Thursday, August 5, 2010

Thoughts on the Status of Legal Writing Professors from Professor Ralph Brill

Brill, Ralph Professor Ralph Brill of the Chicago-Kent College of Law posted a message this week on the Legal Writing Listserve that has generated a great deal of discussion.  With his permission, we excerpt portions of his message and share them with you here.  They were written in response to the post by Blog Editor Mark Wojcik, who reported on a session held at the SEALS Conference.  Dean Richard Matasar of New York Law School was one of the speakers at that session.  Click here to read that earlier post. 

Here are excerpts from the comments from Professor Brill:

Dean Matasar as chair of ALDA is the prime mover for removing the provisions on job security from the current ABA Standards, and, if passed, there will be major impact at some schools on how and by whom Legal Writing is taught. Specifically,  the current draft  405 would repeal 405(c) and 405(d), and would provide all full-time faculty (including LW and clinical faculty) and even some part-time faculty "academic freedom." Academic Freedom is a vague standard, with which organizations such as the AAUP have struggled for many years. The proposed standards will stress as the chief component of accreditation a school’s outcomes assessment. However, outcome assessment issues are very much tied up with the security of position and academic freedom/governance issues -- because if LW and clinical faculty don't have an equal vote, how can they shape the curriculum to focus on outcomes assessment, specifically outcome assessment in Legal Writing courses?


In his response [to the Legal Writing List Serve earlier this week], Dean Richard Matasar of New York Law School explained his position on the proposed changes to the ABA Standards, as they affect Legal Writing teachers, and the future of the profession.


“My position on security of position is only that it should not be an accreditation requirement. That is true of tenure or long-term contracts for full-time faculty, deans, librarians, LRW faculty, or other full-time faculty. I am in favor of assuring academic freedom to all of the above and making sure that the Standards for Accreditation include such protections. Further, I believe each school has the responsibility to ensure that it can attract a faculty sufficiently talented to teach the curriculum that students need to be effective at their jobs.  This means job security for many, perhaps all, full-time faculty at some schools. At others it does not.  The core of the talk I gave was that the full faculty is responsible for teaching all of the skills, that they need to divide this responsibility and cannot delegate it to a small portion of the community, that this responsibility cannot be outsourced, and that doctrinal and skills faculty must coordinate their efforts to focus on student outcomes, not on themselves and their perks.”


In his talk, Dean Matasar also said that the best model he had been exposed to was the Iowa model, in which the regular doctrinal teachers taught legal writing as part of their doctrinal courses, which he thinks is the best way to coordinate skills and doctrine. 


I should first like to point out some facts relevant to Dean Matasar’s position. 


The Iowa model is no longer the model at Iowa.  Since his departure from Iowa, where he was Professor and Associate Dean, Iowa has adopted the classic full-time Legal Writing teacher model, using long-term, renewable contracts for its very capable staff of dedicated Legal Writing teachers.  At both Chicago Kent and Florida, the schools at which Matasar served as dean before New York Law School, he eventually was induced to implement the long-term, continuous contract model now the predominant model in legal education.  They today continue to be staffed by highly competent and dedicated professionals at those two schools. 


Matasar recently has converted the New York Law School Legal Writing program from adjunct- taught to a program taught by full-time, long-term, continuous contract professionals.  Thus, even though he had the opportunity at Florida, Kent and NYLS to implement the Iowa program, for some reason he backed the format of hiring competent legal writing professionals and giving them the prevalent form of job security.


 However, as pointed out above, he now is the prime mover, along with other deans in the ALDA, advocating the abolition of the ABA standards which have helped bring about the present situation at most law schools – i.e., the full-time, continuous legal writing professionals, either on continuous contracts or with tenure.




The easy answer is that models based on job security are much more expensive than adjunct- taught programs, or programs similar to the old Iowa model where the doctrinal teachers integrate legal writing training in their doctrinal class.  What are the dangers of doing away with the present standards?  The easy answer is that these standards have stimulated law schools across the country to adopt long-term security programs to teach Legal Writing.  As the annual survey shows, the vast majority of schools now have such programs in place.  Accreditation teams were able to ask what steps an individual law school had taken to attract and keep qualified legal writing teachers?


What would be the dangers of adopting the model Dean Matasar thinks would be best – the doctrinal teachers absorbing skills training in their doctrinal courses? Obviously, the quality of any program depends on the people who teach it. Most of us  would surely agree that the present doctrinal first-year faculty at our schools are excellent or even superior teachers, who work hard at their jobs of teaching 1Ls.


Obviously he also is correct that one can’t teach legal writing in a vacuum, that the necessary skills must be tied to legal analysis and legal reasoning and synthesizing legal doctrine, which doctrinal courses are supposed to do.  So, what would the program be like at your school if your department were abolished and the job of teaching legal writing skills were turned over to the full time doctrinal faculty?


