas School of Law,
Minnesota (2003), Florida International University College of Law (2004), Florida A&M
College of Law (2004), Western State College of Law at Argosy University (2005), Atlanta’s
John Marshall Law School (2005), Liberty University School of Law (2006), Faulkner
University, Thomas Goode Jones S chool of Law (2006), Charleston School of Law (2006),
Arizona Summit (2007), El on University Schoo l of Law (2008), Drexel University Earle
Macke School of Law (2008), Charlotte School of Law (2008), and University of California,
Irvine (2011). Id.
15
See U.S. News Ranking, supra note 1.
16
Public Law Schools, A.B.A., http://www.americanbar.org/groups/legal_education/res
ources/aba_approved_law_schools/public_law_schools.html (last visited Mar. 26, 2016).
Only four schools (University of the District of Columbia, University of Nevada-Las Vegas,
Florida A&M, and University of California, Irvine ) are affiliated with public universities.
For-profit corporations own six schools (Florida Coastal, Western State, Atlanta’s John
Marshall, Charleston, Arizona Summit, and Charlotte). One school (Thomas Jefferson) is a
freestanding non-profit school. The other seventeen law schools are affiliated with non-profit
universities. Id.

To continue reading

FREE SIGN UP