Dividing Law School Faculties into Academic Departments: A Potential Solution to the Gendered Doctrinal-Skills Hierarchy in Legal Education

Abstract

This article builds on the many works before it that have documented the inequities associated with the way that law school faculties are structured. At most schools, legal writing, clinical, and academic support faculty have lower salaries, are on contracts, cannot earn tenure, have fewer voting rights than tenure-stream faculty, may be relegated to undesirable offices, and might not even be permitted to call themselves “professor.” Women are more likely to occupy this lower status than men. This hierarchy persists even though women now make up the majority of law students in the United States.

To the extent that those who support this hierarchy are willing to defend it publicly, they do so on the grounds that teaching skills classes is “different”—and, in their view, necessarily lesser—than doctrinal subjects. They also assert, incorrectly, that skills faculty is incapable or unwilling to produce quality scholarship. The result is a gendered, illegitimate status hierarchy within many law schools where the tenured faculty is more heavily male and enjoy the most benefits at the top, while those who teach skills courses are mostly women and are relegated to a lesser status at the bottom.

The gender disparity created by the modern law school faculty hierarchy is well-established, but few workable solutions have been offered. This article fills that gap. Many have advocated for converting contract faculty to the tenure-track. And certainly, more and more schools have taken this welcome step. However, this approach is not without problems. The tenured faculty must be willing to cede voting power and other governance rights. Tenure standards must also be rewritten to account for the fact that teaching writing or in a clinic is different—not lesser, just different—from doctrinal teaching. Additionally, doctrinal faculty must become adept at evaluating teaching and scholarship of skills faculty, and vice versa once skills faculty earn tenure.

This article proposes a different direction: the creation of academic departments based on subject matter. Within universities, colleges or schools—other than law schools—have departments where faculty are hired into, promoted, and tenured based on standards that align with expectations in a given field. The teaching and scholarship of faculty members in the English Department will look very different from those in the Political Science, Music, or Chemistry Departments, and with good reason. But each discipline is treated equally in status, since each one is premised on quality teaching, engaged research, and committed service.

A law school with the traditional hierarchical structure could similarly divide into departments of, for example, Legal Doctrine and Legal Skills, with distinct expectations of teaching and scholarship for each. Hiring, promotion, and tenure decisions would occur first in the department before moving to the college and then the university. College-wide decisions around the curriculum and other governance issues would be made by representatives from the various departments.

The solution proposed by this article is a structural one. It attempts to use the organization of the institution to cure a persistent equity issue while addressing the legitimate argument that there are differences in the teaching and scholarship of those who teach skills courses compared to doctrinal subjects. It recognizes the relative expertise of the two groups while also ensuring that they are treated equitably.

Keywords: legal education, higher education, gender, legal writing, clinical legal education, equity, academic departments