Qualifications of Judges and Law Professors: A Telling Mismatch

Late last year, President Donald Trump took heat for nominating allegedly unqualified lawyers to the federal bench. As of February 16, 2018, a majority, substantial majority, or minority of the American Bar Association’s Standing Committee on the Judiciary has rated several of his judicial nominees “not qualified.” These evaluations purportedly assess professional competence, integrity, and judicial temperament, but have been accused, rightly, of improper politicization.

Would that an impartial and non-political set of ratings could be applied to aspiring law professors. Because of their lack of practical experience, academic training, and teaching record, entry-level faculty hires at many American law schools tend to be, as a class, unqualified to teach. They have not gained on-the-ground, learned-by-doing knowledge of legal practices and processes, yet in their new roles they will be expected to serve as gatekeepers into the profession, a profession that many of them have only barely participated in.

These days extensive practice experience is a disadvantage, not an asset, for the prospective law professor. It signals to faculty hiring committees a late interest in teaching and research, and a turn to academic work because of a disenchantment with the everyday work of lawyers. Faculty are sensibly turned off by candidates who believe, or seem to believe, that life in the academy is free from stress and responsibility.

No one wants a colleague who views the professoriate as a breezy backup plan, or whose only animating desire is to trade in a life of hourly billables for the supposed tranquility of the Ivory Tower. Hating law-firm culture is not a good reason, by itself, to seek a job in a law school. The last thing law professors need to impart to young students facing a competitive job market is deep cynicism about the practice of law. These legitimate concerns, however, should not preclude faculty from admitting into their ranks those who are best able to familiarize students with the practice of law.

The conventional path to law teaching runs something like this: attend a prestigious law school (ideally, one ranked in the top 15 by the U.S. News and World Report), obtain a federal clerkship (one with the U.S. Supreme Court, if possible), and then apply for open faculty positions, either directly through a law school or through the recruiting conference of the American Association of Law Schools (aka “the meat market”). The chances of securing tenure-track positions diminish measurably the longer one waits to enter the meat market.

No step along this path to becoming a law professor involves teaching. The longer you go down the path, the more practical skills you acquire, but the less desirable you become as a candidate for teaching.

A law degree is not a reliable proxy for the suitable or successful characteristics of a good teacher. A federal clerkship does not necessarily cultivate the traits necessary to excel in classroom instruction. So why does the system disincentivize not only the acquisition of practical skills, which most students are hoping to learn, but also teaching skills, which law professors are expected to have?

One reason is that there’s little agreement about what makes a good law professor.

How do you even quantify the effectiveness of law professors? Vocational outcomes and earning differentials among graduates say more about a law school, in particular its career services office and market reputation, than they do about the aptitude of individual faculty members. Bar-passage rates correlate with admissions standards and selectivity and reflect, perhaps, the overall educational experience of the graduates.

But there’s no measurable connection between those figures and the instruction methods of individual professors. Student evaluations suffer from drawbacks and deficiencies in law schools (such as biases, unreliability, grade inflation to win popularity, etc.) just as they do elsewhere in universities.

Without pedagogical consensus (i.e., without widely agreed-upon teaching philosophies, practices, or methods) within the legal academy or established standards for law-teaching achievement, hiring committees in law schools look simply to narrative, subjective data (e.g., the prestige of a candidate’s alma mater and recent employer, the candidate’s fit with subject-matter needs, etc.) that do not demonstrate a commitment to teaching or an ability to teach. The assumption behind these hiring decisions is, I think, twofold: that individuals who have earned prestigious credentials can translate their accomplishments to the classroom and that the Socratic Method allows them to disguise their “greenness” by deflecting difficult questions back on students.

Most Ph.D. programs in humanities disciplines involve some degree of classroom training and pedagogical coursework. Law school, by contrast, does not equip students with teaching or introduce them to pedagogical schools and approaches. Teaching expectations for law professors remain ill-defined and unpublicized, in part because they vary from school to school. With rare exceptions, aspiring law professors possess no pedagogical preparedness when they begin teaching.

