This week in ASP and ASP-adjacent scholarship:
1. Hamilton, Neil W. (St. Thomas, MN) & Organ, Jerome M (St. Thomas, MN), Learning Outcomes that Law Schools Have Adopted: Seizing the Opportunity to Help Students, Legal Employers, Clients, and the Law School, 69 J. Legal Educ. (forthcoming 2022).
From the abstract:
Over the next several years, legal education’s movement toward learning outcomes and better assessment offers an excellent opportunity for proactive law schools to realize substantial benefits for their students and the schools themselves. Students and graduates with strong evidence of later-stage development of competencies in addition to the standard cognitive “thinking like a lawyer” skills will have higher probabilities of good post-graduation outcomes that will help the students, clients, legal employers, the school, and the legal system. Law schools that are proactive early leaders will be rewarded.
Section II explains the opportunities presented to proactive schools by the American Bar Association’s revision of the accreditation standards to emphasize competency-based education. Section III reports on a survey of the learning outcomes (one of the foundational steps in competency-based education) adopted by ABA-accredited law schools as of January, 2022. These data indicate how law faculties understand the competencies needed to serve clients, legal employers, and the legal system. Section IV provides a step-by-step model on how to seize the opportunity to implement competency-based education using the competency of ownership over the student’s own professional development/self-directed learning as the model.
2. Cunningham, Larry (Charleston), Dividing Law School Faculties into Academic Departments: A Potential Solution to the Gendered Doctrinal-Skills Hierarchy in Legal Education (SSRN Post, February 2, 2022).
From the abstract:
This article builds on the many works before it that have documented the inequities associated with the way that law school faculties are structured. At most schools, legal writing, clinical, and academic support faculty have lower salaries, are on contracts, cannot earn tenure, have fewer voting rights than tenure-stream faculty, may be relegated to undesirable offices, and might not even be permitted to call themselves “professor.” Women are more likely to occupy this lower status than men. This hierarchy persists even though women now make up the majority of law students in the United States.
To the extent that those who support this hierarchy are willing to defend it publicly, they do so on the grounds that teaching skills classes is “different”—and, in their view, necessarily lesser—than doctrinal subjects. They also assert, incorrectly, that skills faculty is incapable or unwilling to produce quality scholarship. The result is a gendered, illegitimate status hierarchy within many law schools where the tenured faculty is more heavily male and enjoy the most benefits at the top, while those who teach skills courses are mostly women and are relegated to a lesser status at the bottom.
The gender disparity created by the modern law school faculty hierarchy is well-established, but few workable solutions have been offered. This article fills that gap. Many have advocated for converting contract faculty to the tenure-track. And certainly, more and more schools have taken this welcome step. However, this approach is not without problems. The tenured faculty must be willing to cede voting power and other governance rights. Tenure standards must also be rewritten to account for the fact that teaching writing or in a clinic is different—not lesser, just different—from doctrinal teaching. Additionally, doctrinal faculty must become adept at evaluating teaching and scholarship of skills faculty, and vice versa once skills faculty earn tenure.
This article proposes a different direction: the creation of academic departments based on subject matter. Within universities, colleges or schools—other than law schools—have departments where faculty are hired into, promoted, and tenured based on standards that align with expectations in a given field. The teaching and scholarship of faculty members in the English Department will look very different from those in the Political Science, Music, or Chemistry Departments, and with good reason. But each discipline is treated equally in status, since each one is premised on quality teaching, engaged research, and committed service.
A law school with the traditional hierarchical structure could similarly divide into departments of, for example, Legal Doctrine and Legal Skills, with distinct expectations of teaching and scholarship for each. Hiring, promotion, and tenure decisions would occur first in the department before moving to the college and then the university. College-wide decisions around the curriculum and other governance issues would be made by representatives from the various departments.
The solution proposed by this article is a structural one. It attempts to use the organization of the institution to cure a persistent equity issue while addressing the legitimate argument that there are differences in the teaching and scholarship of those who teach skills courses compared to doctrinal subjects. It recognizes the relative expertise of the two groups while also ensuring that they are treated equitably.
[Louis N. Schulze, Jr., FIU Law]
