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Qualifications of Judges and Law Professors: A Telling Mismatch

In Academia, Law, Law School, Pedagogy, Scholarship, Teaching on June 6, 2018 at 6:45 am

This piece originally appeared here in the Library of Law & Liberty. 

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.

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Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

Lack of Intellectual Preparation?

In American History, Arts & Letters, Book Reviews, Historicism, History, Humanities, Law on May 25, 2012 at 9:03 am

Allen Mendenhall

Last week I was reading several old reviews of Lawrence Friedman’s landmark work, A History of American Law.  I came across a 1974 review by David J. Rothman in Reviews in American History.  Rothman made the following point, which, despite being made 34 years ago, is bound to offend some readers of this site, especially those who are lawyers or law professors:

I have attended conferences of law professors doggedly determined to be interdisciplinary, and I have been appalled at the lack of intellectual preparation that many of them had for such work. They would talk blithely about bringing the insights of, say, game theory to the law-with only the vaguest idea of what game theory was all about. (Indeed, how could they have had more than a vague idea? After a general undergraduate training, they went to the law schools, then to the courts as clerks, then back to the law schools.) So one must, perforce, have a lurking fear that some of the new interdisciplinary efforts will be so inadequate as to prompt law professors to decide to do well what they can do, rather than to do badly what they should do. And law schools may well continue to perpetuate half-knowledge. They remain torn between serving as trade schools to the profession and graduate schools to the scholars. This compromise may turn out to be less and less tenable over the next years.
 
Does Rothman’s claim remain true when the “new interdisciplinary efforts” aren’t so new anymore?  Today many law professors hold Ph.D.s in various disciplines, and these professors use their unique, specialized training to enhance legal scholarship in their respective sub-disciplines.  But does “extra” graduate work or a specialized degree necessarily signal a superior skill set, or is Rothman’s view elitist?   These questions will be the subject of a future post on this site, and potentially of a future article, so I would like to hear back from readers.  Please email your responses to me or, if you’d prefer, post them in the comment box below.    

Habermas for Law Professors

In Art, Arts & Letters, Communication, Creativity, Essays, Ethics, Habermas, Humanities, Information Design, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Pragmatism, Rhetoric, Rhetoric & Communication, Teaching, Western Civilization, Western Philosophy, Writing on November 4, 2011 at 3:12 pm

Allen Mendenhall

This post is an adaptation of this printable, PDF document

This post is intended to assist law professors who wish to incorporate critical theory (in general) and Habermas (in particular) into their teaching.  This post addresses just one essay by Habermas that is representative of his thought.  It does not address other important areas of Habermasian theory such as the “public sphere” (a concept that the essay nevertheless implicates). 

This post should provide some basic insights into Habermas that could be incorporated into a law school classroom.  Contracts in particular would benefit from Habermasian analyses, which could just as constructively be applied to torts, evidence, constitutional law, or any course dealing with litigation and the courtroom.  This post provides basic information.  It does not tell law professors how to use the information.  The use will require creativity. 

 

Fundamental to the paradigm of mutual understanding is … the performative attitude of participants in interaction, who coordinate their plans for action by coming to an understanding about something in the world.  When ego carries out a speech act and alter takes up a position with regard to it, the two parties enter into an interpersonal relationship.  The latter is structured by the system of reciprocally interlocked perspectives among speakers, hearers, and non-participants who happen to be present at the time. 

        —Jürgen Habermas, “An Alternative Way Out of the Philosophy of the Subject”[1]

In a way, “An Alternative Way Out of the Philosophy of the Subject” is a response to Foucault’s theories of subjectivity that treat subjects as produced by forces of power.  Habermas seems to consider Foucault’s theories as so preoccupied with knowledge formation and structural preconditions for knowledge formation that they (the theories) become pseudoscience abstracted from practical realities.  A Foucaultian paradigm centers on subjectivity trained by mechanical forces whereas a Habermasian paradigm explores communicative reason in the context of discourse enabled by the ideations of individual subjects articulating their positions to one another in mutually intelligible utterances.       

