Teaching Law

Cognitive Bias and the Constitution

I have been continuing a slow-motion effort to learn more about cognitive biases, and trying to imagine how to integrate cognitive bias awareness training into how I teach law. (For a fascinating recent primer cognitive bias, see Ben Yagoda's recent article.) On a separate track, I have been watching the contestation of political differences spun-up in various jurisdictions as legal claims, especially of a constitutional sort. In truth, some governments do embark on constitutionally doubtful paths.

But there is another issue as well: non-mainstream views about the constitution attracting the support of partisans that, if deployed in the hands of the other partisans they oppose, would be characterized as a coup d'etat. The various proposals for "court packing" in the United States fall into this camp, as well as puzzling arguments circulating online suggesting that the Lieutenant Governor of Ontario may choose to refuse royal assent to a Ford government bill duly enacted in the legislature. (There was also a bit of this at the federal level in 2015's debate on bill C-51.)

A lot of this is the sort of debate you often see in Twitter Law School, and so it is hard to guage how seriously anyone takes this. But it might be useful, nevertheless, to spell out why it is wrong.

The argument about a Governor General or Lt Governor denying royal assent requires a reading of the Constitution Act, 1867, shorn of any consideration of "constitutional conventions". These conventions often get short shrift in the public mind, because they are not written down and, at least in theory, are not justiciable in court. For some, that seems to make them less real, the equivalent of discretionary normative principles rather than binding, positive norms. In fact, they are binding on the political branches of government, and in further fact, they are the norms that have many of the good things we value about our democracy in them. The Constitution Act, 1867, reads like an instrument creating an absolutist monarchy. It does not actually work that way, entirely because of conventions.

The way it really works takes a lot of explaining, and our constitutional law is guilty of length and ambiguity, even on things that require neither length nor ambiguity. Some things we teach in law schools must be complicated, because they deal with complicated problems. Constitutional law is often complicated because it is more like DNA than a car engine: it is a product of evolution (not rational design), with the haphazard genetic material of historical-deadends still embedded in its substance.

On the particular question of royal assent, the bottom line is this: no regal figure (be they the Queen, or her representatives, the Governor General or the Lieutenant Governors) can now deny royal assent as the final stage of converting a bill into a statute. Royal assent is a nominal process, and has been for a very long time.

The last time someone tried to litigate this issue, they were correctly tossed from court. And the Federal Court, properly, observed:

The provenance of the power to grant or withhold assent lies in the royal prerogative, but that power is now embedded in section 55 of the Constitution Act, 1867, and how that prerogative is exercised is constrained by constitutional convention.  As Professor Hogg observes, in granting assent, the Governor General “plays no discretionary role whatever”; rather, the Governor General is bound by the conventions of responsible government and “...must always give the royal assent to a bill which has passed both Houses of Parliament” (Hogg at 9-22).  There is “no circumstance” which would justify refusal of assent, as the obligation is that of a constitutional convention (Hogg at 9-22).

Even the Lieutenant Governor of Ontario denies having this power to deny royal assent, on her own website:

Can Royal Assent be withheld?

There is now undoubtedly a constitutional convention that the Lieutenant Governor will grant Royal Assent to bills that have been passed by the Legislative Assembly.

What is reservation?

According to the Constitution Act, 1867, the Lieutenant Governor may reserve bills instead of granting Royal Assent. Reserved bills may be assented to by the Governor General in Council (the Governor General acting on the advice of the federal Cabinet) within one year, or else they do not become law.

With the full establishment of responsible government and the development of the court system, there is now a constitutional convention that reservation will not be exercised.

Only two bills have ever been reserved in Ontario. The Hon. Sir William Howland, second Lieutenant Governor of Ontario (1868-1873), reserved two bills in 1873 on advice of the Premier. Ultimately, these bills were not given Royal Assent by the Governor General in Council and did not become law.

There are those who wish to resuscitate the "disallowance" powers in the Constitution Act, 1867, in response to a bill they dislike. We are seeing this now in the debate over the Ford government's bill reducing Toronto's city council. But be wary of the "Make Disallowance Great Again" movement, not just because money spent in support of a court challenge will show a very poor return on investment. Be worried about it also because what is good for your disallowance goose will be good for other folks' disallowance gander.

As Adam Dodek alluded to on Twitter over the weekend, the last time a Lt Governor tried (unsuccessfully) to usurp the legislature through disallowance was in relation to a CCF bill in Saskatchewan. The Lt Gov in 1961 was a prominent conservative lawyer (and Diefenbaker appointee to the office) who had worked for the oil industry. The CCF (predecessor to the NDP) passed a bill allowing one-sided contracts between farmers and oil companies to be adjusted. The fall-out from the Lt Gov decision to deny royal assent was considerable, especially since the Diefenbaker government had no idea the Lt Gov was planning to reserve on the bill. Concerned it would be perceived as meddling in provincial jurisdiction, the Defienbaker government introduced its own order-in-council, effectively giving royal assent to the bill, and ending the crisis. (A good summary of this case is here.)

