Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Monday, July 2, 2012

Law professors with tenure who are also law firm partners

The numbers seem to me to be increasing:  there's not only Kathleen Sullivan, officially a tenured member of the Stanford law faculty while being a name partner in New York of one of the country's most successful firms; there's Mark Lemley at Stanford who is a partner at a law firm (that also includes David McGowan at San Diego as a partner); there's Neal Katyal at Georgetown, who is a partner at a major international law firm, and also Viet Dinh at Georgetown, also a partner at a different high-end litigation boutique.  Who else am I missing?  And how can these folks be tenured law professors and partners at high-end law firms?  Something surely has to give...

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Comments

It would appear to be difficult for both positions to be full-time, to be sure, so I'm guessing it's often a hybrid "of counsel" to the firms.

BL COMMENT: It's a reasonable hypothesis, but in several of these cases I know for a fact that the folks in question are real partners, not counsel.

Posted by: Mark Tobin | Jul 2, 2012 7:05:29 AM

Focus on outputs: are the people in question are holding up what we think of as the key obligations of professors and partners? I can't speak to the others, but by that standard, Mark Lemley is having it all. He has an active litigation portfolio, representing technology companies and websites in high-profile cases. His scholarship is beyond prolific. And he teaches (in the coming year, at least) a ten-credit three-course load. It's not clear how he does it, but he unquestionably does it.

Posted by: James Grimmelmann | Jul 2, 2012 7:25:10 AM

I believe Walter Dellinger has been another example, although I think he is now formally on leave from Duke.

Posted by: Orin Kerr | Jul 2, 2012 8:33:49 AM

Susan Estrich (USC) is also a partner at Quinn Emanuel in LA.

Posted by: Anon | Jul 2, 2012 8:55:26 AM

Profs. Dan Bussel and Ken Klee of UCLA are both partners in Klee, Tuchin, Bogdanoff & Stern.

Posted by: anon | Jul 2, 2012 10:22:00 AM

Query: Why does California appear to be the locus of this phenomenon? The obvious answer is cost of living. Is this the case? If so, is there some expectation that faculty will (or are, at least, free to) engage in outside work? It's certainly my experience that, in addition to the myriad partners, consulting seems to be more common for California-based law faculty than I see elsewhere. And, if this is so, is this reflected, or even encouraged, by lower-than-competitive salaries at California law schools?

Posted by: Anon | Jul 2, 2012 12:13:04 PM

I have no problem with professors who can independently think about their fields, without pressure from clients. But we should ask:

1) Who are these professors' major clients?
2) Does their scholarship address those clients' interests?
3) Is (2) disclosed on the scholarship prominently?

Posted by: Scared Professor | Jul 2, 2012 1:20:29 PM

I think the practice of tenured law professors taking up law firm partnerships is indefensible and, particularly where the practice is condoned by leading law schools, presents a danger to the entire legal academy.

For me, the time issue is of secondary importance to the question of intellectual freedom, independence, and integrity. Anyone who is a law firm partner needs to worry about the "firm," its clients and its business, perhaps as a matter of fiduciary duty. Such concerns are highly likely to influence and thus compromise the positions this person would take as a scholar or simply shift the set of scholarly projects. Tenure is supposed to be about providing insulation and protection for scholarly independence, which someone who becomes a law firm partner is jeopardizing if not surrendering.

Law firm partners are certainly much less prominent in public debates today than a generation ago, because of client sensitivities. A tenured law professor simply cannot let him- or herself be undercut in that way. What’s the point of tenure otherwise?

For prominent law schools to permit such dual loyalties opens the institution of "tenure" to criticism and puts us all at risk. This is especially so in this era of law student job struggles, high (and increasing) law school tuitions, concerns re insufficient teaching productivity, and the general anti-elite-education mood.

Perhaps the right title (and relationship) for law faculty who have such law firm affiliations is "professor from practice." To be clear, I think being a "partner" is different in kind from someone who is of counsel, who does consulting or other forms of real world engagement, lucrative and not. "Partner" means, and is taken as meaning, someone who has loyalty to the firm as an institution. That institutional loyalty is inconsistent with the demands of tenure.

Posted by: Senior Law Professor | Jul 2, 2012 2:17:19 PM

Does anyone seriously think that Alan Dershowitz did the von Bulow and other high profile cases for free all these years? I don't recall hearing any suggestion that his scholarship in constitutional, criminal or other law areas might be compromised.

As a general proposition, the academy is a place where envy festers. Should we discount some of the criticism of these partner/profs as coming from folks who wish they had what it takes to pull down the big bucks in private practice while meeting the demands of the campus?

Posted by: Wondering | Jul 2, 2012 3:29:03 PM

I think a far more worrisome trend is the number of law faculty with no practice experience at all. It degrades the mission of our institutions, which is fundamentally to produce lawyers. You wonder if part of the "retrenching" of Law Schools in a post-2008 world will be a move away from the JD/PhD model and towards people who are capable of training our students to be lawyers.

Posted by: Faculty Member | Jul 2, 2012 5:08:05 PM

We should ask - why are students paying them to practice law? Ridiculous. They get the benefit of very light loads, sponsored by extremely high tuition, and then make tons more money at another job. This is something students would rip apart.

