Category Archives: Law schools

Steel on Adjunct Law Profs Training

Legal education is a topic of much concern for NLR scholars, as can be seen in the first book of the recent NLR volume set published by Cambridge University Press.  During the academic year 2017-2018, we plan to feature blog posts on legal education research.  We begin with a guest blog from Professor Alex Steel, who educates those of us outside of Australia on the cutting-edge efforts there, based in part on survey research.  As he points out, Australia has been a leader in legal educational reform based on empirical efforts — and as such has much to teach those of us engaged in the legal academy in the U.S. as well as other parts of the world.  We hope in the months ahead to share research on legal education from many disciplinary and global perspectives, following the NLR tradition.   

Smart Casual: online professional development for adjunct colleagues

In the US the proportion of non-tenure track faculty in higher education generally has been reported to be at 73% in 2014[1] and predicted to rise.[2] These figures include community colleges and so are not necessarily representative of smaller graduate law schools. However numbers of adjunct or adjunct colleagues in law schools are also rising.

The American Bar Association (“ABA”) Standard 403(a) requires that full time faculty:

… teach substantially all of the first one-third of each student’s coursework. The full-time faculty shall also teach during the academic year either (1) more than half of all of the credit hours actually offered by the law school, or (2) two-thirds of the student contact hours generated by student enrolment at the law school.[3]

However this is currently under review by the ABA Standards Review Committee, and if amended adjuncts could be more widely employed.  This has been the experience in Australian law schools where no restriction exists.

Estimates put the number of adjunct colleagues in Australian universities at between 40-60% of all teachers.[4] The level of use of adjunct colleagues within law schools may be even higher. Cowley’s 2009 survey of Australian law schools[5] suggested that up to 50% of courses were then taught by adjunct colleagues, a percentage likely to have risen substantially since then. Australia’s 40 law schools[6] range in size, with annual enrolments from 20 to 1000.  Even in larger law schools with a strong cohort of permanent research-based colleagues, a decision to teach in small classes/sections can result in very high levels of reliance on adjunct colleagues.[7]  One large Australian law school had 75 adjunct academics in 2014, teaching over 50% of the classes.[8]

Despite the importance of the skill of the teacher in assisting student learning,[9] significantly less effort is put into training faculty to teach than is put into training for research. Research training is increasingly seen as fundamental and necessary: indeed the widespread requirement of a PhD as an employment criterion is a proxy for extended research training and demonstrated research ability.[10]

Many universities now include generic teaching workshops for colleagues beginning their academic careers – including adjunct colleagues.[11] Our 2014 survey of Australian law schools indicated that 75% of their adjunct colleagues attended such generic university-wide induction.[12]  However, the same survey indicated that there is little formal discipline-specific training for commencing law teachers, with only 25% of schools offering any training beyond administrative orientation.[13] In a US context, Popper described such training as Mirandising – the indoctrination of a series of warnings about student and staff rights.[14] While important, they are only the beginning of how adjunct colleagues learn to teach in that law school’s environment.

Consequently, much training of law teachers occurs ‘on the job’ in local contexts, and approaches vary considerably.[15] There is a widespread assumption that new faculty can expect a supportive mentoring environment with colleagues who will nurture and mentor their teaching; though whether this is adequate, if it indeed happens, is moot.[16]

While such support might be potentially available for permanent colleagues, the same does not apply to adjunct colleagues.[17] Indeed, the lack of institutional support for the professional development of adjunct colleagues is increasingly recognised at a national level.[18]

The Smart Casual: Promoting Excellence in Sessional Teaching in Law project (“Smart Casual”) seeks to address this priority by developing online, law specific professional development modules.

Many adjunct colleagues are not invited to law school induction teaching workshops that go significantly beyond administrative matters. In terms of any further support, the Smart Casual survey indicated only 36% of law schools invited adjunct colleagues to professional development sessions.[19] The ABA Best Practices Report found a similar percentage of schools offered professional development programs.[20] Where they are invited, adjunct colleagues may be unable to avail themselves of the opportunities to attend due to their other work commitments and out-of-hours teaching times.[21] This will also mean they are not able to create networks and collegiality as do permanent colleagues. The precariousness or last minute nature of their employment may also militate against their ability to build collegial links or attend development forums (for which they may in any event not be paid to attend or to which they might not be invited).

Adjunct colleagues are also likely to encounter teaching issues from a different perspective to that of permanent faculty.  Adjunct colleagues often have far less autonomy in setting curriculum and assessment, and often in the way they teach classes.[22] Consequently, professional development resources for adjunct colleagues must be framed within those limitations.