Contra Foucault, Habermas submits that reason—articulated, assimilated, and mediated by language—must be understood as social.  For social interaction to be meaningful, its interlocutors must believe that their articulations are objectively “true” or sincere (I place “true” in quotations because the “pragmatically expanded theory of meaning overcomes [the] fixation on the fact-mirroring function of language”).  Speech must be governed by points of common understanding.  These points are reached when “ego carries out a speech act and alter takes up a position with regard to it.”  Ego, here, refers to a person’s conscious awareness that is capable of being conveyed in speech.  “Alter” does not refer to alter ego, but to some agent outside the subjective world of cognition, intention, and belief.  This “alter” is part of the external or objective world to which the ego can articulate feelings or thoughts, provided that ego and alter have in common a familiar discursive space (a lifeworld) for their subjective expressions.  By this reading, alter has an ego, and ego can be an alter.  The terms simply depend upon which subject is articulating his position in a given speech situation; the terms are merely descriptive.  

To claim that we can comprehend events or things in the world is to suggest that we can speak about them.  To speak about events or things in the world is to convey information about them from one party to another using shared vocabularies governed by rules that the parties accept unconditionally. The interpersonal relationship among or between parties, as Habermas suggests, is “structured by the system of reciprocally interlocked perspectives.”  The study of this relationship brings Habermas further away from the Foucaultian paradigms of subjectivity and towards the paradigm of mutual understanding that has come to mark Habermasian thought.  Read the rest of this entry »

Law Professors and Laws of Slavery

In American History, Arts & Letters, Book Reviews, History, Nineteenth-Century America, Politics, Slavery, The Literary Table, Western Civilization on April 4, 2011 at 3:44 pm

Allen Mendenhall

This post was first published over at The Literary Table.  I have reposted here because the content of the post relates to many recent posts on this site.

Kenneth Stamp published his landmark study The Peculiar Institution (New York: Alfred A. Knopf) in 1956, thus inaugurating the institutionalized and concerted efforts of scholars to examine the history of slavery in America with greater detail.  Research and study of the history of slavery then gained momentum in the 1960s.  One of the seminal texts from this period was David Brion Davis’s The Problem of Slavery in Western Culture (Cornell University Press, 1966), winner of the 1967 Pulitzer Prize for General Non-Fiction.  An ambitious undertaking, this book seeks to demonstrate the continuity of slavery through various times and places in Western Civilization.  A legitimizing narrative or logic always accompanies the institution of slavery, Davis suggests, but such narrative or logic—or narrative logic—is fraught with paradoxes threatening to undermine the institution altogether.  How, for instance, does one reconcile the ideals of freedom and equality, so celebrated by American Revolutionaries, with the pervasive reality of human bondage?  How does one make sense of a Christianity that both condemns and justifies slavery?  How can slaves be humans—rational agents with free will—and chattel property at once?  How does ending the slave trade worsen conditions for the enslaved?  If enslaving infidels, and only infidels, is valid by law and church teaching, then how do European colonists validate the enslavement of converted Africans?  How can colonists rely heavily upon an institution that they fear?  How can one of the earliest American colonies to oppose slavery (Georgia) become a hotbed for slavery?  If, according to law and church teaching, only pagans can be enslaved, why are not Natives enslaved as frequently or as much as Africans?  For that matter, why do early objections to slavery focus on Natives, who are less likely to become slaves than blacks?  Why do colonists insist on Christianizing slaves yet fear converted slaves?  How does the antislavery movement develop out of the very ideology sustaining slavery?  How do notions of sin both justify and subvert the institution of slavery?  Why does the Age of Enlightenment, with its celebration of reason, humanism, and liberation, intensify rather than disparage slavery?  And how can the New World, a putatively progressive landscape, rely on and perpetuate an ancient institution?  These and other questions permeate Davis’s provocative text.  Davis does not try to resolve these apparent contradictions so much as he explores them through various persons, places, and patterns; in so doing, he describes how human bondage gets revised and extended from one age to the next, and how justifications for slavery in one era inaugurate justifications for slavery in later eras.  Read the rest of this entry »

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