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Tuesday, July 24, 2012

Why More Elite Schools, and Judging Adjuncts

First, a quick note to say thank you to the many, many commentators (by Prawfs standards) on my last two posts. I'm especially grateful for the comments on the paper and welcome further comments by email. If there was any kind of culture clash in the comments between the usual tweediness of the Prawfs commenter and some of the folks who sailed in from the so-called scamblogs, I expected and welcomed it: one of my goals in putting this paper out there early was definitely to expose it to constituencies that might not otherwise read it and get their feedback, positive and negative. Same with my solicitation of advice for my upcoming talk to aspiring law professors: I'm sure I won't possibly be able to cover everything, and in fact some of the commentary convinced me that I will have to give more straight advice than I'd planned on. But I did and do want to make the "crisis" a part of that talk, not so much in terms of warning aspiring profs about mass closures but more in terms of emphasizing the duty of faculty governance among even new professors, and that this duty includes worrying about precisely these issues. In all, although the discussion got heated, I was thrilled by how productive and relatively civil it was, and very grateful for the many questions and thoughts.

Now, on to new stuff.

Courtesy of Paul Caron, I see that Erwin Chemerinsky has a new op-ed discussing Brian Tamanaha's law school reform proposals, and particularly some of Tamanaha's criticisms of UC-Irvine. (Note that the somewhat unfortunate title of the piece--"You get what you pay for in legal education"--may have been an editor's choice rather than the author's.) I want to focus on two of the points he makes in his piece.

The first is this statement:

Tamanaha says that UCI Law School "squandered" its opportunity, and that where we "went wrong was in setting out to create an elite law school." My goal, and that of my university, has been to create a top 20 law school from the outset. Recently, a study of faculty scholarly impact ranked UCI Law's faculty seventh in the country (behind Yale, Harvard, Chicago, Stanford, New York University and Columbia). Our students are of the caliber of top 20 law schools by traditional measures of LSAT and grade-point averages. Our applications were up 105 percent this year. Of the 58 students who graduated in May, 16 have judicial clerkships across the country, which puts us behind only Yale and Stanford among top 20 schools in the percentage of students who will be clerking. 

If we had followed Tamanaha's advice, we would not have faculty remotely of this quality and then never could have attracted students of this caliber. We surely would have been a fourth-tier law school. It is ironic that he would be advocating that because so much of his book is about demonstrating the serious problems such schools face. 

What's missing from this response, I think, is why it made sense to set out to create a "top 20 law school from the outset." The thing about that is that there were, of course, already 20 such schools in existence. (Or, by law school math, about 25 or 30.) Chemerinsky may or may not be right about the kind of causal mechanism he describes in the second paragraph. But to my mind, he neither explains why the goal of creating a top 20 school made sense, nor why he couldn't have instead rejected the kind of "tier" notions he uses altogether, or used the law school's startup cash to think about what a first-rate "second" or "third" tier school could be. I am guessing Southern California and its legal market and would-be client base are probably much more in need of the latter.

The second thing is something I'd like to ask readers about. Chemerinsky writes:

Cutting a law faculty in half would require relying far more on relatively low-cost adjunct faculty. Tamanaha's assumption is that relying on practitioners rather than professors to teach more classes won't compromise the quality of the education students receive. Here I think he is just wrong. There are certainly some spectacular adjunct professors at every law school, and they play a vital role. But as I see each year when I read the student evaluations at my school, overall the evaluations for the full-time faculty are substantially better than they are for the adjuncts. It is easy to understand why. Teaching is a skill, and most people get better the more they do it. Moreover, full-time faculty generally have more time to prepare than adjunct professors who usually have busy practices. 

Adjunct faculty are available far less for students than full-time faculty. Tamanaha gives no weight to the substantial learning that occurs outside of the classroom. I think he tremendously underestimates the amount that most faculty are around the school and available to students. 

I also support the more vigorous use of adjuncts. More to the point, I think we already do it at many or most law schools but haven't fully acknowledged it, and the more we do the more likely we are to fully integrate adjuncts into our community and erect quality controls. But I would like to know the sense of readers, whether professors or students, out there. Is Chemerinsky right that full-time faculty are better teachers than adjuncts, or that adjuncts are far less available to students than full-time faculty? What are your own impressions of adjunct versus full-time faculty, both the positives and the negatives? And how, apart from evaluations, can we get the most and highest use out of adjuncts? 

