Perspectives

Summer 2001

Legal Writing Instruction: the Pink Ghetto of Academe

By Hope Viner Samborn

Legal writing professionals nationwide were outraged when the director of a well-respected law school legal writing program was denied tenure by the school's dean and the university president, despite being recommended for tenure by her faculty colleagues. The school's tenured faculty were upset about the decision because their colleague, Molly Lien, a professor at Chicago-Kent School of Law at the Illinois Institute of Technology, had directed the program since 1993 and enjoyed a national reputation of excellence in her scholarship and teaching abilities. Under her direction, the school's legal writing program had grown in stature, and the number of full time faculty teaching in its program had grown. Lien had published not only in the area of legal writing, but in other academic disciplines, and her teaching included international law, among other topics outside of legal writing.

Nonetheless, many of her colleagues were not surprised at the administration's decision, which they say epitomizes the low esteem in which legal administrators generally hold legal writing faculty and their programs. Law school deans, however, such as Chicago-Kent's Henry H. Perritt Jr., contend that they do value legal writing courses and their faculty and that they are struggling to build and keep top-notch programs.

But statistics from various studies paint a bleak picture of the salaries and status of legal writing professionals within law schools nationwide. With a handful of exceptions, legal writing faculty are non-tenure track, according to Professor Richard K. Neumann, Jr., of Hofstra's legal writing program, who has studied this issue.

Faculty who teach legal writing often earn salaries that are roughly half of that paid to beginning tenure track professors and $10,000 to $15,000 lower than the median salary of starting law firm associates, says Jan Levine, associate professor and director of the Temple University School of Law legal research and writing program. Members of the woman-dominated legal writing professional community-70 percent of the legal writing faculty nationwide are women-refer to their domain as the "pink ghetto" of law schools.

Taking it to the ABA

Legal writing professionals have taken their case to the ABA Section on Legal Education and Admissions to the Bar, asking for more security and a role in law school governance for legal writing professionals, including voting privileges. "The vote makes you visible and makes them listen to you," Kathryn M. Stanchi, a Temple University legal writing professor.

A proposal pending before the Standards Review Committee of the section recommends that the accreditation standards be changed to provide "security of position and other rights and privileges of faculty membership" necessary to attract and retain quality faculty.

Jo Anne Durako, director of legal research and writing at Rutgers, the State University of New Jersey at Camden, School of Law, says approval of the proposal to end caps on the length of legal writing contracts can be "pivotal." But she admits that the current draft of the proposal is less than what she and others had hoped it would be and less than what the two national organizations of legal writing professionals, the Association Legal Writing Directors and the Legal Writing Institute, proposed.

It is unclear what, if any, changes to the accreditation standards will be made, says Diane C. Yu, chairman of the Section. The proposal is still in the development stage, she explained.

A final hearing on the proposal was held in May at the American Law Institute meeting. After the hearing, the Standards Review Committee was expected to consider whether to adopt any changes in curriculum standards. In August, a council composed of deans, judges and non-academic professionals may act on the proposal.

A key component of the proposal in its current form is job security-something that often eludes legal writing professionals. Few legal writing faculty members other than program directors are tenured law school faculty and the number of tenured faculty who hold directors' positions also is small.

Off Track

A recent survey of the Association of Legal Writing Directors and the Legal Writing Institute showed that 107 of the 137 law schools that responded only hire writing faculty on limited contracts. Of those, 57 offer one-year contracts to legal writing faculty. In contrast, just 16 reported their writing faculty are on the tenure track.

Many law school deans shy away from placing legal writing faculty members on the tenure track because of the expense involved. "Law schools want to hire people at the lowest salaries they can," says Levine. "Skills teaching is not something they value." The way in which most law school courses are taught-one professor to a large group of students-is "very profitable," says Levine. "Skills training-clinical or legal writing-is not as cost effective."

"It is labor intensive work and you need a small student-to-faculty ratio if you are going to do it right," says Sue Liemer, an assistant professor and director of Southern Illinois University's School of Law lawyering skills program. Often legal writing professors must create new problems for the students to work with each year. "It takes an enormous amount of work. You are doing a lot more than some tenure track professors," says Liemer.

Tenure track can mean a difference not only in current earnings, but future earnings as well, because retirement benefits for law school faculty members are tied to present earnings. "Over a lifetime, [non-tenure track faculty] will earn much less than they would have earned on the tenure track," says Neumann. "That will continue to hurt them into retirement since contributions are based on salary. It is common for a person off tenure track to earn half of what they pay newly-hired tenure track people."

The lack of tenure and this substantial salary gulf between faculty who teach legal writing and those who teach in other academic fields also can hurt professionals trying to obtain reasonable salaries in new positions. When they are asked about their salary history, many refuse to provide the information, saying that they were underpaid at their previous position and that it is not relevant, say some professors. "It is bad when they ask you what you make," says Mary Beth Beazley, associate professor at Ohio State University College of Law.

