Monday, September 5, 2022
The Two Legal Academies, Part III: Teaching
In the first post in this series, I said that I have come to believe that there are at least two legal academies, and I argued that there are two job search processes operating on parallel tracks. Top schools grab established scholars from rivals or less well-ranked institutions and make entry-level hires to Ph.D.'s and people who recently completed positions as visiting assistant professors (VAPs) in top programs. But in the job market in which I operate, we don't especially prize Ph.D.s (not that there's anything wrong with it), and the top people won't take our offers anyway. We look for scholarly promise, commitment to teaching, and practice experience to which our students can relate.
In the second post, I went into more detail about what separates The Legal Academy (LA) from The Other Legal Academy (OLA) in terms of scholarship. The two posts resonated with a lot of people on Twitter, but in that forum people emphasized more than I have the "at least" part in my opening post. I have not addressed the other parallel universes of legal writing instructors and clinicians, who may or may not be tenure-track, the world of adjuncts, or the experiences of people who teach law or in law-related fields on the college level. I won't address those other parts of the legal academy much here either because other people are better situated than I am to do so.
Teaching burdens fall unequally throughout the academy, and inequities abound. But the point of these posts is not to highlight inequity. I envy people in the LA, but I do not resent them, nor do I think I deserve to be where they are. I've gotten good at what I do. I don't know if I would be successful in the LA. Also, I'm really grateful to be in the OLA. I lost my job in 2020 when my law school closed, and my career prospects were grim as a 56-year-old professor emeritus of a no-longer-exiting law school. Being able to continue my career in the OLA is a privilege and a pleasure. I'm not throwing away my shot.
But what does that mean in the OLA? I'm no longer young, scrappy and hungry, but like most people (I think) and certainly like most professionals, I want my life to mean something. I noted in the previous post that I no longer think that my scholarship will have any impact. It seems comical that I ever did think that it would. Some people in the OLA focus on local issues and law reform, but I have never been that practical. I enjoy theoretical inquiry. I have wanted to be an academic since I was 18, and I never deviated. It's not that I never wanted to effect social change; I saw myself as one of the people that make sure that efforts at effecting social change have the proper, historically-rooted, economically sound, theoretical foundations. [Yes, I'm being self-mocking, but it's not far off.]
For reasons given in last post, I no longer have any confidence that my scholarship is any good. But I'm pretty confident that I'm a good teacher, and for the last decade or so, my professional identity has been dominated by efforts at improving in that realm, because that is in my view, without question, the most important thing we do in the OLA. To be honest, I think teaching is also the most important thing going on in the LA, but there, because the students are largely self-sufficient, it is enough to do no harm in the classroom, and I think endowed chairs are rarely awarded in the LA for great teaching. It is easier in the LA to think of oneself primarily as a scholar. Back when I was on the job market, I occasionally had screener interviews with LA schools in which teaching never came up.
We teach a lot in the OLA, although it's nothing compared to the teaching load of legal writing instructors and clinicians or of people who teach undergraduates. [Sidebar: one of the reasons why people in the OLA should never feel sorry for themselves is that we get paid twice as much to teach half the course load, and we don't have to publish (at least) a book for tenure.] The teaching load in the OLA is not that different from the LA -- usually 2/2 -- but sabbaticals are rare, and you only get one semester off. One can get a break from service responsibilities by visiting at another law school, but very few OLA professors do so. I was able to do so a couple of times earlier in my career, but such positions tend to arise at the last minute, as associate deans scramble to address emergency needs, and an OLA professor can't jump ship in June or July without creating an emergency for their own associate dean.
The bigger difference, at the law schools where I have mostly taught, is that half of the admitted class will only pass the bar with the help of courses designed to help them to do so. I have my views about having to teach to the test, but I say my secular version of the serenity prayer and work with the cards I've been dealt. What this means on the practical level is that I do bar prep in first-year contracts, and I do it again when I teach sales. That means that I focus a lot on doctrine, which is not surprising, but also that I give assessments throughout the semester that test students' knowledge, build their legal writing skills, and help them develop UBE-specific test-taking strategies.
What follows is idiosyncratic. I'm not claiming that what I do is typical of teaching in the OLA. I'm only saying that I do this because I'm in the OLA. It would be a waste of time for students at top law schools. I'm also not suggesting that others should do what I do. There are lots of ways to be a dedicated law professor in the OLA. This is one.
I won't go into the details of the assignments, but I spend 10-12 weekends during the Fall semester grading homework. I have 70-80 contracts students each Fall, so I don't grade them all every week, but there are three different types of homework, and each student gets graded on each type at least once. They each get feedback from me on their homework five times over the course of the semester in addition to the in-class midterm. I also invite students to submit for my comments any of the half-dozen or so practice essays I assign over the course of the semester and which we go over in class. Not very many students take advantage of the option of turning in draft essays, but the option is there for those who do.