Law schools should not continue hiring faculty with little to no practical experience, little to no record of scholarship, and little to no teaching experience. The ideal faculty candidate should have a substantial record of success in at least one of those three areas. The fact that a candidate graduated from Harvard Law and clerked a year or two for a federal appellate court may suggest the promise of future scholarship, but it doesn’t demonstrate proven merit as a scholar or teacher. Nor is that clerkship alone sufficient to familiarize a lawyer with the ins and outs of legal practice.

An emphasis on the readiness and qualifications of judges should be matched with tangible benchmarks in law-faculty hiring. Analogizing the qualifications of law professors and judges is reasonable, even if their jobs differ: both have attained high offices that superintend the profession, both are involved in the administration of the legal system, both should understand the nexus between theory and practice, both should possess exemplary character and enjoy good standing in the community, both should model the conduct and professionalism expected of all lawyers, and both should be researchers and writers with deep knowledge about the history of the law.

Redirecting ire and scrutiny away from judicial nominees and toward law-school faculties may not fully resolve ambiguities about the proper, requisite experience for judges. But it may lead to a rethinking of the minimal qualifications of law faculty, raising questions about whether the standards governing judicial nominees should extend to the legal academy, which trains future judges.

The growing chasm between law professors and the practicing bench and bar is not a novel subject. Media restlessness about President Trump’s judicial nominees, however, provides a clarifying context for reconsidering the optimal qualifications of law professors. The ABA’s evaluations of judicial nominees may be flawed and nefariously politicized, but at least they value practical experience in a way that hiring committees in law schools by and large have not.

If a prospective law professor lacks extensive practical experience, he or she must have an extensive record of scholarship or teaching. We should expect as much from our law schools as we do from our federal judiciary.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 04, 2018 at 07:22:25 am

Let's admit it our justice system and law schools have become thoroughly politicalized. That is not healthy for a lawful country.

read full comment
Image of Otto
on April 04, 2018 at 09:32:26 am

Amen. The legal academy has become a vast echo chamber, full of professors with a nearly identical pedigree, purporting to teach students something they have typically never done themselves—practice law. What a scam. Https://amgreatness.com/2017/05/07/plain-talk-law-school-rot/

read full comment
Image of Mark Pulliam
Mark Pulliam
on April 04, 2018 at 10:53:57 am

Law as a refined, intellectual discipline seldom touches the day-to-day practice of law as just a trade, a skill calling for application of specialized knowledge about avoidance or disposition of everyday disputes between businesses, spouses, drivers, or neighbors. The best law school instructors in my experience were trial and appellate judges and specialized practitioners who moonlighted as adjunct professors. Typically, they knew how to get right to the point and tell you what you would need to know after graduation and the bar exam. They knew how to put "meat & potatoes" on the table in each lecture. A well-designed syllabus and carefully chosen case readings could and later did serve as a reference for practice, if you will, a cookbook and menu -- its value far, far exceeded some cat-and-mouse professorial teasing masquerading as the Socratic method. Far and away the worst teachers were the tendentious ideologues who insisted that you see everything through their (usually left-wing) lens -- even where their self-opinionated observations had but tangential relevance at best to the subject at hand. Students, especially older students who had entered law school after working for a while, just rolled their eyes, quietly but audibly groaned, and waited for the bell to ring.

read full comment
Image of James Connelly
James Connelly
on April 04, 2018 at 11:01:31 am

That's a really helpful comment James, about what teachers Should be doing in each class. The point about judges and specialized practitioners is also helpful given what the article said about law schools wanting to avoid hiring the burnt out disillusioned guys

read full comment
Image of CJ Wolfe
CJ Wolfe
on April 04, 2018 at 18:19:52 pm

A great piece Professional experience in legal practice is a foundational attribute of any legal academic. It is mandatory in the School of Law, Sydney of The University of Notre Dame Australia.

read full comment
Image of Michael Quinlan
Michael Quinlan
on April 05, 2018 at 13:51:42 pm

I went to a low end second tier law school in Boston in the '70s, The school aimed to produce county lawyers in private practice. Every one of my profs were part-time lecturers on the law and full or part-time practicing attorneys. They prepared us for the kind of law John Grisham wrote about; cranky clerks of court, impatient judges, bored desk sergeants, clueless clients, guilty clients and questionable cops, bail bondsmen, insurance adjusters, debt collectors and repo-men.

