Legal Writing Professors: A Story Of A Hierarchy Within A Hierarchy

They're treated like second-class citizens in academia and their contracts leave them in precarious positions.

Today’s column is about a different type of hierarchy in academia.  This column is dedicated to some of the hard-working colleagues who go to faculty meetings but don’t speak much, who do a lot of the thankless committee work at many schools, and who spend more time with students than most other law professors.  The colleagues who, for the most part, don’t have tenure, get paid a lot less, and in many schools often have smaller offices away from their tenured companions.  I went to school at such a place, where the legal writing and clinical faculty were quite literally beneath the rest of the faculty, one floor below.

Legal writing faculty are governed by ABA Standard 405(d) that states “A law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership as may be necessary to (1) attract and retain a faculty that is well qualified to provide legal writing instruction as required by Standard 303(a)(2), and (2) safeguard academic freedom.”  That, according to Interpretation 405-9, allows schools to have fellows teach legal writing and does not “preclude the use of short-term contracts for legal writing teachers.” Contrast that to the standards for clinical faculty, who still of course are treated like second-class citizens in academia, but by and large have a tiny bit more job security.

Good data exists about the structures afforded to legal writing professors, because they actually take meaningful surveys with data.  For the 2017 survey, only 21 percent of the legal writing professors described themselves as being in traditional tenure or tenure track positions.  About 7 percent involve programmatic tenure.  The remainder of legal writing professors are in either 405(c) status (longer term, presumptively renewable contracts), short-term non-renewable, or in five-year or more contracts that are not presumptively renewable.  In other words, a lot of legal writing professors are in precarious positions.

Who are these hard-working people in precarious positions?  We can even get a snapshot of race and gender in legal writing.  According to LWIOnline data, nearly 88 percent of the faculty are white, and about 2/3 of the faculty are women.  These facts, along with the financial disparity (low pay) afforded to legal writing professors have caused some to call it a “pink ghetto.”  Even there, Professor Durako’s research shows that women legal writing directors earn less than male counterparts, teach a narrower range of courses than their male counterparts, and are less likely to be in that tenure or tenure-track path than their male counterparts.  And, the more the job title and responsibilities approaches that of doctrinal faculty, the more likely that position is to be filled by a man.

Diverse students are not likely to see themselves in the legal writing faculty, either.

An excellent article by Professor Lorraine Bannai describes the difficulties facing women of color in legal writing.  As Professor Bannai explains:

I also know (1) that untenured women of color who teach Legal Writing face additional challenges because of their lower status in the academic hierarchy; (2) that those additional challenges are often invisible to, or ignored by, others, even those who might be allies on issues of race and gender; and (3) that their lack of status can demean and silence them, as well as prevent their institutions from benefiting from all they can contribute as scholars, teachers, and colleagues.

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In schools that are predominantly male (including the top 10 where only about 30 percent of the faculty are women), the result can be to marginalize female voices, and also to send terrible signals to students about the role of women in academia.

As Professor Durako states, “Perceptive law students learn both the explicit and the implicit lessons about women’s value and roles by observing how law schools treat their women faculty. If women are viewed as a less important part of the legal academy, students may infer that women are a less important part of the legal process. This fallacious reasoning appears to contribute to the pervasive patterns of gender bias found in all spheres of the law. Studies have indicated that discriminatory treatment of women in the courts may stem from law school experience.’”  And this, my friends, is in partly why I’m opposed to hierarchies based on race, class, and gender.

Many tenure-track faculty members across the country tell me that they do not speak up in faculty meetings because they don’t want to jeopardize tenure.  Imagine if that was your lifetime status, just one vindictive dean and one comment away from being terminated or “not renewed.”  Meanwhile, you get all the “privileges” of faculty membership, such as committee work and attending faculty meetings in silence.  Thus far, it sounds like privileges was a euphemism for “all the work but none of the benefits.”

As I’ve written before, once upon a time podium faculty taught legal writing.  But in the desire to teach doctrinal courses the academy has given some of the most important work in all of legal academia to people who are treated as second-class citizens, relegating them to publish their work in “other” journals, to predominantly discuss their arts at “other” conferences, etc.

And, while the academy navel-gazes about class, gender, and racial diversity in academia, it hasn’t, in my opinion, addressed the institutional effects that permeate the various classist structures of legal academics.   It isn’t about just paying legal writing professors what they are worth, it’s about respect and dignity.  Additional committee work does not translate into voice.  And it’s time we stopped paying lip service to that by allegedly protecting employment through ABA standards that all but assure more work, same pay, discrimination, and, above all, silence.

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But even in the lower tiers of the academic hierarchy, the system is rigged.  There are clearly barriers to entry for people of color in particular.  And, despite the unpleasantness that sometimes arises when we ask hard questions, it is important to unearth some answers.


LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.