Posted by Paul Horwitz on July 24, 2012 at 08:55 AM in Paul Horwitz | Permalink

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A few thoughts (sorry to keep anon). First, one negative about adjuncts is that they tend not to be used because they are good practitioners who can bring practical experience into the classroom. In my experience, they are often used because they are significantly cheaper than hiring tenure-track faculty, they will often teach classes the tenure-track faculty don't want to teach, and they will often teach classes at hours the tenure-track faculty don't want to teach. But they haven't really lowered the cost of legal education (because the tenured professors still earn dramatically more), and they've become almost more of an excuse for tenure-track faculty to teach fewer courses (because, after all, for just a few thousand more dollars, someone else will teach that third or fourth or fifth course in your load).

Second, on the flip side, there is almost a "spoils system" to many adjunct faculty hires. They are distinguished names in the community so that law schools can put them on their web sites and boast about how Judge X or Partner Y teaches, but they may not be very good teachers; they are potential or actual donors the law school is trying to maintain a relationship with; or, they're the only ones willing to work for peanuts.

Third, I've experienced disproportionately more complaints about grades received from adjunct professors. Grading, of course, isn't reflected in the course evaluation. But I've had more students whose transcripts looked odd from an adjunct's grade than a tenure-track professor's grade. Perhaps it's that grading requires much more time than adjunct professors are able to give; perhaps it's that adjunct professors value things that tenure-track professors don't, for good or for ill. But, if you're looking for data, comparing the correlation of grades would be useful.

Fourth, if one is at a more rural campus, such as a land grant school, it can be extraordinarily difficult to find quality adjuncts. There are simply fewer lawyers in the area when most graduates head to a metropolitan area to practice.

There are, of course, extraordinarily valuable adjunct professors--I had one such professor at law school (and a couple of others who didn't quite fit the bill). And in an ideal world, we would have the very best practitioners who, being excellent teachers, would join the classroom once a week and give back to future attorneys. But, I think the theory is far ahead of where the practice is at the moment.

Posted by: anon | Jul 24, 2012 10:07:39 AM

Of all the virtues to tout for full-time faculty over adjuncts, availability has to be one of the silliest. Any questions that I had for professors usually went into an email, with possible further clarification in office hours or in the next class. Adjuncts also have email, and were usually also willing to meet before the next class. Additionally, I got much more feedback from my adjuncts, because those classes tended to have graded written work other than an exam at the very end. (Adjuncts also taught less frequently in a quasi-Socratic manner than full-time faculty in the first year, which helped create the confusion that those first-year professors would then have to alleviate in email or private office visits.)

I honestly don't believe that the gap between full-time faculty and adjuncts is that wide, when it comes to raw teaching ability or even that refined by practice. If you get better the more you teach, as Dean Chemerinsky argues, then it makes sense to have full-time faculty teaching more than two classes and a seminar every year, but that's not happening at UC-Irvine or any other law school striving to be of "Top 20" quality (i.e., most of the bottom 180+). Meanwhile, adjuncts have to explain what they're thinking to judges, juries, fellow attorneys and clients every day in written or oral communication. Is that really such inferior preparation for explaining the law to law students?

Posted by: Morse Code for J | Jul 24, 2012 10:17:11 AM

Paul asks: " Is Chemerinsky right that full-time faculty are better teachers than adjuncts, or that adjuncts are far less available to students than full-time faculty?"

I haven't noticed a difference in the evaluations, although I've never thought to look for one, either.

Posted by: Orin Kerr | Jul 24, 2012 11:09:36 AM

I am not sure whether adjunct faculty are better or worse teachers because I haven't sat in on very many adjunct-taught classes, but I do think that teaching is a skill that you learn and that you get better with practice. To the extent that is true, I think full-time faculty should be better teachers as we spend considerably more time in the classroom than adjuncts.

I also tend to think that on average full time faculty ought to be more available than adjuncts for answering questions and counseling students on study habits or career choices. Not all faculty come in every day of course, but most of us are here most days.

Some questions can be dealt with by email (e.g, "what rule governs summary judgment?"), but the questions/concerns I get more commonly ("I don't understand the difference between claim preclusion and issue preclusion") tend to be pretty difficult to answer in an email. The sort of answer you can put in an email (one deals with claims, the other deals with issues) isn't very helpful. They are much easier to deal with in person.

P.S. Sorry to be anon. Discount my contribution accordingly, if you choose.

Posted by: anon | Jul 24, 2012 11:45:29 AM

Isn't the second question one that should be answered with good data rather than with personal impressions?

