International Students’ Class Participation: Looking Beneath the “Educational Culture” Surface?

by Lucas Lixinski

In an article I co-authored (with a number of contributors to this blog) in the latest issue of the Legal Education Review, we suggested that one of the biggest issues international students (particularly Postgraduate) face is relearning how to behave in a classroom. Many cultures, we argued, frame the student-instructor relationship as largely one-directional, with the student acting as an empty vessel in which the instructor pours knowledge.

That is certainly the way I was educated in my first law degree, so I know this argument holds true. In a classroom environment where class participation (CP) is not only praised by also expected (and part of the final grade for the semester), it can be quite a shift for a student to go from not speaking at all, to being an active part of the learning process for the entire group.

What if, however, there is something else going on, concurrently with educational culture? What if there are other issues that we, as educators, need to be mindful of, that speak not only to managing expectations in the classroom, but also to how we teach more fundamentally?

In Quiet: The Power of Introverts in a World that Can’t Stop Talking, Susan Cain summarizes a lot of the key research around introversion. Most of this science looks at introversion as an individual phenomenon, that is, something that affects a person. But a number of these studies also suggest that there is something that happens culturally. These studies highlight that a number of cultures outside the English-speaking west (particularly in Asia) are, as a role, more introverted.

For my experience as a legal educator in an English-speaking country where extroversion is valued (to the point of being part of how students are assessed in my law school), it means that I have to think very carefully about how I expect students to engage with materials and contribute to classroom discussions.

Of course, these ideas apply across the cohort at large, as introversion does exist among my Australian students. But it may be that Asian students (the main cohort of international students in Australia) in my classroom are more introverted on average. And that these numbers in the population are more disproportionately represented among Asian students who go abroad for postgraduate study.

In addition to introversion being a cultural trait in several Asian countries, Cain also suggests it is a praised one. In other words, to the same extent I value a student in Australia who speaks in class and makes engaging contributions (typically a more extroverted student), in a number of Asian countries students who are more reflective tend to be more valued. And, since these students will more likely be more successful in their first degrees in their home countries, they are likely to be the ones who get the grades needed to be admitted for postgraduate study internationally.

In other words, it may be that, because of this combination of cultural, educational, and plain biological factors, our international students are likely to be more predominantly on the introverted end of the spectrum then we normally assume. If this logic holds up, then the question is: what can we, as educators, do so we are not setting up our introverted international students for failure?

Coupled with linguistic obstacles and educational culture now we have introversion to deal with. If class participation is to be an enriching part of the educational experience of all students, as opposed to a trap into which we let them fall, we may need to rethink our strategies for class participation. I am in no way advocating we drop the more Socratic approach, but it may be that diversifying our approaches is useful.

Technology allows us to do that, by, for instance, giving students the opportunity to post quick reactions to the readings ahead of the class in which they will be discussed. I often do that in many of my courses, and hope to amplify the practice now. I use these quick reactions not only as a check on student participation, but also tend to incorporate them in the discussions of the class (hence my requiring they be submitted before the class in which the relevant material is being discussed). The fact that students then had the opportunity to prepare something in advance, and reflect on the material, is usually enough for an introvert to be able to speak up in class, if anything just to present the idea they posted ahead of time.

That is just one alternative, of course. I would love to hear more about what others do in this area, and their thoughts on the role that introversion plays in how class activities are conducted.

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Wellness and academic excellence: putting the two together

By Prue Vines

Abstract: We are constantly told to be concerned about our students’ anxiety and depression. This is real, but there is an alarming tendency in  our universities to fail to challenge our students because we are concerned about their stress levels. This has to be fought, because our students’ resilience will develop through being challenged, not through being wrapped in cotton wool. How we give feedback, what we teach and how can  all contribute to students becoming more independent learners, able to tolerate uncertainty and to get up again when life is hard, as it inevitably is sometimes.  It is possible to have high standards and push students without sacrificing wellness. I explore some of these issues.

