Are Tenure Standards the Problem with Teaching?

This post is being submitted by one of my colleagues at WVU College of Law, Will Rhee. He read an earlier post and wanted to comment.

Enjoy

JMA

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This post is in response to Jena’s excellent earlier “In search of the Millenials” post. Instead of discussing the Millenials, however, I would like to examine Jena’s remark at the end of her post about the apparent “zero-sum game” between time spent teaching and time spent on scholarship.



Like Jena, I too am a pre-tenured law professor who would like to be both a good teacher and a good scholar. Numerous tenured law professors around the country have counseled me that as a pre-tenured professor I want to get a “B+” in teaching but not higher than that because a higher “grade” on teaching pre-tenure means I’ve “wasted” time on teaching that could have been dedicated to scholarly production. Moreover, I’ve heard the hackneyed phrase “legal scholarship is the coin of the realm” bandied around so many times during my relatively short time in the academy. While many pages have been written decrying the apparent conflict between these differentiated roles of law teacher and law professor, I believe that there are plenty of law professors like Jena and me who want to excel at both. As gatekeepers of the legal profession, I do think we have a sacred duty to train and prepare our students—the overwhelming number of whom will become practicing attorneys—for the legal profession. At the same time, I relish the variety and diversity of contemporary legal scholarship. I believe that law professors have a valid role to play as the connectors and bricoleurs of the academy. I love thinking and writing about law writ large—both practically and theoretically—and want to make a genuine scholarly contribution to the study of law.



An article authored by Brent Newton, an adjunct faculty member at Georgetown and Deputy Staff Director of the U.S. Sentencing Commission, entitled “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy” (also forthcoming in the South Carolina Law Review), argues that the legal academy’s obsession with so-called impractical scholarship is the primary obstacle to curricular reform. Newton writes, “[I]t will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law.” (p. 4).



My initial response to Newton’s provocative article is that while I applaud his candor and agree that the legal academy needs to have this conversation openly and transparently, I disagree with his conclusion as overly simplistic and caricatured. Just as many of our law students “train for the test,” I do think law professors—particularly pre-tenured ones—do allocate their time based upon the express or perceived norms of the legal academy. Instead of thinking that tenure standards are the problem, I believe that the lack of clarity over those norms is the problem. The accompanying problem, however, with this lack of clarity is the reality that opinions can, will, and should differ.



For example, there currently is an uproar over the ABA Section of Legal Education and Admissions to the Bar Outcome Measure’s Committee recommendation that the ABA “re-examine the current ABA Accreditation Standards and reframe them, as needed, to reduce their reliance on input measures and instead adopt a greater and more overt reliance on outcome measures.” (p.1) Whereas “outcome measures” are “accreditation criteria that concentrate on whether the law school has fulfilled its goals of imparting certain types of knowledge and enabling students to attain certain types of capacities, as well as achieving whatever other specific mission(s) the law school has adopted,” “input measures” are “accreditation criteria that concentrate on whether law schools are investing the right types and amounts of resources (such as physical plant, number of faculty, and budget) to achieve the goals identified in the accreditation standards and the school’s missions.” (p.3) As someone who dabbled with educational policy as a legal practitioner and, more importantly, who is married to an awesome high school teacher, I can attest that outcome measures are considered state-of-the-art in educational pedagogy. As the old adage goes, people only do well what the boss checks. Upon hearing of this current debate, my wife was mystified that the legal academy was even having this debate because K-12 teachers concluded decades ago that output measures is the way to go. In fact, the accountability component of the infamous No Child Left Behind law is premised upon outcome measures.



In my opinion, the challenge with outcome measures is not agreeing that they are a good idea in the abstract (they are) but rather getting agreement on them among independently-minded faculty and, even broader, among a very fractured legal profession. Pedagogically, it makes sense to say that we as teachers should clearly articulate what we expect our students to be able to know or do before we assess them on whether they actually know it or can do it. Likewise, we then can be held accountable through somewhat objective means to see if we actually successfully taught our students to know or do what we said we wanted them to know or do.