Tenure track also comes with benefits such as time and money for the research and writing that is often a necessary prerequisite to obtaining tenure status in the first place. Often legal writing professionals are caught in this Catch-22. They are not provided with any money for summer research and often must teach a full load year round. Female directors are less often eligible for paid sabbaticals than males, according to the 2000 survey. Under these conditions, few can publish the scholarly papers required to achieve a tenure track position. "If you want to be a doc, you have to look like one," says Levine. "You have to produce scholarship."

Some deans believe that scholarship written by legal writing instructors is not as good as that written by other professionals, says Beazley. When these individuals think about legal writing, they think "that is not intellectual, that's it's just tinker toys," she adds. "It is just the prejudice against legal writing."

Bare Bones Benefits

Benefits also are a problem for some legal writing professors. Liemer, who finally has tenure after 11 years in the field and three law school writing instructor positions, had no maternity leave when she was a non-tenure track faculty member. Within days of giving birth, Liemer was nursing a newborn while grading papers, and she later found she wasn't alone among legal writing professionals.

When Pamela Edwards taught legal writing at Hofstra University School of Law in the 1990s, she was not on the tenure track. Her contract with the school was renewable, but capped at seven years. At that point, she had to leave.

She and her five legal writing colleagues shared one secretary and worked from a windowless suite, while most faculty shared a secretary between two or three people, working from offices with windows. Like her colleagues at many other law schools, Edwards worked long hours, was paid less than tenure track faculty and had no role in faculty governance of the law school or in the faculty community.

"We were definitely second class citizens," says Edwards, who is now an assistant professor on the tenure track at the City University of New York School of Law, where she teaches commercial law.

She admits that the situation was changing at Hofstra at the end of her term and that caps have since been eliminated, but Edwards' experience is typical of many legal writing professionals in law schools today.

Many are banished to offices away from the corridors occupied by the tenured and tenure track faculty. In some cases, they are secluded in the library. Other times they are given office space other faculty members don't covet. Many are not invited to faculty members' parties or out to lunch. Deans have ignored some when they introduce faculty at university events.

Although legal writing faculty members are striving for better status and to have more tenure track opportunities, being on the tenure track in legal writing apparently doesn't guarantee tenure, nor does it ensure that the position will remain a tenure track post.

Back at Chicago-Kent

In Molly Lien's case, she had been teaching at the Chicago-Kent for 14 years. In addition to her legal writing responsibilities, Lien taught comparative law, international law and civil procedure as well as a course on international trade to American students in Moscow.

The Chicago-Kent faculty overwhelmingly supported her tenure, which followed a longer tenure track than most faculty. However, Dean Perritt overruled the faculty and denied her tenure on March 30, citing concerns about her scholarship, and he offered a position as senior lecturer, says Lien.

Perritt refuses to comment on the specifics of his decision regarding Lien. He, does, however, say that the legal writing director position that Lien held was in large part an administrative position and that he did not believe tenure was appropriate for administrative positions.

"Tenure is not appropriate for any administrative position," says Perritt. "I'm entirely comfortable with directors of libraries and directors of legal writing programs and clinical programs having clinical job security in their faculty status." But he says there are other ways to accomplish that, including long-term contracts or a separate tenure track.

"I don't agree that tenure is the only way you have stature," says Perritt, whose background is in labor and employment law. "That is not the way we gave job security to clinicians." He adds, "There are a lot of ways to establish compensation and parity."

He also notes that in making a tenure decision, he considers carefully whether faculty meet a high scholarship standard and whether professionals who comment on the faculty's scholarship meet the dean's standards of scholarship. He admitted that different bodies within Chicago-Kent's community might view scholarship differently than he does.

Earlier, the dean, a strong advocate of the use of technology, had made it known that he strongly disagreed with Lien concerning an article she wrote about the role of technology in legal education and practice, say several professors nationally, all of whom asked to remain anonymous.

The dean's action concerning Lien's tenure has caused a stir nationally, among faculty, alumni, other Kent supporters and writing professionals. A flood of letters and emails as well as personal visits to the school's presidents followed the dean's actions. The ground swell of support for Lien, who has served in national programs and won teaching awards, has been felt nationally. Legal writing professionals who admire Lien were incensed that the dean would deny tenure to such a deserving colleague. In fact, ALWD terminated its association with the Chicago-Kent on May 4 and will move its corporate headquarters from the school. Lien herself is leaving the school. She has said she will file complaints, against the school and its parent, the Illinois Institute of Technology. Lien hopes to overturn Perritt's decision.

Neumann, chairman of the ABA's Section on Legal Education and Admissions Communication Skills Committee, says that Lien is one of the top 10 to 12 people in the legal writing field. "She is one of the most intellectually impressive people I know," he explains.