Introduction

We are constantly told to be concerned about our students’ anxiety and depression.  I myself have been involved in research considering how law students’ anxiety and depression might arise and what a law school should do about it. [1]  I have not changed my mind; but I am  rather concerned about the development of ‘wellness’ as a norm in discussion about law schools[2] and the educational responses to concerns about lack of ‘wellness’ amongst students.

It is true that law students seem to have greater anxiety and depression than ever before[3]. This may partly be because of decreasing stigmatisation associated with greater reporting.  It may also be because students are experiencing greater anxiety and depression than before. This is my impression in teaching; in particular I notice a higher level of dependence in students than I did in my earlier years as an academic.

Responses to problems with wellness

I argue that it is properly within the scope of a law  school to develop their students as resilient lawyers and that the resilient lawyer has certain characteristics, some of which can  and should be fostered by the law school without turning itself into a counselling service or a ‘nanny-law school’. This latter point is very important, for two reasons. The first is because an academic whose major focus is on their own career (which probably means research) needs a very good reason to be interested in the mental health of their students, preferably one which will enhance their own lives and research. The second reason is that as academics and teachers within a university setting we have an intellectual role in developing our students,  even though not all of them will practise as lawyers. As teachers of law and lawyers we need to consider what it means to conceive of law as a profession. Professions  (originally medicine, law and the priesthood) were traditionally those which went beyond the mere making of profit.  That ‘going beyond’ sometimes meant stresses that needed a robust mind to deal with them. Professions also had ethics and disciplined themselves. These values of the profession are the link which I argue we can use to mediate what might otherwise seem to be merely ‘feelgood’ strategies, probably beneficial in themselves, but not properly within the province of the law school, so that they contribute to the professional education of the student. [4]

Responses to problems with wellness include therapeutic responses (counselling etc) but that is not the role of a law school.  Our responses need to be educational and so we should consider this partly in the light of the goals of our education.  Most Law schools have  Graduate Attributes and Teaching and Learning Objectives (TLOs) and most of these  include some aspects of professional and personal development. At UNSW Law they certainly do.[5]

I am going to suggest that our goals include the development of independent learners, willing to take responsibility for their own learning, and able to be resilient in the face of difficulties raised for them in their learning law or legal practice. It is worth noting that ethical difficulties appear to be some of the major ‘tipping points’ for students and legal practitioners to give up their study or occupation.[6]  So as part of the goal of developing a strong and autonomous personal and professional identity we have incorporated ethical issues in the law curriculum.[7]  My argument is that part of the legal education needed includes the development of an ethical ‘grammar’ for each person so that they have a sense of their own values which they can articulate clearly both to themselves and to others. In our first year program we try to do some of this, including doing exercises designed to show the student what her own values are.  This, it is hoped, will make it easier to discuss or argue against tasks which the person sees as unethical.[8]

The self esteem and  ‘scaffolding’ approach to education – aversion to failure

I have been teaching law for 26 years and I am concerned that our students are less independent in their learning than ever. I think that’s a problem we can deal with quite well. Here at UNSW we work on it quite hard – in the Peer Tutor Program the peer tutors are asked to keep asking students questions rather than giving them answers; we emphasise learning to tolerate uncertainty. In the classroom  we have learned to wait what can seem a long time for students to answer a question rather than rushing in to rescue them. In our assessments we try to ask questions that mean they will have to be thinking and coming to their own conclusions while they are doing the assessments; and maintaining exams means they simply cannot get someone else to do it for them.

That’s all well and good – the delicate process of supporting students enough for them to take risks and then gradually taking away the supports so that they can stand on their own is something I think I can do with my students. But there is sometimes an obstacle. That obstacle is requirements of our university learning and teaching programmes which are well-meaning but in my opinion actually reduce students’ independence. One of the problems is that these directions tend to be blunt instruments directed at the whole university because the teaching and learning unit is aware that somebody somewhere is completely ignoring their students or doing things badly. So we get instructions like ‘all students must be given clear and complete directions about the content of assessment’ [9] or expectations must be set out clearly with an example which virtually answers the question. Setting and making clear expectations of students is really important, but giving them so much information that they have virtually been given the answer is counter-productive.