Further, law confronts specific challenges in responding to the challenge of supporting adjunct colleagues. Discipline-specific skills and content form substantial components of law curricula. In Australia, graduates must meet discipline-developed national Law Threshold Learning Outcomes (TLOs)[23] and professional admission requirements.[24] Both of these go beyond mere mastery of content and include a range of skills such as ethical conduct and communication and collaboration. Similar requirements are now part of the ABA standards for US law schools.[25]

Adjunct law teachers are often time-poor legal practitioners weakly connected to the tertiary sector. While highly skilled, practitioners may be under-prepared for the complexity of legal education’s current emphasis beyond content.  Many will have been taught in environments that are significantly different to current pedagogical environments. For example, until the 1980s legal education in Australia was primarily positivist in approach, teaching a narrow range of legal doctrines and processes of reasoning, at times by rote. Since that time, there has been broad recognition of the need to teach law within its broader social context, and to involve students as active participants in the learning process.[26] These needs were primary drivers in developing the TLOs. However there are varying levels of awareness at faculty level of these important innovations.  This is particularly true of adjunct colleagues who can come and go without awareness of these trends, and may only be familiar with the approach to teaching that they themselves encountered as students.[27] Further, they are unlikely to have the time for large-scale training, nor see the need for it. This distinctive context demands discipline-specific and targeted training for adjunct colleagues in law.[28]

The national need for professional development opportunities and resources for adjunct law faculty is being addressed by the Smart Casual project. While written with primarily Australian colleagues in mind, much of the content is of relevance internationally.

Surveys of law school Associate Deans Australia-wide and three localised surveys of adjunct colleagues, suggested adjunct colleagues were most interested in gaining assistance with facilitating critical thinking among students; encouraging and managing class participation; providing feedback; facilitating student understanding of substantive content and knowing how to deal with student wellness issues.

We have now finalised a full set of nine topics based on the surveys and trial participant feedback:

Steel- image 3

Further, we have sought to identify and weave throughout the modules four strategic themes critical to law and law teaching:

Steel- image 4

The online modules can be accessed freely by law teaching colleagues worldwide.[29] We expect the modules to satisfy some, but not all, of the principles of best practice academic development. They are designed to be time efficient and available on an ‘as-needs’ basis, so adjunct colleagues can use them as and when required. However, we recognise that in isolation the resources will not engage adjunct teachers in collaborative endeavour nor in the collegial discussions, which are important in developing teaching expertise. They are, however, an important first step in that direction and provide a set of resources around which individual law schools can build programs.[30]

The modules are designed to be ‘SMART’: ‘Specific’ to the teaching of law; ‘Meaningful’ to the needs of law teachers; ‘Accessible’, allowing adjunct teachers to access and refer back to the resources as required; ‘Realistic’, easily applicable to the varied contexts in which session teachers work and their many roles; and ‘Time-efficient’ by being as concise as possible without sacrificing content. Each module consists of a literature review and resources guide, and a toolbox of strategies and ideas based on sound pedagogical principles that can be accessed by adjunct colleagues to support and improve their teaching practices.

What distinguishes the modules from many other online teaching modules – both those designed for colleagues and students – is the interspersing of short video interviews of adjunct colleagues.  This is intended to de-centre the authoritative text of the modules and provide a nascent sense of a community of practice – both discussed below. We were very fortunate to have adjunct colleagues from around Australia generously give their time to be interviewed. The interviews have been captured as short YouTube clips that are linked from the modules.[31]

The writing of the modules has also led to a number of journal publications which provide further elaboration of issues and themes:

“Fostering “Quiet Inclusion”: Interaction and Diversity in the Australian Law Classroom”,  Journal of Legal Education 66 (2017) 332

Critical legal reading: the elements, strategies and dispositions needed to master this essential skill”,  26 (2016) Legal Education Review 187

“Working The Nexus: Teaching Students To Think, Read And Problem-Solve Like A Lawyer”,  26 (2016) Legal Education Review 95-114

“Interaction and diversity in the Australian law classroom”,   39 (2016) Research and Development in Higher Education: The Shape of Higher Education, M. Davis & A. Goody (Eds.), 39 (pp 127-136), Fremantle, Australia, 4 – 7 July 2016

“Beginning to Address ‘The Elephant in the Classroom’: Sessional Law Teachers’ Unmet Professional Development Needs” 38 (2015) University of New South Wales Law Journal 240.


[1] Higher Education at a Crossroads: The Annual Report on the Economic Status of the Profession (2015-2016) American Association of University Professors <>.

[2] David N Figlio, Morton O Schapiro and Kevin B Soter, ‘Are Tenure Track Professors Better Teachers?’ (Working Paper 19406, National Bureau of Economic Research, September 2013) <.>.

[3] American Bar Association, 2016-2017 Standards and Rules of Procedure for Approval of Law Schools (2017) <>.

[4] Douglas Davis, Bruce Perrott and Len J. Perry, ‘Insights into the Working Experience of Casual Academics and their Immediate Supervisors’ (2014) 40(1) Australian Bulletin of Labour 46; Percy et al, above n 2.

[5] Jill Cowley, ‘Being Casual About Our Teachers–Understanding More About Sessional Teachers in Law’ [2010] (48) The University of New South Wales Law Research Paper <;.

[6] Studying Law in Australia, Australia’s Law Schools (26 April 2016) Council of Australian Law Deans <;; While the US has 5 times as many law schools (205 ABA approved in 2016), the US has 13 times the population (318million: 23.6 million in 2014).

