Legal Education Digest
G W Bowman
B Y U Educ & L J, 2008, pp 171–223
Legal scholars love to write about law schools. What, we ask, is wrong with law schools, and what is right? What types of curricular reforms should we undertake? What kinds of scholarship should we be engaged in? What is the relationship between scholarship and teaching? What is the correlation between tenure and faculty productivity? What exactly should we be teaching our students, and how? As the debate has spilled over from legal journals to the blogosphere in recent years, the questions have become even more pointed. Some commentators suggest that law school be reduced to two years, while others suggest an expansion to four years might be. More appropriate. Some extremist commentators on the Internet even question the need for law schools at all.
In all this debate, there is at least one point on which there is general consensus: law schools need to do more to train their junior faculty members how to teach? In fact, this is not so much an expressly agreed-upon point as it is a widespread, implicit assumption. On the one hand, this consensus is most likely correct, especially since law schools often hire new professors who have little or no teaching experience. On the other hand, this consensus leads to another assumption that is also implicit: that in all facets of law teaching, junior faculty are at a disadvantage compared to senior faculty. According to this consensus, junior faculty members therefore need to be brought up to speed in their teaching, so that in terms of teaching skills and effectiveness they better match their senior colleagues.
Yet is this second assumption really correct? Are there facets or factors of classroom teaching to which junior law faculty may be better suited, at least on average, compared to their senior colleagues? Might recency of entry into the legal academy, or proximity in age to law students — or both — actually help enhance teaching effectiveness in certain respects? These are interesting questions to pose — for not only does the answer to all of these questions appear to be ‘yes,’ but there also has not been much discussion of this issue in the law literature.
In order to meaningfully discuss law school teaching in the context of economic theory and the implications of this theory for effective law teaching, it is necessary to first define and explain the concepts being used. The concepts being applied are economies of scale and productive efficiency, and absolute and comparative advantage.
The concepts of economies of scale and productive efficiency are relatively straightforward. Concisely stated, economies of scale occur when increased production of a product results in a reduction of average unit cost. In law teaching, as opposed to legal scholarship, one might say that the level of output remains steady among faculty members with equal teaching loads, so that strictly speaking, the concept of economies of scale is not relevant. It is important to define this concept, however, for it is the thematic source of the terms ‘(dis)economies of seniority’ and ‘(dis)economies of juniority’ employed in this article. That is, with respect to certain aspects of law teaching, greater seniority can result in a reduction of the input required to obtain a particular output of teaching. In other words, the result is an improvement in productive efficiency.
David Ricardo’s law of comparative advantage from the field of economics demonstrates how countries, or individuals, benefit from trade with one another when they have comparative advantages in the production of different goods.
The traditional model used to illustrate absolute or comparative advantage is that of two economic parties (two countries, or two individuals) producing only two goods. Under absolute advantage, a party enjoys an absolute advantage in the production of a particular good ‘if it can produce the good at lower cost or with higher productivity’ than the other party. In the two-party model, therefore, mutually beneficial trade occurs if one party (Party 1) enjoys an absolute advantage in the production of good ‘A,’ and the other party (Party 2) enjoys absolute advantage in the production of good ‘B.’ This presumes, of course, that the transaction costs of trade (transport, tariffs, etc.) do not exceed the benefits of trade.
Comparative advantage is similar to absolute advantage, except that one party (Party 1) has an absolute advantage in the production of both goods. Yet trade can still be beneficial if each party concentrates on producing the good that it is relatively more efficient at producing. The key to the analysis is the opportunity cost of producing one good instead of the other. A party enjoys a comparative advantage in producing a good if it is able to produce that good ‘at a lower opportunity cost relative to another [party].’ Focusing production in this manner results in greater overall production by both parties, and they can engage in trade and both be better off. Of course, if the opportunity costs are equal between the two actors, then there is no comparative advantage, and no benefit to trade.
