Things that frustrate me

So, apparently the former AG of North Dakota is suing Michigan State University's law school for not giving him a job.

Nicolas Spaeth, who graduated from law school in 1977, applied for law prof jobs last year and didn't get anything, and now alleges age discrimination. He has an extremely impressive legal resume, including BA and JD from Stanford; on law review in law school; clerking for the Supreme Court; filing numerous amicus briefs in important cases; arguing before the Supreme Court; working as a partner in a big law firm; being the former Attorney General of North Dakota; and adjuncting at the University of Minnesota and being a visiting professor at the University of Missouri. He's clearly an extremely successful lawyer. And the schools that didn't hire him hired much younger candidates who don't have anything like the same professional credentials.

His suit frustrates me, however, because it's not really about age discrimination at all. Instead, it's about competing visions of what law school teaching should be. 

Law professors are like professors in any graduate field in that they are evaluated largely on their ability to produce scholarship in their field of research. Individual schools may vary in the weight they give to effective teaching - some schools will doubtless not care at all about a professor's teaching ability if that professor is a publishing dynamo; some schools will care only if a professor's teaching is bad enough to merit significant student complaint; some schools probably genuinely care about teaching (somewhat). But in law schools as elsewhere, publishing is the coin of the realm. And in law schools, they mint that coin in law reviews (and possibly some peer-reviewed law-related journals).

Law professors are different from professors in many other graduate fields, however, in that they are teaching in a professional school, which has the explicit goal of training law students to become lawyers - to go out and practice a trade. Unlike professors in, say, the humanities, law profs are not generally training their students to follow their own career path.¹ Broadly speaking, humanities profs are teaching their grad students how to do the things that the profs spend their days doing - research, writing, teaching. Law profs, however, who spend their days researching, writing, and teaching, are training students to go into a profession that requires very different skills from those that have netted law profs their jobs.²

Unsurprisingly, there is intense debate about whether this is the proper approach for law schools to take, with much bemoaning of the fact that students do not know how to practice when they graduate, and regular calls for making legal education more practical. This is an important debate, and these are questions that should be asked (even if some of the commentary sounds a lot like the legal version of "Kids these days...!").

But whether you think legal education should be this way - whether you think it's appropriate for profs to be judged on their scholarship rather than their accomplishments in practice and their ability to impart those practical skills to their students - I hardly think it controversial to say that this is how it is. You only have to look at the categories of positions found in law schools: First, there are your typical tenure-track positions. Second, there are positions dedicated to teaching only legal writing and research. Finally, there are clinical positions, in which faculty oversee student forays into the real world of practice (most states have laws under which second- and/or third-year students can represent indigent clients in court). The positions that teach skills most directly related to practice are distinguished from your general tenure-track position (which is the kind of position for which Spaeth applied).

And the thing is that Spaeth has no track record of original scholarship. As I said, he has incredible legal accomplishments. He has even edited a legal treatise. But he has no articles in law reviews (which, again, coin of the realm).  

So it is entirely unsurprising to me that he wasn't hired for a tenure-track position. It's even unsurprising to me that younger people than he were hired. The complaint alleges that these younger candidates had less prestigious credentials than Spaeth did (which, as an aside: barf. If you went to a law school ranked lower than third in the rankings, you are unqualified?), and that these younger candidates did not have law review publications. (However, the complaint alleges that "on information and belief" the younger candidates did not have law review publications, and my understanding of that phrase is that it means you believe in good faith that it's true, but that you're not acting on firsthand information, so...). But even if they didn't have law review articles out (of which I'm not convinced), I also believe it's possible for a younger candidate to have demonstrated a greater commitment to original legal scholarship than Spaeth has, given that in his multi-decade career Spaeth hasn't produced any.

I don't mean to suggest that Spaeth would not be a good law professor. I'm not entirely sure where I stand on the whole theory/practice divide; I understand the complaints about legal education and its lack of practical application, but as a former academic, I also have to firmly defend the importance of scholarship for its own sake. So I have a great deal of sympathy for the law-prof-as-academic model. I realize that may change as I actually start to practice law myself.

My point here is mainly that I don't think shoehorning criticisms of the academic standard governing law professor hiring into an age discrimination complaint is very productive. Because law schools didn't decline to interview Spaeth because he's old; they declined to interview him because his record doesn't demonstrate the kind of commitment to producing original legal scholarship that is a necessary qualification to get a tenure-track job. You can disagree with that choice, sure - and I'm not going to say you'd be wrong. It's just that age discrimination complaints are really hard to win as it is, and I don't think this kind of suit helps any.

And I guess I also think that either this guy genuinely believes he was discriminated against on the basis of age, or he doesn't. If he does, then he doesn't understand what it is that a tenure-track law professor is expected to do. And if he doesn't, then I find his tactic of bringing an age discrimination complaint kind of distasteful. (Admittedly, however, it spurs discussion of the issue!)

 

¹ Two caveats here: First, I actually believe grad school in the humanities is a professional program designed to produce college professors, but that's fodder for a whole different discussion; and second, ideally, humanities graduate programs would train students to do more than just follow in their professors' footsteps [which they don't even really do, given how even those students who get tenure-track jobs don't usually get jobs that look like their grad advisors' jobs]. But go with the generalization for the moment.

²It's true that law students/lawyers need to know how to research and write, but they don't need to know how to do academic research and writing. Professional research and writing is not the same as academic research and writing. I'm not saying that if you're good at the one, you can't be good at the other, but they are different skills.

Comments

[Dr. Moonbeam]

Wow. I would venture to guess that most likely is that he doesn't really grasp what a law professor is expected to do (or thinks it should be different); there are so many many people out there who really do believe in the old saying, "Those who can, do; those who can't, teach." That is to say, he may well think that being a professor is or should be a cakewalk for someone with his background. Which is, as you point out, completely misguided.

[helenesch]

That is pretty shocking (interestingly, I hadn't yet heard about this case, and the school he's suing is where I work!) So thanks for blogging about this.

[drake]

It's really a shame the way that protected class lawsuits are so thoroughly abused.

[Seeking Solace]

One word...LOSER!

Even though, I teach law at the undergraduate level, I often tell my students that I can teach you the "black letter" law, how analyze, synthesize, evaluate and so on, but the real learning comes when you are out in the practice. That's where the real learning happens.