Memorandum

EDUARDO M. PENALVER ‘94

Allan R. Tessler Dean and Professor of Law 

263 Myron Taylor Hall Ithaca, New York 14853-4901 T: 007.255.3527

F: 007.255.3876

E: eduardo.penalver@comell.edu

To:      University Faculty Senate Committee on Academic Programs and Policies

From: Eduardo M. Penalver, Allan R. Tessler Dean & Professor of Law

Date:   December 18, 2014

Re:       Proposal on Use of Professor of Practice Title

Having obtained the requisite internal approval by two-thirds votes of the tenure-track and non-tenure-track faculties respectively, the Law School proposes to use the title of Professor of the Practice in reference to a limited and defined group of long-term, non-tenure-track appointees whose primary responsibility will be skills and practice teaching in a classroom setting. This title will be available for use at the Assistant, Associate, and Full Professor of the Practice rank, with the expectation being that senior practitioners would come in at a senior rank but other appointees would normally move up a rank at each reappointment stage.

Our purposes are nicely captured by the preamble to the University’s enabling legislation of April 9, 2014:

• Whereas the 2002 enabling legislation that created the Clinical Professor titles was an effective first step in modernizing Cornell’s titles for non­ tenure-track faculty engaged heavily or exclusively in a primary teaching function, and
• Whereas Cornell could further benefit from the addition of the Professor of the Practice titles in common use at peer institutions, and
• Whereas the need for and value of these new titles are widely recognized across campus, and
• Whereas the 2002 enabling legislation, including its various process and approval requirements, provides an appropriate framework for the implementation of the Professor of the Practice titles as alternatives to the Clinical Professor titles.

The reference to the 2002 legislation’s purposes brings to mind its statement:

• Whereas an inadequacy in the current range of available academic titles makes it desirable to create a new non-tenure-track Clinical Professorial Title, and
• Whereas it is clearly important to recognize and reward the status, qualifications, and activities of those faculty members for whom such a title would be appropriate, and
• Whereas units need to improve recruitment and retention of such faculty-members, and
• Whereas, where appropriate and possible, units should be able to reclassify competitive candidates who are currently doing such work de facto, while employed as Lecturers or Senior Lecturers.

In 2005, the Law School instituted the title of Clinical Professor, for a limited and defined group of long-term, non-tenure-track appointees whose primary responsibility is skills and practice teaching in a clinic-like setting. Now in 2014, our renewed consideration of this issue, in connection with appointees who do such teaching in a classroom setting, has produced the following findings and conclusions:

1. Justification

As a combined graduate and professional school, Cornell Law School must instruct its students in both the theory and the practice of law. Indeed, according to the Preamble to the Standards for Approval of Law Schools, generated by the American Bar Association as the law-school accrediting body, all accredited law schools must provide “a curriculum that develops understanding of the theory, philosophy, role, and ramifications of the law and its institutions; skills of legal analysis, reasoning, and problem solving; oral and written communication; legal research; and other fundamental skills necessary to participate effectively in the legal profession.” To meet this mandate, the Law School has a rich lawyering-skills and practice curriculum. It starts in the first year with the required year-long “lawyering” course that focuses on mock cases simulating those the students will face as practicing attorneys, and continues with upper-level offerings that include ones in which the students represent actual clients in real cases under the

supervision of the clinical faculty. These courses are taught primarily, but not exclusively, by the Clinical Professors who constitute the Lawyering Program faculty and the various clinics’ faculty.

Over the years the Law School has expanded its skills and practice offerings in more traditional classroom offerings. For these, the limited range of titles currently available at the Law School compromises its ability to retain and recruit the best practice skills faculty, to maintain its standard of excellence in teaching the pertinent classes, and to ensure its national reputation in its law­ in-practice curriculum.