But what should our students know or be able to do? Good luck trying to get agreement on that essential question. Should we agree with the Carnegie Report (William Sullivan et al., Educating Lawyers: Preparation For The Practice of Law (2007)) that we need to cultivate all three “apprenticeships”—cognitive, expert practice, and ethical-social? Law school is short and the only time students can really learn doctrine and “how to think like a lawyer,” why not let students focus on that and leave becoming expert practitioners to the rest of their legal career? Given the financial crisis and the resulting fundamental—perhaps permanent—change to the nature of the practice of law and what clients are willing to pay, do law schools have an obligation to the practicing bar to produce graduates who are ready to hit the ground running and contribute substantively and financially to actual legal representation? Could law schools try to bridge the perceived gap between the JD and legal practice through more post-graduate work, LLMs, more rigorous CLEs, or even the MacCrate Report’s American Institute on the Practice of Law (The Task Force on Law Schools and the Profession, ABA Section of Legal Education and Admission to the Bar, Report of The Task Force on Law Schools and the Profession: Narrowing the Gap: An Educational Continuum (1992))?



More broadly, what is the purpose of a law school? Should we have different kinds of law schools or should all law schools seek to do the same basic things? What outcomes do we want to generate institutionally? Do we want to be the connectors and bricoleurs of the academy and generate cutting-edge original ideas unencumbered by the bonds of peer review? Do we want to create scholarship that the practicing bar actually reads and uses? Are we concerned with being labeled a trade school or are we a bona fide member of the academy? Do we really believe that every student can be a lawyer? Do we have a responsibility to weed out students who would be terrible lawyers? Do we really care about teaching or is our role really to sort our students in a pseudo-objective way for their potential employers? Are we just money-makers for the University or simply responding to a market demand by providing an overly litigious American society with the lawyers they want? Do we want to improve legal doctrine to further justice—whatever that means? Do we want to differentiate institutionally—forming a mini-university within each law school—where faculty individually can choose to specialize in teaching or scholarship but with the net collective effect of allowing the law school to excel in all areas?



To be fair, the lack of clarity over the purpose of a law school is a problem that I’ve observed in every institution. Good transparent guidance was extremely hard to find in legal practice. Very rarely was I ever told explicitly the outcomes expected from me before I started a job. Even when I received excellent performance evaluations, I often felt like they were random (and I suspect that some of our law students—despite our sincere best efforts—might feel the same way).



What is clear to me is that fortunately or unfortunately the measuring stick in the legal academy is the infamous U.S. News & World Report rankings. While we all vilify them, unfortunately we see law school deans’ careers often rise and fall with them. Not surprisingly, scholarly output appears to impact the prestige factor of these rankings. Like many of our students, we too as law professors and law schools appear to “train to the test.”



What do I think would result from a candid conversation over the purpose of a law school? I think there would be less essentialized, unhelpful discussion over the perceived norms of the entire legal academy (I myself chuckle at how many times I hear tenured faculty and even deans tell me that while some norm is not true for their own particular law school it is true for the rest of the academy) and more specific discussion over what kind of law school do we as the faculty, students, and alumni of that particular law school want. While we have begun to see some intentional differentiation among different law schools (notable examples include the University of the District of Columbia and Northeastern’s emphasis on public interest law, Charlotte School of Law’s focus on creating practice-ready lawyers, and George Mason’s dedication to Law and Economics), I still think the conversation needs to shift more from aggregate abstractions to specific approaches at particular schools. Individual law schools should be able to experiment boldly and thereby provide the legal academy and legal profession with different concrete examples of different approaches. We should collect objective data on the outcomes of those different experiments and allow our generalized conversation to take on some helpful particulars. Perhaps such transparency and honesty is too much to ask, but I do believe that until individual law schools can publicly agree upon what outcomes they’re trying to accomplish and transparently tie their norms and evaluation to such agreement, we’ll never be able to address the problem of improving teaching or any other perceived challenge in legal education.

Will Rhee
Associate Professor of Law, West Virginia University College of Law