It is beyond the scope of this Article to delve into the nuances of absolute and comparative advantage. For present purposes, there are several key points to bear in mind. First, while absolute and comparative advantage are typically illustrated using simplistic two-party, two-good models, their implications remain relevant in more complex scenarios involving multiple goods and parties. Second, absolute and comparative advantage, while often thought of as international economic concepts, apply to exchanges between private actors too.
The essence of ‘time on task’ is twofold: first, time management is an essential tool for higher education learning and for professional success; and second, students need to be taught how to effectively manage their time. ‘Time on task’ also stands for the proposition that teachers need to effectively allocate and use their classroom time in order to maximize student learning.
In 2002, Levy surveyed students at the University of Colorado School of Law and the William S. Boyd School of Law at the University of Nevada, Las Vegas, regarding what teaching characteristics or factors they valued in the law school classroom. Of the factors covered by Levy’s survey, having teachers who ‘are experts in their fields’ was ranked ‘as one of the most important traits of effective teachers’ among student respondents. Levy reasons that this is because students are more likely to pay attention (and thus are more likely to learn) if they believe their law professors are extremely knowledgeable about the subject matter at hand. Some of Levy’s student respondents further expressed a desire for professors who had law practice experience in the subjects they teach.
On a related note, students responding to Levy’s surveys identified teacher confidence in their subject matter as perhaps even more important than actual expertise.
This section therefore seeks to re-group the teaching factors relevant to this discussion according to these metafactors, and to discuss how senior or junior faculty may enjoy absolute or comparative advantages, or economies of seniority or juniority, for these factors. These three meta-factors are as follows: Principle One: Substantive faculty knowledge of course material, which includes the projection of teacher confidence in course subject matter; Principle Two: Effective faculty engagement of students in the classroom, which includes effective preparation, organisation and pacing of course materials, communication of high expectations for students, evaluation of students (that is, testing), and presentation of course materials in a student-accessihle manner; Principle Three: Creation of a responsive learning environment for students, which includes teacher concern and respect for students and teacher accessibility to students.
Of the factors grouped under these primary principles, some, such as respect and concern for students and the communication of high expectations for students, are seniority and juniority-neutral. For the other factors identified, a clear pattern emerges. Senior faculty tend to have an absolute or comparative advantage or economies of seniority for factors such as subject matter knowledge, course design, and student evaluation. Junior faculty, by contrast, appear to have an absolute or comparative advantage or economies of juniority in factors that concern student-faculty relations and the understanding of law student mindsets.
The first broad principle or meta-factor of effective law school teaching — ‘substantive faculty knowledge of course material’ — favors senior faculty to a fairly strong degree. Senior faculty generally will have more experience in teaching a course and therefore will have a better understanding of the course materials. Senior faculty additionally project greater confidence in their knowledge. This is not to say that junior faculty never have deep and substantive knowledge of a course’s materials or confidence in the classroom. In fact, in today’s extremely competitive law school hiring environment, most new faculty hires have experience (in practice, in teaching, or both) in the areas for which they are hired to teach, and are likely to project confidence as well. Certainly, senior faculty who teach a course for the first time are in the same position, in many respects, as junior faculty who are teaching a new course. However, on average, senior faculty will have fewer new courses and more years of teaching experience in a course, which translates into greater substantive knowledge and conveyance of confidence in the classroom.
In addition, greater knowledge and confidence allow senior faculty to enjoy an absolute or comparative advantage or economies of seniority in class preparation. All other things being equal, senior faculty will be able to prepare for class more efficiently — and perhaps more effectively — than their junior counterparts, who will find a far greater portion of their time taken by class preparation.
Effective engagement of students in the classroom consists of various teaching factors, such as experience in the classroom, organised presentation of course materials, deft course pacing and structure, and effective evaluation techniques, all of which can result in a more interesting and beneficial educational experience for students. These factors clearly favor more seasoned faculty members. This is not to say that junior faculty cannot do these things well, hut it is to say that in terms of time spent (input) to achieve a similar result in the classroom (output), senior faculty are likely at significant advantage.