The assumption and practice ever since (as the Lt Governor of Ontario's website makes clear) is that disallowance is obsolescent, even though it still exists on paper.

But let me suggest: Assuming it was even possible to "Make the Disallowance Power Great Again" and everyone who has concluded that the power is now obsolete is wrong, the Saskatchewan story, alone, should signal "be careful what you wish for". In the final analysis, the legislature (even when commanded by a majority with whom you disagree) is the only truly democratic aspect of our provincial and federal governments (and even at the federal level, an exception must be made for the senate). Everyone else (and that includes the Prime Minister in their role as Prime Minister) owes their office to something other than direct election to their post.

Governors General and Lieutenant Governors are appointed. The GG is appointed nominally by the Queen on the advice (which must be followed because of those pesky conventions) of (ultimately) the PM. The Lt Governors are appointed by the GG, again on the (mandatory) advice of (ultimately) the PM. If the PM chose their former gym teacher, that would decide the matter.

Now you want to empower that vice-regal appointee to choose not to give to assent to a bill? Maybe the Lt Governor does not believe in climate change, because appointed by a prior federal government opposed to carbon taxes. Maybe the Lt Governor does not like the idea of proportional representation. Maybe the Lt Governor does not like whatever [enter something you care about]. He or she is not accountable to you. You didn't vote for him or her. At best, you voted for a candidate of a federal party that won enough seats to command the confidence of the House of Commons and therefore (again by those pesky conventions) its leader was appointed prime minister by the GG. And that leader (maybe now long since departed the scene) decided the identity of the Lt Gov. That's a lot of attenuation in the accountability system.

Ah, but the Lt Gov serves at pleasure and therefore her security of tenure might be truncated. So the PM could advise (order) their removal by the GG. So that is a check, surely. And so we can have a disallowance power after all! But let's be clear here: you would then prefer a system in which the PM (through the Lt Gov appointment and dismissal process) can decide what provincial bills become laws, and which do not.

If that's your choice, you've abandoned federalism. You have a unitary system dressed up as federalism, with all power now concentrated in one person, the PM. That sort of constitutional arrangement would be a very bad thing, and nothing but mischief would result.

Some people may wonder, therefore, what is the point of the GG or the Lt Gov, and that is a fair question to ask. Personally, I think these offices perform several important state and legal functions -- although royal assent is not one of them. If we didn't have them, we'd have to invent them. I will not belabour that point here, and can only refer you to my podcast lectures on constitutional and public law and my various writings, including The Laws of Government: The Legal Foundations of Canadian Democracy.

My key takeaways from this post, however, are more straightforward. I shall amplify Andrew Potter's interesting synthesis of partisan blinders and warn (in relation to his first marker): Beware of the cognitive bias of "partisan constitutional nearsightedness". Always ask yourself: Would I be happy if the people I disagree with had the same powers to stymie the, um, "will of the people" the next time they are out of office?

And always be conscious of these facts:

  • Yes, some do, but not every stupid thing a government does violates the constitution.
  • If you want the constitution (and probably be extension, judges and lawyers) to do all the heavy-lifting in your society, you are asking for a technocracy, not a democracy.
  • If you oppose stupid things the government does, your tools are very often the ballot box, a free press, free speech and association and an engaged citizenry, not the Lt Gov.
In sum, the constitution and constitutional litigation has its place. But it is a very small place. For everything else, there is democracy. And if you don't like that very much because it produces peverse outcomes at times, I recommend a quick tour of the peversities spun-up by other systems, historical and current.

 

A Tale of Two Siloes: International Law and International Relations Perspectives

This week’s US missile strike on Syria has provoked much commentary, including on my national security blog. I won’t repeat here my own substantive observations, which have focused on the "use of force" legal issues. (Known to any Romans out there as jus ad bellum.) Here I want to reflect on a more insular academic issue: the pattern of commentary across the international law and relations disciplines.

On slippery slopes

In relation to Syria, most of what I’ve seen from international lawyers has expressed varying (and usually considerable) degrees of unease with the legality of the US missile strike.  If you believe (as I do) that there is no existing legal basis for that strike, you are preoccupied with keeping your shoulder on the door of “use of force” law.  That is so tomorrow we don’t have states chucking missiles at each other, while pointing to the customary international law status of the Donald Trump Doctrine.

In other words, the concern is about lawyerly slippery slopes. (And in this area, they really do exist.  Customary international law is doctrinally inclined to such poor traction.  And in the way arguments about it are advanced, it is a giant water slide).

Most of what I’ve seen from international relations scholars has not mentioned illegality at all, and has focused on, well, the politics (domestic and international) and the tactical repercussions in Syria (and the strategic implications for US power or for alliance relationships). Here, the worries are about a different sort of slippery slope.

There are, of course, exceptions and people who are talking about both categories of issue – but there always are.

