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October 21, 2014

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Former Editor

Can you define what you mean by "true legal scholarship" as opposed to just "articles"? I'm not sure if you are trying to draw a distinction in quality or kind. In other words, by "true legal scholarship" are you trying to distinguish theory-heavy from practice-heavy legal writing (in whatever length or format) or a treatise from a short piece in the bar journal?

For the record, I'm not asking in order to make a value judgment on your definition. I'd just like to know how you are drawing the line for purposes of understanding your analysis on how the use of adjuncts affects the production of legal scholarship.

anon

Please explain what you mean by "They are often unaware of the benefits of various alternative teaching methods and either lecture or fall back on a harassing use of the Socratic method."

Is it seriously your contention that most regular faculty do not either lecture or use the Socratic method, or some combination of these two?

If so, please identify some examples of the alternative teaching methods you believe most regular faculty members REGULARLY use. An occasional problem solving exercise, in class poll, etc. will NOT convince me or anyone else that this sort of "alternative method" is REGULARLY used.

Again, please identify the alternative teaching methods regularly used by the full time faculty: especially in first year and required courses.

anon

"Adjuncts may be weaker than full time faculty in the teaching of crucial theoretical concepts."

Please explain the non speculative basis for his opinion about a possibility.

What possible reason do you have to introduce this sweeping speculation into a discussion other than a claimed and incredibly biased and crass sense of your own superiority?

Facts, please. Not wishful thinking.

anon

"Adjuncts often underestimate the importance of grading and violate school grading and median scoring policies. "

This is a real whopper.

Citations? Evidence? Facts?

What is the basis for the "often ... violate" contention?

THis piece is so riddled with ad hoc speculation and bias that it loses any sense of reality and begins to read like a hit piece written by a politico who has no restraint.

Jake Lester

With the downturn in applicants and the resulting downsizing of faculty via buyouts, layoffs, etc. there is an available pool of former law profs who might jump at adjunct teaching.

Adam

I can offer some answers to the questions above, though I assume David will weigh in himself.

FE; I think the theory-heavy/practice-heavy reading is correct. I think David's theory is that, to the extent these courses become dominated within the academy by practitioners, they are going to recede from the types of conversations familiar to legal academics as scholarship. Accordingly, the scholarly conversation will be impoverished.

For some topics, I'm not sure this marks a change, as the scholarship has always been intensely practical. On the other hand, I do sense a shift in commercial law over the past few decades, but I'm not sure whether that can be attributed to practitioner/adjunct dominance, or an increasingly detached-from-the-commercial-realm law professoriate. I'm also not sure this really matters very much. Would progress be impeded if the faculties of only fifty schools published academic scholarship? For every paradigm-shfting piece from the University of Mars, there's a lot of chaff, too. Still, one way of understanding David's point might be that the increasing use of adjuncts will dissuade hiring in "practical" areas in the first place, which means there will be further estrangement by the law professoriate from practical subjects. That should concern law school's critics (and the law schools themselves).

Anon (teaching methods, grading). I think David is right about these tendencies, which I can explain in a slightly different way. Adjunct professors have real lives outside of law school. Apart from their teaching, they are not generally immersed in legal education. This doesn't mean they are bad teachers (having reviewed hundreds of evaluations, I think they are quite comparable to FT faculty, with perhaps fewer "my life changed as a result of this course"-type comments). However, it does mean they tend to tune in episodically, if at all, to conversations about teaching techniques and grading policies. Law professors have the luxury of being able to think about, and compare notes on, teaching and grading in ways adjuncts don't. For most adjuncts, the only faculty member they speak with is the Associate Dean, and they have almost no occasion regularly to consult a school's academic rules. So, if there's an interesting discussion going on about new techniques, they aren't going to pick that up by osmosis by hanging around in the (real) faculty lounge. And if those techniques require substantial revision of approach (midterms or class exercises, for example), well - as I said - adjunct faculty members have busy lives outside of law school. And they are not self-evidently paid enough to invest the time in new teaching techniques. Does this mean that FT faculty are all awesome teachers employing the latest thinking? Of course not. But for all kinds of reasons - time, personal investment, institutional service -FT faculty members are more likely to experiment with different approaches over their careers. As for compliance with grading policies, it's a lot easier to miss the importance of grading rules when you weren't enmeshed in a series of four-hour debates about how many decimal places should count in calculating means. In my experience, adjuncts are certainly willing to follow the rules, but might need a little more reminding, if they haven't taught regularly. And it's also easier to discount the importance of grading consistency across an entire graduating class of students, when your entire contact with the school is a two-hour course once a week.

