Best Practices for Legal Education

This next blog posting comes from Professor Nancy Cook:

The ABA’s Standards Review Committee is considering significant changes to the standards governing legal education relating to security of position. Tenure, even for those long protected in the legal academy, is on the line. CLEA and ALWD are on record as being in opposition to the abolition of tenure (or tenure equivalency) for not only the long-protected, but for all full-time teaching faculty. This is, in the eyes of many liberals, a question of fairness and equality.

Not all self-described lefties are quite so sure. Natural would-be allies hesitate about a system of job security that would open the doors to certain full-time faculty primarily on the basis of one factor: scholarship. Concerns center primarily around questions of the nature of the university. If, as many (if not most) people believe, the university is essentially a place where knowledge is developed and disseminated, then, the argument goes, employment protection (and certainly faculty governance) should be reserved for those who actually engage in the development and dissemination of knowledge. The means by which knowledge is developed and disseminated is scholarship, published in respected journals. A corollary to this argument is that tenure protects academic freedom by ensuring that those who publish unpopular views (historically, where truth lies) are not put at risk of losing their employment for expressing those views

I share with the many the belief that the university is a place where knowledge is to be grown, preserved, and shared, and that the development of knowledge should be nurtured and protected. But I take issue with the idea that knowledge is only evidenced by and disseminated via a particular brand of scholarship (see blog posting of October 10, 2010). It also seems ridiculous to assert that academic freedom only applies in controversies over what someone has written. Certainly, faculty who put themselves on the line by representing unpopular clients or pursuing truth through unconventional pedagogies are equally worthy of a shield against disgruntled employers, board members, and local citizens.

There is still more to this debate though. The university’s role as both guardian and generator of knowledge, concededly its primary function, is not accomplished only through the research and scholarship of its academic faculty. It is also accomplished through education and service. Typically, in law schools, these three functions – scholarship, teaching, and service – make up a triangle by which the university’s aims are meant to be achieved. Reliance on scholarship – and more particularly, on publication — as the top-heavy angle of the triangle has skewed this conversation about security of position. The privileging of scholarship is the elephant in the room whenever discussions about tenure, faculty governance, and appointments processes take place.

The role of teacher, vis a vis student, is to draw out knowledge. That is the etymological root of the word “education,” and it is at the heart of what we have come to call the “Socratic method.” However successful we may be in this role as teachers of students, we seem to lose sight of its value in our dealings with each other. We tend not to act as educators – drawing out knowledge and truth – in our peer group. It seems to me we have it backwards; we are using publication as the keystone, when we should be using education

The reliance on publication as evidence that knowledge is being created and disseminated needs re-examination. Clearly, this focus denigrates the other points of the triangle, teaching and service. As with our tripartite democratic government, the university academic triad is meant to provide balance that benefits the whole enterprise. The spirit of the university triangle is one of integration. Each part of the triangle supports the other two parts. It is true, as many have noted, that scholarship makes us better teachers; but it is also true that service makes us better scholars, that teaching improves our performance as public citizens, and so on. Too great an emphasis on any one part of the triangle carries risk.  With the over-weighting of scholarship, the risk is that our publications will be overly formulaic, exclusive, risk averse, and dishonest, thereby taking us away from our central mission of discovering knowledge and pursuing truth.

More significantly, in my view, this overemphasis on scholarship is not true to the spirit of education. Again I return to the idea that the method by which universities operate in pursuing truth and gaining knowledge is that of drawing out.  Certainly scholarship succeeds best when it does more than inform — when it, rather, draws a response from readers and provides the path by which readers possess their own understanding of ideas and principles and come to own knowledge for themselves. Teaching and service are also part of the educational process. Our colleagues, like our students, have been chosen for their commitment to learning and for their ability to contribute to the knowledge enterprise. Whatever policies we put in place to maximize the potential for sustaining this enterprise needs to honor the ability and commitment of each, and should provide the space and opportunity each needs to succeed.

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