A review of existing title policies at other law schools reveals that almost all law schools, including virtually all peer schools, use a professorial title for their practice skills faculty. Thus, Cornell is now in a small-and steadily shrinking-minority of law schools that have not yet adopted a professor title for practice skills faculty. Given this widespread practice, the unavailability of the Professor of the Practice title undermines the morale of the Law School’s existing practice skills faculty, and it hinders the recruiting of top practice skills candidates with offers from competing law schools. As recognized by the majority of law schools and by the Ad Hoc Committee of the Faculty Senate on Non-Tenure Track Faculty at Cornell, this is a situation in which the old array of titles is “no longer commensurate with the qualifications and responsibilities” of the faculty who hold them. (August 20, 2004, Report of the Ad Hoc Committee of the Faculty Senate on Non-Tenure Track Faculty at Cornell, where it discusses the need for Research Scientist titles at page 9.) Having the Professor of the Practice title will add value to the Law School and allow it to accord deserved respect to its highly credentialed faculty who teach skills and practice.

B.      Description of Position

We envisage non-tenure-track positions similar to those of the Law School’s current law-in-practice faculty-the clinics’ faculty and Lawyering Program faculty-who focus on teaching professional skills in clinic-like settings.

Therefore, we first provide a description of these two positions. Unlike tenure-track faculty, clinic and Lawyering Program faculty are not expected to produce scholarship.

Clinical Faculty: Their teaching occurs in a clinical setting. The faculty create varied instructional materials such as lecture presentations; discussion questions; and simulation exercises, which the students perform and the faculty critique. Most of the clinic’s teaching, however, is performed in the context of individual supervision of student representation of real clients. In the course of that representation, the students learn, inter alia, to interview and counsel clients, investigate facts, plan case strategy, engage in discovery, resolve ethical dilemmas, and appear before administrative hearing officers and judges in both motion and trial practice. The faculty must challenge the students to utilize their fullest abilities, while providing sufficient support as the students assume the lawyer role for the first time. The faculty are to model excellence in practice skills and instill a commitment to high ethical standards of practice.

Moreover, the faculty are expected to contribute to the Law School, the University, and the larger legal community through membership in faculty committees; service as student advisors; and participation in local, state, and national legal-education organizations, bar associations, and organizations serving the interests of the clinics’ clients.

Lawyering Program Faculty: As to teaching, they prepare interactive classroom sessions, lectures, and in-class skills-related simulations for their year-long lawyering course. Through a series of simulated problems, which the faculty research and design for that course, they instruct students how to identify and analyze legal issues, investigate and develop facts, master several forms of legal writing, and engage in written and oral advocacy. The faculty also extensively train, and closely supervise the work, of upper-class students who serve as teaching assistants. Some of the faculty additionally teach upper-level courses, either skills-based seminars or clinical courses. As to one-on-one teaching, the faculty provide students with in-depth written critiques of their work and regularly meet with them to discuss progress on writing and other assignments.

Moreover, the faculty are expected to engage in collegial contributions similar to the clinical faculty. In addition, Lawyering Program faculty commit substantial time to their program’s development.

New Professors of the Practice: We expect these teachers to teach more traditional classes, but to focus them on the practice of law rather than overtly on the theory of law. They would be top lawyers, who come into the academy usually after substantial practice and who are now prepared to share their experience with students. In the words of the enabling legislation, they would be persons “who are distinguished and highly experienced individuals in a relevant field of professional practice and who can provide effective, practice oriented instruction in areas that supplement the core pedagogical instruction provided by the tenured and tenure track faculty.”

While specific responsibilities will vary by the individual and by the school’s needs, two primary responsibilities will be part of each Professor of the Practice position: (1) substantive teaching responsibilities in degree programs and (2) responsibilities to contribute to the school’s mission over and above his or her teaching contribution.

1. Terms of Appointment

Nature of Search for Candidates: The current Lawyering Program and clinical faculty members, all of whom are designated Clinical Professors of various rank, were hired following a serious search. In future hiring of Professor of the Practice positions, the Law School will conduct a serious search, utilizing the conventional means for such law professor searches.

Required Credentials of Candidates: Applicants for the position of Assistant Professor of the Practice shall have a J.D. or the equivalent, excellent practice credentials, and preferably some academic credentials. Applicants for the position of Associate or Full Professor of the Practice must display the qualities sought in Assistant Professors of the Practice, but will be held to a higher standard of performance. Appointment will be governed by Sections 14 and 15 of the Cornell Law School Policies and Procedures Governing Faculty Appointments, as amended through December 7, 2005, which currently apply to appointment of Clinical Professors.