One of the reasons this has been happening is because we are keen on alleviating student anxiety. Here again we have to be careful. Just as a good parent allows a child to bear a consequence in order that in the future they will be more able to manage things themselves, and similarly lets a child fail at something in order to teach them that failure is not the end of the world, a good teacher will allow a certain level of anxiety now because that is the best way to ensure that it is less likely that there will be anxiety in the future.

In our concern to keep students happy and comfortable we have sometimes forgotten that future-proofing requires some effort and sometimes a little bit of anxiety or frustration now.  We also seem to have forgotten that not all stress is bad.  Indeed it is quite clear that without stress, people become weak:’ Without pressure champagne would have no fizz’ as they say (Duchess of Duke Street). What we can assist with is helping people to learn that stress and failure are not the end of everything, that they must be tolerated and lived through.

So monitoring what we require of our students and reducing scaffolding structures over time is very important. This requires thought and effort to create a happy medium between total support which creates total dependence and the reduction of support over time to develop independence. The Peer tutor Program Objectives[10] are instructive I think:

Students need to develop themselves as independent learners through:

  • Tolerance of uncertainty
  • Collaboration and care
  • Confidence through participation

These aims of the Peer Tutor Program (which has been in place since 1996) remain a good way to think about the development of excellence in education. The need to develop independence is acquired through being in a situation which allows enough of a sense of safety (through collaboration and care between peer tutor and student) for the student to be able to tolerate the uncertainty inherent in law in an academic environment and to develop confidence through participation rather than only observation. This places the onus on the student to learn rather than teacher to teach.

Another issue I am somewhat concerned about is warnings about content. It seems to me that warning a student that content may be confronting is fine, but effectively creating a situation where a students’ sensibilities determine the content of the course they are doing by telling them they should not attend if something is upsetting is not reasonable in the context either of developing professionals who can do the job, nor in developing resilience.

Others may disagree with me about the level of support students need. Students differ from each other and have multiple needs, but ultimately they have to be responsible for their own learning and we do not help them if we pad them out with cotton wool. Meeting challenges is stressful but satisfying and offering challenge is one of the things we should be doing.

Praise and achievement

There is some interesting research on praise – which we might know as feedback – in the educational literature[11].  The last 20 years of the 20th century were dominated by the view that high self esteem would increase success in education and that therefore praise was vital in education.  There is now evidence that, while self-esteem is important in itself, it probably doesn’t influence achievement particularly.[12] (there is also some evidence that self-esteem is not developed well by being told ‘ you are special’ etc but much more effectively by looking at what has been actually done  and being specific– ‘You chopped the wood. That’s great, now we can have a fire’.[13]

What this literature seems to establish is that there is praise and praise – praise which is focused on the child’s attributes and achievement eg ‘You are so clever you got 75%’, ‘You are so intelligent’ etc may be counterproductive compared with praise which focuses on effort ‘ I can see you put a lot of effort into this’; ‘You have really worked hard and got these answers right’. For example, there is strong evidence to believe that students may either think about their intelligence as a fixed trait or as something they can develop through effort. The first group can become obsessed with how clever they are and avoid tasks they find difficult in favour of tasks they find easy on the basis that the easy tasks help them prove that they are intelligent and effort makes them feel stupid.  The second group are much more likely to want to learn and put effort into developing their intelligence. At least one study has shown that cheating was much more likely in students who had been praised for their attributes ‘You are so clever’ (40% of them)  compared with effort-praised students (10 %) and that they were also less likely to put in effort in later work compared with those whose effort was praised.[14] This is probably something useful for us to note, as our aim is to develop continuing effort.

This is one reason why in my class participation assessment I focus on engagement and effort rather than mastery of the material. This seems to me to be more likely to result in continuing effort. This research suggests that in our feedback to students we should be focusing on their effort and the process they have gone through in order to produce what they have.

Self knowledge, personal and professional identity and autonomy

Our study of law students compared with other students at university showed that they were far less likely to be doing law because they themselves chose to compared with students from other faculties.[15] We also found a number of other factors which suggested that law students disproportionately  lacked a sense of autonomy compared with other students. A sense of helplessness is one of the most common signifiers of depression and autonomy is therefore a significant issue for law students. (Social connectedness is another significant issue for depression but here I focus on autonomy).