[7] Cowley, above n 9.

[8] Rachel Hews, Jennifer M Yule and Justine Van Winden, ‘Sessional Academic Success : The QUT Law School Experience’ (2014) 7(1-2) Journal of Australasian Law Teachers Association 15.

[9] See e.g., Keith Trigwell, Michael Prosser and Fiona Waterhouse, ‘Relations between Teachers’ Approaches to Teaching and Students’ Approaches to Learning’ (1999) 37(1) Higher Education 57; John B Biggs, Teaching for Quality Learning at University: What the Student Does (McGraw-Hill Education, 2011); Paul Ramsden, Learning to Teach in Higher Education (Routledge, 2003). <;.

[10] Andrew Norton, J Sonnemann and I Cherastidtham, ‘Taking University Teaching Seriously’ (Report 2013-8, Grattan Institute, July 2013) 15. <;

[11] John Burgess et al., Managing temporary workers in higher education: still at the margin?, 35 Personnel Review 207–224 (2006).

[12] Mary Heath et al, ‘Beginning to Address “The Elephant in the Classroom: Sessional Law Teachers” Unmet Professional Development Needs’ (2015) 38(1) University of New South Wales Law Journal 240, 240, 249.

[13] Id. at 250.

[14] Andrew F. Popper, The uneasy integration of adjunct teachers into American legal education, 47 Journal of Legal Education 83–91, 84 (1997).

[15] Heath et al, above n 16; For online discussion of these issues from non-law school sessional viewpoints see for example the blogs: A Home Online For Casual, Adjunct, Sessional Staff and their Allies in Australian Higher Education (2016) CASA <;; Casual Voices (2016) Uni Casual <;.

[16] Cf Andrea S Webb, Tracy J Wong and Harry T Hubball, ‘Professional Development for Adjunct Teaching Faculty in a Research-Intensive University: Engagement in Scholarly Approaches to Teaching and Learning’ (2013) 25(2) International Journal of Teaching and Learning in Higher Education 231, 232.

[17] Gouvin, supra note 6 at 12.

[18] In the US context see for example, Colleen Flaherty, Non-Tenure-Track Faculty Members Say They Want More Professional Development, With Compensation (27 August 2015) Inside Higher Education <;; In an Australian context see the discussion in Heath et al, above n 19.

[19] Heath et al., supra note 19 at 251.

[20] Gouvin, supra note 6 at 12.

[21] Jill Cowley, ‘Confronting the Reality of Casualisation in Australia: Recognising Difference and Embracing Sessional Staff in Law Schools’ (2010) 10(1) The Queensland University of Technology Law and Justice Journal 27.

[22] For a provocative description of this dilemma see: Working as a Casual? Zip Your Lip and Do as You’re Told (22 April 2016) The Guardian <;.

[23] Sally Kift, Mark Israel and Rachael Field, ‘Learning and Teaching Academic Standards Project, Bachelor of Laws Learning and Teaching Academic Standards Statement’ (Australian Learning & Teaching Council, December 2010); Council of Australian Law Deans, Juris Doctor Threshold Learning Outcomes (2012) Legal Education Associate Deans’ Network <;.

[24] See Law Admissions Consultative Committee (LACC), Uniform Admission Rules (2014) Law Council of Australia

[25] American Bar Association, 2016-2017 Standards and Rules of Procedure for Approval of Law Schools: Chapter 3 (2017) <;.

[26] Alex Steel, Good Practice Guide (Bachelor of Laws) Law in Broader Contexts (2013) Legal Education Associate Deans’ Network <>.

[27] The reverse is also quite possible – an innovative sessional colleague constrained by uninformed permanent colleagues who control the curriculum.

[28] Heath et al., supra note 19.

[29]Smart Casual, About <>; Smart Casual, Background to the Project  <>.

[30] Some initial ideas of how such programs can be developed are discussed in eg Catherine F Brooks, ‘Toward “Hybridised” Faculty Development for the Twenty‐first Century: Blending Online Communities of Practice and Face‐to‐Face Meetings in Instructional and Professional Support Programmes’ (2010) 47(3) Innovations in Education and Teaching International 261; Norman Vaughan and D Randy Garrison, ‘How Blended Learning Can Support a Faculty Development Community of Inquiry’ (2006) 10(4) Journal of Asynchronous Learning Networks 139.

[31] The external linking is due to technical difficulties we have not as yet overcome with the placement of videos inside the modules.


Chicago & Wisconsin During the Eisenhower Years

In this post, NLR blogger Stewart Macaulay responds to Marc Galanter’s comments here (as Guest Blogger in January 2016) about the University of Chicago Law School in the mid-1950s.   

Marc and I met when we both were appointed as Bigelow Teaching Fellows and Instructors in 1956-57.   Marc has been a great friend and someone I have admired for almost 60 years.   I have no quarrel with anything that Marc wrote in his comment about our time at Chicago.