Posted by: Tony Smith | Jul 2, 2012 6:52:15 PM

I would guess Sullivan, Lemley, Katyal would not be too happy to be compared to Dershowitz, who hasn't done any scholarly work in decades and who is an academic joke and a longstanding embarrassment to Harvard. If he's the poster boy for practitioner/academics, then it really is bad news.

Posted by: Not wondering | Jul 2, 2012 6:55:25 PM

Brian you said that they are real partners, but there are so many kinds of partners - equity partners & nonequity partners, and within each kind of partnership there are people with all kinds of compensation arrangements. I'd imagine that these individuals do not have a true full time practice and probably have some sort of (generous) wage arrangement that includes the label "partner" and probably salary and some revenue sharing. The hours a full partner at a top tier firm works simply would not permit even a light teaching load.

BL COMMENT: That's a fair point, though not that in the case of Sullivan, she is a *name* partner!

Posted by: Darren Rosenblum | Jul 2, 2012 9:54:17 PM

Dean Don Lewis at Hamline University School of Law is a named partner at Nilan Johnson Lewis in Minneapolis.

Posted by: Jason Marisam | Jul 3, 2012 8:41:54 AM

They all must be exceptionally good time managers...

Posted by: Mark Tobin | Jul 3, 2012 10:54:52 AM

Historically, the ABA busts non-elite law schools over faculty members engaging in too much practice. As I understand it, the unannounced but general standard is to limit practice to one day a week and no more than "of counsel" identification. Some schools have been forced to get affidavits from their faculty on the practice issue.

Of course, the ABA does not regulate the elite law schools, so this practice of their faculty members may be longstanding. Do the elite schools self-regulate outside practice?

Posted by: Professor Emeritus | Jul 3, 2012 8:52:50 PM

I think the real question is the number of these professors who are transactional lawyers. I don't see how it is possible to do an equal load of corporate/securities transactional work and do the business of law professor or dean. Even as a partner, your time is too client driven. However, other fields like litigation, tax, etc. permit the partner to manage her time in a way that is conducive to juggling. (Not to diminish the extra effort many of these people must put in.) At least, Katyal and Sullivan are litigators. I haven't looked into the rest.

Posted by: Brlukath | Jul 5, 2012 5:03:58 AM

I thought the comment on JD/PhD model for hiring was a bit off point. I think the response is to the view that only JD/PhD's should be hired, which is of course silly, but not an unheard of opinion. A PhD can help in the analytical thinking for practice, and for some areas knowledge of another area can enhance legal practice. I would look to see if the PhD has shaped analytical and writing abilities rather than dismiss such candidates out right. One can accuse me of being self-serving or self-interested, but I think there are several good examples to support my point. The broader point is let a million flowers bloom rather than focus on one profile of law professor.
I am not sure what the big deal is. After several years teaching whatever load, one should be on top of a subject and so preparation time is cut down, except for what is needed to keep up with the field. Practice helps with that. As law professors, we are blessed with almost complete control over our time, and we have a lot of time to spare even with service, teaching and writing. I would be concerned about how pratice shapes scholarship. It can do so in a positive way, but practicing attorneys can suffer from tunnel vision. One hopes tht this does not affect scholarship. Then again such influence should be transparent, and all scholarship should be read with a critical eye.

Posted by: Shubha Ghosh | Jul 5, 2012 5:06:14 AM

So far as students are concerned, I suspect that they will accept any time tradeoffs if they can remain exposed highly accomplished professors who are likely also to be better able to assist with placement. They will not see directly service, scholarship, and broader institutional costs, and will not be concerned with them.

Schools, however, should be, even putting aside ethical/principal-agent problems. Unless such professors formally renounce sleep or triathlons or disown children, they will deemphasize scholarship and service and student contact, even if they still manage to meet the standards of the least productive of their colleagues (a different question). Their diversion of their surplus may be resisted for bad reasons – jealousy, fear by slackers that it exposes their racket - but it is a conspicuous signal that these individuals have excess capacity that they are not devoting to their nominally full-time faculty jobs.

One would think that schools would announce such affiliations proudly while declaring that the faculty would be continuing at a reduced salary and surrendering the non-economic benefit of tenure - or that if tenure is to be retained, that the schools have received particularly credible and enforceable commitments to teaching, scholarship, and service beyond what they require of others. I bet keep commitments/concessions private, out of deference.

But failing to extract and make public such commitments/concessions casts doubt on whether schools make sufficient demands on the time of other professors. Most faculty work hard enough that they could not also manage partner-level practice, but this is largely voluntary, and these times challenge whether it is acceptable to proceed simply on the basis of faith. This spirit is also seriously undermined if colleagues conspicuously divert their time to private pursuits without making concessions to the school – that is, professors not pursuing (or realizing) partnerships can rationalize indolence as simply spending the same amount of time doing nothing that others use to pursue additional income. Finally, if I were an adjunct in private practice, giving my time to a school for little money and some professional luster, I would wonder at those who can maintain a “real” faculty position and practice at this level, and suspect that the difference is primarily past accomplishments and continuing sinecures.

Put more succinctly, I think these arrangements might be tolerable, and sometimes benefit everyone, but unless they transparently reflect compromise they needlessly tend to impugn and degrade the profession.

Posted by: Fulltime Faculty | Jul 5, 2012 8:49:36 AM

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