We try in first year to begin to address some of these issues by working on the development of self knowledge, and personal and professional identity. In relation to professional identity we begin, as I said, to consider  the development of a personal ethical grammar.  We also try to develop a sense of internal rather than external motivation. In relation to this marks are a really big issue. Law students were far more likely than other students to think that marks were the only thing employers were interested in, and they were also very likely to identify themselves with their mark. How often have you heard a student say to you, ’But I’m  a distinction student!’?  Moving from identifying oneself with a mark which has been given to you by some external purpose  to thinking of a mark as something which might help one to develop one’s internal understanding of what one is learning, or seeing the mark as just one piece of evidence about the work rather than everything about it are things that we try to develop in our students. The internally motivated law student is far more likely to continue to learn, and to be able to evaluate for themselves how much they have achieved or not achieved than the student who is motivated purely by external matters. Indeed the move from external to internal motivation is probably assisted by praise focused on effort rather than on attributes.

Things one should know about oneself in order to assist in development of learning and excellence:

How I learn

What my values are

What gives me personal and professional satisfaction

That a failure of some kind often is a great learning experience and is not the end of the world.

This is most likely to develop the kind of autonomy that is robust and resilient.

 

Conclusion

 

What I have tried to talk about here is what are reasonable strategies for us as legal academics and teachers to use in developing and maintaining our students’ resilience. It is not our job to be counsellors but it is certainly our job to foster our students’ minds where we can and to challenge them in order to continue their development. We will have to exercise judgment about when a student is in the kind of trouble that needs a mental health professional, and we should certainly encourage students to ask for help from a mental health professional or a friend when they are feeling distressed or having trouble. But we should not dumb down our curriculum nor take bits out of it just in order to save students from stress which may very well be important for ‘tempering’ their steel for the future. Of course, it is a matter of judgment where this line is drawn, and the line may be drawn differently for some students, but our job, I would suggest, is to be focused on developing academic excellence in our students while they are in this environment where we can allow them to begin to grapple with the issues and problems that inevitably will face them later.

[1] M Tani and P Vines ‘Law Students Attitudes to Education: a pointer to depression in the legal academy and the profession?’ (2009) 19(1) Legal Education Review 3-39; Prue Vines and Patricia Morgan, ‘Contemplative Practice in the Law School: Breaking Barriers to Learning and Resilience’ in R.Field, J. Duffy and C. James Legal Education and Lawyer Well-being: Evidence from Australia and Beyond, (Ashgate, 2016.)

[2] Council of Australian Law Deans Guidelines on Promoting Law Student Well-being 2013; Tristan Jepson Foundation’s  Best Practice Guidelines

[3] Although US literature has accepted this for thirty years, in Australia we have only had good data on this subject since the Brain and Mind Institute Study was done in 2008: Norm Kelk et al Courting the Blues: Attitudes towards Depression in Australian Law Students and Lawyers, Brain and Mind Institute, 2009.

[4] Some of this material comes from Prue Vines ‘Working towards the Resilient Lawyer: Early Law School Strategies’ in Leon Wolff and Maria Nicolae  The First Year Law Experience: a New Beginning,  (Halstead Press, 2014).

[5] See ALTC /CALD Report on Learning and Teaching in the Discipline of Law, 2009.

[6] LS Krieger, ‘The Inseparability of Professionalism and Personal Satisfaction:Perspectives on Value, Integrity and Happiness’ (2005) 11 Clinical Law Review  425; Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014).

[7] UNSW Law School Curriculum Review Working Party:  Curriculum Review: Designing an International, Experiential, Research-focused Curriculum for a C21 Law School, (UNSW Law, 2013) pp 46, 82-85.

[8] Anthony T Kronman, The Lost Lawyer: failing the ideals of the legal profession (Harvard University Press, 1995).