Appointment Approval Process: The approval process will follow the provisions set forth in Section 3 of the Cornell Law School Policies and Procedures Governing Faculty Appointments, which currently applies to Clinical Professor positions.

Length of Appointments: Assistant and Associate Professors of the Practice normally shall be appointed for a term of three years. Full Professors of the Practice normally shall be appointed for a term of five years. Shorter terms may be appropriate for initial probationary appointments or to meet short­ term needs. Appointments shall be renewable indefinitely.

Possibility of Movement between Non-Tenure-Track and Tenure-Track Paths: Movement between the non-tenure-track and tenure-track paths shall be governed by Section 3 of the Cornell Law School Policies and Procedures Governing Faculty Appointments.

Procedures for Renewal and Promotion: The procedures for renewal and promotion shall be governed by Section 3 of the Cornell Law School Policies and Procedures Governing Faculty Appointments. The appointment of a holder of any Professor of the Practice title whose appointment is not renewed shall extend for two academic terms after receiving notice of nonrenewal.

D.     Percentage Limitation

We currently plan that the total number of Professors of the Practice and Clinical Professors will not exceed 25% of the number of tenure-track faculty after any appointment. But the limit is presenting problems for the Law School, and we also plan to petition for relief from it.

1. Voting and Other Rights

The Law School plans no changes in rights by going from a lecturer title system for practice skills to a Professor of the Practice title system. Currently, those lecturers have limited voting rights in conformity with University legislation, and they have full access to the grievance and appeals processes available to tenure-track faculty (Policies and Procedures Governing Faculty Appointments; Academic Grievance Procedures, adopted by the Law Faculty on March 3, 1976). No change is proposed thereto.

F. Impact Statement

Use of the Professor of the Practice title will be limited to non-tenure-track faculty engaged in skills and practice teaching, persons who are now titled as Lecturers or Senior Lecturers or as adjuncts. Some current holders of these positions will be retained and will have their designations changed to one of the Professor of the Practice titles. This proposal will have no effect on other non-tenure-track titles and their holders, now or in the future.

Accordingly, non-tenure-track positions under titles such as Research Associate and Distinguished Practitioner in Residence will continue. No tenure-track or non-tenure-track faculty positions will be eliminated as a result of this proposal.

1. Preamble

   In 2002, the Faculty Senate approved the creation of new, non-tenure-track Clinical Professor titles. In 2014, the Senate amended that legislation to authorize the use of the Professor of Practice title as an alternate nomenclature for this form of professorial title when more appropriate for a particular academic unit. Both actions were in response to the fact that Cornell, in sharp contrast to its peers, lacked any professorial titles for those holding academic appointments that were focused heavily or exclusively on a primary teaching function. The Senate concluded that the lack of such titles put the University at a competitive disadvantage in terms of recruiting and retaining such faculty members.

   The Committee on Academic Freedom and Professional Status of Faculty has now turned to the final step in modernizing Cornell’s professorial designations – the adoption of the Research Professor titles. With the exception of Cornell, virtually all top U.S. research universities now use the Research Professor titles for non-tenure track faculty engaged primarily or exclusively in research related activity. Cornell considered this possibility in 2002, at the same time it created the Clinical Professor title, but for a variety of reasons this initiative stalled. In its stead, the University adopted the Research Scientist and Principal Research Scientist titles in an attempt to describe this category of academic appointments. In addition, Cornell had previously recognized, but seldom used, a Senior Scientist title with a description confusingly similar to that of Principal Research Scientist.