On the first question, if we care about the legal education system as a whole rather than about the parochial desires of any one school, then wouldn't we side with Tamanaha about UCI? Why should anyone care if there is a new school striving to displace one of the existing top 20 schools? And if one believes that we have too many would-be elite schools, isn't UCI's project one that should be regretted? It's interesting to look back at the series that Paul Caron ran about advice for Dean Chmerinsky.


http://taxprof.typepad.com/taxprof_blog/2007/10/roundup-of-advi.html

Posted by: John Steele | Jul 24, 2012 11:50:10 AM

Why create a top 20 law school rather than a great third tier law school? Why should law school competition be different from other business competition? Our MBA business colleagues are better able to explain this than I am, but in my nine years of real world business experience in house, for sound competitive reasons, businesses want to be--need to be--perceived at the top of their markets. One reason is price flexibility, i.e., profit. People pay premium prices for the best. In the pre-U.S. News ranking days, there were sub-markets to lead, e.g., in a city, state, or among schools affiliated with a particular religion. Today law schools are looking for other sub-markets (e.g., IP). Tier-marketing does not seem to be one of those. Why should it? Value pricing? If you compete on price, what do you compete on when the higher quality competitor cuts prices?

Posted by: James Maxeiner | Jul 24, 2012 11:57:05 AM

As an academic dean, it’s part of my job to hire adjuncts, orient and train them, observe their classes (or review observation reports of full-time colleagues who do so), read their evaluations, and intervene when problems arise. We have well over 100 adjunct faculty. Here’s what I find. We have a very small number of “star” adjuncts who teach core classes year after year. They were hired on the hunch that they would be natural teachers, and that has largely turned out to be true – some of them are as highly rated by students – and as good (not always the same thing) – as our best full-time faculty. However, the teaching of most of our adjunct faculty is inferior to that of full-timers. Many of their classes resemble extended CLE courses. Often they don’t really “teach” in the sense of engaging the students, diagnosing their problems, and working flexibly to respond to what they see before them. No doubt this is partly because they are too busy, partly because they lack the same professional incentives as full-timers, and partly because some of them just aren’t very talented as teachers, whatever their skills as practitioners. My experience has made me a big believer in the value of full-time, professional teachers.

Posted by: Academic dean | Jul 24, 2012 12:17:42 PM

Yes, as a law professor who's had some involvement in hiring adjuncts, I have to agree with the comments of Academic Dean. Some adjuncts are great, valuable instructors. But overall, adjuncts get somewhat lower ratings on student evaluations than do full-time faculty, at least at the two institutions I've been associated with. Moreover, the classes that are disastrous in some way (instructor showed up late, instructor turned in incomprehensible final exam without proofreading, instructor mumbled inaudibly) are disproportionately taught by adjuncts. I say this not to impugn the majority of adjuncts, but for obvious reasons, hiring someone who is untested as a teacher and who has fewer incentives to perform well is more of a risk. Also, staffing classes with adjuncts is much more of a hassle for the administration in terms of uncertainty, scheduling problems, etc.

In general, very successful practitioners are hard to entice to be adjuncts, and when they do serve as adjuncts, they often don't have the time to put into class preparation. For this reason, many adjuncts fit the profile that scambloggers complain about so much in full-time profs - that is, they are relatively junior and often just want the adjunct line on their CV because they are hoping to go into academia. Or they are less successful practitioners who need the money or contacts. Again, these are generalizations and I ackowledge that there are many exceptions. As a general rule, though, adjuncting is time-consuming without being particularly remunerative or prestigious, making it hard to attract high-quality adjuncts.

Note that I am very sympathetic, generally, to critiques of legal academia as out of touch with practice. If anyone has ideas on how to improve the quality of adjunct teaching or to attract more scholar-practitioners to academia generally, I am all ears. But to simply ramp up the current adjunct system would, I believe, significantly reduce the quality of teaching.

Posted by: Another prof | Jul 24, 2012 1:20:54 PM

The adjunct question also is in some tension with other aspects of curricular reform. Advocates urge that law school classes should provide more exercises and projects during the semester, especially graded projects so we move away from the single all-or-nothing end-of-semester exam. They also want more skills training in those core doctrinal classes, again meaning more exercises, presumably with feedback and evaluation. All of this makes teaching even more time-intensive. So while adjuncts know more about the practice of law than most full-time faculty, do they have the even greater amount of time necessary to prepare and conduct the sort of classes that reform advocates want?

Posted by: Howard Wasserman | Jul 24, 2012 2:33:14 PM

How about a law school staffed by full time instructors (i.e. >= 3/3) - recruited and retained for their pedagogical skills, and paid somewhere between the honorariums of adjuncts and highest-in-social-science salaries of the status quo tenured law professoriat?