[9]‘ Make expectations, goals, learning outcomes and course requirements clear. If students are to take responsibility for their own learning, they need to know what is expected of them. Also articulate your expectations about assessment tasks and their criteria at this time.’ UNSW Guidelines on Learning p 50.

[10] Dominic Fitzsimmons, Simon Kozlina and Prue Vines, ‘Optimising the First Year Experience in Law: the Law Peer tutor Program at the University of New south Wales (2006) 16(1 &2) Legal Education Review 99.

[11] Carol S Dweck ‘Caution-Praise can be Dangerous’ (1999) Spring  American Educator 1-5;  M Stout, The Feel-good Curriculum: the dumbing down of America’s Kids in the name of Self Esteem (2007); Carol M Dweck  ‘The Perils and Promises of Praise  (2007) 65 (2) Educational Leadership  34-39

[12] N Humphrey ‘The Death of the Feel Good Factor’ (2004)  25(3) School Psychology International  347-360

[13] M Stout, The Feel-good Curriculum: the dumbing down of America’s Kids in the name of Self Esteem (2007

[14] Carol M Dweck ‘The Perils and Promises of Praise  (2007) 65 (2) Educational Leadership  34-39,  36.

[15] M Tani and P Vines ‘Law Students Attitudes to Education: a pointer to depression in the legal academy and the profession?’ (2009) 19(1) Legal Education Review 3-39

The Bluebook’s Secret History!

Even in Australia one can feel the dread reach of the Bluebook.  For those interested in its history, a new article entitled “The Secret History of the Bluebook” reveals all!  Written by two members of Yale Law School, Fred R. Shapiro & Julie Graves Krishnaswami, it is forthcoming at Minnesota Law Review, Vol. 100, No. 4, 2016.  It can also be found here at SSRN.

The SSRN abstract (noting  HLS’ early monopolization of the royalties (nothing about HLS would surprise me!) as well as noting the succinct early versions of one to fifteen pages compared to today’s grotesque length):

“The Bluebook, or Uniform System of Citation as it was formerly titled, has long been a significant component of American legal culture. The standard account of the origins of the Bluebook, deriving directly from statements made by longtime Harvard Law School Dean and later Solicitor General of the United States Erwin N. Griswold, maintains that the citation manual originated at the Harvard Law Review in the 1920s and was created or adapted by Dean Griswold himself. This account is wildly erroneous, as proven by intensive research we conducted in the archives of Harvard and Yale. In fact, the Bluebook grew out of precursor manuals at Yale Law School, apparently inspired by a legal scholar even more important than Griswold, namely Karl N. Llewellyn. The “uniform citations” movement that began at Yale was actually at first opposed by Harvard.

In his most extreme misstatement, Griswold asserted that a collaborative decision was made in the 1920s by Harvard Law Review, Yale Law Journal, Columbia Law Review, and University of Pennsylvania Law Review to share the revenues from publishing the Bluebook (eventually amounting to millions of dollars) among the four journals. There is indeed now four-way revenue-sharing, but it did not commence until the 1970s, and then only after a revolt of the three “junior partners” against Harvard Law Review’s complete monopolization of Bluebook income for half a century, a revolt initiated by Joan Wexler of the Yale Law Journal.

Some readers may question whether originating the hyper-complicated Bluebook should be a source of pride for Yale. Our response is that, although the Bluebook version that subsequently developed under the leadership of Harvard Law Review currently consists of 582 pages, the two earliest Yale precursors of the Bluebook were, respectively, one page and fifteen pages long.”

Colin Picker

Some thoughts on “editing a collection” as scholarship

Last week I discussed in another post why a textbook and writing a textbook should count as scholarship.  Today I will tackle the issue of whether serving as an editor of an edited collection should also count as scholarship.  This is important for, like textbooks, one’s work as an editor of an edited collection is in many legal academic environments not counted as “acceptable” or “countable” scholarship (even if within the specific law faculty the work may be recognized at book launches or in some catch-all category  for “[o]ther ‘research output’ which takes into account the practices of the discipline concerned”).  Just as I was annoyed last week by the negative view of textbooks as I worked on my textbook proofs, so too the negative view of the work of an editor of a collection is annoying as I spend today working on two edited collections (one thankfully at the very last stage before submission, the other a continuing millstone around my neck).