Our experiences overlapped but differed.   Marc can write about being Karl Llewellyn’s student because he went to the University of Chicago Law School.   I went to Stanford and then I was Chief Judge William Denman’s law clerk on the Ninth Circuit.   As far as I could see when I was at Chicago, Llewellyn then was focused on his theories about “the common law tradition.”   It was classic legal realism that dealt with appellate judges.  After a year of looking at United States Circuit Judges in full flight as they reviewed the work of District Judges, I had my own views about that.   Later I was to find out that I only had seen one part of Llewellyn’s ideas.

Some time after Marc joined the Wisconsin Law School faculty, we were walking home together.   We observed that, between us, we had gone to three important law schools at about the same time  (Marc went to both Pennsylvania and Chicago).   We noted that we had heard not one word about plea bargaining or settlement of personal injury cases in our classes.

As Marc indicated, a lot was going on at Chicago when we were there together.   The Jury and the Arbitration Projects were major undertakings.   We heard talks about them, and I met many people working on them.  Law and economics was beginning to have its own turf at Chicago.    However, there were other people doing things that we tend to forget today.

Nick Katzenbach had come to Chicago from Yale.   He wanted to develop materials for a course in legislation.   Most Bigelows taught legal writing.  I did some of that, but I was also assigned to work with Nick.   I was something between a research assistant and a very junior co-author.   Nick had the material developing the theories about the legislative process.   He wanted to get behind outward appearances and offer material about how it really worked.  He was very interested in the role of lawyers who worked backstage for governors and for legislative leaders.    They had contacts and high political skills.    Added to this group were the members of the legislative staffs who understood the deals that had prompted various provisions in the state statutes as well as how all the pieces fit together.   Nick sent me off to the University library to try to track down what had been published about such things.   I found some material, but Nick and I thought that we had identified a major research project that needed to be done.  We discussed the problems of studying what lawyers actually did when so much of it depended on contacts, favors owed over time and other things better kept hidden.   As a member of the Stanford Law Review, I had written and edited notes about cases.   As a law clerk, I had written memos about appeals from trial courts and administrative agencies.   Nick had previously pushed me into work about law but not about rules and appeals.   Only a few years later, Nick would leave Chicago to join the Kennedy and then Johnson administrations.   He went from studying lawyers playing these political roles to doing it for two presidents.   (There is a famous picture of Governor George Wallace standing in the doorway to the University of Alabama symbolically blocking its integration.   Wallace was a small man.   The very large man who represented the United States was Nick Katzenbach.)

My mentor at Chicago was Malcolm Sharp.   He taught contracts.   I had first seen his name when Harold Shepherd, my Stanford contracts professor, handed out to our class reprints of Franklin Schultz’ “The Firm Offer Puzzle.”   This was one of the first empirical studies in the area of contracts.    Those bidding on building construction contracts only made offers and not binding contracts by their bids.   Both those bidding and those receiving the bids thought that one should stand behind a bid and not back out once the one receiving it had relied on it.   Schultz advocated changing contract law to make the bids enforceable.   Sharp commented on the study to our class.  He liked the empirical work, but he didn’t think that Schultz had established that other-than-legal normative and sanction systems were inadequate.

I hoped to become a contracts teacher, and I talked with Sharp.   We discovered that my father-in-law had been a close friend of Sharp’s when they attended the University of Wisconsin.  My wife and I managed to get them together again.

I was hired at Wisconsin.   During the summer before we moved to Madison, I sat in on Nick Katzenbach’s contracts class.   He used Kessler and Sharp as his casebook.   I got to hear Nick’s take on Malcolm’s ideas.   I took lengthy notes.    Then Nick got the flu, and I got to teach the class for a week.   I think that I managed to hide my terror and case of the “impostor syndrome” as I faked it.   But the experience made it easier to begin as a 26-year-old contracts professor at Madison.

We used Lon Fuller’s contracts casebook at Wisconsin.   Fuller had written a famous article distinguishing the various interests that contract remedies might protect  — the expectation, the reliance, and the restitution interests.   Protecting the expectation interest involved putting the aggrieved party where he would have been had the contract been performed.   Jack Ramsey, my father-in-law, was the retired CEO of S.C. Johnson & Sons.   He asked me what I was teaching in contracts, and I told him about the expectation interest.  Jack exploded.  “If you ever have to sue for a breach of contract, you will not be where you would have been had the contract been performed!”   He told me that Johnson had bought containers for its products from three suppliers in the early 1930s.   When the great depression hit, Johnson worked to place its orders with the supplier that needed the order most in order to stay in business.   It did not stage a reverse auction and push the suppliers to engage in a bidding war.   Jack said that this was right morally.   Moreover, he pointed out that six or seven years later, we were in World War II.   Steel was rationed, and containers for consumer products did not have a high priority.   But Johnson never wanted for a can.   “The suppliers owed us one!”    Jack said that I might think that this was just his eccentric behavior.   He called several of his friends who worked for major corporations.  I was on my way to becoming an empirical researcher.  [Here Macaulay refers to the famous study he subsequently conducted on “Non-Contractual Relations in Business,” published in the American Sociological Review.] Fortunately, I had a wife who was well into her graduate studies in social psychology.   She kept her husband from making too many screaming mistakes.