Anon (theoretical concepts): I don't think you should actually find this observation surprising. Given the regularity with which practitioners roll their eyes at the theoretical preoccupations of law professors, do you really think they give as much weight to theory as the typical prof? I think your actual objection is, "So, adjuncts are more practical. What's wrong with that?" That's not a bad objection, though I think it might be stronger in some courses than others. And I suspect the distribution of adjunct teaching (where you're probably not going to see an adjunct teaching Jurisprudence) bears that out. We may or may not agree on what the optimal weight of theory ought to be in legal education -I myself tend more toward the practical than most - but as a descriptive matter, I think David is right to suppose adjuncts are unlikely to invest the time in mastering theory for purposes of teaching it law students. And almost no one expects them to.

Adam

David lander

Will respond tonight.

anon

Adam

Weeding thru your responses, we find:

In response to:

"please identify some examples of the alternative teaching methods you believe most regular faculty members REGULARLY use. An occasional problem solving exercise, in class poll, etc. will NOT convince me or anyone else that this sort of "alternative method" is REGULARLY used. Again, please identify the alternative teaching methods regularly used by the full time faculty: especially in first year and required courses."

Your answer: "Midterms or class exercises."

Are midterms an innovative alternative teaching technique?

As for class exercises, this is the expected and anticipated vague response. Once again, an occasional problem solving exercise, in class poll, etc. will NOT convince me or anyone else that this sort of "alternative method" is REGULARLY used.

Do you seriously contend that most regular faculty do not either lecture or use the Socratic method, or some combination of these two?

As for the specious accusation that "Adjuncts often underestimate the importance of grading and violate school grading and median scoring policies" you have no response or support. The fact is that grading is almost always governed by a mandatory curve, even in small classes. To wrongly contend that "adjuncts" don't take grading "seriously" is beyond just an irresponsible and false accusation. Moreover, to broad brush and accuse "adjuncts" of "violating policies" is obnoxious.

As for "Adjuncts may be weaker than full time faculty in the teaching of crucial theoretical concepts" you respond:

"Given the regularity with which practitioners roll their eyes at the theoretical preoccupations of law professors, do you really think they give as much weight to theory as the typical prof?"

This response is, again, sort of off point. You have not addressed the fact assumed: that "adjuncts" do not understand or convey "theoretical concepts" in their courses. That some professors engage in useless and ponderous examination of obscure topics irrelevant to the practice of law does not encompass the entire class of "theoretical concepts" relevant to almost any legal examination.

This sort of shallow series of specious and condescending opinions based on basically nothing is not an "examination" worthy of any serious consideration.

Just saying...

David Lander: Seems someone is very, very frightened of adjuncts and the possible growing reliance law schools will place on them to balance budgets and try to develop more practice-ready grads. Your critique of them, as others have pointed out, is truly pathetic.

I am always amazed at how weak many full-time profs are on this and other sites, when it comes to defending their positions (and the status quo).

The adjuncts I had in law school were among the best TEACHERS. Sadly, I can count on one finger the truly outstanding full time profs I had. The rest were self-important, student-distaining elites who could not teach their way out of a paper bag.

Here and on other sites, full time faculty have bemoaned not getting raises, having their perks cut because of the current situation. How many of these people would do the work of an adjunct for the pay their receive (if they are any true pay at all)? None, of course.

I have been on many, many ABA site teams and students invariable give high praise (and evaluations) to adjuncts.

twbb

"I think the theory-heavy/practice-heavy reading is correct. I think David's theory is that, to the extent these courses become dominated within the academy by practitioners, they are going to recede from the types of conversations familiar to legal academics as scholarship. Accordingly, the scholarly conversation will be impoverished."

That does not follow; while the conversations may change that does not mean they will get worse. Frankly, in my experience experienced practitioners in a field, particularly those that also do appellate law, tend to have a far more nuanced understanding of fine points of law than law faculty who never had the opportunity to develop those intellectual skills.

david lander

I will reply a bit now and more tomorrow, since i have to go to a client meeting in a few minutes.
First Comment:

"Can you define what you mean by "true legal scholarship" as opposed to just "articles"? I'm not sure if you are trying to draw a distinction in quality or kind. In other words, by "true legal scholarship" are you trying to distinguish theory-heavy from practice-heavy legal writing (in whatever length or format) or a treatise from a short piece in the bar journal?

