Law school faculty hiring has been in the news of late. The recent lawsuit against the University of Iowa College of Law over a charge of anti-conservative political bias in faculty hiring resulted in a partial jury verdict: a finding of no violation of the plaintiff's First Amendment claims and a hung jury on her due process and equal protection claims. The Association of American Law Schools (AALS) annual Faculty Recruitment Conference (affectionately known as the "meat market"), where prospective law faculty interviewed for jobs, recently concluded in Washington. As you are reading this, those same applicants are being flown all around the country for full-day interviews in the hopes that they will land a coveted tenure-track job.
Just like the market for lawyers, the market for law faculty is extremely competitive. There are far more applicants than available slots. As our students struggle to get jobs, prospective law faculty struggle to get hired. But why should the average American care about who becomes a law professor?
Many of the most powerful positions in our nation are held by lawyers. The president and vice president are both lawyers as are many members of Congress. Of course, U.S. Supreme Court justices (and all of the judiciary) are lawyers. Leaders in Fortune 500 companies are lawyers. Who teaches, trains, mentors and encourages current law students are creating tomorrow's leaders.
Who gets hired as a law professor and therefore trains tomorrow's leaders is often a function of who their mentors were while they were in law school. The problem with that, however, is which students get mentored has a decided race and gender bias. The majority of law professors are white and male. The majority of new law teachers are white and male. The most recent data on the AALS website shows that 71 percent of all law professors who self-identified are white (two-thirds are men; one-third are women).
To be sure, there are examples of cross-racial mentoring. However, experience teaches us that we tend to invest time in those who remind us of ourselves.
Roughly half of all new tenure-track faculty interview at the meat market. The formal process begins every August, when law faculties receive applications. The application is primarily composed of a one page AALS-created form — the Faculty Appointments Register (FAR). The FAR emphasizes law review membership and law school class rank, as well as doctorate and other advanced degrees, and judicial clerkships. The more law review articles published the better. Regarding employment — you can have too much, but you can never have too little. A number of law professors enter the academy each year without ever practicing as a lawyer.
The informal process begins in law school, where certain students are encouraged to do the things that the FAR values. But the skills that the FAR emphasizes (law review membership and publications — not law practice) are not the skill set that most agree 21st century lawyers will need. A couple of weeks ago New York University School of Law announced that it had revamped its third-year program. NYU wants its law graduates to be trained to be "collaborative problem solvers who are able to function effectively in teams and are prepared to lead those teams."
Very little in the current FAR helps a prospective employer find future academics who have those skills and can impart them to their students. That is a problem. In fact, if a law professor gets hired who actually has a 21st century skill set, it likely was not intentional. Here's the $64,000 question: With NYU making changes to its third-year curriculum to create 21st-century-ready graduates, are they going to change who they hire? How can they teach what they don't know?
What would a FAR look like if it was intended to highlight collaborative learners and leadership skills? It would value live clinic experiences. It would value courses where students have to work in groups successfully in order to get an A. It would value leadership positions other than law review. Student body president or other officer positions in student groups would receive equal prestige as editor-in-chief of the law review. Currently the FAR form privileges a very narrow slice of the student body. By limiting the "relevant" experience to law review officers, the FAR primarily benefits white males. Consider that the results of a New York Law School study of the nation's law reviews showed a correlation between the number of women and faculty of color with the number of women and students of color on their law reviews.
The good news is that roughly half of all entry-level teachers get their jobs through the meat market — which means that half do not. Therefore if law schools want to bypass the meat market they can make changes themselves. All they have to do is let it be known that they want to hire people with experience in successfully working in teams and who care about teaching collaborative learning skills. Those schools will not have to wait long for the right kind of candidates to apply for jobs. However, I'm not holding my breath.
Dorothy A. Brown is a professor of law at Emory University School of Law. She served as a member of the executive committee of the Association of American Law Schools from January 2010 until June 2012.