As for communicating high expectations to students, and thus improving the classroom experience, that relatively straightforward factor seems to be seniority-neutral.
Junior faculty members may have an absolute or comparative advantage, at least to an extent, concerning the presentation of course materials in a student-accessible manner. On the one hand, senior faculty will have had the opportunity to hone their instructional craft and, as discussed in the previous section, will have an advantage in terms of organising and pacing a law school course. On the other hand, junior law faculty often will have other advantages concerning the engagement of students in the classroom — namely their generational proximity to their students, the recency of their experience practicing law as junior practitioners, and a lesser risk of engaging in ‘conceptual condensation’ of the course materials.
Generation gaps have been an established pattern in American culture for decades, and yet, with the increased pace of change, it is possible, and indeed likely, that senior faculty will become more removed from the attitudes and mindsets of their students — and more removed at an increasingly rapid pace. Such removal means it can be harder for senior faculty to readily understand their students’ mindsets, and thus can be harder for them to connect with and effectively teach these students.
In this sense, then, junior faculty can enjoy absolute or comparative advantages or economies of juniority versus their more senior colleagues. Junior faculty members often, although certainly not always, will be closer in age to their students, and this generational proximity may help them better understand how their students will react to certain materials, and thus present course materials in a student-accessible manner. This might play out in different ways. First, junior faculty members, due to their generational proximity to their students, may be more readily able to understand the average mindset of their students, including what some observe as a tendency for modern students to view higher education primarily as a process of credentialisation, not of education.
Second, junior law professors who are closer in age to their students are more likely to be naturally in tune with — and more likely to share — learning styles of their students, which can differ dramatically from the learning styles of previous generations. Junior faculty members also are more likely to be familiar with the pros and cons (from the students’ perspective) of the use of technology in class, such as video, the Internet, and laptop computers for note-taking and class participation. Recent research (and even casual observation) reveals that the current generation of higher education students is far more technologically savvy than students of even five years ago, and that current students expect education to be not just informative,” but entertaining as well.
Third, to the extent junior faculty members are of the same (or a similar) generation as their students, they are more likely to have commonalities of experience and cultural reference with their students, on which they can draw to make their teaching more effective. Shared generational and cultural mindsets of junior faculty and students therefore may give junior faculty a sort of inherent advantage in this regard, such as in the development of useful examples or hypotheticals for illustrating difficult points in the classroom in a manner accessible and relevant to students. Consistent with the concepts of absolute advantage, comparative advantage, and economies of juniority, the point is not that senior faculty cannot do this just as well, but rather that on average, junior faculty can do this with less effort (that is, input or time spent in preparation for such interaction) than their more senior colleagues.
To the extent the relevant context for the law classroom is that of the junior lawyer — which all graduating law students will be — junior faculty are more naturally positioned to provide such context in their teaching. They are far more likely to have been in full-time law practice (in private practice, government service, or otherwise) more recently than their senior faculty colleagues, who have been teaching full-time for years, and whose law practice experience (aside from any pro bono activities, law school clinical projects, or consulting while teaching) will be from some years past.
Engaging law students in ways that appeal to them, and to which they can relate, will improve their classroom involvement, and thus the educational experience for both them and their classmates. Junior faculty are often more readily able to present class materials in ways that ‘connect with their [students’] past experiences,’ which means that in this respect, junior faculty members can enjoy absolute or comparative advantages or economies of juniority in the classroom.
Junior faculty are generally less likely than their senior colleagues to suffer from the problem of ‘conceptual condensation’ that can interfere with effective teaching. That is, typically there are basic, foundational steps or principles that students need to explicitly recognise and apply in order to understand and master a subject area. However, teachers who are experts in a subject area may be so used to taking these steps implicitly or automatically in their own reasoning that they have to work harder to consciously see the subject from their students’ perspectives.