For the record, I'm not asking in order to make a value judgment on your definition. I'd just like to know how you are drawing the line for purposes of understanding your analysis on how the use of adjuncts affects the production of legal scholarship

My Response.
On the spectrum from totally theoretical to totally practice i feel that practicing lawyers generally write on the more practical side and full time faculty tend to write on the more theoretical side. Some full time faculty members are more theoretical and some more practice oriented and full time practicing lawyers have their own spectrum beginnng at fully practice oriented and moving to a mix of practice and theory. Another factor is the amount of time it takes to write a scholarly paper as opposed to writing an excellent practice oriented piece. I say this on the basis of personal experience since i have written all over that spectrum.

Finally on this comment, my experience on the article 9 study committee and other similar projects is that they do best when there is a mix of members across the theory practice spectrum with emphasis on those who excel in both. These could be full time faculty or practicing lawyers.

david lander

Response to comment #2
"please explain what you mean by "They are often unaware of the benefits of various alternative teaching methods and either lecture or fall back on a harassing use of the Socratic method."

Is it seriously your contention that most regular faculty do not either lecture or use the Socratic method, or some combination of these two?

If so, please identify some examples of the alternative teaching methods you believe most regular faculty members REGULARLY use. An occasional problem solving exercise, in class poll, etc. will NOT convince me or anyone else that this sort of "alternative method" is REGULARLY used.

Again, please identify the alternative teaching methods regularly used by the full time faculty: especially in first year and required courses."

My Response: I believe that experience as a teacher helps make a person a better teacher. For example, a teacher that is really listening is more likely to take a comment that she did not expect and move the discussion in a productive direction. Some of my comments are based on the two surveys i mention (although i agree that they were completed by full time faculty) and some from my own experience. I agree that some adjuncts are extraordinary teachers and that their perspective helps. I also feel that the art of teaching is more often practiced by full time teachers than by part time teachers. I do include small group projects and alternative techniques.

david lander

Last response today. more tomorrow
response to comment#3
"Adjuncts may be weaker than full time faculty in the teaching of crucial theoretical concepts."

Please explain the non speculative basis for his opinion about a possibility.

What possible reason do you have to introduce this sweeping speculation into a discussion other than a claimed and incredibly biased and crass sense of your own superiority?

Facts, please. Not wishful thinking.

My reply is based on discussions with other adjuncts and the surveys i mention in the post. Fifteen years or so ago we had an ABA committee on the teaching of bankruptcy law with full time faculty who taught bankruptcy and adjuncts who taught bankruptcy and bankruptcy lawyers and judges who did not teach. The discussion in that group started my thinking in this direction. Some full time lawyers enjoy spending time thinking about the theoretical underpinnings of the area in which they practice but i believe a smaller percentage of practicing lawyers enjoy that inquiry than the percentage of full time faculty do.

agree that this is my opinion.

david lander

Time for one more quick response to Comment#4
"Adjuncts often underestimate the importance of grading and violate school grading and median scoring policies. "

This is a real whopper.

Citations? Evidence? Facts?

What is the basis for the "often ... violate" contention?

THis piece is so riddled with ad hoc speculation and bias that it loses any sense of reality and begins to read like a hit piece written by a politico who has no restraint."

My Response:
Some of this is from a couple of surveys and some from my own opinion. The basis of this commented started with a thought from then professor Elizabeth Warren when i sent her my article for comment.

Adam

(re-posting, as my original comment may have been lost. Feel free to delete if this shows up twice)

Hi, Anon. Thanks for weeding through my responses. I don't think you're reading them very fairly, though, and you seem to be attributing to me the entirety of points made in different form by David.

I agree with your earlier point, reiterated here, that most of the time, teaching techniques look familiar. So, in most classes - FT or adjunct - a lot of what goes on is something like a lecture (with more or less Socratic elements somewhere). However unspectacular they may be, quizzes/midterms, papers and simulations are the kinds of devices schools have been turning to in order to broaden or deepen the experiences students have in class. Slowly - too slowly - the days of one-shot high-stakes law exams are coming to a close. Any adjunct can do these, and some do. But these all multiply the amount of work required to teach a class, and it's a lot easier (!) to get faculty to do these things, rather than adjuncts who are not very well compensated.

Our school has a lot of courses that demand significant amounts of student writing. Occasionally, adjuncts teach these, but generally they receive lower enrollment caps, because while it's fair to ask a FT prof to grade X number of papers, it often isn't fair to ask adjuncts to do so. I don't think that's a knock on adjuncts' competence, but a recognition of reality.

Some schools have relied on adjuncts very heavily for experiential learning (which I assume you'll agree is enough of an "alternative method" to be noteworthy). Others have moved in this direction using their FT faculty. Creating and teaching a simulation course is a lot of work, and while schools could certainly pay adjuncts to do so, that would also reduce financial incentives to use adjuncts in the first place.

