How law faculty get hired

I've had a few requests to discuss the law school entry level faculty hiring process, which obviously has a great deal of relevance to why law schools are the way they are.  Rather than describe the process, I'm going to link to this fairly exhaustive account of it, and make a few comments on Prof. Wendel's on the whole very accurate description (although his account features one huge omission, on which see below).

(1)  An outsider to American law school culture would no doubt find Prof. Wendel's most striking revelation to be that actually knowing something about the practice of law is considered an undesirable characteristic for a tenure-track candidate at most law schools, and that this becomes even more true as the prestige of the school in question increases.  This is not hyperbole: it is a literal description of the situation, as Prof. Wendel (who to put it mildly does not appear to have what could be called a critical perspective on the process) quite candidly admits. Here is his description of an ideal tenure track candidate's ("the classic resume") legal work experience:

A couple of years of practice experience, often at one of the top firms in New York, D.C., Chicago, L.A., or San Francisco.  Some firms, such as Covington & Burling in D.C., Cleary Gottlieb in New York, Ropes and Gray in Boston, and Gibson Dunn in Los Angeles, have a reputation for producing law teachers.  Alternatively, practice experience can be with a high profile government agency like the SEC, EPA, or the Department of Justice, or with a U.S. Attorney's or federal public defender's office (a few state agencies, like the Manhattan D.A. and the Public Defender Service in Washington D.C., satisfy this requirement).  You don't want to have too much practice experience, though.  (Emphasis added)

 Of course as anyone who has done it will readily admit, "a couple of years of practice experience" at a BIGLAW firm is as close to have no actual experience in the practice of law as it's possible to have, while still having gotten paid at some point to do a job that requires a law degree.  Junior associates at big firms are only "practicing law" in the loosest sense, since with rare exceptions a couple of years in such a job will equip someone to do almost nothing that real lawyers do (Imagine expecting a junior BIGLAW associate to handle an actual piece of litigation, or a piece of transactional work, on his or her own from start to finish!).

Now this ought to strike us as a truly extraordinary situation. What could account for the remarkable fact that schools which exist for the purpose of training people to practice a profession not only don't value, but go out of their way to avoid, hiring teachers who know anything about practicing that profession? Prof. Wendel's explanation if anything only deepens the mystery:

One of the oddities of the legal teaching market is that candidates for classroom positions are considered tainted if they have too much of a background in practice.  Because of the obsession, noted above, with being perceived as legitimate by their colleagues in the arts and sciences, law faculties are not looking for people with extensive practice experience as classroom teachers.  One may bemoan the effect this has on legal education, as Judge Harry Edwards did in a famous article on the "growing disjunction" between the academy and the profession, but it is a fact of life.  Only in clinical teaching is practice experience truly valued, as opposed to being viewed with some suspicion.

 Why in the world would relevant professional experience on the part of the faculty of a professional school hurt the perceived legitimacy of that faculty in the eyes of other university faculty?  To the extent it makes sense to locate professional schools within research universities at all, surely the first priority of such schools must be professional training.  I find it difficult to imagine that the typical professor of English or Chemistry would consider it anything other than bizarre to fill law school faculties with people that know next to nothing about being lawyers.  Now it's true that, as Prof. Wendel hints at rather delicately, law schools have a tradition of being treated with some contempt by the academic departments of research universities, because of the suspicion that law school faculty were for the most part not real academics.  And this suspicion was well warranted:  what reason would there be to think that what Prof. Wendel describes as "the classic resume" (high grades at a top law school, a federal clerkship, a couple of years of paper pushing at a big firm) would tend to produce genuine academics?

Of course there's no reason to think this resume would tend to produce genuine lawyers either: hence the absurdity of the contemporary law school, which features faculties full of academic lawyers who are neither academics nor lawyers.

(2) The process described by Prof. Wendel allows us to make certain predictions about it.  First, this process will tend to be strongly self-replicating and self-reinforcing.  This sort of hyper-neurotic obsession with the most superficial paper credentials, in which essentially meaningless gradations in the quality of law schools and law school performance are treated as having enormous significance, will for reasons that should be too obvious to state lead to the continual intensification of that neurosis as a matter of an all but formal institutional policy. If two of your main accomplishments in life are having gotten good grades at a top law school and having secured a federal judicial clerkship you will be strongly impelled to treat these facts as having far more meaning than they actually do. (On the other hand I'm a bit heartened to see that even someone as conventionally-minded as Prof. Wendel is somewhat skeeved out by Brian Leiter's level of obsessive credential-mongering).

Second, it's actually not surprising that genuine experience in the practice of law is so devalued by tenure-track law school faculty, especially at higher-ranked schools.  The contemporary law school has evolved in a fashion that puts almost all of its tenure-track faculty into social positions shot through with bad faith, and the anxiety bad faith tends to generate. Basically, we are supposedly training people to do something we have no idea how to do.  (I should add that even those law faculty that acquire some sort of practice experience beyond a couple of years of scut work at a big firm tend to do things like write memos for the OLC, i.e., frou-frou legal jobs that have little relation to anything the vast majority of their students will ever do).  The last thing we need is anybody around to remind us of this fact (This is one reason why the clinical faculty tend to be institutionally and even physically segregated from the tenure-track faculty).

Third, it's also not surprising that, despite the recent spate at top schools of hiring people with Ph.D.s, legal academia has done almost nothing to reform the ridiculous publication system for legal scholarship.  Law review publication continues to be considered the ne plus ultra of law school faculty scholarship for the very simple reason that this system so strongly protects the interests of tenure-track law faculty.  With fairly rare exceptions, tenure-track law faculty don't have to worry about getting their work published, since it's almost literally true that any putative scholarship a tenure track faculty member produces will be published by some law review somewhere (there were something like 800 of them the last time I checked).   Furthermore, the law review publication system spares the vast majority of faculty from the work of having to participate in the peer review process, on either the productive or the evaluative side. 

(3) Prof. Wendel's otherwise exhaustive treatment of his subject  pretty much completely ignores the role of affirmative action in law school hiring.  This very powerful factor in the process goes unmentioned in his several-thousand word account.  That omission is quite telling, but this post is too long already, and that will have to be a subject for another day.