Monday, October 29, 2007

The path of the law (professor)

Five score and ten years ago, Oliver Wendell Holmes made straight the path of the law:
Oliver Wendell Holmes, Jr.When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard L. Rev. 457, 457 (1897).

By way of Scott H. Greenfield (whose blog is rapidly becoming a MoneyLaw must-read) and the Volokh Conspiracy, I've learned about a different sort of pathblazing at Harvard. In an October 16 lunchtime presentation to law students, Harvard professor Daryl Levinson "demystifie[d] the path to legal academia":
Daryl LevinsonSo what exactly do law schools look for in an entry-level professor? A quarter century ago, the answer was clear. Historically, law schools looked to the traditional indicia of academic achievement: high grades, membership on the law review, and prestigious clerkships. However, this has long since ceased to be true. As law schools discovered that high grades were not good predictors of whether a candidate would produce good scholarship, and as the forms of scholarship valued by the legal academy shifted, the qualifications for candidates changed. Even practical legal experience is not a good predictor of scholarly ability, and, Levinson noted, "is pretty nearly disqualifying." Levinson pointed out that today's younger professors have no significant practical experience, and that if they tried to become involved in the world, "the world would probably recoil in horror."

Instead of fancy grades, clerkships, and practical experience, the modern credential of choice for law school hiring committees is a graduate degree in an allied field such as economics, political science, and even English or psychology. Approximately twenty-five percent of entry-level professors hired last year had Ph.D.'s, and a large number had Master's degrees. While this is the biggest credential a candidate can have, don't despair if you haven't found the spare five to ten years to earn a terminal degree in molecular biophysics to help you compete for that intellectual property professorship you have your eye on. Levinson reassured the attendees that fewer than half of last year's hires had any graduate training. Law schools value Ph.D.'s because they indicate that candidates have certain qualities. If a candidate lacks the credential, he or she can still present those qualities independently.

Significant expertise in a field, coupled with interdisciplinary methodologies, is highly valued. Expertise gives an aspiring professor a research agenda, and lets the school know what area the candidate will focus on in future scholarship. While law schools look for professors who are "competent lawyers," often simply graduating from a school like Harvard satisfies this criteria, and schools tend to focus more on whether a candidate has made some substantial progress towards becoming a professor. Levinson emphasized the importance of knowing what field you intend to work in, familiarity with scholarly work in that field, the ability to critique current work, and a sense of what you are going to contribute to the field.

"More than anything else," Levinson concluded, "law schools are looking for promising writing." In order to get a job, a candidate must have written one or two publishable pieces of scholarship. During the interview process, aspiring professors will have a "job talk," where they present a work in progress to the faculty who are evaluating them. This functions as the primary basis for the school's evaluation of a candidate. In comparison to the written work a candidate has produced, all other criteria are irrelevant, since they are only meant to be predictors of the candidate's writing. Good scholarship is both necessary and sufficient: if you have it, you don't need to rely on other credentials, but if your scholarship looks unpromising, your other good credentials won't save you.
I find much to cheer and to lament in this descriptively accurate assessment of the contemporary academy's approach to faculty hiring. Here's what I like:
  1. There has been a MoneyLaw-style shift in emphasis from pedigree toward performance: "Historically, law schools looked to the traditional indicia of academic achievement: high grades, membership on the law review, and prestigious clerkships. However, this has long since ceased to be true. As law schools discovered that high grades were not good predictors of whether a candidate would produce good scholarship, and as the forms of scholarship valued by the legal academy shifted, the qualifications for candidates changed."

  2. Though I have misgivings about the weight that today's academy places on graduate degrees in "allied field[s] such as economics, political science, and even English or psychology," I suppose it is some comfort that "[l]aw schools value Ph.D.'s because they indicate that candidates have certain qualities." Even more reassuring: "If a candidate lacks the credential, he or she can still present those qualities independently."

  3. Writing counts"'More than anything else, . . .law schools are looking for promising writing.' In order to get a job, a candidate must have written one or two publishable pieces of scholarship. . . . In comparison to the written work a candidate has produced, all other criteria are irrelevant, since they are only meant to be predictors of the candidate's writing. Good scholarship is both necessary and sufficient: if you have it, you don't need to rely on other credentials, but if your scholarship looks unpromising, your other good credentials won't save you." To the extent that the hiring process is (or at least hinges on) an evaluation of scholarly accomplishment and potential, this strikes me as a sound methodological foundation.
And now for the disheartening aspects of Daryl Levinson's assessment:
  1. "Even practical legal experience is not a good predictor of scholarly ability, and . . . 'is pretty nearly disqualifying.' . . . [T]oday's younger professors have no significant practical experience, and . . . if they tried to become involved in the world, 'the world would probably recoil in horror.'" Res ipsa.

  2. Harvard"While law schools look for professors who are 'competent lawyers,' often simply graduating from a school like Harvard satisfies this criteri[on] . . . ." Ye gods. In the question-and-answer section of this story, Daryl Levinson reinforced what he perceived (or at least what his audience wanted to hear) as the value of the Harvard or the Harvardesque credential: "out of [1,000 applications a year] you can automatically throw out about half because they didn't go to a top 20 law school (that's just how the academic world works)."

  3. Levinson describes the "job talk," during which faculty candidates "present a work in progress to the faculty who are evaluating them," "functions as the primary basis for the school's evaluation of a candidate." True, but distressing. Sixty minutes of live presentation, as opposed to more thoughtful evaluation of the candidate's record as a whole. Sloth 1, due diligence 0.
At the risk of reducing this fascinating interview to a single question-and-answer exchange, I saved Levinson's final answer for last:
Q: What do you most dislike about being a professor?

A: It's a bad job for people who don't like a lack of structure. It's also bad for people who like to make a difference in the real world. Increasingly, this is an ivory tower profession [emphasis added].
Mine, the voice of one crying in the wilderness, sayeth no more.

2 Comments:

Anonymous Anonymous said...

What a telling juxtaposition between the post celebrating Holmes' Path of the Law and the post on Professor Levinson. Few disagree with Holmes' claim that the life of the law has not been logic, but experience, and yet the academy rushes to fill its ranks with those who know nothing of the world. This has serious implications not only for the quality of what is, after all, preprofessional education, but for legal scholarship as well. Small wonder that the bench and bar has increasingly less use for what appears in the law reviews -- given who is hired in recent years, it should come as little surprise that legal scholarship has increasingly less relevance to those who deal with the problems of the real world.

Larry Rosenthal
Chapman University School of Law

10/29/2007 10:27 PM  
Blogger Scott said...

As to whether professoring is "bad for people who like to make a difference in the real world" and whether "the world would probably recoil in horror" if profs got incolved in the real world: a few months ago I took on a briefing on remand from the Supreme Court; the issue in the briefing was how broadly or narrowly to interpret the Supreme Court's decision in the csae (i.e., did the Supreme Court's rejection of 1 RICO claim mean the lower court should reject the plaintiff's 2nd RICO claim too?). Law profs write articles about exactly this sort of issue; any number of motions in the federal courts, while not Supreme Court remands, are about how to interpret Sup Ct decisions; and I see no reason why law profs couldn't do this. I think this is a great profession for those wanting to "make a difference" because I have the time to take on interesting projects like this.

11/01/2007 5:38 PM  

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