Before we get off to the races here, I'm focusing on how adjuncts are actually used by law schools, rather than some essential characteristic about them. That's how I understood the original post. We could imagine a world in which law schools were staffed by "super adjuncts" - compensated significantly more than now (enough to justify time away from their practices), but much less than expensive FT faculty. I'm sure we've both read the various proposals for doing just that. Such profs could spend a lot more time on teaching. But, that's not where law schools are at right now.

On the other side, I'm not sure that your insistence that only teaching techniques regularly used is the right focus here. I'd agree with you if the argument was: "We should resist adjuncts, because they will crowd out all of our fantastic new teaching." - and there really wasn't any. Where I think we disagree is the predicate that there really isn't any. I would say that there is some, there needs to be more, and the trend line is positive. Even if you agreed with that, it would still be reasonable to think that adjunct teaching was worth it, largely for the positive reasons David describes. And I don't understand David to be arguing that, in light of all these factors, adjunct teaching isn't worth it. I think he's just arguing that it has some costs that we should think about.

I'm not sure why the grading issue seems to you to reek of slander. I explained that while adjuncts are cooperative and happy to follow the rules, they (mercifully) don't spend their days thinking about law school. Law professors and law students do that, and we also think about grades a lot more. I'm not sure how I could demonstrate this to you, except to observe that I have the experience of speaking with many, many adjuncts about grading policies, and these are my observations. At the end of the day - and David's post unfortunately obscures this - adjuncts' grades get where they need to go, and I think they try to be conscientious. But - probably because their experiences teach them otherwise - no, I don't think they invest grades with the same cosmic importance that we do as faculty (or students).

"You have not addressed the fact assumed: that "adjuncts" do not understand or convey "theoretical concepts" in their courses. That some professors engage in useless and ponderous examination of obscure topics irrelevant to the practice of law does not encompass the entire class of "theoretical concepts" relevant to almost any legal examination."

I am not sure why we are talking past each other here, but there you go. If adjuncts taught 1L courses, I can assure you they would look a lot different than they do now. And the biggest difference would be in the theory/practical dimension. Although I don't think it's very wise, there are profs who can teach the entirety of Torts with reference to law and economics. I have never met a lawyer practicing in that area who would accord the Learned Hand formula even a tenth of the significance it enjoys among most Torts professors. My feelings are mixed on whether that's an effective indictment of most Torts professors, but the fact is, profs and practitioners see the problems, and essential nature of the field differently. Although you can generally count on law professors to be fans of theory, it suffices to observe simply that FT profs and adjuncts are likely to weight the importance of theory differently. How could they not? Too little theory and a prof won't get tenure; too much, and a lawyer loses the judge deciding his case. As I said before, I think your real position is that the amount of theory a prof would insert into a class is excessive. Can we agree that if law schools think theory (maybe even 'excessive' amounts) is crucial for law students to know, they are likely going to doubt students will get it in adjunct-taught classes? Again, I think law schools are right to suspect there's less (academic, angels-on-the-head-of-a-pin) theory in adjunct-taught classes, but it's an open question (which I think you would resolve in the negative, not unreasonably) whether that difference is harmful to their students.

TWBB: I'm not sure the conversation would be worse. But it's interesting to wonder whether further estrangement between the legal academy and the world of practice is what we need right now. And to the extent law schools "outsource" practical legal instruction to adjuncts, that's exactly what we'll get. To me, the best legal scholarship has been done by people who were grounded/familiar/interested enough to incorporate both theory and practicality. Regrettably, the legal academy has gone in a different direction for decades now. A heavy reliance on adjuncts is going to worsen that tendency. (Just Sayin': I think you are dead wrong about what law profs want here. What they really want is for adjuncts to teach all the subjects that are insufficiently theoretical to merit the profs' time. Realistically, very few FT profs are going to lose jobs; as in the broader university, there will simply be fewer of them in the future. For those truly interested in improving law schools/sticking it to law professors, you could do a lot worse than insist that schools moderate their reliance on adjuncts and make their FT profs do more of the work.)

anon

Here's my question Mr. Lander. Like most decent law firms, your firm doesn't hire students from SLU unless they are in the top 10%. Why? Is it their lack of native intellectual ability or the low quality of their training of the vast majority of SLU grads?