It would be worth an experiment at least to see if a school that prioritized education rather than signaling could succeed.

Posted by: Brad | Jul 24, 2012 3:36:02 PM

My views are coloured by being an adjunct (not in the US) this year. As a busy practitioner used to prioritising and providing top service to clients, I believe I probably responded to emails faster than many full time faculty. I scored highly on student evaluations. I was able to give useful practical examples. I found grading time consuming and challenging, but produced a good spread.
Looking at the posts, I suspect there are some top-level research professors who have little interest in teaching anything beyond the odd seminar (the comment by Academic dean on incentives was interesting, as one might comment that tenure reduces incentives to teach well, while adjuncts who want to be asked back need to do a good job). It is also odd, incentive-wise, to comment that there aren't many good adjunct profs because it doesn't pay well: might not there be more good ones if it did?

Posted by: Thomas | Jul 24, 2012 5:13:55 PM

Thomas, let me clarify what I meant by “incentives.” I have in mind two considerations. First, I think the degree to which legal academics don’t care about teaching is grossly exaggerated. Virtually everyone, whether he admits it or not, wants to be respected as a good teacher. Some hold this a lower priority than others, to be sure, but everyone wants it, and everyone, I believe, is disappointed if he fails to earn that respect. Second, there is the quesiton of whose respect is deemed valuable. Full-time professors want mainly to be respected as good teachers by their peers. Adjuncts – and I say this with regret – tend to be marginalized at their institutions. Because they are not really members of a community of teachers, they tend to seek the respect of the only community they have: their students. But it is far easier to impress students and earn their respect than it is to earn the respect of full-time, professional teachers. Surely anyone who has ever taught has experienced students gushing in evaluations over her “knowledgeability” of the subject matter even when teaching aspects of it of which she knows herself to be profoundly ignorant. Clearly, one way to raise the quality of adjunct teaching is to bring their incentives into alignment with institutional objectives by bringing adjuncts more tightly into the fold.

Posted by: Academic dean | Jul 24, 2012 6:04:42 PM

"Thomas", I don't think you can know how fast law professors respond to students on email. From what I can gather from conversations, my colleagues are very responsive to students. Not all colleagues are. I respond quickly to emails. Have I ever missed anybody. Sure. But those are mistakes that anyone can make because no one is perfect. As a matter of fact, many legal practitioners fail to answer letters and their clients' calls in a timely manner. Ask disciplinary committees in any state. Slow responses to questions and failure to return calls are common complaints.

So the suggestion that because one practices law one is presumptively prompt in responding to those for whom one has responsibility is not supportable. It's about the person himself or herself. One does not have to be a "busy practitioner used to prioritising and providing top service to clients"(?!) in order to know how to answer emails in a timely fashion. Professionalism does not exist in only sphere. Borrowing your formulation, one can be a busy professor used to prioritizing and providing top service to students, to the committees on which one serves, and in one's role as a researcher and writer, and still find ways to send emails when necessary.

Posted by: CHS | Jul 24, 2012 6:43:21 PM

You can't rely on tenured professors to evaluate themselves or to make any plausible claim to their ability to teach effectively. Tenured faculty and tenure track faculty are not hired to teach. Tenured faculty and tenure track faculty are hired to produce legal scholarship. Being a "great teacher" rarely, if ever, factors into hiring or tenure decisions.

Additionally, the comparison between adjunct and tenured faculty amounts to comparing apples to oranges. Most times adjunct faculty members tend to teach practical real life legal courses that help students practice law. Tenured faculty tend to teach courses heavily steeped in legal theory and philosophy. Tenured faculty can't comment on adjuncts teaching courses because 99% of the time tenured faculty have no idea about the actual practice of law. It would be akin to a tenured faculty member criticizing how an engineer taught a computer engineering course. The same can be said regarding adjunct's critique of tenured faculty.

The discussion should center around whether or not law students want more practical teaching in law school (and since 99.9% of law students will not become members of law faculty, the answer is probably yes). If so, then more adjunct professors should be utilized.

Posted by: anan | Jul 24, 2012 7:04:04 PM

I don't have a study to which I might point, telling me that adjuncts were at least no worse than full-time faculty. From my experience, I don't recall much that counted with me as "engaging the students, diagnosing their problems, and working flexibly to respond to what they see before them" from the full-time faculty, although I can think of two or three exceptions. If that standard amounts to almost all people in a class emerging with some reasonable baseline understanding of a topic, I would describe that as only haphazardly accomplished by most full-time faculty.

