How Not to Retire and Teach – Litigation Approach

Posted by Jeff Lipshaw

Over at Conglomerate, good friend Usha Rodrigues has a post mulling over a lawsuit reported on by Debra Cassens Weiss of the ABA Journal – a Troy, Michigan lawyer by the name of Donald Dobkin filed a lawsuit against the University of Iowa Law School for age discrimination because he didn’t get the job when Iowa advertised (I presume in the AALS bulletin and other normal avenues) for a professor specializing in immigration law.  I just sent Usha a note, but it seems worthwhile to comment here as well, given that I’m the author of the iconic “Memo to Lawyers:  How Not to ‘Retire and Teach,'” an essay that may highlight some of the issues in Mr. Dobkin’s travail.

Here’s how Usha poses the question:   “was Dobkin clearly ‘more qualified’ than the 2 other prospectives offered the job, given academic hiring as we know it?”  With all due respect to Usha, while I share her sympathy for Iowa, I’m not sure that’s the right question.  I think she’s highlighted the wrong thing, namely, a focus on the quantitative (publications divided by years).  Moreover, the question does the same thing Dobkin’s case seems to do, which is to conflate the age issue with the “experience” issue.  Is his claim that he was the victim of age discrimination, or is he asking the court to impose on the school a hiring policy based on experience over scholarly bona fides?  The simple answer to Usha’s question is that unless a court is prepared to undertake the latter, there were all sorts of reasons that Iowa could have reasonably passed on Mr. Dobkin without having considered his age.

Without getting all Thomas Kuhn-ish here, Usha’s proviso “given academic hiring as we know it” is another way of acknowledging that academic law isn’t just about training new lawyers.  It is an academic paradigm that, for better or worse (actually, in my experience of several years now, better AND worse), is determined largely by them who is already in the paradigm.  It’s just a fact of the academic world.  I have a book proposal in at a major university press that has passed every hurdle except a late request by the philosophy overseer that it be sent out for a pure philosophy review.  It’s possible I don’t write (or think) in the au courant philosophy paradigm, and I will be wrongly rejected.  But that doesn’t give rise to a legal claim.  As I said to my editor, que sera, sera. 

If you look at the several oldsters who’ve gotten jobs recently – Bill Fisher (Richmond), Chuck Whitehead (Cornell), me – and, without flyspecking Dobkin’s resume, you will see some things that this fellow doesn’t have:

– Mega-elite school J.D. and other credentials in addition to “expertise”
– Time spent as visiting professor (Bill Fisher was with me down at Tulane)
– A showing of real commitment to the task of becoming a law professor (say, by being active in the blogosphere, going to academic conferences, etc.) by persevering through more than one rejection at one school

That’s apart from the question whether his publications were any good (I’ll accept sight unseen that they were okay but not earthshaking).  And being an adjunct prof teaching undergraduates at Central Michigan University is even more meaningless than the meaningless adjunct LAW teaching chops I discuss in the “Retire & Teach” essay.

I think somebody who files a lawsuit after being declined at one school is completely naive about the academy and the legal process, which is a better reason to pass on him than his age.  (See the Brad Wendel test in the Big Rock Candy Mountain essay Usha cites, quoted in full below the fold.)  The balance of teaching non-academic professionals, on one hand, and contributing to the advancement of knowledge in the research university setting, on the other, is a serious subject, one that deserves to be considered apart from matters as trivial as the ratio of publications per years of practice as the sole determinant for the job as among competing candidates.

“If you don’t believe me, do the Wendel Test.  I always recommend that teaching candidates demonstrate for themselves how ferocious the market is.  The Wendel Test is simple.  Go to the Web site of the Association of American Law Schools (AALS, about which more later), specifically their list of member schools.  Now, scroll down through that list and find the goofiest-sounding law school you’ve never heard of – the kind of place you’d sort of snicker if you told people you worked there.  Go to the page, which they’re sure to have, listing their faculty profiles or bios.  Look around until you find a relatively recent hire – they’ll have the title of assistant or associate professor.  (More senior faculty may have been hired when the market wasn’t nearly so competitive.)  Read his or her bio.  I’ll bet you dollars to donuts that their resume resembles the classic pattern described above and is probably even scarier.”