On a division of perspective

This divide is not a new topic, nor is it confined to international issues.

Wearing my public law hat, it is remarkable how much Public Law 101 is discussed as if it were all political contingency.  And political scientists sometimes (possibly often, and with some reason) scoff at constitutional lawyers as supplicants to the false god of preordained constitutional scripture.

So too in international matters. In the worst instances, international relations scholars regard international lawyers as painfully naïve about international politics and doctrinally fixated.  And international lawyers, at their worst, regard international relations scholars as unmoored to principle and, in their own different way, naïve about the workings of the international system. 

On balance, international lawyers are the most defensive. They can’t ignore international politics. Some try – and a lot of international law scholarship is sterilized of icky politics.  Still, most international lawyers need to be attentive to international relations if they are to do their jobs – certainly it is difficult to teach the subject without some contemplation of the proverbial political bull in the classroom.  (In one of my international law lectures, I summarize some of Joseph Nye’s excellent summations of international politics and weave in thoughts about how international law matters. When I teach other topics in the law school, I don’t start with a long meditation about “why what we are about to learn matters”.)

What about on the international relations side? I do read a lot of international relations writing.  Just as some international law discussions are platonically preoccupied with doctrine (and nothing but), many international relations scholars are utterly inattentive to international law.  It is at best an afterthought: the small print in the online registration form that you click through on the way to getting to the good stuff on iTunes.  Or it is deployed as a form of motivated reasoning, shoring up conclusions drawn on other bases.

I don’t mean either of these critiques as a haughty dismissal or some sort of typical surly hand-wringing. Part of the problem is that international law sometimes is pretty unimpressive as an explanatory variable in explaining international outcomes. (Although, on this point, I would suggest that if you look closely: international law may not dictate outcomes, but it always affects conduct in some manner. That is: it is not necessarily an explanatory variable, but it is an intervening variable).

Training for two solitudes

Some of this mutual inattention (even dismissal) is simply a function of silos between disciplines. It is possible to become an international lawyer and never be exposed to international relations scholarship or teaching.

And I imagine it is entirely possible in some places to take a degree in international relations without doing the same sort of international law you would get in many/most law schools.  To amplify this point, international law is sometimes said to be what swiss cheese is to cheese: law, but with lots of holes.  And so there are two ways to teach international law: you can focus on the cheese, or focus on the holes.  There is actually a lot of cheese (and it is delicious!).  But the holes, well once you go down them, you may never come out. 

I have no data, but let me hypothesize: international law taught in law schools is fixated on cheese.  International law, when taught in international relations programs, may be (comparatively) fixated with holes.  This isn’t necessarily even by design, but by circumstance.  In law schools, through the magic of transmogrification, our students are supposed to “think like lawyers”. In truth, no one really knows what that means.  But at the very least, it means a zealous preoccupation with the “rule of law”.  The rule of law does not translate well to international law.  And so like shipwrecked sailors, international lawyers cling to the debris of HMS Rule Of Law.  Rules!  Give me a rule!  Please, I’m sinking!

Taught as part of a political science or international relations program, international law is just one more thing in the ocean.  And not even the most interesting thing. (Oh, look a deep dark underwater policy cave to explore!)

On top of that, international lawyers learn a grammar, and evaluate what is said and done in international relations via the straightjacket of that grammar.  And assessed by the standards of that grammar, much of what is said and done sounds like: “Tarzan shoot missile”.

Meanwhile, for those not anointed to the Dark Arts, the international lawyer’s grammar produces things like: “The aforementioned herewith stipulates the jus cogens nature of conventional rule governing the above named matter, relating to jus ad bellum”.

On separate but equal cultures

In addition, international lawyers will be normative and prescriptive where international relations scholars will be empirical and theoretical. 

But both could learn from each other. In some respects, international lawyers are classic conservatives: law is the dead hand of the past, and like Edmund Burke we think it sometimes encapsulates useful guidance to past wisdom. And yet, lawyers are advocates, creating tension. Not least: the advocacy thrust can sometimes be a problem when advocacy bleeds into expedient norm-entrepreneurship. (You may be entitled to your opinion, but not to your super-excellent-customized international law).  But still at its best, this tension attunes lawyers as fixers and problem solvers. (Yes I know, no one believes that. But we’re not all about muddying clear waters in that cool underwater policy cave.) 

Still, we could learn a lot from social science empiricism.  (For instance: establishing the existence of a customary international law rule is, at core, an empirical exercise.  But it is rare to find a claim to a customary international law rule amounting to more than “people are saying”.)

For their part, international relations people might sometimes benefit from an injection of normative purpose. Or (because many do produce policy-oriented scholarship) those policy prescriptions shouldn’t be totally indifferent or totally disinterested in existing international law. Remember that dead hand of the past sometimes contains wisdom.

