And He Teaches Too?

In a post at  PrawfsBlawg that offered insight into the peculiar institution called the legal academy, Harvard lawprof  I. Glenn Cohen offered a laundry list of “to do” and “not to do” for others of his breed to get the holy grail of academia, tenure. Rather than see this as inside baseball, it was twisted a bit to suggest either a reflection of how it works at Harvard, or perhaps Cohen’s personal recommendations, generating some natural anger from those young lawyers who are always naturally angry, and he pulled it down. 

Of course, this being the internet and all, that didn’t work too well. and it lives on in cache, not to mention in except at Keith Lee’s  Associate’s Mind and Paul Caron’s Tax Prof.  Paul provides the listicle:

  1. Write less than one paper a year or leave most of your publishing for late in your tenure clock

  2. Co-author too much

  3. Being too much of a wallflower or being not enough of a wallflower

  4. Focus too much on teaching or service

  5. Fail to get to know those in your field, fail to be a good PR agent for yourself

  6. Undertake projects with timelines incompatible with your tenure clock, including books

  7. Focus on the views of your mentors to the exclusion of the views of your faculty as a whole and outside readers

What makes this list particularly curious is that it was controversial to different groups for entirely different reasons. Among the academy standard bearers, it made them look trivial and puny, as if they lacked the intellectual fortitude to handle a new academic that had a thought that was better, bigger, smarter or more important than theirs. 

For the aspiring academic, the message was play nice but not too nice. Be smart but not too smart. Work hard but not too hard. Do nothing controversial to upset the gray beards and blow rainbows up their butts.

But the worst was number 4 on the list, do not focus too much on teaching or service.  Because, you know, why would a teacher want to, you know, be a good teacher.  At a time when law schools are challenged by new lawyers, unable to find work and incapable of safely practicing law, to justify their tuition bills, this really isn’t the sort of advice they want to hear. As Keith Lee points out:

This should make every practicing lawyer very sad and worried for the future of the profession. Here is a law professor – at Harvard – saying that his job stability is better served by not serving his students. The people that we are entrusting to train the next generation of lawyers are being encouraged by their institutions to not focus on students, but instead on papers, projects, and other scholarship that has little to no relevance in the actual law practice.

A law school’s purpose is not prestige, or papers, or books. A law school’s purpose to produce new lawyers. Period.

It’s like he read the law porn and believed it! Kids. You gotta love ’em.

Of course, that’s the purpose of law school from the perspective of some students. Others think it’s a three year opportunity to decide what they want to do with their lives. Still other would be more than happy to be taught little, freeing up their evenings for beer bong, with a sheepskin at the end the makes them a member of the lawyer club, where they get fabulous paycheck and a guaranteed life of prestige and security.  The idea of what constitutes “producing new lawyers” is in flux these days.

This being the interwebz and all, Paul Horwitz posted a sign language interpretation* of Glenn Cohen’s post on  PrawfsBlawg explaining why Cohen was undeserving of opprobrium.

A broader point I have made about tenure here before is that this is supposed to be a profession and a vocation, not just a sweet job. (Although it surely is that.) For all the talk one hears from (some) law professors about speaking truth to power, speaking independently and courageously, and so on, I don’t hear half as much talk about how professors seeking tenure should worry first and foremost about those things, and not about securing tenure. I don’t buy the view–which I see much less of these days, although there are still vocal proponents of it–that anyone capable of getting a job in law teaching could easily switch over into a lucrative job in private practice. That might have been true when one started law teaching, but not by the time one has invested several years in teaching and out of practice. But I doubt the choice is generally between teaching or nothing for most.

Finally, an admission that all lawprofs aren’t so fabulous that they would be kicking sand in David Boies’ face if they actually practiced. The facile justification for some exceptionally comfortable salaries has long been silly, and utterly unproven, though I suspect Paul’s view is still in the minority. After all, it’s easy to believe oneself a brilliant lawyer is one never has to actually be a lawyer, brilliant or otherwise.

