Alfredo’s chronicles show how idealism and engagement can still be vital in the pursuit of legal education. The irony is that Alfredo is not a law professor or an attorney. He was for a time teaching at Texas Tech Law School, and he has published a number of very lively and well-placed law review articles. Nonetheless, most people in the law school academy would doubt his law professor bona fides. It has been hard for a law school and someone like Alfredo Mirande to match up. The question is why? What is it that legal academia looks for? Is it really about merit, or is some other form of white male patronage at work again?
The phrasing of that last question, intentionally, invites facile answers either for or against. I definitely think there is a lot of cronyism in legal education, even at, perhaps especially at, the highest echelons. Glossy pamphlets and inflated speeches praise the current state of legal education and caliber of its faculty. Meanwhile, professors outside the law school may question that assessment and the high salaries and benefits that can come with it. Many qualified applicants for law school teaching jobs look on with dismay as rejection letters are the response to sustained perseverance and effort. I want to suggest four explanations for why there seems to be such a wide divide in talent between the elect and preterite in legal education.
The first is the expansion of law schools in the Eighties, when law teaching jobs were more plentiful than in the Nineties. That expansion filled up a lot of positions that eventually became locked up as the holders received tenure. Standards in the Eighties and before were actually quite lenient for tenure, and therefore the current disconnect between the talented candidates ready to enter and the many less than stellar folks holding lifetime positions. Furthermore, the number of people who would like to leave the drudgery of law practice to enter into teaching has increased. The top three law schools alone graduate about 800 graduates a year. If the top twenty per cent pursue teaching positions at any one time, that is about 160 candidates for positions at roughly 180 law schools. Throw in additional cohorts and existing faculty members trying to lateral, and you have a fairly large supply seeking limited positions.
The second factor is that many of these candidates are very similar in credentials. If the top twenty percent, to be generous, of any law school class applies for teaching positions, each of them will have top grades as one credential. They will most likely also share valuable clerkship and law review experience. Work and life experience may be distinguishing, but again many candidates will be similar in that respect as well. That leaves publications as the key discriminating factor to determine who gets into the academy.
We turn now to the third factor, publications. As we all have bemoaned, publication decisions are made largely by third year law students who, for the most part, seem to accept articles on how likely they are to add to the prestige of the journal in terms of citations, especially by courts. Often these decisions are informed by the background and connections of the author or what the student has heard in class that might give them a clue to the subject matter of scholarship. Very little outside the known world gets selected by the law editors and hence the homogeneity of most law school publications.
While publications may be a key factor in allocating positions, members of hiring committees will differ on what weight to give to a particular publication. Curricular needs often overshadow the strength of a piece. What makes a publication strong has less to do with its content and more to do with the narrow experiences and understandings of members of the committee. In addition, concern with how a candidate may fit in also shapes hiring decisions, especially if the candidate does not fit the mold (i.e. white, male, or some acceptable surrogate for those traits). This fourth set of explanations suggest that with all the talk of merit, the matching process is largely one of who one knows rather than what one has to offer and can do.
It should not be surprising that since the legal professoriate is self-regulating and self-selecting, hiring decisions will be invariably incestuous. If faculty are homogeneous, one may argue, it is because they are all excellent, overachievers and therefore will look the same. But these myths belie the reality. Most of the existing faculty that are making hiring decisions were tenured on very little. The travesty is that many minority candidates get denied tenure for lack of publications or for poor teaching by a group of people who have distinguished themselves neither as scholars nor as teachers, except based on the testimony of other insiders.
As a colleague told me once when I shared my concerns, “Relax. It’s just a law school.” Of course, there is nothing venerable about law schools. But with all the hype and self-congratulation that we see in print and in the blogosphere, shouldn’t we expect more from the profession? Alfredo’s book offers an invaluable portrait of how law schools alienate the motivated and engaged. A consideration of hiring practices may explain how that situation takes shape.
Practicality probably should make me more circumspect. After all, some day, somewhere, a member of a hiring committee may read this post. But as the folk song goes, “When you have nothing,….” More urgently, I would like to see my colleagues at law schools everywhere be less complacent than they are and show some deeper and broader passions than their narrow pursuits of personal agenda, which ultimately boils down to career advancement or rising in the rankings. My sense is that this will not happen until the next generation takes a long and serious look at what has been wrought. Encountering many of my cohort either in the flesh or in the blogosphere gives me hope, despite the occasional glimpse of how careerist we tend to be. Alfredo’s book reminded me of the passion and thrill of law school, as well as its hardships and banalities. To the joys of scholarship and teaching, I will now add his testament to my law school days, which I can read and reread while hanging out in the margins.
Posted by Shubha Ghosh on September 22, 2006 at 12:46 AM
Comments
As the ad copy states, membership has its privileges. As does nonmembership for that matter.
Posted by: Shubha Ghosh | Sep 23, 2006 12:59:56 PM
Wow. Regardless of the accuracy of your perspective here, you deserve a great deal of credit for having the courage to pronounce them publicly.
Posted by: Daniel Goldberg | Sep 22, 2006 1:26:10 PM