So what

So why does all this matter?  Well, I think siloed disciplinary discussions are just unacceptable, period.  It makes the same impression as one hand clapping.  But more generally, I often worry about international law-lite discussions of international relations. (Talk about self-interest. It’s not like I don’t teach in both a law school and international relations program. I am obviously a convert to my own creed.)

But I do have an honest policy reason for this concern: treating international relations (or, for that matter, domestic politics) as politically contingent amounts to a self-fulfilling prophecy: if enough people don’t think law matters, it won’t. Law is a cultural practice. International law is often about reining in our worst instincts and advancing those of our better angels. I fear law-lite discussions risk shucking off the dead hand of history with unpleasant consequences.

So what does that mean for the Syria thing: in truth, we could all use some help thinking through how best to keep the shoulder on the door of use of force law. But without also throwing up our hands and advancing positions that amount to de facto impunity for crimes against humanity.

Flipping a First Year Mandatory Law Class: Results

I am now in my fourth year since I started "flipping" my law classes.  For past discussions of my initial experiences, see here.  For a slightly more academic treatment of flipped law teaching co-authored with Professor Peter Sankoff (Alberta), see here

Because I am always asked this question: I did not move to flipped teaching because I was dragged there by unhappy students.  Students appeared very happy with my conventional teaching, as reflected in teaching evaluations.  Instead, I dragged students to the flipped approach because I was concerned that students were not performing on exams to the level I thought they should after sitting with their bums in a seat and listening to me and engaging in Socratic discussion for a total of 40 hours.  Put another way, I concluded I was not being very useful as a teacher.  In truth, flipped teaching is actually harder, but as I have said before, it is more fulfilling.

Background

This past semester, I flipped a first year law class -- my first time doing so.  This is a class every law student must take.  While we offer multiple sections of the course, students coming into first year have limited ability to customize their schedule to take a particular section with a particular professor.  This means that students are unlikely to self-select to my section because I advertise a flipped teaching methodology.  As a consequence, this is my first flipped experience with a relatively "random" sample of students.  I had 78 students in this class.

This was also a difficult subject matter for a flip -- or certainly a more difficult subject matter than my first flip (Administrative Law).  Introduction to Public Law and Legislation is a buffet topic designed to bring students up to speed with the public law infrastructure in Canada.  (The table of contents of the course text gives some sense of scope). This course is roughly the equivalent of the Foundations of Canadian Law subject mandatory for National Committee on Accreditation students.  However, I go substantially beyond the basics and we spend a lot of time on things like election law, access to information law, conflict of interest law, and lobbying regulation.

Generally speaking, students start with little to no understanding of how our system of law and government works.  And on top of this, this is not a topic that lends itself to a case-based approach of instruction -- in many of the areas we cover there are basically no cases.  It is, in other words, a very different course from the other first year topics students are covering, and they report finding it confusing to be drilled with cases in their common law courses and then need to think more structurally in Public Law.

The Flip

For the short version of how I ran the flip: in this flipped course, I pre-recorded podcast and videocast lectures, posted to the internet before (usually long before) the classroom session.  In the classroom session, I coached the class through active learning exercises designed to "put in play" the themes and information contained in the podcasts.  I used a variety of techniques, but the most common were what I call "blink" or "five minute" hypotheticals.  These are problem-based exercises in which I temper conventional Socratic by adding a discussion element.  Specifically, I posed (usually on the projection screen) a short hypothetical and students then had between 2 and 5 minutes to discuss with their seatmates before I resort to my call sheet for discussion.  Again, the hypos were designed to reinforce the material covered in the podcast lectures. 

Outside of class, I had students complete readings (reduced in length relative to my conventional, pre-flipped reading load).  I also deployed "feedback" quizzes done out of class.  Basically, these are online true/false quizzes that are designed to compel students to reflect on materials covered in the "passive" learning podcasts.  I also had them complete three in-class "two minute essays".  That is, I asked every student to complete one sentence on something they learned in the just-completed learning unit, and one sentence on something that remained murky. I used the data collected in this manner to detect common misunderstandings and difficulties and then tailored both the feedback quizzes and subsequent in-class hypotheticals to "work-over" important weaknesses.

And because I am committed to experiential instruction -- defined broadly to be "things that might be useful to know when students graduate" -- I also had them complete several out-of-class "public law lawyering" exercises in which they applied some of the substantive legal tools they were learning about in class.  Students submitted these to me and I provided modest feedback on what were largely fairly mechanical exercises.

These assignments and the quizzes were pass/fail, with a pass set at 70% and students kept repeating the exercise until they scored that B.

A full version of my syllabus is here.

Results

As discussed here, there is considerable debate about the merits of flipped versus conventional teaching.  This being law school, much of this debate is entirely fact-free, lacking any empirical foundation for resolving the dispute one way or another.  At times, the arguments can resemble a Monty Python skit ("When I was my students' age, I walked to school in bare feet, through the snow, ate cold gravel for breakfast, and lived at the bottom of a lake.  And I learned lots of law, so how I learned law must be the best way to teach it.")