But the aspect that generated the most heat from Cohen’s list, the “don’t focus too much on teaching or service” advice, gets some play:

Let’s talk about the “don’t overinvest in teaching or practice” point–which, again, was made in a spirit of realism, not commendation. Some responses, here and elsewhere, suggested that this revealed everything we need to know about law schools and law teaching. I get the reaction, but I think it’s wrong. First, I could imagine similar advice being given across the academy. Second, whatever “overinvesting” in teaching means, the original post suggested–correctly–that most junior law professors do it; and I think he was right that most of us are happy we did so. Your colleagues are not the ones standing in front of a room of students, who have reasonable expectations that you’ll know how to do your job; you are. And you do have an obligation to them. Third, he didn’t recommend underinvesting in teaching, or define what an appropriate investment in teaching is.

In contrast to Cohen’s words, which he raises in the “spirit of realism,” he contents “–correctly–” reflects that “most junior law professors do it.”  So they overfocus on education? So the problems faced by students who leave law school clueless of the practice of law isn’t for lack of focus?

The apologia piece of Paul’s post explains that this is the view from where the tenure committee sits, rather than a suggestion of how to teach or a reflection of how students are taught by junior professors. And indeed, it makes some sense, since there would be no point to including Number 4 on the list if that wasn’t a problem when it came time for tenure.

But in the comments to Paul’s post, a commenter, Brad, puts some actual meat on the bones:

The policy of virtually disregarding teaching in employment decisions is acknowledged to be a fairly bad one. Almost no one will defend it straight up (the exceptions being a handful that believe whatever the market produces must be correct.) Changing it isn’t simple or pain-free. Simply paying more lip service to teaching during the process isn’t enough. Real employment outcomes need to depend on it in order for performance in that area to be taken seriously. That means hiring and tenuring some mediocre scholars because of their fantastic teaching abilities, and letting some fantastic scholars go because their teaching is simply not very good.

This last sentence is where it all comes together, for better or worse. If law school was all about teaching students how to become lawyers, an assumption long maintained by students, their parents and practicing lawyers, then the academy would have snub scrubs in favor of those who fit the dual requirements of practical experience and the ability to convey it to students.

Within Glenn Cohen’s list, and Paul Horwitz’s deciphering of it, is the tacit admission that law schools, and particularly their tenured faculties who are charged with upholding, if not improving upon, their prestige within their peer group, exist to protect the turf of scholars at the expense of students. 

Don’t blame Cohen or Horwitz for giving up the academy’s secrets. Don’t blame the academy for wanting to protect its members’ ability to get paid a damn fine salary to do the things that they enjoy.  If you could get away with this, you would too. 

What we can blame the academy for is that in the course of taking law geeks who are unlikely to last a day on trial in the trenches (despite Paul’s argument that the option isn’t lawprof or nothing) and making them wealthy and happy, they have failed to fulfill the core requirement for the existence of the animal known as law school.  And what this kerfluffle shows is that left to their own devices, the legal academy will never recognize or openly concede that they are incapable of teaching students to become lawyers.

For all the dancing around the issues, reducing the length of law school, lowering tuition, adding clinics, and whatever lipstick on a pig solutions the adherents of the future of the law propose, it’s all a distraction from the main event.  If lawprofs can’t teach kids to be practicing lawyers, then it’s three years and a boatload of money wasted.

The scholars won’t change this because this isn’t the life they dreamed of. The students won’t change this because they are both clueless and utterly narcissistic. And the practicing lawyers can’t be bothered even thinking about this, totally absorbed with making a living.  But it will change. It just won’t be fixed.

* Forgive the fact that quotes from Horwitz’s post are veerrrry looooong. He’s a lawprof and he would be shunned for brevity. Even on the internet. It’s very sad.  Even tenured professors don’t want to be shunned.