Quantifying the Effect of Good Teaching
posted by Dave Hoffman
Why should law professors invest in being better teachers? Different professors would give you (no doubt) different answers. Similarly, the question of why we write has been asked, and answered, in a variety of ways.
I bet that for some law professors, the answer to the write/teach question is the same: they want to sell ideas to an audience and thereby change the world in some way. The transmission of law memes has historically been seen differently in scholarship and in teaching, however. Teaching is said to impart doctrine (the black letter law), and (to a greater extent) the method of legal practice. That is, law teachers help students to “think like a lawyer.” By contrast, scholarship is said to influence the world by changing theoretical perspectives. (Check out lists and criteria of “important” law review articles here and here.) A basic conclusion: important scholarship moves doctrine (i.e., judge’s minds). Important teaching moves hearts.
Since most scholarship isn’t read, and since most read scholarship isn’t read by judges, this view of the relative unimportance of teaching to doctrinal development feels off. But I wonder: has anyone tested the hypothesis empirically? A quick look on WL found no studies – but it might be there. Basically, the idea would be to look to the natural experiment of multiple scholars with different views teaching thousands of law students over the last century. Some of those thousands of students became judges. Some of those judges wrote opinions about topics discussed in the law school classroom. It would be interesting to know if there is any statistically significant relationship between being taught the law is X (or the way to approach the problem is Y) and writing an opinion holding X, or using method Y. To give a concrete example, do judges who were once students in Larry Tribe’s con law class produce similar opinions about the commerce clause as those who were once students of Charles Fried?
Obviously, coding and controlling the data would be tricky. You’d ideally want to look at the first-year subjects only, to avoid the selection biases that the Fried/Tribe example raises. You’d also want to find scholars who taught together at an institution, but who differed sharply on a easily codable area of law. Ideas include: the scope of the parol evidence rule; the enforceability of adhesion contracts; the usefulness of enterprise liability; the proper test for insanity in the criminal law; or even an Erie controversy. Finally, you’d want folks who entered teaching some time before, say, 15 years ago, so that you could have a significant enough crop of resulting judges.
Let’s pretend this project is possible and non-preempted. Do folks have ideas for professor pairs?
April 28, 2006 at 12:30 am
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Responses (9)
Matt - April 28, 2006 at 10:30 am
I don’t have anything to say about the substance of the post but, man, that sure is an awfully white and male classroom. I can’t say it makes me long for the good old days.
Student - April 28, 2006 at 5:45 pm
OOH, Danger! In the Tribe/Fried example, you need two students, one for each prof deciding on an identical issue of law, while sitting on the same court at the same time. You need this to avoid geographical and procedural posture disparities, and changes in the state of rapidly changing precedent. This might be possible if you have a panel consting of two former law school peers who had happened to take con law simultaneously from two different profs. Ok, if you get that far, you need all this to happen with sufficient frequency to generate a large enough sample size on which to do statistical analysis. Even then, you have no control groups of any kind to isolate the variable of teaching as THE reason why these two judges come out differently on that issue. Basically, there are too many other reasons possibly causing the disparity in how judges come out on issues besides the identity of their con law profs. The “meme” idea is intriquing, but is contract law a “meme” or just the adhesion contract doctrine? Watch that you don’t compare apples to grapes, find statistically significant differences between them, and claim that teaching is important because red is distinct from green. Apples sure are different from grapes, and red sure isn’t green, but apples are not grapes NOT because red isn’t green. Basically, what you’re missing is the REASON CAUSING THE DIFFERENCE, which you could find, but only if you had parallel universes to study. The causes of differences between apples and grapes are many, and same is true for how judges rule on issues. But, even if you cannot PROVE mathematically that teaching matters (because you cannot prove that it was teaching, rather than something else which caused judges to rule differently) it’s good to know profs think about the quality of what they’re paid by students to do. Otherwise, professors are DEFINITELY wasting our time, and since the sad truth is that nobody reads, professors are better off at least trying to teach, because due to the attendance policy, we have no choice but to be exposed to it.
Paul Gowder - April 28, 2006 at 9:28 pm
Oooh, well, there’d have to be a Viscusi/Horowitz deathmatch. Uh, I mean, comparison. (I assume Viscusi actually taught a torts class at some point.)
(But please Dave, don’t start saying “law memes.” “Meme” is such a silly notion. I really resent Dawkins for dreaming up that pointless neologism for “idea.”)
Robert - April 28, 2006 at 11:17 pm
No Memes! No Memes! No Memes! I sincerely second that. Cultural anthropologists are a bunch of crooks.
Dave Hoffman - April 28, 2006 at 11:34 pm
Robert and Paul: You are right. Lazy writing.
Student: Maybe one solution is to use premade databases from other ELS analyses of doctrine that control for various factors.
Al Bophy - April 29, 2006 at 2:17 am
Dave,
Great intellectual history project–and much fun to think about how one might execute this or one like it. I’m wondering if you’d want to expand the scope of the project somewhat and think about comparing judges who came from different schools–literally, schools. How do judges from Harvard compare with ones from Yale? We seem to think that there are different ideas associated with Harvard in the 1910-30s from Yale (and I might add Columbia as well) at the same time. Are some of those differences seen in the attitudes (or reasoning styles) of their students years later on the bench. It’s absurdly hard to show causation; however, one might get a grip on this project by looking at the opinions of judges and asking how the reasoning styles relate to what they learned in school. I’m not real sure I think that young adults at law schools have their minds shaped by what they’re taught, though I think their process of analysis might be influenced by their faculty.
Student - April 29, 2006 at 12:20 pm
Equidistant Letter Sequences? Interesting… May be you’ll find codes for expletives in obscenity cases, that would be something! You still run into the problem of causation though because the number of factors to control for is unlimited and unknown. Are there differences in how vegetarian judges write v. carnivorous ones? May be these types of people read different non-legal magazines from which they pick up their phraseology which then registers in their writings? Or, do black judges write differently from white judges? Male v. Female? What I’m saying is that if you do ELS and find something, it would be fantastic. If you find something you COULD attribute it to teaching, or to law school, or to diet, or to sex/gender, or to musical preferences, or to weather patterns. But, if you’re content with doing ELS and suggesting that teaching or law school MIGHT be responsible, then I suppose that could work. Still, as I’m writing this, in the back of my head I have an infinite number of monkeys typing on an infinite number of typewriters. If one of them produces Hamlet, others will produce similar codes which you could detect using ELS. But WHY there are these similarities you would not be able to answer because the answer is it’s a trick question.
Dave Hoffman - April 29, 2006 at 2:22 pm
ELS: Empirical Legal Studies.
Student - April 29, 2006 at 8:39 pm
Empirical Legal Studies? Sounds like something law professors do. Sorry. Student Out. Peace.
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