   Cornell’s idiosyncratic approach has been unsuccessful. Deans and department chairs consistently report that some efforts to attract highly qualified people into such roles have failed due to the lack of a professorial title that is equivalent to what all of our peer institutions now offer. Funding agencies are understandably unfamiliar with the Research Scientist titles and are therefore potentially less favorable towards grant applications than they would be if such proposals came from academics holding a generally recognized professorial title. And very strong concerns about the lack of these nationally recognized professorial titles have repeatedly surfaced in the context of Cornell’s greatest hiring challenge – dual career recruitment – where the dual career partner is reluctant to accept an idiosyncratic title that is distinctly inferior to what all other research universities now offer.
   Whereas the adoption of the Clinical Professor and Professor of Practice titles were major steps in modernizing Cornell’s titles, and
   Whereas Cornell could further benefit from the final step of adopting the Research Professor titles now in use at essentially all major research universities,

   BE IT RESOLVED THAT THIS ENABLING LEGISLATION BE ADOPTED.

2. Purpose of Enabling Legislation

   The purpose of this legislation is to allow units, at their option, but in accordance with the process and requirements set forth below, to use the title of Research Professor in reference to a limited and defined group of long-term, non-tenure-track appointments. This title will be available for use at the Assistant, Associate and Full Professor rank, modifiable when appropriate by the term “visiting.”

3. Limited Availability of Research Professor title

   The title of Research Professor is available only for long term, non-tenure-track faculty who are distinguished and highly experienced individuals in a relevant field of research. To qualify for the title, such individuals are expected to have achieved significant stature in the scholarly discipline, to have demonstrated the quality of research accomplishment appropriate to initiating independent research programs, and to have demonstrated a trajectory that promises a continued high level of achievement. Their primary responsibilities include initiating new research activities; creating and managing research laboratories; seeking funding opportunities, submitting proposals, and fulfilling the terms of research grants and contracts; planning, conducting and reporting on original research; and representing their research groups externally. Persons appointed to these titles may serve routinely as principal investigators on grants and contracts. The title of Research Professor may not be used for positions whose responsibilities substantially replicate those of tenure-track faculty. Accordingly, such individuals normally are not permitted to teach courses for credit. In the event that some teaching of courses for credit is requested by the appointing department, this teaching must be consistent with the terms of the individual’s funding and must be approved by the dean. When such teaching is assigned, care must be taken not to shift teaching expense inappropriately to research grants or contracts. In no case should such an individual teach for an extended consecutive period.

4. Additional Restrictions and Requirements

   A. Terms of Appointment. Terms of positions bearing these titles shall normally be up to five years. Unless otherwise specified, they shall be renewable indefinitely. While there may be a transition period before research funding supports the position, appointments normally are expected to be supported largely by such funds; other funding sources are permitted. The offer and appointment letters should include notification that the appointment may be terminated early or modified if funding is withdrawn or reduced. Nonrenewal or early termination of appointment also may occur on the basis of other significant resource constraints, unreliable funding prospects, seriously diminished interest in the research area or relevance to the appointing unit’s research mission, or performance.
   B. Appointment, Reappointment and Promotion Processes. Search procedures should generally follow those used by a department to fill other professorial positions. A dossier-based review must be conducted for initial appointment. Through an exception approved by the department chair and the dean, the dossier-based review may be conducted during the first year, with continued appointment contingent on successful review. This dossier shall typically include letters from confidential external referees, letters from participants in current or recent research programs, a report of the faculty vote, and an analytical recommendation by the department chair to the dean, who makes the ultimate decision about appointment. Promotions to the associate and full professor ranks, as well as reappointment at any rank at the end of a fixed term, should generally follow procedures used for other professorial-level appointments.
   C. Voting/University Faculty Membership. Research Professors are not members of the University Faculty. They are nonvoting members of their college or school faculty unless given the right to vote by the particular faculty.
   D. Relationship to Existing Titles. Because the Research Professor titles are intended to replace the current Research Scientist, Principal Research Scientist, and Senior Scientist titles, individuals holding such titles may convert, with the approval of the department and the dean, to the appropriate level of Research Professor. An individual currently holding a Research Scientist, Principal Research Scientist, and Senior Scientist titles who is not approved to move to the Research Professor title or does not wish to do so may remain in the current title subject to all applicable conditions. There shall be no new appointments to the Research Scientist, Principal Research Scientist, and Senior Scientist titles. Individuals holding other academic titles, including Research Associate and Senior Research Associate cannot convert to Research Professor titles, but may seek appointment to such titles through the normal appointment processes noted in IV.B. above.
   E. Membership on Graduate Committees. Individuals holding Research Professor titles shall have the same opportunities for and restrictions on membership on graduate committees that currently pertain to the Research Scientist, Principal Research Scientist, and Senior Scientist titles. Such individuals are eligible to be nominated as a general or minor member of a graduate field’s faculty according to the procedures of the Code of Legislation of the Graduate Faculty.