First, let me present some of the arguments why work as an editor of a collection should not be counted as scholarship.  The argument is essentially that the work of the editor is not scholarly, but is instead akin to the work of the research assistant, line-editor, book binder, printer, publisher and others whose contributions are not typically deemed to have added sufficient scholarly input to the final scholarship output.  Rather, the conventional view is that the work of the individual authors of each chapter is what constitutes the collections’ contribution to our knowledge and understanding of a field. The work of the editor of a collection is thought to merely include assertedly non-scholarly tasks as: line-editing; noting where further substantive work needs to be undertaken by the individual authors; fixing the citation form of footnotes and noting where further citation support is needed; interfacing with the publisher (typically providing the excuses why the book is not yet complete – such collections are completed as fast as the slowest two or three of the contributing authors); communicating with authors (either cajoling them to complete their contribution or apologizing for the delay in publication); writing the preface and perhaps a non-substantive introduction; and other logistical tasks.

But, as an editor of three collections that have been published and with two in the pipeline I can see a different side to the work of an editor, a significantly scholarly one.  As an initial matter, putting the book’s concept together, for the best versions of these books have a tight theme, is itself scholarly work.  The research required to draft a successful proposal and respond to the many demands of the publisher at that proposal stage also involves research.  Identification of appropriate contributors and communication with them, conveying the concept, is also scholarly.  Reviewing each chapter’s citations and recommending other support or citations is also a research activity.  But, the largest scholarly input of the editor is the substantive editing of each chapter – the demands of which are beyond even the best research assistants (assuming one has them).  When that substantive editing is done well, the contribution of the substantive editor is akin to the contribution of a junior co-author.  Yet, the editor of a collection does this for all the chapters – resulting in a significant aggregate substantive input to the book.  When I read through my past edited collections I see my thoughts, approaches, research and hard scholarly input throughout the entire work.

Furthermore, for the good collected works, substantive editors bring all the contributions together through the editing process to deliver one tight substantive contribution to the field.  Such substantive editing is very time consuming and includes independent research, not just for verification of author propositions but also for suggesting additional or alternate approaches the individual author should pursue to improve the work and to make it fit more tightly with the theme of the book.  Of course, there are edited collections where the theme is hard to identify or not well constructed, though a good introduction (itself scholarly work) can help.  There are editors of collections that do minimal or no substantive editing and only draft a cursory introduction.  As a contributor to more than a dozen edited collections I have seen the full range of editing.  It is easy to recognize in the final product which editors should have their efforts considered scholarship.  But, that issue speaks to the quality of their work as scholarship, not to whether the type of work is scholarship.  Just as an overly descriptive and unoriginal article in a journal is not an indictment of writing articles for journals as scholarship, so too bad edited collections and bad editing should not serve to undermine the scholarly nature of editing a collection.

In addition, at a policy level, by not sufficiently counting such work as scholarship there is a strong disincentive to work on such projects.  But, collections of work are valuable forms of scholarship.  They bring together different perspectives into one volume which is of tremendous value to their fields.  They provide authors an opportunity to work on an issue within a structured environment under substantive parameters which leads to valuable work that might not otherwise have been undertaken.  It is also another very good outlet for scholarship, as it disseminates scholarship in ways different to journals (e.g. at publishers’ tables at conferences, in libraries around the world, on book shelves in individual offices, etc).  Such collections also permit younger or new scholars to work on a project alongside senior members of the field and under the focused review of a senior scholar (the editor).  The editing produces high quality finished product, substantively of much higher value than that of many journals, especially in comparison to the many student edited journals (publication within which is often countable as “acceptable” scholarship). Furthermore, edited collections, unlike journal articles, are often the subject of a book review, itself a valuable contribution to the field . Finally, such books are “one-stop” resources on a discrete topic and are thus invaluable, a gold mine, for researchers.

In conclusion, as noted with respect to textbooks, a blanket characterization that the work that editors put into such valuable scholarship is not “countable” or “approved” does a disservice to the field and to the scholarly output of the editors.