The point is that law school costs cannot continue to rise anywhere that doesn't simultaneously offer its graduates the cache to get the bigger salaries, and that list is basically six to fourteen schools long. Maybe the answer isn't to hire more adjuncts. Maybe schools could leverage information technology to give students more practice with issue-spotting and formulating written arguments, in a way that allows students to self-evaluate with minimal faculty or contractor supervision - an automated super-BarBRI meant to improve legal writing while helping students understand the core principles. Maybe it's just asking today's professors to teach twice or three times the classes they're used to teaching, and halving legal research production.

What cannot happen is for the trend to continue unabated, unless you want conditions placed on federal student aid that indirectly accomplish all that the scambloggers could want.

Posted by: Morse Code for J | Jul 24, 2012 7:43:15 PM

Cachet, even. I should be more cautious using French fourteen years after undergrad.

Posted by: Morse Code for J | Jul 24, 2012 7:44:17 PM

I've blocked a comment, because it didn't meet my generally fairly forgiving standards for avoiding personal snark, but I'm happy to paraphrase it. The gist was, at least practitioner adjuncts will give useful practical advice, unlike the platitudes offered by academics like yours truly. Fair enough. It was the tone, not the content, that I objected to.

Posted by: Paul Horwitz | Jul 24, 2012 10:54:42 PM

I have taught as an adjunct at four law schools. I have seen some excellent adjuncts and some who were not-so-good, both in terms of teaching ability and accessibility. The same can be said of full-time faculty. This is simply too difficult an area to support generalizations. The bigger picture that Dean Chemerinsky seems to miss entirely is that there was and is no need for another elite law school generally, nor one in California, which boasts exceptional public law schools in Boalt Hall, UCLA, UC Davis, and Hastings. The law school at UC Irvine is, despite its excellent faculty, a waste of scarce higher education resources.

Posted by: Doug Richmond | Jul 25, 2012 8:17:53 AM

My view is that adjuncts are in the middle in terms of quality - not as good as the best full-time teachers, nor as bad as the worst.

Posted by: dave hoffman | Jul 26, 2012 4:19:13 PM

My experience with adjuncts was complicated.

First, without question the very best tenured professors I encountered had started as adjuncts - usually GS-13 and above or as law firm partners. They were generally stellar - head and shoulders above the career professors both as teachers, on a personal level and in the efforts they made to help students.

Second, the next group of outstanding faculty were still in practice, people like say Ken Feinberg or Bill Patry.

Third, then there were some outstanding career professors, most though had 10 odd years or practice before becoming professors and were regarded with disdain by the fourth group.

That fourth group were just bad teachers and many were indifferent to whether their students learned - many were Yalies, they did a lot of scholarship and famously organised a protest "sit-in for diversity" which consisted in essence of the law school administration lead by Judy Areen and Peter Edelman protesting themselves (as well they might, being a pretty un-diverse bunch) - any empathy they ever exhibited was theoretical and distant - directed at "groups" they could define - they certainly did noting for their students.

Then there were some pretty poor adjuncts, not a lot, but a few. Few were as bad as the worst members of the fourth group, the career law professors - and the worst amongst this group were those who had conciously set out, from entering Yale and to a lesser degree Harvard to be law professors - this group were dire, but as professors and in their attitude towards their students and their responsibility as teachers.

However, I do see disadvantages in using adjuncts to teach core courses, such as contracts, torts, etc. - though funnily enough I think they would be much better at Con-law (less of the tenured professors' personal enthusiasms and biases and more on what matters.) The reason is that I have found, when I was a general counsel that while law-office trained lawyers (I had a few) often had great judgement, their were holes in their knowledge on contracts, torts, etc. That is to say that learning by doing certain subject, and learning from those that do can be tricky because their teaching focusses very much on what they did - and in practice few lawyers get to do everything. To me the basic contract and torts courses need to be very comprehensive to ensure that lawyers have the detailed and complete knowledge they need of these subjects.

There might though be some benefit in making courses two part - as in criminal law and procedure taught by a tenured professor with a follow on criminal law and practice course from an adjunct - and so on.

Posted by: MacK | Jul 28, 2012 9:24:00 AM

I had wonderful career professors and some good adjuncts, too. I think it depends on the school. HYS attracts great instructors. The wonderful thing is that many of them were intimately involved in creating the rules and policies that are discussed in class. Constitutional law is an especially rich experience at those schools.

Contracts is not a conceptually difficult course. Full-time professors and adjuncts, alike should be able to handle it well.

Posted by: CHS | Jul 29, 2012 6:36:20 PM

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