August 02, 2006
Scholarship and Teaching - What's Next?
Posted by Victor Fleischer

If you haven't already, check out the blog forum over at ELS on Ben Barton's great paper on scholarly productivity and teaching effectiveness.  Ben's conclusion (no correlation b/w scholarship and teaching) isn't surprising, is it? 

We can certainly all think of lots of folks who fall into all four of the categories (strong teaching, strong scholars), (weak teaching, strong scholars), (strong teaching, weak scholars), (weak teaching, weak scholars).  What's next?  Assuming limited resources, should a school direct more efforts into scholarship or teaching? 

Perhaps the better question isn't where to devote resources, but rather how to best develop and deploy what you have.  I've been thinking about this quite a bit in the context of transactional law as part of my service on the AALS Curriculum committee.  (More to come on that topic soon.)  One idea -- and here I'm loosely borrowing from Ed Rubin, David Schizer, and others -- is to subdivide into what we do in the 2L and 3L years into "concepts and patterns" learning and active learning. 

1.  "Concepts and Patterns" learning.  Students remember patterns and concepts better than specific rules, cases or statutes.  Students can pack an amazing amount of rules into their short-term memory.  If asked to do so they will.  And many can regurgitate the rules quite impressively on an exam.  But a year later, most of that knowledge will have vanished like a sand castle built at low tide.  What's left are the big pillars that organized the course.  All too often, of course, the teacher hasn't provided a framework, and all that remains is the bitter recollection of exam stress.

[An example may help.  In my Deals class, I eventually want students with no prior business background to be able to reverse engineer a set of real-world deal documents.  Why was the deal structure in the way that it was?  But any real world deal has hundreds of legal rules embedded in its structure, not to mention an infinite number of business risks and considerations. 

To get from here to there, I hammer home a simple framework that divides what lawyers do into (1) managing transaction costs and (2) managing regulatory costs.  Within transaction costs, we then subdivide into (a) information problems and (b) behavior problems, and so on.  Eventually, using the framework, students can look at a clause in any contract and have a good shot at figuring out the business problem that it's trying to address. 

Within regulatory costs, it's mainly a variation on a theme:  how can we change the legal treatment of the transaction while keeping the economics as close as possible?  In the end, I don't care if my students remember the rules about the tax treatment of in-the-money vs. out-of-the-money options, or how the single entity defense works in antitrust.  What I want them to walk away with is a set of tools to analyze deals.   

(For some more examples, see my paper on teaching Deals or my recent post on teaching venture capital.  See also Jeff Lipshaw's post on Prawfs today.)]

What ought to be avoided is CLE-style, "here's a list of red flags" teaching.  CLE classes can be useful for practitioners because they have a strong base on which to build.  For law students, however, the ideas have to be sticky. 

Notwithstanding Ben's data, I think that productive scholars are better at making their ideas "sticky."  It's when we're working on articles that we step back and think the big thoughts.  We come up with better ways to categorize problems and effective, memorable ways to communicate those ideas.  Similarly, presenting your scholarship at a faculty colloquium demands that you figure out a way to simplify your paper and make your ideas sticky for your audience.  In this sense, I have to think that there's a positive spillover effect between scholarly productivity/impact and teaching effectiveness. 

[I suspect the reason this doesn't show up in Ben's data is that faculty evals are completed towards the end of the semester, not years later.  There's no easy way to test for stickiness.  Setting aside the stickiness problem, one way to dig deeper would be to look at the clarity of writing in the scholarly articles and see how that correlates with teaching evals.  Clear writing means clear thinking, and clear thinking usually means clear teaching.  Of course, I'm not sure how easy it is to quantify clarity of writing (the grade-level analysis tools don't seem esp. useful here).  And of course there's a healthy category of law profs who think clearly and write clearly but have trouble communicating verbally.] 

2.  Active Learning.  There's lots of research out there telling us that students learn better when they participate actively in class.  When done well, it approximates the relationship of a judge/clerk or partner/associate.  There's back-and-forth discussion, line-editing, group work, and frequent feedback.  (Yes, I realize that some judge/clerk and partner/associate relationships are dysfunctional, but that's a post for another day.  I myself was very lucky in terms of mentors during my years in clerking and practice.)  Students learn specific rules by applying them in a realistic setting. 

Unfortunately, teaching in this fashion is incredibly time-consuming.  To some extent (e.g. with the use of "clickers" or break-out groups) we can integrate some active-learning methods into our large group teaching.  But here I do think there's a trade-off between scholarship and teaching.   It's time-consuming to line-edit student work or design really good classroom exercises.  And it takes longer, in the aggregate, to grade lots of memos and contracts than it does a single pile of papers or exams. 

The way out of this dilemma, I think, is to divide the burden of labor.  Not every law school class has to look the same.  One approach is to have stronger scholars teach the concepts-and-patterns courses, and ask adjuncts and non tenure-track folks to teach the small group / active classes.

The appeal is avoiding the mismatch of having scholars teaching rules that they themselves aren't really that interested in, while at the same time not short-changing the students, who need some close, active-learning experiences to practice applying the concepts and patterns before they get into the world of practice.

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