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Friday, October 22, 2010

Fellows Versus Permanent Legal Writing Faculty

From 2007 to 2009, I taught Legal Research and Writing at UC Berkeley.  Unlike some of its peer schools, Boalt doesn't use Fellows to teach LRW.  Instead, it has a group of full-time, permanent lecturers, often with substantial practice backgrounds.  (I ended up with a kind of unofficial Fellowship, since I got the job only a few years out of law school and eventually went on the tenure-track market.  But that's not the norm).  

My time at Boalt reinforced what I'd felt about LRW as a beginning lawyer and as a law clerk: if you want to litigate, LRW is the class.  (It also reinforced what I'd suspected as a law student: that LRW teachers deserve huge raises).  And it made me curious about the virtues and drawbacks of the Fellowship model.  Of course, I can see how it'd appeal to schools (which effectively freeze salaries with the perpetual turnover) and to Fellows (who take a big professional step forward).  But I'm a little skeptical that it works as well for students.  For one, practical experience is the coin of the realm for skills-based classes, and Fellowship hiring is largely based on other criteria.  Moreover, I can't imagine that the same incentives exist to hone the class and have it evolve when it's taught by a revolving group of Fellows.         

What do others think?       

Posted by David Horton on October 22, 2010 at 03:48 AM | Permalink

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David -- my only criticism of what you've written is that it's not vehement enough. The vast majority of practicing lawyers I've known will tell you it's five years of practice before you don't feel like you're committing fraud when you tell people you're a lawyer. In other words, it's five years of practice before you really have a sense of control over what you're doing and why. For the life of me, I don't know how school's justify having people who don't know have that sense of control over what they're doing and why they're doing it purport to teach other people how to do it.

Posted by: Peter Friedman | Oct 22, 2010 9:14:08 AM

I started my teaching career in the LRW program of a school using the full-time/ permanent prof model. They had just converted from a "capped" program which, in many ways, mirrors the “fellow model” in that the instructors could spend no more than two years in the job. Most members of the law school community agreed that moving to the new model improved the program significantly.

The full-time/ permanent profs were professional writing instructors whose career and academic interests focused on legal writing, rhetoric, and skills. Their "spare time" was spent coaching or judging moot court/ mock trial teams and basically improving students' advocacy skills. By contrast, the capped program mostly included recent law grads whose goal was to move into a doctrinal prof gig. As such, those folks spent most of their time writing doctrinal scholarship and basically preparing themselves for the AALS meat market. Teaching legal writing often was, by necessity, a secondary pursuit.

Granted, this is mere anecdotal evidence likely reflecting only the specific culture of one school. I'm sure there are LRW fellow programs with outstanding legal writing teachers, but my (limited) experience was that professional LRW profs had the time (and interest) to hone their specific pedagogical methods in ways that capped instructors did not.

I no longer teach LRW, but I think the most important point you raise is the fact that LRW profs are so dreadfully underpaid. This is especially problematic given that about 70% of LRW teachers are women. The disparate impact upon women of the seemingly ubiquitous practice of underpaying LRW profs (who make about half the salary of doctrinal profs) is an alarming problem. See Jo Anne Durako, Second Class Citizens in the Pink Ghetto, 50 J. LEG. EDUC. 562 (2001).


Posted by: AnonProf | Oct 22, 2010 11:14:54 AM

The advantage of fellows is that they can contribute to the academic life of the school. As a former one (at NYU), I'm totally supportive of that model. Used right, they can be like graduate students, and graduate programs with good people in them can be boons for research and keeping things on the cutting edge.

They also probably burden the regular faculty more than do practitioners (so that's a downside).

I like experience and all, but I think law schools moved away from that a while ago. And to the extent that there's a lot of grading and feedback needed for legal writing, fellows might be a good way to go.

Posted by: David Z | Oct 22, 2010 11:26:52 AM

It depends on what your school wants to get out of its legal writing & rhetoric program. If it wants: (1) a comprehensive, three-year curriculum of legal analysis & methods, research strategies, objective/predictive writing, advocacy/persuasive writing, legal drafting (statutory, policy, contract), oral communication (not just appellate but client counseling, negotiation, and the like), and (2) wants professional, full-time faculty to develop competencies over time teaching and researching in these fields, as well as for such faculty to have the time to engage in related scholarship, then it will have a different program than a school that doesn't choose to have these goals. Not everyone can attract, develop, and retain top legal-writing scholars.
As a bit of an aside, those who have never had a professional legal-writing scholar review a draft article are missing out: What they might lack in specific, doctrinal subject-matter expertise they more than make up for in, say, familiarity with contemporary rhetoric theory, the psychology of persuasion, and a deep understanding of your threshold audience.

Posted by: AnonProf#Dos | Oct 22, 2010 12:57:05 PM

Thanks to all for the thoughtful comments. In response to David Z., I totally see how Fellows can enhance the intellectual vibrancy of an institution. I guess I'm less skeptical when schools slot Fellows into doctrinal classes that match up with their research agendas. But having them teach LRW seems like an administrative convenience.

Posted by: David Horton | Oct 23, 2010 6:17:47 PM

Although I can see all sorts of reasons why the fellowship model benefits the fellows and the law school, I think it's hard to make the argument that it is best for the students. Teaching good writing is difficult, and even if a particular fellow is a good writer (not always the case), the fellow probably hasn't been trained to teach writing. Moreover, the fellow will be gone in two years. Contrast that with someone whose sole job is to teach legal writing and has been doing it for 10 years.

I think most schools with a fellowship system believe that it is good enough, and that perhaps their students are smart enough to pick up a lot of this on their own. Plus, the ranking system does not appear to award excellence in legal writing, so there are no incentives to improve upon it. It may be perfectly rational for schools to pursue a fellowship model, but I tend to think it dis-serves the students.

Posted by: Jody Davis | Oct 25, 2010 12:25:57 PM

With few exceptions, there is an inverse relationship between the ranking of a school and the quality if its legal writing programs, as a quick look at the specialty rankings bears out. The schools that recognized their students need a quality program to get job hire full time professionals. Even the top schools have at least largely moved away from having third year students teach LRW to first year students. There is little doubt that full-time professionals who devote both their pedagogical and scholarly interests to LRW do the best job for the students. The best LRW jobs are those that pay enough and give the faculty enough freedom to develop as professionals. The LRW scholarship is burgeoning, and much of it is quite interesting. It will be interesting to see if the better ranked schools continue to move toward more professionalized programs, or whether their name alone will be enough to carry graduates into the market.

Posted by: anon prof | Oct 25, 2010 2:32:06 PM

Jan Levine and I wrote about this topic at some length a few years ago in our article at http://ssrn.com/abstract=993276. In brief, unless the Fellow is preparing for a career in teaching legal writing, the position is taking unfair advantage of the Fellow. This staffing model also cheats the legal writing students out of professionally taught training in the core skills they'll need to be a lawyer.

- Sue Liemer

Posted by: Sue Liemer | Oct 25, 2010 6:17:12 PM

I'd like to respond to the notion that "the advantage of fellows is that they can contribute to the academic life of the school." If the writer means to compare fellows to adjunct LRW instructors, this statement may have some truth in it. Adjuncts often are attorneys in practice with little time to invest in the institutions at which they teach.

However, if the comparison is between fellows and full-time LRW faculty, it is much more problematic. At best, the statement is simply untrue. Full-time LRW faculty contribute not only to scholarship (in many places), but also to teaching and governance in ways that are largely unavailable to fellows. At worst, the statement reflects bias against LRW faculty that is well-documented elsewhere.

Posted by: Michael Cedrone | Oct 26, 2010 10:35:10 AM

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