It can be argued, therefore, that aside from considerations of generational proximity or recency of law practice experience, junior faculty members on average can more readily see their subjects from the more basic, foundational perspectives of their students, instead of only from the perspective of scholars discoursing among themselves.
Do the students feel encouraged to participate in their own learning? Do they find their professors engaging and responsive? Do they feel that the classroom and their relationships with their professors are supportive? Or is there an element of fear, and do they find their professors difficult to approach or communicate with inside and outside the classroom?
In short, one might characterise this concern as being about the emotional temperature of the law school, or at least of individual professors. Emotions and cognition are ‘inexorably linked,’ and teacher characteristics such as warmth and supportiveness can boost student performance and comprehension.
In what ways might law faculty contribute to a comfortable emotional temperature for students inside and outside the classroom? And what absolute or comparative advantages or economies of juniority might exist for factors within this principle? In large part, the factors identified previously for this principle — teacher concern and respect for students, and teacher accessibility to students – are seniority-neutral. All faculty members, regardless of their level of experience and years of teaching, can show concern and respect for students and can make themselves accessible to students within the classroom and without. Yet there are ways in which junior faculty members are at an absolute or comparative advantage in their efforts to create an engaging and responsive learning environment for students.
First, generational proximity may help facilitate professor-student contact in some cases. Students may feel that a junior professor is more of a social peer, and thus be more accessible and approachable than other faculty members who are two, three, or four decades older than many of their students. Students may be more willing to ask questions in class and also may be more willing to interact with junior law teachers outside the classroom.
Second, Silverman has suggested that junior faculty on average might have higher levels of enthusiasm for teaching than senior faculty who have taught for many years. Enthusiasm is an important aspect of teaching effectively and creating an engaging educational environment — and junior faculty, with their energy and the incentive of promotion and tenure, may be more apt to provide it in some cases.
The three factors identified above in which junior faculty can have absolute or comparative advantages or economies of juniority — generational proximity, recency of law practice experience, and avoidance of conceptual condensation — carry important implications for law schools and law teaching. Yet, while stating my thesis in economic terms provides useful perspective on the subject, it also raises the risk of being rather seriously misconstrued. Therefore, before getting to any discussion of implications of junior faculty absolute or comparative advantages or economies of juniority, let me clarify what is not being asserted in this article.
First, this article certainly does not assert that junior faculty members are always better teachers in their areas of absolute or comparative advantage or economies of juniority, or that all junior faculty members have these advantages.
Second, it is not suggested here that tenure should be eliminated or curtailed, although others have suggested this. Third, and along similar lines, this Article does not advocate, implicitly or expressly, for an ‘up and out’ policy, pursuant to which faculty members could only teach for a finite number of years, and then would be required to leave (either to become pure researchers or leave law faculties entirely) and make way for new junior faculty in the classroom.
Fourth, this article is not intended to suggest that law schools only hire new faculty under a certain age, in some sort of odd variant on Abbie Hoffman’s famous quip, ‘Never trust anyone under thirty.’ Not only would that approach clearly raise serious legal age discrimination concerns, but it also would be counter-productive to the maximisation of teaching effectiveness, since it would eliminate non-traditional, older candidates who could bring enormously beneficial alternative perspectives and experiences into the classroom.
Perhaps most importantly, however — and along the lines of the previous point — this Article should not be taken as suggesting that law schools should seek to predominantly hire new faculty who are culturally, ethnically, or racially similar to their law school student bodies.
Rather, this Article simply contends that, fully apart from the law school hiring context, existing junior faculty at law schools can offer enormous strengths and opportunities for law schools in the area of teaching, and even beyond teaching.
The advantages of junior faculty, or economies of juniority, have interesting and significant ramifications for law schools.