Willard Hurst had a series of grants that he used to develop a new kind of research at Wisconsin.   He insisted that we had to get away from appellate cases and study law as delivered. He used the grant funds to buy research semesters and summers for younger faculty.   Essentially, your job was to read, and Willard would supply suggestions.   I worked my way through such thinkers as Weber, Parsons, Merton, and Malinowski.   Now I also read Karl Llewellyn, particularly The Cheyenne Way [with E.A. Hoebel].

Out of all of this, I fashioned the first drafts of my “Non-Contractual Relations” article.   I sent a copy to Malcolm Sharp, and he invited me to visit him at Chicago.   We took a long walk along Lake Michigan and talked.   He had all kinds of ideas and suggestions which proved to be very valuable.   But just as valuable was the reassurance that I was doing something worth doing.   Sharp also had given a copy of my draft to Harry Kalven who was the head of the Jury Project.  Kalven was a torts teacher who saw that doctrine in his area was hardly enough to account for how law dealt with accidents, crimes, and the like.   Kalven was extremely encouraging and he too offered valuable suggestions.   Some years later when I was awarded a Hilldale Professorship at the Univeristy of Wisconsin, I was entitled to name it after someone in my field with some connection to Madison.    I became the Malcolm Pitman Sharp Hilldale Professor.   It was a way of saying thank you for reassurance when I needed it.   After all, in the late 1950s other young professors were not interviewing lawyers and businessmen.   And they weren’t suggesting that contract law played an important role only in a limited group of situations.   Later I also won the Harry Kalven Prize from LSA.   A prize named after Kalven had special meaning for me.


Empirical Law in Canada: Lessons for U.S.

On Feb. 18-19, 2016, Osgoode Hall Law School at York University in Toronto held a marvelous interdisciplinary law conference for graduate law students – i.e., graduate students in training to teach law.  (What a terrific idea, right? Actually training law-professors-to-be in their chosen craft!) (Yes, we know about the joint JD-PhD programs around the country, and Yale’s new program, but – Canada is way ahead of us, as I’ll explain.)

The conference was appropriately titled:  “Choose Your Own Adventure:  Exploring Law and Change through Interdisciplinary Research, New Legal Realism, and Other Perspectives.”  “Break Down Disciplinary Boundaries” — the conference program suggested — and “Explore Alternative Methodologies.”  You could “Engage with Other Scholars” while you would also “Build Professional Skills.”  (Wow, Skills and Scholarship can fit together, with the “skills” component embracing everything from teaching skills to research skills to practice skills!  Imagine that!  A world where law professors can be trained in all aspects of their profession – and those aspects could actually fit together.)  You begin to see why there might be some “lessons for U.S.” in here.

To top things off, many of Canada’s law-profs-in-training have considerable practice experience.  In fact, some of them are practicing law while they train to be law professors.  Well-versed in practicing law, they also get to learn deeper ways to think about what happens in practice (at many levels of law) as part of the research they do for their graduate law degrees.  Someone working on environmental law, for example, might be able to explore interdisciplinary avenues for redefining the way we conceptualize natural resources like water.  Or attorneys contemplating how new codes for civil procedure might actually work in the real world can take a look at what affects citizens’ willingness to adapt to these changes.  (Sociolegal researchers in the U.S. examining legal consciousness would have something to contribute here, as would those who’ve studied how people’s conceptualizations of law affect their actual behavior.  We could also ask what happens in private as compared with state-provided mediation or in mediation as compared with litigation, across a variety of kinds of cases/litigants/courts.)  All of a sudden, whole worlds of social science and social science theory become relevant to legal scholarship and practice  — and under this system, people actually seem to believe that training in both law and other disciplines might be useful.

The Canadian graduate law students I heard at the conference were fluent in legal doctrine and procedure, in theory ranging from Dworkin to Derrida, in quantitative and qualitative empirical approaches, in the nitty-gritty of law practice (and were also thoughtful about teaching practice skills).  Many of these attorney-researcher-teachers will have the analytical and methodological ability to question and study deep assumptions that underlie law, so that efforts to re-think and reform law can become more than skin-deep.   And when they train their own students to practice law, those future lawyers will have a much broader world of expertise upon which to build.

Imagine, for example, a conference where a quantitative study of civil needs among middle-income citizens could speak comfortably to the same audience as did a qualitative study of how legal educators might approach teaching issues of access to justice.  Or where someone studying IP law and fashion design drew on the latest thinking about how to define “design” from disciplines outside of law, to inform the very outdated concepts still enshrined in law.  Or where a study of law teachers dug deeply into how casebooks and syllabi and teaching methods did or did not intersect with law teachers’ aspirations for their teaching and their students.  Interview studies, behavioral law and economics, interpretive research on differences between indigenous oral traditions and writing-based Anglo-American conceptions of evidence, statistical studies, jurisprudence, international relations regime theory – and all mingling in the fresh discussions of a new generation that seemed less concerned with verbal contests for superior position in an argument than they did with “getting it right,” “understanding it better,” finding fresh solutions for entrenched legal problems.