Many legal professors around the country fear that the Lien decision will have wide-ranging effects. Some fear that other deans will take this as a signal that it is okay to deny tenure to tenure track legal writing faculty as a cost-cutting measure. Others worry that the dean's concern about Lien's scholarship taking a view different from the his own perspective could chill faculty independence in their scholarship.

Despite Perritt's decision concerning Lien, the dean says that he is very committed to the Kent writing program and he believes other administrators should be similarly supportive of their legal writing programs. "They would be nuts not to be committed to any legal writing program," he says. "Lawyers can't do anything if they can't communicate effectively."

Perritt believes the future of Kent's program is secure. "We will take it to a new level of excellence." Kent's program features a writing course in each of the three years of law school.

View from the top

Many legal writing professionals say legal writing instructors at top tier schools fare no better than those at other schoolsūthat, in fact, some of these schools lag far behind in building their legal writing programs and in elevating the status of the professionals who teach such courses. None of the top tier schools, for example, has an academic tenured faculty at the helm of its legal writing program.

However, at the University of Michigan, Grace Tonner, director of the legal practice program, has clinical tenure. It is more than a long term contract, but it is a separate tenure track. Although she says that her status within the legal faculty is high and she is treated well by faculty and administrators, she admits that her "pay and perks" are not the same as those of a tenured professor. She now has a 7-year contract that is renewable by the dean.

Tonner is at one of the few top tier schools that have full-time faculty teaching legal writing. Northwestern University School of Law recently changed director positions from tenure track to non tenure track posts. Most top tier schools now only have adjuncts, third-year law students or fellows teaching legal writing, say Levine and Tonner. Some legal writing faculty fear that such conditions could signal a step backward for legal writing professionals.

Women's Work

One reason for those moves may be the devaluation of skills training, says Levine. Another reason legal writing may be viewed as second class is that women predominantly fill the teaching slots, say many professors. "It is perceived as woman's work," says Liemer. "It requires a lot of interpersonal skills," she says, adding, "It takes a lot of patience."

Edwards agrees. "There is a view of legal writing as not being a real subject. It is nurturing, hand-holding type of field that meets some people's view of what women should be doing."

Edwards and some other professors believe that women were steered into legal writing positions. Low-paying, low status legal writing positions came into the fore following the influx of women into law schools, says Levine.

The thinking was that woman would not have to do scholarship or committee service. "You could spend more time doing other things," says Edwards. "It was the mommy track." She and others said that was unrealistic since teaching legal writing requires more time than teaching than other doctrinal classes because of the grading and time required for individual feedback. Women also may have been thought of as second-wage earners, a concept that keeps women's salaries low, says Levine.

Even within the legal writing field, there are gaps between the salaries of men and women. The AWLD/LWI reported the following salary disparities among program directors in 2000:

Female directors earn less than male directors when measured by 12-month salaries, $73,171, compared with $84,817; and $70,480 compared with $91,182 for less than 12-month salaries.

Females with comparable years of experience directing programs at their present schools earn less than their male colleagues. For less than five years of experience, females earn $66,411 and males earn $83,786. For six to 10 years of experience, females earn $70,617 while males earn $88,250.

Females also earn less additional compensation for teaching beyond the entry level program, $7,838 compared to $11,375 for males.

In addition to salary gaps, other disparities within the field indicate that women bear a greater portion of the inequities legal writing instructors suffer. Fewer females have professor as their official title and more females have instructor or lecturer as their title, according to the 2000 survey. The survey showed that 59 percent of the male legal writing faculty had the title of professor, compared with 45 percent of the females.

Being devalued has a significant effect on legal writing professionals, both psychologically and professionally, and on legal writing students. The working conditions that legal writing professionals, such as Edwards, have faced can be "demoralizing," says Neumann.

"It was amazing to me how much you personally as a human being suffer when an institution devalues you," says Stanchi. "I went into legal writing with a lot of self confidence and I had been a pretty successful lawyer. Within two years, I felt that I had to get out of this job."

Moving from a legal writing position into a tenure track position in another legal specialty or within legal writing field is difficult, says Edwards. "I wouldn't say start as a legal writing professor to someone who is looking to get a tenure-track position. There is definitely a prejudice against legal writing."

Overcoming this prejudice is hard. "We are making strides," says Beazley. "However, as long as there are faculty who think it is lesser or there is not scholarship to be done, we are facing an uphill battle. I hope we don't have to do it school by school."

Despite its drawbacks, many women prefer teaching legal writing because of its flexible hours and the way it is taught, says Stanchi. There is more opportunity to interact and to see the benefits gained from instruction. Simply put, she adds, "We get to know our students."

Hope Viner Samborn is a lawyer and freelance writer in Chicago, Illinois.