Legal Education in Crisis? Workshop, Panel 2

by Paul Maharg on 04/03/2017

This panel focused on exploring external and internal aspects of law schools as institutions with structures and cultures of their own.  First up, Albert Yoon, ‘Scholarship and tenure in legal academia’.   The Law Review submission process — black box process.  Most disciplines have double or single blind systems of review — not so US LRs.  Do LR editors exhibit editorial bias, and if so what’s the effect on quality?  Existing literature shows that blind-reviewing does help reduce bias.  Citation count was an important outcome variable for Albert, and based on this he conducted extensive research on publication and citations.  What were the results?  LRs disproportionately publish own faculty. Authors published their least-cited publications in their own school’s LR.    Law faculty were cited more for articles published by outside-own-school LRs.  Implications?  LRs may not be publishing the highest quality scholarship available.  Authors — their scholarship may be placed higher than warranted.  For legal academia — this creates noisier signal for quality, affecting tenure.  Reforms?  Peer-review, double blind review.  Given this context of published research, why is tenure needed?  Three broad reasons: faculty investment in human capital, department incentive to hire quality, and academic freedom.  What effect does it have on academic productivity?  Once you have tenure, your publication count is about 18-22% higher than before, though there is a drop later.  Main findings: Faculty maintain or increase productivity post-tenure; and  solicited publications drives much of the increase.  Why should we care?  For what was (to me at any rate) a surprising statistic: life expectancy is an important value.  Academics are living a lot longer than other professionals, still publishing, still on tenure.[1]  Tenured faculty numbers are changing, too: Albert compared how tenure was narrowing over the last 50 years, fewer faculty on tenure track.  Very sobering statistics, and not just for US academics.  I see their equivalent happening in the jurisdictions I’ve worked in.

Next, my colleague co-editor on our Emerging Legal Education book series, Meera Deo, on ‘Intersectional barriers to tenure’.  She showed the pretty shocking figures on ethnic diversity in faculty.  The studies in the field bore this out.  She took the Barnes & Mertz study – tenure is ‘the crucial institutional process through which the legal academy could block or open the doors to gender and racial integration’.  The figures she displayed evidenced this statement on intersectionality, privilege and colour-bias.  On scholarship, ”our scholarship is not valued in the same way as traditional scholarship is valued’.  On service,  a woman of colour reported ‘I bear the disproportionate impact, the brunt, of service to students of colour’, even though other women of colour in her study reported that they liked doing this work.  But it was problematic when applying for tenure.  On teaching, some women of colour noted ‘my teaching evaluations were a bit polarised.  But I don’t know how much more I can improve.  I’m almost at the 100% mark for everything’.  Contrasts…?  Tenure for white men – expectations were mixed:  ‘I actually expect it will be really, really friendly.’  ‘The dean who hired me made the tenure decision unilaterally’ (this person got tenure quite some time ago).  Solutions?  Mentors enacting tough love; we should recognise service in all its forms for women of colour; value the student advising roles; get teaching reports from colleagues as well as teaching reports from student.  She ended by noting that the last couple of months gave law schools opportunities to put the solutions she advocated for into practice.  Very interesting work.

Next, Mindie Lazarus-Black, ‘The education of Ming, Chen, Aberto, and Natalia: Teaching (international) lawyers how to think, speak, and act like (US) lawyers’.  Difficult to summarise because a read-out paper.  Is there a process of silencing such students, in international markets?  We need to examine the role of discourse and hierarchy and credentialing, and the imperialistic processes involved in race, class and gender that are embedded both in international students status in the US and in their own countries, and for faculty teaching international students in the US and abroad.  Students, moreover, have to address changes to their normal academic and legal cultures. (NB this is a very thin version of a rich anthropological paper.)

Finally, Beth Mertz & Katherine Barnes, ‘Law school professors at the edge of change’.  A study of the past 15+ years as a time of change in society and for law schools.  The issues involved included integration, diversity, core values of the profession, the market for legal services and the ‘business’ and pedagogical models used by law schools. Beth summarised the After Tenure Study by the ABF; results of interviews were double-coded using Atlas.ti.  She listed the themes.  Substantial findings.  Overall, tenured professors are ‘quite happy’.  But there were significant differences in job satisfaction by gender and race.  Divergent perceptions of voice/respect and institutional culture within law schools are pathways through which this race and gender dynamic operates.  Methodological insights included the benefits of combining qualitative and quantitative methods to assess ‘internal’ and ‘external’ viewpoints.  Overall satisfaction results — women of colour were least satisfied with the process of tenure.  Structural Equation Modelling points to voice/respect and institutional climate.  The interview results were mixed.  Stories of positive experiences, especially over time, but also of disappointment and disengagement in response to not being hear or respected.   Complexities included how: to balance practical needs of changing profession and older images of mission; to decide to continue a struggle of voice and respect within the institution or look outside of it and disengage. And to acknowledge positive changes toward inclusion in many institutions but still keep an eye on places where bias lingers.  Great work.

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