The conference also drew young scholars from other countries, and reported on research from a broad variety of locales.  For example, one researcher’s fieldwork in Australia uncovered the limitations of statutory law in protecting indigenous land rights, despite much triumphal rhetoric to the contrary.  The sense of a broader vision – of legal understandings that seek to rise above parochialism – was aided by listening to presentations in a language other than English (French).  It was also aided by the way the conference began with a reminder of indigenous peoples’ relationship with the site on which the gathering was being held:

“We recognize that many Indigenous nations have longstanding relationships with the territories upon which our campuses are located. We acknowledge our presence on the traditional territories of the Mississsaugas of New Credit, the Huron-Wendat, the Haudenosaunee Confederacy, and the Métis Nation of Ontario.”  See

These sorts of challenges to parochial understandings – including those of law — fit well with the conference’s wider themes and purposes.  Perhaps certain legal systems’ frameworks – their legal ways of posing questions and seeking answers – are not the only ways to envision law (or of posing legal questions or seeking answers to those questions).  In her opening address, Professor Dayna Scott of Osgoode Hall urged her audience to dare taking a wider lens – to embrace an exploding set of methods that might take them beyond the comforts of doctrine.  (Although, as she clearly would acknowledge, these students take account of doctrine as well – putting them squarely within New Legal Realism’s call to study both law-in-books and law-in-action.)   Like many in the NLR movement, she urged that students take not only methods but also theories from other fields as they enlarged their vision of law.  An openness to multiple empiricisms, she pointed out, would permit them a deeper understanding of law’s relation to the “real world.”

And indeed, as I listened to the deeper accounts of law emerging from the work of these young scholars, I saw a bright future not only for forms of new legal realist work, but for those working within and at the mercy of law.  I caught glimpses of a model for interdisciplinary legal work where multiple methods and theories and disciplines could be brought together in service of better understandings – and practice – of law, without needless bickering over who is better or more important.  The Canadian legal academy may not have this entirely put together yet, but I’d say they’re a fair bit further down the track than are most of their counterparts south of their border.

Galanter on Karl,Soia,& UofC’s Realist Tradition

In this interview, NLR Conversations asked Marc Galanter to talk about his memories of Karl Llewellyn and Soia Mentschikoff during his time at the University of Chicago Law School in the 1950s.

“For my first year of law school, I went to the University of Pennsylvania, but I wasn’t very happy there.  So I transferred to the University of Chicago, where I’d been an undergraduate and a graduate student before, for my second and third years.  Unfortunately, that meant I missed Karl’s famous Elements course, which my classmates had taken and I heard a lot about.  Karl and his wife Soia Mentschikoff were major figures at the Law School at Chicago.  And the class of 1956, which I was in, was probably one of the smallest classes of the time.  You see, the law schools had a boom after World War II, and until the people who graduated around 1951 or 1952, there were very big classes – but after that there was this sudden drought; I think our class was about half the size of the ones that had come before.  So the faculty tended to know everybody.

I took two classes from Llewellyn.  One was his Jurisprudence course; I still have the notes.  The other was a wonderful course – it was a seminar.  Chicago was quite unique in those days, in the sense that apart from the first year there were really no requirements!  You could take anything you wanted to.  And that was a time when most law schools had one elective in the second year and maybe one elective in the third year, something like that.

So, Karl gave this seminar – I think it was called something like Comparative Law – and he gave it with Max Rheinstein, who was one of the great German scholars (and translator of Max Weber).  It was the two of them – and my recollection is that other faculty from other parts of the university were there, so there were around four or five faculty present, making it like an advanced seminar.  There was someone from the Oriental Institute, and I still remember sitting around this big table with lots of people from all over the University. It was a great experience.  It was very interdisciplinary and very theoretical. People weren’t concerned with “what kind of rule should we have for this,” but instead it was a big picture course.

Llewellyn’s approach was very eclectic. The things that he was trying to teach us were not confined to law texts.  One day he came in with a whole bunch of spoons and he talked about the different styles of spoons. He viewed this as parallel to different styles of judging. It was a mind-expanding thing. You learned to look at things that you’d been looking at in a different way. I think that was the big lesson of the time.  Things look different from different angles. Llewellyn took us everywhere; he would talk about the Cheyenne; he had all these examples and created all these different juxtapositions.

He was also very temperamental. He’d have these big mood swings and angry outbursts, particularly if he was disappointed with you or if you missed something. He would let you know that he was disappointed. One that comes to mind is a time that I didn’t do well on an exam for his course. I remember that he stopped me on the steps and asked “What was the matter with you?” He was not hesitant in expressing his disappointment. It’s interesting now that I think of it, it was an exam, not a paper — how did he even know who I was?

