Review: Dawn of the Discipline-Based Law Faculty

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By Barbara Lentz, Wake Forest University School of Law

Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 Journal of Legal Education506 (2016) [Read fulltext at Journal of Legal Education website]

For this month, two articles are reviewed to consider the implications of a study describing current hiring practices of top-ranked law schools in tandem with a classic description of the caste system in the legal academy. Can we reconcile the predicted transformation of the legal academy with the demands of the ABA, bar and students to prepare practice ready lawyers?

First, a review of the study on hiring of JD-PhD candidates for entry-level law faculty positions at top 26 (footnote 1) ranked law schools presented by Lynn M. LoPucki in “Dawn of the Discipline-Based Law Faculty,” 65 Journal of Legal Education 506 (2016). Professor LoPucki studied entry-level, tenure-track hiring at the top 26 ranked law schools for the 2011-15 period and found that 67% of these hires held JD-PhD degrees. For the same period across the legal academy, he reports that 21% of entry-level tenure-track hires by American law schools held both JD and PhD credentials.

Contrary to conventional wisdom that JD-PhD candidates would spend more time preparing for their teaching careers than JD-only candidates, LoPucki reports that the JD-PhD hires spent half a year less than JD-only hires preparing for their careers in law teaching. (Emphasis in original). While PhD credentialed hires do have training in producing scholarship (and many have published prior to hiring), one-third of 2011-15 hires had no legal experience (up from about one-fifth in a prior, 2010 study).

“The PhD is now a credential acquired in lieu of legal experience,” reports LoPucki. JD-PhD hires are both less likely to have legal experience (training in clerkships and law firms) and likely to have less of it – only 43% of the JD-PhDs had practiced law, and averaged only 0.9 years of legal experience compared to 86% of JD-only hires with an average of 3.6 years legal experience. At higher ranked schools, LoPucki found a negative correlation between length of time preparing for a legal teaching career and school ranking. Even for JD-only hires, he writes, “the top twenty-six schools do not prefer candidates with more legal experience.”

Professor LoPucki observes that the transformation of law faculty to discipline-based (rather than JD-only) has accelerated sharply over the past few years, and predicts that a transition to hiring JD-PhDs almost exclusively “may already be past the point of no return.” He writes that this transformation “is occurring without meaningful debate” over the merits of hiring JD-PhDs with little (or no) legal experience at the same time that law schools are being challenged to produce practice-ready graduates. He concludes by opining that the shift to JD-PhD hiring will “reduce the [law] schools’ capacity to prepare students to practice law.”(2)

Professor LoPucki confined his study to tenure-track hires, the top tier in the law school caste system described by Kent Syverud more than a decade ago. To engage in meaningful debate over the shift to JD-PhD hiring and its potential impact on law schools’ ability to prepare practice ready graduates, consider re-reading the classic essay written in 2001 by Kent Syverud, now Chancellor and President of Syracuse University: “The Caste System and Best Practices in Legal Education,” 1 Journal of the Association of Legal Writing Directors 12 (2002) (164 KB PDF).

President Syverud listed best practices for teaching law and described how the adoption of best practices in legal education was retarded by law schools’ “unique caste system” which categorized both people and teaching methods in ways harmful to the outcomes of legal education: “Strong caste lines discourage dissemination of best practices where, as in legal education, it is lower castes that have been more responsive and innovative in applying learning theory inside and outside the classroom.”(3)

Syverud distilled substantive best practices into three basic requirements: 1. the law teacher to know individual students well enough to reveal and correct individual misconceptions; 2. Law students to acquire deep understanding of the substance of what they study; and 3. a learning community in each class where students could take charge of their own learning through interactions with their teacher and peers. Best practices (drawn from sources including an ILTL symposium) included student-faculty contact in and outside of class; active and cooperative learning; prompt and frequent feedback; clear communication of high standards; and diverse teaching methods to reach all learners with a variety of techniques. Not only were these best practices time consuming, but they also were identified with the lower castes in the law school.

Syverud described seven castes present in most American law schools. The top tier were tenured and tenure track faculty: they are paid the best, have the most security, rarely change what or how they teach; value research but abhor grading and most often teach a large lecture class with a single final exam. Deans and administrators were the second caste: because they talk with judges and the bar more than the tenured faculty, deans tend to be more concerned with teaching methods and bar passage rates. Third are clinical faculty: they emphasize skills and learning by doing, but some are seeking to produce scholarship to look more like the tenured faculty (while others resist efforts of legal writing faculty to improve their status). Fourth, and lower caste, are legal writing faculty: they have lower pay and less respect, greater teaching loads and face caste discrimination. Law Librarians have an unusual status, being led by a high caste tenured faculty member and providing service to the tenured faculty: this class also has the best awareness of technology and its implications for best practices in legal education. The lowest teaching tier are adjunct faculty, which Syverud described as “temporary foreign visitors” from rich and civilized countries who may also be more likely to adapt what and how they teach in order to meet the changing needs of the legal profession they are immersed in every day.(4)

Because the lower caste legal writing faculty were more likely to interact with students, give weekly assignments and team exercises and provide frequent formative feedback, upper castes were unlikely to adopt those best practices (and others) for fear of being viewed as lower caste. Further, most of the teaching effort was delegated to the lower castes, particularly to the people who teach writing. Just as Syverud observed in 2001, at some institutions people, teaching and stereotypes have diverged from his described system, yet “caste still seems awfully powerful and enduring.”

What might LoPucki’s predicted shift in hiring exclusively JD-PhD candidates for tenure-track, top caste faculty with little to no legal experience, combined with the enduring caste system Syverud described which allocates few resources but much teaching work to lower castes mean for law schools challenged to prepare law students for practice? Perhaps that discussion could also be part of the meaningful debate suggested by Professor LoPucki as we consider the implications of staffing in meeting demands on law schools to better prepare students to practice law.

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(1) LoPucki explained that he intended to study the top 25 law schools, but in the 2012U.S. News and World Report rankings, there was a 5-way tie for 22nd place, meaning 26 schools were surveyed for the 2011-15 period.
(2) LoPucki also notes that another effect of requiring a costly credential like a PhD may be to reduce racial and gender diversity.
(3) Syverud, at 18.
(4) Syverud described the law school staff as the untouchable caste, and deplored how law students learned to treat staff poorly by modeling the behavior of the upper castes.