Anyway, enough procrastination.  Review of draft chapters on comparative civil procedure or further work on the substantive introduction to a collection on China and international economic law beckons.

By Colin B. Picker

Some thoughts on textbooks as scholarship

In some jurisdictions, text books are not counted or countable as legal scholarship.  As I understand it, this is somewhat true of Australian legal academia.  I have to say, I find this somewhat perplexing (both hard to understand and somewhat annoying) as I sit here reviewing the final page proofs of the significantly revised version of my comparative law textbook (Comparative Legal Traditions: Texts, Materials and Cases on Western Law, by Glendon, Carozza & Picker (West Academic Publishing, forthcoming October 2014)).

As an author of numerous journal articles, book chapters and other forms of “acceptable” scholarship, I strongly believe that the analysis, research skills and scholarly efforts required to write a good textbook are at least equal to that required for the “acceptable” forms of scholarship.  In addition, a good textbook’s contribution to the development of the field can be equal, and sometimes greater, than many other forms of scholarship.

The research required to write or significantly revise a textbook can be intense.  Ensuring that the content (the texts, cases and commentary) in a textbook  are up to date across many hundreds of pages is a significant research challenge.  Furthermore, the typical textbook requires coverage across many more parts of a field than is required for the usual article or chapter, and even for many monographs (the gold standard of scholarship).

The legal analysis that is required for a textbook can be just as demanding if the textbook is more than just a compilation of texts and cases – and a good textbook should be significantly more than just a compilation of good texts (though identification and excerpting texts and cases is itself a valid form of scholarship). We would all agree that text presented without analysis by the textbook authors is not very helpful.  But the commentary required throughout a good textbook in order to present the field’s contours, internal connections and logic can be very difficult to craft.    Similarly, the questions and problems posed in a textbook that are designed to lead readers to deeper levels of understanding are exceptionally hard to write and may be little different than those analogies and hypotheticals provided in other acceptable forms of scholarship.

Of course, there are textbooks which would not satisfy the description I provide above. But bad textbooks should not be the ones used to set rules about whether textbooks are deemed acceptable scholarship or not.  After all, there is no shortage of bad scholarship, but so long as it is published in a peer reviewed journal or in a book published by one of the acceptable publishers it can be counted.  Obviously we should be looking between the covers to judge the scholarship quality of all types of publications, and not as a matter of course rejecting certain types.  While this may (or may not) be suitable in other disciplines, such as those in science, it is clearly not so for law.

There are additional and critical reasons why we should not penalize academics’ work on textbooks.  By relegating textbooks to the trash heap of scholarship we discourage the best scholars from working on these important parts of our fields.  Textbooks help to set the tone of a field by educating the future practitioners, officials and judges that are the lifeblood of the field. Indeed, often those textbooks continue to be found on their office bookshelves decades after they graduated law school.   I would thus argue that textbooks play a significantly more central role than does almost all other scholarship – so much more than the vast majority of scholarship which ends up hardly ever being read by these participants, or indeed by anyone.   Fortunately many of my colleagues and other legal academics in Australia and elsewhere ignore the negative consequences and do devote significant time and energy to writing textbooks.

As readers of this blog will know, I have written many pieces critical of American scholarship and academia (based on my experiences there and outside America).  But, the place of textbooks in American legal academia is an example of where American legal academia has it right.  It is often the case in America that the leaders of a legal field are the ones who write the textbooks for those fields.  For proof, look at how many of the Harvard, Yale, Chicago and other elite law school academics are authors of the leading textbooks in America (e.g., my co-author Mary Ann Glendon,).  Indeed, it is a sign of your standing that you write a textbook for one of the leading academic publishers.  The adoption of your textbooks across the country is a sign of and a reflection of your position as a scholar, itself reflected within the covers of the book given that so often those very textbooks develop new approaches and provide avenues for research not otherwise available – reflecting that they truly are valid forms of scholarship.

Anyway, enough procrastination.  Review of Chapter 12 of my textbook beckons.

Colin B. Picker.

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