Podia and Pens: Dismantling the Two-Track System for Legal Research and Writing Faculty

Abstract

At the 2015 AALS Annual Meeting, a panel was convened under this title to discuss whether separate tracks and lower status for legal research and writing (LRW) faculty make sense given the current demand for legal educators to better train students for practice. The participants included law professors, an associate dean, and a federal judge. (2) Each panelist was asked to respond to questions about the two-track system--a shorthand phrase for the two tracks of employment at many law schools whereby full-time LRW faculty are treated differently than tenured and tenure-track faculty. The panelists represented differing views on the topic. This Article grows out of the conversation, information, and ideas that emerged. INTRODUCTION Under increasing economic pressure to attract law students, law schools are aggressively marketing their practice ready programs. Legal research and writing, as well as other skills programs, are typically featured in marketing materials and on websites. However, even as they are prominently represented in marketing efforts, LRW faculty continue to be underrepresented as full faculty members and suffer as a result in terms of lesser job status and lower salary. The vast majority of LRW faculty are women, many with credentials, practical experience, and teaching loads similar to male faculty. However, female faculty teaching LRW, as well as podium courses, usually have a lower status and earn significantly less than their male counterparts. A lawyer's ability to analyze the law and communicate effectively is the most critical tool lawyers have. (3) The academy's treatment of LRW faculty, who are singularly focused on preparing students from their first day of law school to think and communicate like lawyers acting on their client's behalf, thus represents a significant equality problem. The current emphasis on skills training makes the status and salary disparity more apparent and more troublesome. While gender-based status and salary disparity is common throughout the United States, law schools should be working to remedy these disparities, particularly since their faculty can be presumed to know the law on gender discrimination. Even those who argue that women law faculty are not at a disadvantage have stated as a matter of principle that [t]o be foreclosed from rising in an organization because of an inflexible two-tier system is unfair, psychologically and organizationally damaging, and for what it is worth, un-American. (4) I. The Continuing Disparity in Gender, Status, and Salary The over-representation of women in skills teaching positions, particularly legal research and writing, and their under-representation in podium, tenure-track positions are well documented. (5) Legal scholars have been writing about this for over twenty years, (6) referring to legal research and writing and its faculty as a permanent underprivileged stratum of untouchables, (7) the pink ghetto, (8) and one of law schools' dirty little secrets. (9) Yet the perception that teaching legal research and writing is unintellectual women's work (10) continues as part of the social fabric of law schools. Figure 1 above illustrates the current disparity in status (i.e., rank or security of position) between male and female law faculty. As faculty status decreases, from tenure to 405(c) (11) and then to LRW faculty, most of whom are on short-term contracts, (12) the percentage of women increases from 36% to 71%. (13) Conversely, the percentage of men decreases from 64% to 29%. What is surprising is that the percentage of women teaching legal research and writing has hovered at the 70% mark at least since 2001. (14) (See Figure 2 below.) With respect to clinical faculty, an annual survey conducted by the Center for the Study of Applied Legal Education indicates that the percentage of women in clinical faculty positions has actually risen from 55.75% in 2008 to 63% in 2014. …