Here's some background. Mr. Lander is a partner at a 160 lawyer firm. Out of SLU's 301 grads in 2013, only 31 (about 10%) secured jobs at law firms with more than 100 lawyers. (a grand total of 1 did a federal clerkship and 6 got public interest jobs).


david lander

RESPONSE TO :
"I think the theory-heavy/practice-heavy reading is correct. I think David's theory is that, to the extent these courses become dominated within the academy by practitioners, they are going to recede from the types of conversations familiar to legal academics as scholarship. Accordingly, the scholarly conversation will be impoverished." That does not follow; while the conversations may change that does not mean they will get worse. Frankly, in my experience experienced practitioners in a field, particularly those that also do appellate law, tend to have a far more nuanced understanding of fine points of law than law faculty who never had the opportunity to develop those intellectual skills


I think that the current scholarly conversation is important and i agree with you that it will be enhanced to the degree that it is supplemented by a conversation in which adjuncts make their unique and valuable contributions. Perhaps we can figure out a way to jump start or accelerate those contributions. More on that in a later post.

I have not thought much about the relationship of all of this to clinical legal education but hope to give that some consideration in the future.

david lander

Sorry for the confusion in my last post. Here is my response.

I think that the current scholarly conversation is important and i agree with you that it will be enhanced to the degree that it is supplemented by a conversation in which adjuncts make their unique and valuable contributions. Perhaps we can figure out a way to jump start or accelerate those contributions. More on that in a later post. I have not thought much about the relationship of all of this to clinical legal education but hope to give that some consideration in the future.

anon

Another anon here.

David Lander has essentially conceded that he is just expressing opinions, based on an incredibly narrow and anecdotal base of information. As established many times in the comment threads in the FL, references to "my own survey" or "I spoke with Elizabeth Warren" are embarrassing examples of claims to "facts" based on basically nothing.

Adam, however, deserves some attention. Rather than admitting that he is making specious claims, he doubles down. Here are some real gems:

1. "Some schools have relied on adjuncts very heavily for experiential learning (which I assume you'll agree is enough of an "alternative method" to be noteworthy)."

This is supposed to support the claim that "[Adjuncts are] often unaware of the benefits of various alternative teaching methods and either lecture or fall back on a harassing use of the Socratic method."

2. "Law professors ... think about grades a lot more. ... I don't think [adjuncts] invest grades with the same cosmic importance that we do as faculty (or students)."

Just too bizarre to merit a response.

3. "If adjuncts taught 1L courses, I can assure you they would look a lot different than they do now. And the biggest difference would be in the theory/practical dimension. Although I don't think it's very wise, there are profs who can teach the entirety of Torts with reference to law and economics. I have never met a lawyer practicing in that area who would accord the Learned Hand formula even a tenth of the significance it enjoys among most Torts professors."

Adam, here, respectfully, you are demonstrating your ignorance. First, we aren't speaking of lawyers in practice. We are speaking of adjunct professors. Second, how many torts casebooks have you reviewed? Please name the one that doesn't cover Carroll Towing, likely a Posner opinion, and the Coase theorem, etc. Why, the Hand formula is in the commercial outline! You really need to get some basic facts correct before we can discuss these issues. No one teaches Torts without touching on these subjects, except, perhaps, some incredibly selfish and idiosyncratic egomaniacs at certain law schools who believe they owe their students nothing.

4. " Can we agree that if law schools think theory (maybe even 'excessive' amounts) is crucial for law students to know, they are likely going to doubt students will get it in adjunct-taught classes?"

NO! You are supporting a narrow minded prejudice about "adjuncts" based on hearsay, speculation and anecdotes by claiming that we should agree the prejudice exists.

Sorry, no dice.

Adam

Anon:

1) I've explained why adjuncts are less likely to be immersed in thinking about teaching than people who teach FT, even though both groups are in the main doing similar things. I don't see any prospect of persuading you on this point.

2) n/a

3) I don't understand you at all here. The vast majority of adjuncts are practicing attorneys. Who else would they be? And while Carroll Towing is certainly a staple in every textbook, the difference between a law-and-econ-minded professor and a practitioner will lie in the extent to which he or she will see the Hand formula everywhere (even if sub rosa), or is rather inclined to see it as an interesting take on tort law that almost never comes up in the real world. In the unlikely event you are genuinely interested in this phenomenon, I recommend Stephen Gilles' "The Invisible Hand Formula", which traces the astonishingly limited impact of what is for academics the most famous statement of negligence law.

4) I take it that your view is that adjuncts teach just as much theory as FT profs. That is an idiosyncratic view. It runs counter to virtually every conversation I've ever had with adjuncts about 1) their own teaching 2) what they recall from their own law school experiences 3) where law schools' current focus is misplaced, to the detriment of their students. It also runs counter to the trend of student evaluations, which regularly extol the practical value of adjunct teaching, and occasionally express concern about the "overly theoretical" nature of FT faculty teaching.

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