In the Spring semester contracts course, I replace the homework with three quizzes scattered throughout the semester. At the beginning of the semester the students are disappointed, because they like the feedback. I have three reasons for not continuing: they have already gotten the main benefit of the early feedback; they have an additional doctrinal course in the Spring and so are more pressed for time; and most importantly, I just don't think I could keep up the grading through both semesters without getting burnt out. Legal writing instructors, I salute you.
I admit it. Grading is the part of the job I like least. I used to think it was because student writing is sometimes miserable, but I have come to realize that each grading episode is a fresh encounter with my own pedagogical shortcomings. I recite Beckett's version of the serenity prayer: "Ever tried. Ever failed. No matter. Try Again. Fail again. Fail better." Also, not throwing away my shot (right).
Bar prep is not the only thing I do when I teach contracts. We talk policy, I introduce them to various jurisprudential approaches, and I still believe that there is such a thing as "thinking like a lawyer," so I try to make that a theme as well. I divide my class into two sections of 35-40, and on a typical day, I engage 20-25 of them in each section in some sort of Socratic exchange. On the best days (thanks, Lucy v. Zehmer and Leonard v. PepsiCo.!), every student talks. I'm emphasizing the bar prep component in this post because that's what makes my experience of teaching in the OLA so very different from teaching in the LA. At least, I think it does. I've never taught in the LA, so I am to some extent engaged in conjecture, but when I was a law student, I did not think about the bar exam at all until I had to prepare for it, and I don't recall any references to bar prep in any of my courses.
There are other differences that matter. I have been called paternalistic and authoritarian on Twitter because I take attendance and think students are better off without their laptops. So be it. I have written about the former here and here. I am told that my students are adults. I don't disagree exactly, but I think it is more accurate to say that they are emerging adults. In any case, they don't always make good decisions. If you think otherwise, talk to your dean of students. They'll have some stories to tell. I am unpersuaded that the best way to respect my students' autonomy is to do nothing to nudge them towards a disciplined approach to their legal education. I bind my students to the mast so that they may experience autonomy free from caprice. But I would be less of a paternalist if I taught in the LA, where I could be confident that my students would have successful law careers without such nudges.
The other difference is that my students are not my peers, and almost none of them ever will be. The analogy to Canadian hockey players that I employed in the last post was lifted from a post I wrote years ago about the challenges my students face:
By the time these students arrive at law school, they seem less intelligent, less dedicated, less disciplined, less professional and less mature than students at higher ranked schools. Standardized tests tells us this is the case. They are none of those things. They are bright, ambitious people who were born in December. They never got the training that the students born in January got. They never were asked to compete on the same level. They never got the same encouragement. They sat out entire seasons due to outside pressures that prevented them from focusing on their own careers.
And now they arrive at law school, and nothing as changed. . . . They are still subject to the same outside pressures that prevented them from getting the most out of their college educational experiences. . . . No matter how many times we tell them that being a law student is a full-time job, the message does not sink in for students from families who think of school as a part-time endeavor supplemented with a "real job." . . . When I confronted my students in a bar prep course on contracts. . . with evidence showing that almost none of our graduates who worked while studying for the bar passed the bar exam, they responded with outraged exclamations: "Well, I've gotta eat!"
I derive a lot of pleasure from helping my students, but my students cannot regularly help me. I hire them as research assistants to try to help them become better researchers and writers. Only rarely can I use their work. For the most part, I can't bounce scholarly ideas off of them and expect valuable feedback. I have a special FaceBook page so that I can keep up socially with former students. Our professional paths do not cross once they graduate. All told, as far as I know, I have had two students in all my years of teaching who have gone into law teaching, even on the adjunct level. I have had one law student with a Ph.D. In short, what. I do in the OLA is vocational training. It is not graduate school, and I think in the LA it is (or can be) something of a hybrid.
This difference does not affect my professional life. It is my professional life. And I'll stop there. On this Labor Day, I have student papers to respond to.
Thanks for the kind words! Best of luck on your potential return to the academy.
Posted by: Jeremy Telman | Oct 24, 2022 5:59:03 PM
Love love love this article (and the whole series)! As I am in the process of exploring a return to academia, this resonates deeply. I had forgotten how much I enjoyed this blog back when I taught Contracts (2012-15) and I am so glad you are still at it and it is thriving! Please know that the places you have chosen to deploy your writing skills are serving the unfathomably valuable purposes of inspiration, encouragement, and fostering of creativity for your kindred spirits. THIS KIND OF WRITING MATTERS AND MAKES A DIFFERENCE, and you do it WELL, and in the face of challenges & setbacks aplenty, so many many thanks.
Posted by: Chris Osborn | Oct 24, 2022 9:14:12 AM