5. Proposal Process

   A college or school that wishes to adopt the Research Professor title must take the following steps:
   A. Sponsors must prepare a written proposal for use of the title in accordance with the requirements of sections VI below.
   B. The proposal must be approved by at least two-thirds of those voting, in separately tabulated votes, of tenure-track and of non-tenure-track faculty respectively of the originating college or school. The non-tenure-track faculty shall consist of the group of individuals in the college or school holding Research Scientist, Principal Research Scientist, and Senior Scientist titles
   C. A proposal so approved will come before the University Committee on Academic Policies and Procedures (CAPP) for review of its conformity to the requirements of section VI below. After submission to CAPP, such a proposal will be distributed to University faculty and distributed to or electronically posted for other interested parties for a period of 60 days before action by CAPP in order to invite public comment.
   D. At the end of the comment period, CAPP shall review the proposal in order to determine whether it complies with the requirements of this enabling legislation. In conducting such a review, the committee is not to substitute its judgment for that of the originating college or school as to the need for or wisdom of the college’s or school’s adoption of the Research Professor title.
   E. If CAPP determines that the proposal meets the requirements of this enabling legislation, it will report the proposal to the Senate, which will approve or deny the proposal by a majority vote based on the Senate’s determination of whether the proposal complies with the requirements of this legislation. If CAPP determines that the proposal fails to meet the requirements of this legislation, it shall furnish a written explanation of this determination to the college or school submitting the proposal.

6. Proposal Contents

   The written proposal of a college or school that seeks to use the title of Research Professor must include the following provisions.
   A. Justification. A proposal for adoption of the Research Professor title shall include a statement offering justification for adoption of the title within the originating college or school and explaining why existing titles for non-tenure-track faculty are insufficient for staffing and recruitment. The practices of peer schools and the impact of available titles on recruitment efforts may be of particular relevance in this regard.
   B. Description of Position. The proposal shall describe as precisely as possible the functions and responsibilities of positions bearing the title and the anticipated distribution of such positions within the college or school.
   C. Terms of Appointment. The proposal shall include a summary of the terms on which candidates will be appointed and reappointed to such positions and promoted from one to another. These terms should include: the nature of the search by which applications will be elicited; the credentials required by holders of these positions; the levels (department, college, university) at which approval for individual appointments is necessary; the length of appointments; the possibilities open to appointees for movement between non-tenure-track and tenure-track paths; and procedures for renewal and promotion open to appointees.
   D. Percentage Limitation. The proposal shall include a statement restricting the creation of positions in the proposed titles to a certain percentage of the tenure-track faculty of the originating college and of the tenure-track faculty in those departments or programs where those positions are located. The percentage of positions bearing the titles may not exceed 10% of the existing tenure-track faculty positions in the college or 10% of the tenure-track positions in those departments or programs where those positions are located, except as herein provided. A higher percentage may be afforded if, but only if, the relevant college, department, or program makes an overpowering showing that: (1) there is a need for the higher percentage; (2) the Research Professor positions in question would not replicate the functions of positions ordinarily held by tenured or tenure-track faculty; and (3) any additional Research Professor positions in a department or program would not detract in any way from the potential for adding tenured or tenure-track positions in that department or program.
   E. Voting and Other Rights. The proposal shall define the rights and responsibilities of appointees in the proposed titles, including their voting status in their departments and colleges or schools, and their access to grievance and appeals processes available to tenure-track faculty.
   F. Impact Statement. The proposal shall contain an appraisal of the impact of creating the new positions on existing tenure-track and non-tenure-track academic titles and their holders. This appraisal should indicate whether and in what ways current holders of nontenure-track titles will be eligible for appointment to the new positions and whether their current positions will be protected against elimination by the new positions.

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