Caste Revisited

August 13th, 2021 / By

I’ve written several times about the caste system in legal education: a hierarchy that favors professors who teach torts, contracts, and other legal “doctrine” over those who teach legal writing, clinics, and other legal “skills.” This favoritism includes higher pay, more job security, and greater respect. Many schools maintain third and fourth classes that rank even lower than the second class citizens of clinics and legal writing. Academic support professors, teaching fellows, contract faculty, adjuncts, librarians, and other staff members often occupy those lowest rungs of the academic hierarchy.

California Western Steps Up

I’m returning to this topic because several related items recently hit my inbox. First, I received a press release from the California Western School of Law announcing that it had adopted a unitary tenure track that “creates opportunities for its clinical, Legal Skills, and other skills professors who were hired as full-time faculty to achieve tenure, with the same faculty governance and voting rights that come with an existing tenure-stream faculty position.” Kudos!

The press release, however, leaves several open questions. Will pay be equalized for professors on this unitary tenure track? Or will some professors still be more equal than others? How much research will be required for professors to join this unitary tenure track? Will the currently tenured professors turn their noses up at the scholarly focus of their new colleagues? And what about professors who choose not to join the unitary tenure track? Will the school recognize their ongoing contributions through higher pay and respect?

I’m not trying to rain on California Western’s parade: they have taken a hard step that many other schools are still resisting. I hope they will also find answers to these remaining questions, which schools face whether or not they embrace a unitary tenure track. What type of distinctions are appropriate among employees in a single organization? How do we value different types of contributions to the overall enterprise? Are the answers different for an academic institution and a manufacturing plant?

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The Market for Legal Writing and Clinical Professors

January 5th, 2018 / By

Why do professors who teach legal writing and clinics earn significantly less than professors who teach other courses? Why are the writing and clinical professors less likely to hold tenure-track status? And why, finally, are these lower-paid, lower-status professors disproportionately female?

A common answer is: the market. Applicants for legal writing and clinical positions are plentiful, the argument goes, so the market drives their salaries and status down. Professors who teach other courses are more scarce and have more lucrative options; law schools must pay more (and offer tenure-track status) to attract them. Law schools also demand scholarship from professors teaching those other courses, and the pool of people capable of outstanding scholarship and good teaching is very small indeed. Salaries and status must be generous to land those rare individuals–but not so generous for legal writing and clinical professors.

This explanation (which I’ll call the “market hypothesis”) has some initial appeal, but thoughtful examination reveals several flaws. The most striking defect is this one: The market hypothesis doesn’t explain the very high percentage of women teaching legal writing and clinical courses. 62% of the faculty teaching clinics or externship courses identify as women; 72% of those who teach legal writing do so. The pool of law school graduates, in contrast, includes roughly equal numbers of men and women. So why don’t the hiring nets for clinical and legal writing positions pull up a more equal number of male and female professors?

If the market hypothesis is correct, it has to explain why an abundant applicant pool yields such gendered results. I explore below four ways in which the market hypothesis might coexist with our disproportionately female writing and clinical faculties.


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The Second Class Among Us

January 4th, 2018 / By

Bob Kuehn has posted a sobering analysis of the status and salaries of clinical, externship, and legal writing faculty. It should be no surprise that most of these professors lack tenure–and that they earn significantly less than the faculty who teach courses without significant writing or clinical components. The size of the differences, however, may take some tenure-track faculty aback.

Who are the colleagues who suffer lower pay and status? Overwhelmingly, they are women. More than 70% of legal writing professors and externship supervisors are women; about 60% of clinical professors are female. These are striking differences in a profession that is still male dominated in many ways.

I will have more to say about these differences over the coming days. For now, take a look at Bob’s data and think about some new year’s resolutions.

Update: I did not mention professors who teach academic support or bar preparation courses in this post, because I do not have the type of national data Bob gathered for legal writing and clinical professors. Academic support and bar preparation are among the most essential courses we offer in law schools–yet the faculty teaching them are at best second class. I will write more about these key professors soon.

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“Little Staff Attorneys”

January 21st, 2016 / By

At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people. (more…)

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RT, MT, and HT

March 1st, 2014 / By

Student writers sometimes struggle with attribution. They know to use quotation marks, and to cite the source, when they take language directly from another author. But when should they credit that other author with an idea? Or with paraphrased language? Social media now give us a way to explain these key practices. The “RT-MT-HT” culture also illustrates the positive role that attribution plays.

Lessons from Tweeters and Bloggers

I’m still polishing my skills as a blogger, while starting to learn Twitter. I recently summoned the courage to ask a 20-something what “RT” and “MT” mean on Twitter. He kindly explained that “RT” is a “retweet.” A tweeter uses that abbreviation when passing along another user’s tweet word-for-word. “MT” is a “modified tweet.” In this case, the tweeter transmits the gist of a previous tweet but modifies some of the language.

Easy–and a direct parallel to quotation and paraphrase. From now on I’ll tell my students: If you take language directly from another source, that’s a “retweet.” You need to use quotation marks and credit the source. If you take the gist of an idea from another writer, that’s a “modified tweet.” Give credit to the original source just as you would on Twitter.

HT or H/T, meanwhile, is blogger-speak for “hat tip.” That’s how we credit another source who has provided information or inspiration for a post, although our posts may depart considerably from the original source. Writers in other media, including student papers, should learn to “HT” sources offering that type of information or inspiration.

The RT/MT/HT typology is easy for students to understand. I’m also intrigued by the fact that the attribution process in 140-character tweets parallels what we do in scholarly papers. That fact made me think more about why we attribute–and why students often resist the process.

Why Attribute?

The primary reason for attribution is to give credit where credit is due. If you have devised an innovative argument, dug up original data, or spun a creative phrase, I shouldn’t claim those words or ideas as my own. Attribution acknowledges the work of others.

That’s one reason, I think, that students resist attribution. They feel great pressure to produce original ideas and language in products like seminar papers. They worry about a poor grade if they attribute too much of the paper to others.

Student papers, of course, should reflect the student’s own language, as well as some degree of personal insight on substance. But maybe we need to be more pragmatic about just how “original” a student paper can be. In large part, we want students to manipulate the ideas of others; that’s part of the learning process. It’s also unrealistic to expect original work from students before they’ve had a chance to work with those other ideas over time.

Luckily, attribution has another role: it demonstrates the author’s familiarity with related work and her growing connections with the field. That’s one reason we see so many RT’s, MT’s, and HT’s in social media. These authors aren’t shy about building on the work of others, and they want to create networks through their connections. We sometimes forget the importance of attribution in articulating networks.

In the future, I hope to stress this positive aspect of attribution when supervising student papers. Attributions aren’t admissions against interest, conceding that an idea originated with someone else. Instead, these attributions are positive signals that a paper is part of a larger network of ideas. A student who knows how to attribute is one who has engaged with a knowledge network, staked out a spot for herself within that web, and started to cultivate her own voice. Just as tweeters develop a following by building on the ideas of others, writers can enjoy the same success.

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Core Faculty

March 24th, 2013 / By

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.

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