While there may be significant upsides for junior faculty members who speak out on faculty matters — such as burnishing one’s reputation or improving one’s law school — there are also potentially huge downsides — not the least of which is angering other members of the faculty who vote on promotion and tenure matters. By contrast, while little may be gained by not speaking out, little is lost.
Given junior faculty members’ frequent generational proximity to students and the recency of their law practice experience, this article suggests that junior faculty should be encouraged by senior faculty to speak up and provide their insights into rapidly evolving and changing student mindsets and views on education.
This article therefore recommends that the current, predominantly one-way conveyance of pedagogical information from senior faculty to junior faculty be transformed into a two-way dialogue. There are three ways to achieve this: junior faculty evaluation of senior faculty teaching; intra-faculty workshops; and the more ad hoc approach of one-on-one or small group discussions.
First, junior faculty could formally or informally evaluate senior faculty teaching.
A second and perhaps preferable approach would be to hold a series of intra-faculty teaching workshops, at which junior faculty make presentations relating to those factors in which junior faculty may have absolute or comparative advantages or economies of juniority.
Third, more informal, ad hoc discussions between senior and junior faculty members could be facilitated by a variety of means, such as encouraging senior faculty members to choose junior faculty ‘mentors’ and vice versa. This could be in lieu of more formalised approaches, but might be more beneficial as a complement to more formal workshops.
Ultimately, what is important is that there is some sort of dialogue among faculty on the subject of junior faculty perspectives. The precise strategies or approaches of faculties will vary from school to school.
Even modest or minor adjustments can be beneficial. Through the sharing of junior faculty insights, opinions, and expertise, the hope is that disadvantages and diseconomies of seniority can be reduced or even eliminated, much in the same way that the disadvantages or diseconomies of junior faculty are reduced through input and advice received from senior faculty. In this manner, the quality and effectiveness of each faculty member’s teaching, and teaching of the faculty as a whole, can he improved.
That is, instead of faculty members teaching their courses separately, with each professor as a producer of all teaching factor ‘services’ within her own individual courses, it might he beneficial to the overall quality of teaching for faculty members to team-teach courses in coordinated fashion. Under this approach, faculty members could concentrate on providing those factors of teaching in which they currently enjoy absolute or comparative advantages to a number of courses across the curriculum.
The extent to which this approach of coordinated teaching across the curriculum is desirable will depend on several factors. First, there is the matter of transaction costs, which are likely to he substantial in many cases. Teaching styles vary widely, and coordinating faculty approaches to the same material is a transaction cost that could well exceed the benefits of this approach.
While there are challenges involved in designing a reward structure that incentivises coordinated teaching activity — including the challenge of quantifying the value of this teaching, as well as how to measure the effectiveness of coordinated teaching (e.g. ... whether it should be based on faculty reviews, student reviews, and/or other factors) — it does seem possible to design an incentive and reward structure to encourage coordinated teaching that could improve the overall quality of instruction.
The approach of coordinated teaching across the curriculum might strike some as undesirable hyper-specialisation. Yet George Priest observed two decades ago that specialisation was occurring within law school faculties, much along the lines of universities with multiple departments, and today most law professors are specialists. Specialisation by subject matter is generally considered a positive development, and law schools typically want their faculty to teach in their areas of expertise (although that ideal is not always met). It is not all that outlandish to suggest that if specialisation by subject matter is beneficial, then perhaps specialisation by other skill sets is also worth considering. At the very least it could be tried in similar subjects, such as two professors who co-teach two sections of criminal law, or in dual-subject classes such as a bankruptcy negotiations seminar.
It is important to emphasise that the observations and recommendations contained in this article are generalisations. Pains have been taken to avoid hubris regarding the subject or any suggestion that junior faculty members have all the answers, or at least the best ones. Moreover, it is absolutely true that any specific faculty member’s strengths and weaknesses cannot be predicted solely based on seniority or juniority. Yet broad patterns can be detected, and it is at this level of generality that this article has sought to address the subject of junior faculty contributions to the improvement of law school teaching.