UPDATE: Faculty Discussion of Scholarship [And/Versus?] Teaching

There are stranger bed fellows. Via cuteoverload.com.

In my last post I wrote about a (perhaps intentionally) provocative article suggesting that there was an inherent tension between law professor’s efforts at producing a sufficient volume of scholarship to merit tenure and doing an adequate job of teaching law students to be lawyers.  https://susannahpollvogt.wordpress.com/2010/09/08/law-schools-law-professors-scholarship-andversus-teaching/  In addition, the author of the article, Brent E. Newton, contended that the typical law professor is uniquely unqualified to teach law students to practice; rather, these professors are only qualified to produce reams of “impractical” scholarship.

I met with a number of interested colleagues over lunch to discuss the assertions and implications of this article.  And there was pretty much consensus that the thesis of the article rested on a number of false premises.

(1)  WHAT EXACTLY DOES “PRACTICE READY” MEAN? Newton takes as true that it is incumbent on law schools to ensure that their graduates are “practice ready”—a contention supported to some extent by the recommendations of the Carnegie Report, but that is also very much the product of pressure from law firms that are not interested in providing young attorneys with on-the-job apprenticeships.  But as one of our colleagues, Steven Pepper, pointed out, there is a limit to the extent that a law school can fully prepare students for the various types of practice and, more importantly, it is not clear that this is what law schools should be doing.  It is possible that law firms are inappropriately foisting certain aspects of professional training onto law schools, when law schools should instead be focusing on a generalized preparation for the competent and ethical practice of law.

(2) EXPLORING COMMON GROUND RATHER THAN RADICALLY CHANGING FACULTY COMPOSITION.  The essence of Newton’s proposal for improving law school teaching was to change the composition of the faculty—from scholars to practitioners.  While not everyone agreed on the nature or source, if any, of “the problem” with law school teaching, everyone in attendance did agree that the solution lies more in encouraging a robust discussion among the faculty of different teaching methodologies.  There are teaching methods being employed by doctrinal professors, clinical professors, writing professors, and professionals in charge of externship programs at DU that would enrich our individual understanding of possible approaches to law teaching.  Related to this, our colleague David Thomson advocated for “moving the conversation to the middle.”  (For further discussion of this concept, see David’s book, Law School 2.0.)  In short, in his article Newton presumes a serious and inevitable polarization between faculty that teach doctrine and faculty that teach practical skills.  Instead, we should be looking at the common ground in terms of teaching techniques that would be beneficial in all of the different law school settings where learning takes place.

(3) THE ECONOMICS OF CLASS SIZE.  Another focus of the Newton article was the importance of smaller class sizes to more effective teaching.  He implies that law professors themselves prefer larger classes, taught through the Socratic method, and concluding with a single final exam, because such classes require less effort.  It seems beyond contention that one can engage in more intensive instruction, and provide a larger volume and frequency of feedback, with a smaller class size.  But uniformly small classes are difficult to accomplish under the traditional economic model of legal education, which has historically rested on the efficiencies of large classes taught via Socratic method.   This is a barrier to law school educational reform that may well be out of the hands of the faculty as individuals or even collectively.  Then again, we discussed the perhaps under-explored possibility that there may be techniques–particularly guided self-assessment—that would permit students to receive helpful feedback without unrealistically increasing faculty workload in a class of 70 or more students.

(4)  ASK NOT, “HOW MUCH?” BUT, “WHAT KIND?”  For the most part we set aside the issue of Newton’s attack on legal scholarship as being of questionable quality and relevance to anyone outside of the article’s author herself.  We agreed that it is difficult to measure the social utility of scholarship.  But this does not necessarily imply that the solution should be a massive restriction in the volume of scholarship that is produced.   (Nor does it necessarily imply that such a reduction would automatically displace resources into improving teaching methods).  Instead, our colleague Sheila Hyatt aptly insisted that the relevant question was not “How much scholarship versus how much teaching?” but “What kind of scholarship, and what kind of teaching?”

All in all I came away with the sense that this is a faculty not polarized to the extent suggested by Newton’s article, and while we need to do some work in terms of formalizing or institutionalizing discussions of teaching methods, it is a topic of concern and interest to at least a substantial portion of the faculty.

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