One of the reasons for the lack of data is the overall disinterest in pedagogical research in law schools.  The other is the question of design, and specifically how do you compare different teaching methodologies where there is no control group.

I have not solved that control group problem -- but I can compare results from a flipped teaching environment with results from my prior iterations of the same course, taught using a conventional approach (which in my case, was a lecture-based class with some Socratic). 

In my conventional approach, I used 100% exams.  I have since sworn off that destructive practice, and now students do "bank" marks prior to the exam through their participation in the feedback quizzes and experiential assignments.  But I continue to have an exam worth most of the grade (65% this year).  And I continue to evaluate in exactly the same way, with a detailed issue-spotting exam.  And I continue to share past exams and answer keys with each cohort of students in advance of the exam.  Put another way, while my teaching methodology has changed, my exam methodology has not, in the slightest.

That means I can compare raw exam scores across years in a loose proxy of teaching outcomes stemming from different teaching methodologies.  This is, of course, a ridiculously inadequate measure when it comes to scientific rigour.  But I believe it better than nothing.

When I last did this style of comparison (with Administrative Law), the student grades were five raw percentage points higher on the post-flipped class exam than on the post-conventional class exam.  This was a modest, but notable difference.  But most importantly, with the flipped class the mark distribution was markedly different.  Put simply, there were fewer grossly underperforming students.

I had an identical outcome with my flipped class in Public Law and Legislation this past Fall.  First, the average raw mark was again 5% higher than the last time I taught the course.  And again, the mark distribution was very different.  I reproduce the mark distribution for three different academic years.  Two of these years involved conventional teaching (2008 and 2010, which was the last time I taught this course before this year).  The third involved flipped teaching (2015).  The bars in the graph represent the percentage of students in each grade category.

Readers will note that there were still a number of raw grade failures in 2015, and also a sizeable number of marginal passes (D).  From D+ forward, the mark distribution then follows a "normal curve".  I could not say that at all about 2008 and 2010 -- the mark distributions for those years are either skewed to low grades (2008) or essentially flat (2010). 

This chart actually masks another reality: the failures in 2015 were "near failures" -- mostly in the 45% range.  This was not true in earlier years, where the failures were often dramatic.  (In the result, when the 2015 exam grade was tabulated with the assignment work, I have no failures overall in 2015.  In past years, even an aggressive shifting of the grading curve by as much as 10 percentage points to meet faculty marking guidelines -- setting the class mean at B -- still left a sizable number of failures).

Even more revealing is a chart showing the proportion of the class "below B" and "B or above" for these three years -- again looking strictly at raw exam grades. 

I acknowledge once more that this style of analysis is imperfect.  But overall, these results affirm the results from my earlier flips: students who complete my flipped class demonstrate greater competency on a law school problem-solving hypothetical exam than do students who complete my classic lecture/Socratic course.  One response to this (from the Monty Python-style skeptics) might reasonably be: you were just a crappy teacher and you got better, regardless of methodology.  This is entirely possible, but in my defence, my pro-flip results are also consistent with the empirical data from other disciplines reviewed in the article I wrote with Peter Sankoff, noted above.

But whatever the case: Having invested considerable effort in rebuilding my pedagogy, these are gratifying results.  A side-benefit of the flip is that the constant interaction and feedback orientation of the active learning component of the course means I gather intelligence on what works and what doesn't, in a way I did not with conventional teaching.  With time, it will be interesting to see whether I can figure out enough to intervene early and successfully with those students who continue to struggle at the bottom of the class.

The Law Professor as Public Citizen: Measuring Public Engagement in Canadian Common Law Schools

Before I knew I would soon be "living the dream", I decided to embark on a data-rich study of "public engagement" by Canada's 600 common law professors.  After seemingly endless hours reviewing law school websites and number crunching on Excel, the results are now going to print, (2015) 36 Windsor Review of Legal and Social Issues, and I have posted the penultimate version to SSRN here.  Readers should be attentive to the important methodological caveats I include in the article.  The results should be considered more for what they tend to rebut than what they prove.  Nevertheless, my hope is that my article will help, in a small way, make empiricism fashionable in law school decision-making.

The abstract reads:

This article asks whether there is room for the law professor/public citizen in today’s law schools. It does so by measuring indicators of professor “public engagement” with constituencies outside of academia, such as government, civil society and media. As evidence for its inquiry, the article reviews a comprehensive data set collected from the public web profiles of Canada’s 600 full, associate and assistant common law professors. These data suggest that common law professor public engagement remains part of the tradition of the Canadian legal academy. More than that, there is no support for the view that public engagement diminishes scholarly productivity. Nor is there evidence that mainstream media participation distracts professors from conventional scholarship – in fact, the most media active professors appear to have above average net publication tempos. In terms of institutional implications, public engagement does no harm to law school reputation, and indeed there is a moderate positive correlation between the net level of public engagement represented on law professor web profiles and reputational rankings, such as they are. The connection between media presence and institutional reputation is more complex, and there are data suggesting little positive correlation between reputation and media presence. However, when one potentially anomalous case of a law school with a striking media footprint but a lower reputational scores is discounted, there is a moderate positive correlation between a law school’s media presence and reputational rankings. In sum, until a more comprehensive survey is undertaken, this article constitutes the best available evidence that law professors can be (and often are) teacher/scholar/public citizen.