My guess is that at some schools, that system would work fine – for a while. The competent, dedicated teachers would give sufficient assignments, instruction, feedback, etc. for the group they would supervise. 


(1) But, we know there can be burnout over time in grading so many papers, and having conferences and keeping up with the best methods of teaching and grading the skills we teach in Legal Writing courses – that’s quite a lot for a Torts teacher or Contracts teacher to add on to the already difficult job of teaching the first year students Torts or Contracts.


(2) I am afraid that some doctrinal teachers would not be quite so diligent or proficient.  What I fear is that some Torts teacher, for example (I teach Torts), will give one memo assignment, treat the grade on it as part of the course grade for Torts, turn over legal research training to the library staff or a teaching assistant, make very few comments on papers, hold no individual student conferences, merely pass back to the students a sample of an excellent paper, and spend most of her/his time on Torts.


(3) While Matasar advocates abolishing tenure for all teachers, it would be unthinkable to assume that the doctrinal teachers would nevertheless be freed from obligations to publish scholarly articles in order to keep their jobs, earn promotions, and obtain salary increases.  Would these teachers really have time to devote to grading  multiple legal writing assignments in the same way that most of us now do in our Legal Writing courses?


(4) Moreover, his premise is not correct. Legal Writing is not currently taught in a doctrinal vacuum.  We all assign problems that involve interesting issues of legal doctrine.  For example, students who work on an Informed Consent problem in first semester Legal Writing will learn that subject so much more deeply than they will in a one hour discussion in their Torts class, which will be based on one main case and a few note cases and a hypothetical posed by the teacher; for Legal Writing assignment, the student will have read perhaps twenty cases on the subject, with varying fact situations, and differing viewpoints, and seen the historical development of the applicable rules, and then had to apply their analysis and the courts’ reasoning to a new situation to predict the result, distinguish apparently contrary views,


I apologize if I sound like I am beating this horse to death.  But I hope that more Legal Writing Professors can take an active interest in the course of the ABA Standards Review Committee’s hearings on whether to make the changes that Matasar and his friends are proposing.   I know that ALWD ‘s Task Force is preparing a document to weigh in on the issues.  CLEA and SALT and several individuals have filed statements as well.  And I know this is a difficult time, getting ready for the oncoming semester.  But my fear is that this Standards Review Committee process will speed up and there is a need for greater participation, if by nothing more than discussing the issues with your colleagues, legal writing or doctrinal, at your schools


Ralph Brill

Chicago Kent College of Law

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To add to Ralph's explanation, here's a little history from the AAUP's website:

"In 1900 when noted economist Edward Ross lost his job at Stanford University because Mrs. Leland Stanford didn't like his views on immigrant labor and railroad monopolies, other professors were watching. The incident stuck in the mind of Arthur O. Lovejoy, philosopher at Johns Hopkins. When he and John Dewey organized a meeting in 1915 to form an organization to ensure academic freedom for faculty members, the AAUP was born. 'Academic freedom' was a new idea then."

Also from the AAUP's website, an excerpt from its 1940 Statement on Academic Freedom and Tenure, generally regarded as the bedrock document on point:

"The purpose of this statement is to promote public understanding and support of academic freedom and tenure and agreement upon procedures to ensure them in colleges and universities. Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition.

"Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. It carries with it duties correlative with rights.

"Tenure is a means to certain ends; specifically: (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society."

Outside the law school context, it's generally understood in the academy in the U.S. that you need job security to have academic freedom.

Increasingly, U.S. universities have non-tenure-track (NTT) faculty members. To have some semblance of job security, many of them have established NTT faculty unions. Here at Southern Illinois University, the positions of non-tenure-track faculty in the law school are included in the NTT union's bargaining unit. I doubt anyone in the ABA or ALDA realizes that they may be creating conditions conducive to law faculties joining unions.


Posted by: Sue Liemer | Aug 5, 2010 11:01:53 AM

Why is Matasar in a position where he has any influence over anything? He was the dean of the University of Florida College of Law when I was a student there, and he was an abject failure. His main accomplishment was selling the naming rights to the school for a $10 million pledge. After he was forced out by the then-University President John Lombardi, he's since moved on to a third-rate school and managed to feather his nest by also working with a student loan company.

Again, why is this clown of any influence at all? Everything he does is motivated by money - any claim to the contrary is just him pretending to be a normal human being.

The fact that Matasar has an audience at all, or any influence to speak of, is frankly a failure of the academic community. If you are "too busy" to deal with the hassles that come with administration, or if you are simply unwilling to take extra time to work with the national associations, some idiot will eventually work his way up.

Posted by: Andrew F. | Oct 14, 2010 4:31:34 PM

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