Llewellyn was not a Kingsfield type in class. He was very open. I think if there was something someone said that surprised him or caused him to looked at something in a different way, he would respond positively, unlike Kingsfield — who already knew what he wanted to hear. I think Llewellyn tried to provoke people. I’m sure he had his routines that he had developed in teaching over the years, but he was open to things outside the box.

Karl and Soia were a pair. I took several classes from her. She was very busy because that was the period when the whole Uniform Commercial Code thing was coming in. Chicago was an interesting place at that moment. Ed Levi had gotten the Ford Foundation to support a whole series of empirical projects at the University, the most famous one being the Jury Project. There was also something called the Arbitration Project. Soia was the lead person on that, just like Harry Kalven was the lead person on the Jury Project. On the one hand, Soia was trying to massage the Law Revision Commission in New York or whoever could get the UCC passed. She had this huge success in Pennsylvania when it adopted the UCC and that was their first big break.   I don’t remember Llewellyn mentioning the UCC.  At the time, that was her baby. He had some influence, in the way he structured it — but she got it done. From the perspective of the students at the University of Chicago, she seemed very absorbed in it and he was connected with it but it wasn’t his constant preoccupation in the same way as it was hers. She seemed to be traveling a lot to basically sell it, taking criticisms and modifying it. I don’t have any sense that he was preoccupied with it.  My sense was that he was busy writing about appellate courts and how they worked.

I took two classes from Soia. One was on commercial law….  She made an impression, of course. I went to Chicago my second and third year, and then I spent a year as a teaching fellow. I was a Bigelow with Stewart [Macaulay] in the same cycle. That’s where I met Stewart. He must have graduated law school a year before me because he had clerked for a judge in San Francisco. Then he and Jackie came out to Chicago. There were around six of us Bigelows at that time. About five of us were basically the writing instructors. Stewart was pulled aside and worked for Nick Katzenbach. But the others, one became a don at Oxford and leading figure in legal education there but like many law teachers of the day, never wrote a thing. He was the only one that I kept in touch with. There were a couple of others.  But Karl and Soia were very much a pair. Although, now that I think of it, I didn’t see them together.  When I was at U of C, I was very much a student of Llewellyn and Rheinstein.

That year I was a Bigelow, there were a whole bunch of social scientists around the law school. There was the Jury Project.  This was a couple years before the famous book by Kalven and Zeisel came out. There was a book with Zeisel as editor that had already come out called Delay in the Court. So in some sense, Chicago was the living example of the realist thing. They had the empirical projects going on there. I don’t recall the label “realism” being used per se, but we were used to the notion that these big empirical investigations were a legitimate, important, pioneering thing. The empirical projects had a lot of staff.

I don’t recall anyone complaining that the interdisciplinary stuff wasn’t appropriate for law students. Chicago prided itself as having people who were considered outliers. Ed Levi was very much in the Realist tradition. He was very supportive of all the social science research, the Arbitration Project and the Jury Project, these large empirical projects that the Ford Foundation sponsored.  He was the guy who went out and promoted those and got the money from Ford; he was very interested in this kind of work on law. So I would say that Levi was very much in the Realist tradition and that he really wanted to add an empirical, systematic dimension to it.  He went into the Ford government after Nixon fell and the he became Attorney General under Ford. The other thing is that when there was student unrest in Chicago while Levi was the Chancellor, he was very tough.  He is a really unexamined figure; it would be interesting to do a study of Levi. He didn’t use the label “realist” but he seemed to me very much in that tradition as Dean of the Law School.

In some sense, the University of Chicago was the quintessential realist law school, with all those big empirical projects going forward. And while Levi was Dean, the outreach to social science was very central to the Law School.

Mission Matters: Tejani on For-Profit Legal Ed Exceptionalism

One important theme in New Legal Realism is the issue of legal educational reform, as seen in a number of past blog posts.  Like the original legal realists, our group worries about how to bring the “real world” into the law school classroom, and about how legal education is supporting and/or failing future generations of lawyers.  In this post, NLR blogger Riaz Tejani takes on the questions raised by today‘s for-profit law schools, asking whether we should be paying more attention to what is happening to the students in those schools.

Are We All For Profit?

“Go Home Law-Mart!” So proclaimed a short film released by the alumni association of Charleston School of Law when the corporate owner of three for-profit ABA law schools sought to acquire theirs as its fourth institution.  Although the proposed buyout was pretty noteworthy, equally sensational was the ensuing chorus of student, faculty and community voices against it.  Their collective action challenged a widespread view in higher education today that, when it comes to neoliberalism, everybody’s doing it.

Administrators at for-profit colleges and trade schools like to say ‘all schools are for-profit’.  All institutions, they argue, depend upon a net surplus of funding after salaries and operating costs are deducted.  Labels like “for-profit”, “not-for-profit”, and “nonprofit” should not, they stress, mislead people to impute greed on one side and charity on the other.  In the context of American law schools—cited widely as University “cash cows” for high tuition and relatively cheap operating costs—this suggestion is plausible.