Want to Teach Law in Canada? How many pubs do you need to be competitive?

I receive variants of the above question from prospective job candidates all the time.  My totally off the cuff response is usually "aim for 5 articles", based on three years sitting on our (uOttawa) hiring committee and another 8 years of being attentive to the hiring process (and the cvs of candidates).  But I have never actually measured it. 

In my collection of data for my article on common law prof public engagement (see my prior blog posts on this topic), I have pulled together the publicly available info on Canada's 600 full, associate and assistant common law profs.  I have collected data on the publication tempo of these profs, where available (the amount of information varies from website to website).  I shall report on that in due course.

But in this, the fourth in my series on "the Canadian common law prof", I can report on a subset of those data.  Ten assistant professors post their complete cvs, and from those cvs one can determine the number of publications each had as of the year they were hired.  (Admittedly, this is a very small sample size, but it's better than holding the finger up to the wind. I could include other ranks who post cvs, and back out their pubs according to the date of their appointment, but that would take some time and all this is collateral to my article.  Moreover, those data would be "stale" reflecting the (probably less competitive) hiring market of bygone years, rather than the more recent markets in which today's Assistant Profs were hired.)

The results: an average of 4.64 journal articles (a median of 3) for the 10 individuals, and two professors had 1 book each when hired (so I suppose that's an average of 0.2 per prof, an obviously meaningless number).

So I suppose I haven't been that far off in telling candidates to shoot for 5 journal articles.

Of course, there are lots of other qualities that go into being competitive in the job market -- but pubs are undoubtedly important in my experience.

Thanks for those providing feedback and asking questions about my dataset on twitter @cforcese.  This is turning into a fun article to write (although a gruelling exercise in data collection) and it may, gasp, even be useful.

Gender Breakdown for Cdn Common Law Profs: Prelim Data

This is the third post in a series drawn from data collected for an article I am writing on public engagement by Canadian common law profs.  In support of that article, I collected publicly-available data from the websites of full, associate and assistant law profs at Canadian common law schools. (Yes, it took me literally weeks). For my prior posts, scroll through this blog.

I am "serializing" my analysis as I go -- feedback on twitter (@cforcese) has suggested other lines of inquiry that are fruitful and which help my thinking process.

Since my first postings, I have fully eliminated emeritus profs from my sample and have focused strictly on full, associate and assistant profs.  I found 600 persons at that rank on the websites of Canadian common law schools.

In this post, I want to break down these numbers by gender, a particularly important issue given recent (less than edifying) rationalizations of the federal government's poor appointment rate for federal judges.  So how are the law schools doing?

In 1981, only 10.1% of common law profs were women. 

Today, that figure is 44.5%, or 267.

Categorized by rank, the numbers of female law professors are: Full (35.9%); Associate (47.6%); Assistant (60.7%). (Not every prof included rank on their website, so my data set here included 259 entries).

These figures suggest that female hiring now exceeds male hiring, as Assistant Professors will be the most recent hires.  But there is, of course, another prospect: that these data also reflect gendered promotion processes.  There is at least a hint in the prelim data that this is a real concern, but I shall report on that once I have crunched the numbers more (and perhaps hold back that analysis for the final article).

Notably, there also appears to be significant institutional variation in the proportion of women law professors: there are some schools above the norm and a few well below the norm. The range for average number of women on faculty is 62.5% on the high end and 27% on the low end.  The median proportion of women at Canadian common law schools is 47.4%.   

I am debating whether to reproduce the full institutional breakdown -- demographic data are collateral to my article's purpose of discussing (and measuring) public engagement by Canadian common law profs.  Still, if you sit on a hiring committee, you can do your own internal headcount and then take note of the average figures reported here. (Incidentally, a prelim analysis suggests no correlation between average number of years teaching in faculties and proportion of female professors.  In other words, this does not appear to be a case of some schools doing less hiring and having older profs and a gender composition reflecting bygone gender patterns).

So overall, progress since 1981.  But there seem to be differences in institutional culture.  And as noted, I am concerned that some of the data seem to suggest differences in the way men and women's careers then develop.  Back to the Excel datasheet!

Want to Be a Law Prof? Data on Whether You Should Do a Doctorate

As suggested here, I am in the midst of a giant data gathering exercise reviewing the professional profiles of Canada's 614 common law profs.  In my prior post, I shared data on where these profs went to grad school.  In this post, I examine the question of the "teaching degree" -- that is, the highest degree profs obtain before being hired as an Assistant Professor.  (NB: These data are preliminary, and subject to double-checking as I write my article.)