God, they were good. We enjoyed law school. The profs were always asking us questions that were a good deal beyond what we were prepared to answer at the time but that never failed, in hindsight, to be important questions that came up time and time again after we graduated. My ConLaw prof was particularly good at that. She asked us pointed questions about the constitutional grounds for every Supreme Court case covered in the syllabus from Marbury v. Madison to Terry v. Ohio and Roe v. Wade; she did the profession proud.

Most of us went on to be yeomen of the law in small private practices or as staff attorneys in government agencies where we were often scandalized by the antics and ideas of our betters who went to Harvard, Yale, Penn and Chicago and who were always in charge.

read full comment
Image of EK
on April 06, 2018 at 10:29:21 am

A surprising number of accomplished lawyers and judges in Texas attended one of the state’s least “prestigious” law schools, South Texas College of Law, including two Justices on the Texas Supreme Court. The school’s lack of “elite” status steers it away from intellectual fads and fashions, allowing it to focus on nuts and bolts. And it does not shun faculty members who hold “contrary” points of view, such as Professor Josh Blackman. The self-anointed mandarins are overrated.

read full comment
Image of Mark Pulliam
Mark Pulliam
on April 06, 2018 at 17:30:52 pm

I began practicing environmental law before there was an EPA and before environmental law was a part of any law school curriculum. Gave a speech on environmental protection to a college audience on the second Earth Day. Practiced for 40 years in every area of environmental law, representing the "public interest" with state and federal government and representing industry in private practice, doing administrative rulemaking and defending agency enforcement and litigating in federal and state court, including appellate and US Supreme Court cases. My practice required extensive work with engineers, hydrologista, toxicologists, statisticians, epidemiologists and marine biology and life scientists and court-room ready knowledge of these areas of environmental science.

When I retired I looked at adjunct opportunities teaching environmental law, administrative law and federal litigation at various law schools and received no answers to my inquiries.

Not the right credentials to teach those subjects: editor of a law review and a US Court of Appeals clerkship.

No wonder our law schools graduate enviro-whacko's.

read full comment
Image of timothy
on April 08, 2018 at 22:54:38 pm

This comment is absolutely correct! I am an older student who entered law school after 10+ years of actual work experience. The best professors are those who get to the point - exactly what you need to know and how to apply it. They’re also the ones who have actual experience practicing law! The absolute worst are the professors who have no work experience and stand at the podium spewing off their personal opinions that are of no relevance! I’ve also experienced a professor giving entirely inaccurate information about a subject he wasn’t knowledgeable instead of humbly stating he didn’t know. I worked in that particular subject area for 10 years and knew he had no clue what he was talking about. Yet, he’s the “professor” and indeed, I do roll my eyes and wait for class to end.

read full comment
Image of Hayden Sizemore
Hayden Sizemore
on April 11, 2018 at 06:55:14 am

[…] “Law schools should not continue hiring faculty with little to no practical experience, little to no record of scholarship, and little to no teaching experience. ” [Allen Mendenhall, Law and Liberty] […]

read full comment
Image of April 11 roundup – John Culbreath
April 11 roundup – John Culbreath
on July 11, 2019 at 20:36:05 pm

This essay is based on the assumption that law school ought to be preparing students to practice, but that's not what law school is for. In terms of teaching, the goal of law school is to teach the law (e.g., the foundations of legal reasoning or the principles that underlie contracts and torts). Law school shouldn't be a trade school. The trade -- which need not be the practice of law -- is learned on the job, afterwards.

I'd also argue that the main activity of full-time law school professors in not teaching, but research. The author argues that law schools should stop hiring new professors who don't have research experience, but as far as I can tell, research experience is already a requirement for new hires, even at the lower-ranked schools.

read full comment
Image of Anon649

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.