But with thousands of student lives and millions in federal loan dollars at stake, claims dwelling in the semantics have been obscurantist.  This may be difficult to avoid: few can readily discover the day-to-day inner workings of a proprietary institution, much less a law school.  To properly understand how the for-profit movement is affecting legal education, deeper study will be useful. In my new study I have collected ethnographic observations of one of the six ABA-accredited “for profit” schools of law and, in the process, learned how little the equivalence based on surplus creation holds up.  The goal of institutions—their underlying purposes—influence everyday life and knowledge transmission therein.  In education, mission matters.

Among my informants, students describe with such passion the way their voices have been dismissed in the face of institutional (i.e.: local administrative, corporate and shareholder) objectives.  One recurring example has been protest over the firing of valued tenured professors, and the understanding that those were the most strident student advocates amid a recent wave of corporate-mandated curriculum change.  As people try to make sense of their own marginalization, power dynamics latent in corporate “for-profit” models becomes an unassailable explanation.  Those observations shed valuable light on the neoliberalization of higher learning in a sector most proximate to the New Legal Realism.  Do the rules taught and learned sound the same?  Are professional ethics communicated differently?  Are global citizenship and social justice conveyed as thoughtfully?  And is legal practice a means of serving carefully drawn policy goals or is it treated as an end in itself—a widget oriented quality control test for Six Sigma ninjas?  These questions reward careful field research.  But I wonder if the latter is even necessary to knowing whether, really, we are ‘all for-profit’.

If by profit one only means “benefit”, then closer study might be important to distinguish between types and magnitudes enjoyed by stakeholders.  But if by profit one means surplus—as do most of Merriam-Webster’s definitional bids, then I don’t think it is that complicated.   The question is not whether there remains a surplus at the end of the (school) day, but where that travels in the global web of financial linkages characterizing our era.  In the case of most public and private law schools, financial surplus remains either in the degree program, at the campus level, or in the university system that harbors these.  Students, whose above-cost tuition dollars help make up that surplus, should (in theory) see the value they helped generate accrue in facilities or cultural capital around them.  During times of austerity, those amounts still help to cover gaps at the local or relatively local level.

Under the for-profit model schools belong to global private equity firms whose managers have arranged capital commitments from institutional investors (often wealthier school endowments!) with guarantees of steady, sometimes lavish returns on investment.  This means two things.  First, surplus value generated at the local level is shipped off to equity investors on a regular basis.  Second, in times of fiscal austerity, this steady flow of high returns cannot be interrupted.  The risks of conducting the business—with its cycles of growth and austerity—shall be borne not by owners or administrators but by students. This may be just fine for some who feel, under a contract view of education, “you get what you pay for”.   But by likening themselves existentially to non-profit and not-for-profit institutions, for-profits obscure this unique allocation of risk.   They also render student transactions with themselves less than fully informed.  Exacerbating this is a deficiency of information about daily life in the schools.  Finally, though social media and word of mouth allow more data than ever to flow through student hands, law school is still something one experiences only once at only one institution, and comparative perspective for most students is of limited use post-matriculation.

For prospective students, however, transparency is of obvious value.  For them, benefits of enrollment in some of those schools—with part-time programs, non-traditional colleagues, solo-practice oriented instruction—might still be decisively attractive.  But those students should receive honest information about the risks involved, and the social (i.e. sociological) condition of for-profit legal ed.  With that they can decide for themselves whether and where their enrollment will be, within their own moral economies, truly “for-profit”.

Tejani on Legal Ed Reform: Be Careful!

Beyond San Jose State: Legal Ed Innovation Should be Handled with Care  By Riaz Tejani

Educational “innovation” should be approached with care. In today’s legal ed crisis, this is especially true. High-tech innovation is seductive to law teaching because it seems to have arguably worked in legal practice, business, communication, and security and law enforcement.

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Chambliss on Law School Socialization and Sorting

Remember The Paper Chase? Mr. Hart on the hot seat on his first day at Harvard Law School, commanded by Professor Kingsfield to “fill the room” with his intelligence? Or One L, with similar themes about the rigors of legal education and the profound socialization that occurs in the iconic first year?

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In this entry, Professors Katherine Barnes and Elizabeth Mertz share some findings on women law professors, drawn from their work on the ABF “After Tenure” study.   In the first segment of our Forum, Professor Carroll Seron talked about the continuing gap in earnings, status, and power that exists within law practice between men and women…

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Carole Silver on global legal education

Continuing our discussion on global legal education, Carole Silver of Indiana University’s Maurer School of Law responds to Tejani and Aman.  Professor Silver is an expert on legal education and the globalization of the legal profession.  She has directed major programs at Georgetown and Indiana in these areas in addition to her own empirical research on global legal education.

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Aman responds on Law School Crisis

Riaz’s excellent post suggests a number of intriguing possibilities for rethinking the standard law school curriculum. I find especially provocative his  challenge to reconsider the conventional distinctions of subject matter from the
standard of social movements and their transnational effects.

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