I will discuss this more in the article I am writing, but in 1981, only 12.6% of Canada's common law profs had doctorates in law, with another 4.3% possessing doctorates in other disciplines.

Today, 49.8% of those in common law law schools for which data were available (564 of the 614 profs in my data set) have a doctorate.  An LLM is the highest degree for 42.6%, while 5.5% have undergraduate law degrees as their highest law degree.  Another 2.1% have other highest degrees (MA, MBA, MLS, M.Litt).  The proportion of profs with doctorates in each academic rank are interesting:

Full: 42.7%

Associate: 59.2%

Assistant: 51.0%

The Assistant figure is misleading -- my data captured the highest degree obtained by the professor as of June/July 2014.  It does not include the many instances in which the Assistant Prof is still a doctoral candidate.  On an anecdotal review of the data, the latter is a common status (that is, profs are hired on their LLMs with their doctorates "in progress").  It stands to reason that by the time that today's Assistant Profs are promoted to Associate, the proportion holding a doctorate will look more like the current figure for Associates than that for the older Full Professors.

I won't breakout the data here, but there are notable institutional differences as well.  Some schools are predominantly staffed by doctorate-holding profs (with the highest proportion 77.1%) while other schools are dominated by profs whose highest degree is an LLM (the lowest proportion of doctorates is 24%).  It is a generalization, but most (but certainly not all of the) Ontario schools and McGill seem to place a higher premium on doctorates among their full-time profs.  Obviously, there are "cultural" differences in hiring.

Putting all these data together is starting to make me feel insecure.  Can't wait to do the number crunching on publication tempo.

Thinking about Teaching Law in a Cdn Law School (Common Law): Read This

(Revised Thurs July 10, 2014)

I am in the midst of a massive data collection and crunching process, in support of an article I am writing on public engagement by law profs in Canadian common law schools (that is, LLB and JD granting schools).  To this end, I have collected demographic and career data from the public web profiles on the people listed on the websites of these law schools as Assistant, Associate or Full professors (and occasionally emeritus). 

The results are fascinating, especially on some of the gender issues.  I am writing up the article now.  But as a teaser, here are provisional data on the education of Canada's common law professors.  Table 1 below shows the top 15 institutions from which Canadian law professors obtained their highest degree (an LLM or increasingly a doctorate -- more on that in the article) and the proportion of profs who received degrees from each institution.  I had data for 572 profs (a number that includes a number of emeritus profs). Table 2 represents the top 15 institutions, at the Assistant professor level.  It reflects, in other words, more recent hiring trends.  (Here, I had data for 102 profs.)

Table 1: Highest Degree By Institution, All Profs


%
Toronto 12.8%
Harvard 11.0%
Osgoode/York 9.4%
Oxford 8.2%
Columbia 6.6%
Yale 5.4%
Cambridge 4.9%
UBC 4.2%
McGill 3.8%
Dal 3.3%
London 3.0%
Queens 1.7%
NYU 1.7%
Michigan 1.4%
Berkeley 1.4%

 

Table 2: Highest Degree by Institution, Assistant Profs


%
Toronto 13.7%
Osgoode/York 13.7%
Harvard 12.7%
McGill 9.8%
Columbia 5.9%
UBC 4.9%
Dal 4.9%
Oxford 3.9%
Yale 3.9%
Ottawa 3.9%
Cambridge 2.9%
Sask 2.0%
Chicago 2.0%
Sydney 2.0%
Montreal 2.0%

 

These top 15 schools account for 79% of all of the highest degrees of all profs, and 88% of all of the highest degrees of Assistant Profs. 

These data suggest that UK schools have lost ground relative to Canadian schools, while US schools continue to figure prominently (although perhaps not as prominently).  In fact, a more general analysis confirms this inference.  Table 3 shows the region in which Canada's common law professors earned their highest degree. 

Table 3: Region Where Canadian Common Law Profs Earned their Highest Degree


All Profs Assistant Profs
Canada 42.0% 55.9%
US 34.3% 31.4%
UK 17.7% 8.8%
Aus/NZ 3.0% 2.0%
Eur 3.0% 2.0%

 

Canadian origin higher degrees have swelled among Assistant professors.  These data are heartening to those of us labouring in Canadian law schools to produce competitive graduate students .  We may be overcoming the "neocolonialism" of academic hiring -- the bias in favour of foreign credentials.

Special credit goes to Toronto, Osgoode and McGill for their success in producing graduate degree holders securing positions in Canadian law faculties.

"Doing it All", One Thing at a Time: Block Planning

One of the things I do on this eccentric blog is voice conclusions about "lifehacks" and strategies that I have found useful, in the vain expectation that someone out there may also find them useful.  (Lots of people did come by to see my standing desk after my blog on that).

