Redding, R E --- "'Where Did You Go to Law School?': Gatekeeping for the Professoriate and Its Implications for Legal Education" [2004] LegEdDig 30; (2004) 12(4) Legal Education Digest 19

‘Where Did You Go to Law School?’: Gatekeeping for the Professoriate and its Implications for Legal Education

R E Redding

[2004] LegEdDig 30; (2004) 12(4) Legal Education Digest 19

53 J Legal Educ 4, 2003, pp 594–614

This article discusses an empirical study that has provided a comprehensive description of the backgrounds and characteristics of those entering law teaching today. It presents a statistical analysis of the factors predicting law faculty hiring. The results suggest that where a faculty candidate went to law school may trump his or her subsequent scholarly, professional, and teaching accomplishments, and that most law teachers graduated from a handful of elite law schools.

Law professors are among the most elite in the law, an already elite profession. Only about 1.5 percent of lawyers are employed in some form of law teaching, and just 0.7 percent have tenure-track positions. The demographic characteristics and the professional backgrounds of law teachers have significant implications for legal education and law itself. Law teachers train not only future attorneys and judges, but business leaders and government officials at all levels of society; they produce influential books and articles on legal and public policy.

This study provides a descriptive and statistical analysis of the backgrounds and characteristics of those entering law teaching between 1996 and 2000. The results show that the prototypical new law teacher graduated from an elite school, was on the staff of the law review or another journal while in law school, clerked for a judge, published one or two articles or notes, and practised for several years before entering academia.

The availability of several previous studies permits a longitudinal comparison of the stable and changing demographic characteristics and qualifications of law teachers over the last quarter-century. The major findings from these older studies were that about 60 percent of law teachers graduated from 20 elite law schools, with the largest number graduating from Harvard or Yale. The picture emerging from past studies is that the prototypical law teacher hired was a white male graduate of an elite law school. Many had an advanced degree in addition to a law degree and/or judicial clerkship experience and most had experience in private or government law practice.

Five key findings emerge from the results of this study. First, substantial numbers of women and minorities are being hired as new law faculty. Second, most new law faculty graduated from a top law school, many from Harvard or Yale. Third, many served on the staff of the law review or another journal while in law school, often as members of the senior staff. But most published only one or two journal articles or notes before being hired, and a substantial minority published nothing. Fourth, most had legal practice experience, many had judicial clerkship experience, and a sizeable minority has previous law teaching experience. Finally, there were differences between the qualifications of new teachers hired at the top 25 schools and the qualifications of those hired at other schools. But only the quality of the law school that they attended, whether they served on law review, and the number of years of legal practice experience significantly predicted the quality of the law school at which they were hired. Neither prior teaching experience nor the quantity or quality of a faculty candidate’s publications was significantly predictive.

While law faculties have become more and more diverse in race and gender, there has not been a similar increase in the diversity of new law teachers’ educational backgrounds. If anything, the trend is toward less diversity. The old pattern of hiring graduates of elite law schools continues and, more than ever, those hired are graduates of Harvard or Yale. But a diversity of educational backgrounds provides greater diversity of thought and approaches to pedagogy, scholarship and activism.

The law school attended serves as an easy proxy for the intellect, academic potential, and quality of the legal education received, among the vast pool of applicants for law faculty positions each year. But it is only a proxy measure of those qualities. Direct measures of professional and scholarly potential would be better.

Law schools often bet that the holder of an elite law degree will excel as a law professor, eventually outperforming the graduate of a lesser law school, perhaps even one with substantial professional experience and a track record in scholarship and teaching. Hiring committees may even apply this reasoning to lateral hires from other law schools.

But this prioritising of potential over experience may be misplaced, for many reasons. First, while it assumes that the quality of the law school a candidate attended is an important indicator of potential, a basic psychological principle, borne out in many contexts and years of research, is that the best predictor of future performance — scholarship and teaching — is past performance. Second, it may reflect an erroneous assumption that because, on average, graduates of elite law schools are more promising than graduates of lower-ranked schools, any individual candidate from an elite school is almost always superior to any individual from a non-elite school. Third, to prefer highly speculative predictions about long-term potential over demonstrated prior achievements in legal scholarship or teaching is to perpetuate and reify an elitist, rather than a meritocratic, selection system. Fourth, the assumptions underlying the better-horse theory may not withstand empirical testing, at least as indicated by the present study with respect to the scholarship of new faculty. Finally, the elitist approach to faculty hiring focuses on academic credentials in the narrowest sense, neglecting to take into account the many benefits of educational diversity within a faculty — benefits that ultimately have an impact on the quality of the educational and scholarly enterprise.

Aside from the contributions it makes to legal knowledge and law reform, scholarship has other benefits. Someone who actively produces quality scholarship may be more likely to be a good teacher. It is perhaps surprising that the legal academy did not follow the lead of other academic disciplines in requiring a research doctoral degree for entry into the professoriate, to ensure adequate training, preparation, and experience in research and scholarship.

This likely reflects the fact that, while law schools prefer to hire those with some professional experience, practical lawyering skills are less important to the elite schools, which tend to emphasise theory more and practice skills less than the lower-ranked schools.

Ideally, candidates should have substantial training in research and scholarship beyond the JD degree. This may take the form of advanced legal education or doctoral training. Advanced training would better equip new faculty for scholarship of the traditional sort. It would also have the salutary effect of improving the quality of the empirical and interdisciplinary work that increasingly informs legal scholarship and legal policy analysis.

Although holders of doctoral degrees are increasingly common on law faculties, it is unrealistic to expect that a doctorate will soon become de rigueur for law teachers. Others have suggested that a research training component be incorporated into the law school curriculum. But some have proposed more radical solutions, calling for a fundamental shift in legal education away from the professional school model in favour of the graduate school model of training scholar-professionals.

Law schools should consider adopting the same hiring criteria as other academic disciplines, looking primarily to the candidate’s prior training and accomplishments in scholarship and teaching. Yet it may be that the long-term future of the legal academy as the faculty job market becomes more and more competitive, as law schools become more interdisciplinary and place greater emphasis on scholarship than they ever have in the past, as greater numbers of those with prior teaching experience and doctorates enter law teaching, and as law schools increasingly hire through the route of visiting professorships.