Monday, August 2, 2010
The Southeastern Association of Law Schools (SEALS) is holding its 2010 Annual Conference at The Breakers in Palm Beach, Florida. On Sunday, one of the best-attended panels was “The Status of Legal Writing Faculty in the Academy.”
Stephanie Vaughan (Stetson University College of Law) served as moderator of the panel.
Dean Richard Matasar (New York Law School) began the panel by challenging the audience to change fundamental thinking on legal education. He urged a shift from the question of “what about me” to “what about our students” and suggested that the focus of the discussion on the future of legal education needs to shift to the needs of students.
Dean Matasar noted that law schools have a number of different models for teaching legal writing. After some of these models, he concluded that he was not interested in any particular format as much as actually delivering skills education to students. His mantra is the question: “what are we trying to do for our students?” He stated that the idea that we can treat research and writing as a separate course is not optimal and that the entire law school must embrace a shared responsibility for education (including skills education). He said that we need to challenge assumptions and challenge the separation of teaching research and writing from substantive learning.
He said that all professors should see themselves as members of a team and that we should examine “the degree to which we outsource [the teaching of legal writing] within our institutions.” He encouraged new thinking on a shared responsibility among all faculty and all of courses. He noted that advances in new technology allow us to do achieve greater integration of teaching and learning. Dean Matasar also emphasized that research and writing are not separate from the other skills needed. He noted that the recent proposal put forward by the Standards and Review Committee of the ABA Section of Legal Education had “been greeted with open-mouthed fear.” That proposal would not require schools to offer tenure.
Dean Matasar challenged the assumptions of privilege and said it should not be the case that “if we are mediocre we cannot be removed.” Returning to a focus on students, he noted that the cost of legal education is going up because faculty salaries constantly increase. He noted that only a handful of schools in the country now charge less than $10,000 a year in tuition, and that tuition at some schools can be as high as $39,000 a year, $43,000 a year, or even $50,000 a year. He noted that even in this economy, schools will cancel books before removing faculty. He wondered how that affected the education that students receive and that students deserve the best education they can receive. He said that his institution (New York Law School) had engaged in a multi-year discussion on how to improve legal education and that the institution’s primary objective was “to do right by our students.”
Linda Barris (University of Louisville, Louis D. Brandeis School of Law) described her experience teaching in capped legal writing programs, in long-term contract programs, and as a visiting professor of law. She described the challenges and pressures of having to teach an ever-increasing collection of skills, a situation compounded by the need to master and teach all of the latest technological developments. She explained that some schools handle this pressure to teach more skills by adding advanced level courses for research and writing, but noted that many schools simply dump additional requirements into the existing first-year legal writing curriculum. Additionally, these first-year classes have students who today need even more training in skills training and analysis, but there is no additional time or resources given to those classes. Professor Barris stated that the dumping of additional skills requirements has the greater impact on the group of professors who, because of their status within the academy, have the weakest job security.
He lamented a decline in basic writing skills of entering law school graduates and suggested that elementary and secondary schools have abdicated responsibilities to teach writing. He suggested that the legal academy should anticipate potential demand-side pressure for stronger writing programs. Law firms will demand stronger research and writing skills of graduates. Law firms need to earn a profit earlier from the work product of their associates and will insist that law school graduates have reliable credentials to demonstrate strong research and writing skills. He suggested that law firms may start using writing tests as part of the hiring process. (For example, a law firm could give a writing problem and a couple of cases to job applicants and ask them to write a memorandum under controlled situations that allow the firm to see the person’s actual writing skills.) He predicted that law firms will pressure law schools to do a better job of teaching legal writing.
Jane E. Cross (Nova Southeastern University Shepard Broad Law Center) presented data from the LWI Survey on Legal Writing Programs and showed an increase in the number of tenure-track programs in the legal academy. She noted, however, that outside the legal academy there is a trend away from increasing the number of tenured positions. She quoted the following statement from the Society of American Law Teachers (SALT) on the impact on faculty diversity, which identified a risk of creating a two-tier system within the academy:
Because those who already have tenure will likely retain it, the impact of removing a presumption of tenure-track hiring will fall primarily on new faculty. Because the legal academy remains insufficiently diverse, a change now will risk creating a two-tier system in which people of color may be disproportionately relegated to untenured positions, while the still predominantly white and male tenured professoriate will retain privileged positions.
She presented statistics on the ethnic diversity of legal writing professors and noted favorably the Diversity Initiative recently undertaken by the Legal Writing Institute. She referenced statistics from the Association of American Law Schools on the large number of minority women who want to enter the legal academy and noted relative difficulties that minority women experience in achieving tenure. She related this to the increasing number of minority students entering law school. She also quoted the 2000 preliminary report on Law School Faculty Views on Diversity in the Classroom and Law School Community:
Overall, the survey results show that law school faculty members value racial and ethnic diversity and believe that it is also valued by their law schools . . . . Faculty feel strongly that having both a diverse student and faculty population is important to the mission of law schools. Diversity is seen by faculty to have positive effects in the classroom, contributing to the educational experience of their students in a variety of ways. It is interesting that law faculty respondents felt that white students in particular, as well as the student population in general, benefit from diversity. Very few see any negative effects of diversity and there is little support for the assertion that diversity has lowered the quality of their law schools or the quality of students admitted to their schools.
Jane Cross’s mother opened the questioning. She was vice chancellor at CUNY and spoke about her experience in writing across the curriculum. When she tried to institute a similar program at another university where she was the university president, she recognized that not all of the professors were able to teach writing. Dean Matasar agreed that not all professors can teach writing but said that the entire faculty had to assume responsibility for writing.
Dean Matasar answered that without any competitive pressures to make changes, the legal academy will not improve legal education for students. He spoke against expanding positional privilege without giving back to the educational mission.
The questioning continued for a while until a dean from a school in Georgia said that the panel sounded like a labor union meeting and the topic had been discussed each year without advancing the discussion. Jane Cross and others took strong exception to that view and other professors in the audience pointed out that they did not fully realize how student perceptions of faculty status affected how students approach their legal writing classes.
Dean Matasar noted the monumental shift being proposed in legal education to measure outcomes rather than inputs. He concluded that merely dumping additional teaching responsibilities into the first year writing course was not an answer because “it would not improve the output.”
Legal writing professors and others who attended the session are invited to post additional comments about the program.
Mark E. Wojcik (mew)
The John Marshall Law School