My topic du jour is a bit narrower and really is written with junior academic colleages in mind who are developing their time management strategies through hit and miss.  (Universities can often be institutions that provide modest assistance to junior colleagues in terms of career planning.)  My topic concerns organizing one's life as an academic, and specifically how to balance the three traditional demands of teaching, research and administrative (and service to the community) activities.

Like everyone else, I have struggled to "do it all", or at least "do it all well".  Some years I do better in one area than in others, with the areas changing from year to year.  That is life.  But my most common modus operendi has to been to spread my teaching load between our three academic terms (Fall, Jan, Winter), concentrate on admin in the interstices of these "in term" periods and try to reserve summer for research and writing.

Over the past several years as vice dean, this failed completely the first year (I was fried by summer and spent more time staring at my monitor than clacking on my keyboard and found it a lot easier just to keep the focus on admin -- which requires less real thinking). 

The second year, I paced myself better and had by then developed a "system" for vice dean work, but also concentrated on revamping my teaching (with one new course and a completely revamped teaching philosophy that prompted a redesign of another).  I also did a fair amount of conference travel in the Fall.  As a consequence, I still overclocked it, but had a better writing summer than the year before (albeit, one article short of my overall objective).

This year, I am in the midst of a new experiment, which I call "block planning".  Basically, I moved all my teaching into one term -- carrying my (vice-dean reduced load) of 3 courses between Sept and Dec.  I also was fortunate in being able to concentrate teaching days -- teaching twice in one day each week through the Fall, and once two days later. 

Meanwhile, I kept admin duties to "maintenance" as much as possible.  I also strictly adhered to a "maintenance" schedule on research and writing, confining myself to edits in anticipation of publication, mini-essays for my more substantive blogs (which serve as placeholdors for articles I intend to write) and participation in local (and only local) conferences.  And then I said no to other invitations that would take me far away, and bring me back jetlagged and with make-up classes to do.

I think the "block" strategy has worked very well so far.  Focusing on teaching meant that I could be "all in" with that pursuit, and not distracted by a million other things or consumed with existential angst about "not having time to write".  I also found that there actually is an economy of scale to teaching, even with radically different courses.  I found myself ticking along with a really focused habit of prep, teach, marking and giving constant feedback.  An emphasis of the last item: because I wasn't crowded by competing demands, I could really focus on giving feedback (something I find validating and rewarding, although I'm not sure my students would always agree). 

I don't record this kind of things, but I was probably in the range of 50-55 hour weeks on average.  But I also think I could have pared away a little more of the "mini-research" and done four courses in the semester, so long as they were concentrated into two teaching days (and I wasn't doing a course for the first time).  This block was 13 weeks out of 52, so there is still ample time to be well-rounded in the 2013-14 period.

Yes, exams and term papers remain to be marked.  But now, I can shift to a second "block" -- course planning for next academic years and other vice dean tasks.  And because I have "systems" for that, I anticipate having more time on the margins for other "service to the community" activities (peer reviews, grant application reviews etc.) and also for more sustained writing and research.  What I will not have come January is more than 100 students in my various classes whose emails I try to respond to in an expeditious manner.  I also will not have "lost days" -- teaching days tend to disappear even with a relatively short class.  I don't know why that is, actually, but between prep, teaching, questions, catching up on emails that come while you're teaching etc., the day seems to disappear.  (That is a compelling reason, in my view, to concentrate teaching days as much as possible.)

So in the next "block", I hope to achieve economies of scale and also real economies of scope. 

Come May, I shall be able to shift away from admin (because most of it will be done) to a fuller "research block".  There too I have a plan: go off the grid as much as possible and be ruthless is distinguishing between administrative wheat (that which needs to be done) and administrative chaff (activities analogous to trying to drive through the snowbank at the end of my drive after the plow comes by).

Time will tell.  But my advice so far to colleagues in similar situations who struggle to "do it all" at the same time is to instead approach the year as a unit, subdivided into blocks.  Try as much as possible to be a one-trick pony in each block and be as ruthless as you can reasonably be in guarding that objective.  Worry about "doing it all" only as an annual objective.

This may not be universal advice, but for me it has worked so far.

Coach's Eye for the Aspiring Lawyer

For those interested in technology in the classroom, I share a recent experience this term with a $4.99 app installed on my iPad known as "Coach's Eye". 

Designed for coaches, the app is a video analysis programs that allows a user to draw on or pause and narrate commentary on videos recorded by the iPad (or iPhone) camera.  The user may then upload the edited video to a blind URL on the Coach's Eye website and share with whomever. 

I used the app this year to record student presentations in one of my seminar classes.  I then reviewed and narrated comments on those presentations, uploading the video to the website and sharing with the student. 

I don't know what the students thought about my comments, but this is absolutely the best experience I have ever had giving (what I hope was) useful feedback.  Truth be told, written feedback on an oral presentation doesn't work very well, in my experience.  A student seeing themselves on video is worth a 1000 written words.  And all this for $4.99.