Core Faculty

March 24th, 2013 / By Deborah J. Merritt

The tenured and tenure-track professors form the core of a law school faculty. At most of our schools, those faculty teach doctrinal courses and seminars; they also devote considerable time to research. Over the years, we have added clinical and legal writing professors to our faculties, but they rarely are part of the core. These writing and clinical professors are paid less, usually lack tenure, and bear fewer expectations for scholarly research. They may vote on curricular matters; they may even chair committees and perform significant administrative work for the school. Their lack of tenure and lower status, however, make them more cautious about their votes and the opinions they voice. They know that they are outside of the core.

I would flip this structure. If I were starting a law school, I would hire experienced legal writing and clinical professors as the core tenure-track faculty. At existing schools, I would move as quickly as possible to that structure. Why? The legal writing and clinical professors are the ones who know best how to teach what we claim to teach in law schools: how to think like a lawyer.

Legal writing professors have analyzed the components of thinking like a lawyer, developed the vocabulary for explaining that process to students, and created hundreds of well designed exercises. Where does a student really learn how to analyze and synthesize cases? In a class of 75-120 students, where the professor calls on one student at a time for 150-200 minutes a week, offers little individualized feedback, requires no written product until the final exam, and tests students on issue-spotting during a 3-4 hour exam? Or in a class of 18-20 students, where the professor offers a sequence of assignments designed specifically to teach analysis, synthesis, and other critical reasoning skills; provides frequent individualized feedback; requires several written assignments; and grades students on their ability to produce well reasoned analyses of a problem that requires research, analysis, and synthesis of new cases and statutes?

The traditional law school classroom, with its case method and socratic questioning, is better than pure lecture at teaching critical reasoning. But it is still a woefully inefficient and ineffective process of teaching students how to read cases and statutes, how to synthesize those materials, and how to apply them to the facts of novel problems. During the last thirty years, our legal writing programs have developed at a remarkable rate. They now surpass other first-year courses in their ability to teach critical thinking. If you want a professor who knows how to teach legal analysis to first-year students, and who has studied the pedagogy of teaching those skills, then choose a legal writing professor.

The same is true of clinical professors in the upper level. These professors know how to build on the reasoning skills that students developed in the first year. They don’t greet students with the same casebook/socratic method of instruction. Whatever its merits in the first year, that style offers diminishing returns in the upper level and bears little relationship to how practicing lawyers learn new areas of law. Clinical professors are accustomed to helping students identify unfamiliar areas of law that may affect their clients, research those issues (using an appropriate combination of secondary sources, cases, and statutes), and think critically about the sources in connection with a particular case. They are also experienced at the other types of critical thinking (fact analysis, separating wheat from chaff in client or witness interviews, problem solving, etc) that students should encounter before graduation.

If we want a tenured law faculty that focuses on teaching students how to “think like a lawyer,” then legal writing and clinical professors fit the bill. I would put them at the core.

These professors could also teach doctrinal courses. Currently, we swamp legal writing professors with too many students. If each taught a section of 18-20 students, the professor could teach two legal writing courses (one each semester) plus a large section of a doctrinal first-year course. These professors would bring their pedagogic skills to those doctrinal courses, enhancing the teaching of analysis and reasoning throughout the first-year curriculum.

Similarly, a clinical professor could supervise a clinic each semester and also teach a doctrinal course one semester. Many clinicians already do that; their ongoing practices keep them up-to-date in many areas. A school could hire additional tenure-track faculty to teach other doctrinal courses, although I would encourage each of those professors to teach at least one writing, clinical, or simulation course: that is where we really teach students how to “think like a lawyer,” whether that thinking requires close reading of a case closely or thoughtful questioning of a client.

What about research? I’ve taught doctrinal, legal writing, and clinical courses during my almost thirty years in teaching. A course load of two reasonably sized writing courses and one doctrinal course allows plenty of time for scholarship. For a clinician, the balance is somewhat closer; it depends somewhat on the nature of the clinic and the clients’ demands. Many clinicians, however, have already shown their ability to combine clinical teaching with scholarship–as have writing professors. The strongest barriers to scholarly work by these professors, I believe, are the second class status we currently afford them, together with the constant suggestion that they’re not capable of excellent scholarship.

There is room for many types of teaching and scholarship on law faculties. Our biggest error, perpetuated at most law schools, has been keeping legal writing and clinical courses at the periphery of the curriculum and faculty. If we move those professors and their courses to the core, where they belong at any institution devoted to teaching students to think like lawyers, we would solve many of the pedagogic problems plaguing law schools today. We could teach doctrine and new “practice ready” skills, while improving the ways we teach traditional methods of thinking like a lawyer.

We could also solve some of our budget problems. Legal writing and clinical professors typically earn half of what tenured doctrinal professors bring home. What if we split the difference? If we paid all professors a salary between the one currently offered legal writing/clinical faculty and the scale used for tenured doctrinal faculty, we could moderate faculty salaries to where they were a generation ago. Those salaries would still exceed wages paid to professors in other disciplines and, I predict, would be more than enough to attract and retain talented professors in the academy.