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Thursday, October 05, 2006

Does Teacher Know Best?

Mike's post opens up a can of worms.  The comments so far have been fascinating.  I richly recommend them.

A couple of thoughts.  First, as to the matter at hand, Mike is right that calling on the student throughout the rest of the semester may not be fair to the other students.  It also risks creating the impression that being called on is in itself punitive, rather than a useful (and even, at times, fun) aspect of law school.  I would be inclined to call in the student and talk to him, make clear that I demand more, perhaps make a similar and short statement to the class, perhaps let the student know that he will definitely be on call for a few classes I expect him to be prepared for some much shorter period of time, and leave it at that.  Also, this post implicitly raises the question how we should call on students.  Of course the whole class could be on call all the time, but everyone knows there are other methods.  Some go alphabetically (which, for some strange reason, still leaves an element of surprise).  My constitutional law professor, Louis Henkin, picked a slate of students at random and sent them courtly letters "inviting" them to participate in class for the following week.  I've recently switched to panels, for about a week at a time, of about one-third of the class.  It makes students responsible for much of the material, doesn't prevent others from chiming in, but doesn't leave them with the exhaustion of being on-call all the time for everything, which I think results in diminishing returns.

Of course, Mike's post, and especially the comments, raise broader issues than that.  I am particularly struck by the view that students are consumers or "customers," that they know what and how much they want to consume, and that professors should just lecture and stick to their knittin'.

My own view is that, to put it bluntly, their teachers often (though not always -- university academics aren't known for the depth of their pedagogical training) know better than the students, and have every right to make demands of their students that they think are necessary for the task of professional education and acculturation, regardless of whether their students like it.  Even if students are customers, that doesn't mean they are fully informed enough to appreciate the nature of the good they are consuming and what it entails, or that, whether or not the student is fully informed, the teacher is obliged to agree to their demands.  I agree that someone who takes swimming lessons is a "consumer" of that educational lesson, but that doesn't mean a swimming teacher is fulfilling her responsibility if she allows a putative student to say, "I paid for you to tell me how to swim, and I'll do it on dry land, thank you very much."  The teacher is fully entitled to say, "I know how to swim and you don't.  I know how to teach someone to swim, and you don't.  My job is to teach you how not to drown, and I believe it requires you to get in the water.  If you don't like it, go elsewhere."  If a law teacher thinks that law school is about training people to be lawyers and legal thinkers, and not just to hand out exams and degrees, then she is entitled to do what she thinks is necessary to achieve that educational goal.  A student who thinks the teacher's job is something different may just be flat out wrong. 

This isn't to say that the teacher is always right or that everyone must learn the same way.  Some students really can absorb a legal education quietly, although in my view more students think they can do so than actually can.  And cold-calling and Socratic method aren't the only way, or even the best way sometimes, to get students involved.  Mike's "lazy student" might respond differently and actively to role-playing, skills training, and other ways of encouraging student involvement.  Indeed, many teachers ought to be looking for ways beyond the cold-call to get students involved.  But if those teachers also believe that traditional, Socratic-style student participation is one of the necessary elements of a legal education, they shouldn't be cowed by the recalcitrance of student "consumers" who lack their experience and education.      

Posted by Paul Horwitz on October 5, 2006 at 12:53 PM in Teaching Law | Permalink


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Seems eminently sensible to me. Although I'm not in the legal profession, I've encountered analogous problems in my classes at a community college.

Posted by: Patrick S. O'Donnell | Oct 5, 2006 1:51:46 PM

"The teacher is fully entitled to say, 'I know how to swim and you don't. I know how to teach someone to swim, and you don't. My job is to teach you how not to drown, and I believe it requires you to get in the water. If you don't like it, go elsewhere.'"

but it's precisely this "go elsewhere" that is so difficult in the law school environment, isn't it? a student can't necessarily just pack up and leave: he is already invested in the degree program by the time the exchange occurs, and somehow i doubt that either the professor or the school will be willing to cut the student a check for that course's proportion of his year's tuition. you can't just demand that he take another course, particularly if you're the only professor teaching corporations or if the student enrolled at your school in reliance on that course being available.

also, it's unreasonable for a customer of swimming lessons to assume he won't have to get in the water, whereas it's completely reasonable for a student to assume that academic laziness that is not outright cheating will be met only with evaluative academic consequences. where's the harm in testing what you teach? your paternalism argument has currency only if students have no motivation to get good grades.

i think a more apt analogy would be if your stockbroker called you and informed you that he thought you had invested unwisely. "these stocks are not likely to perform well," he tells you. "i know better than you, so either you can reinvest your portfolio as i think you should, or i'll refuse to be your stockbroker. oh, and if that happens, i'm keeping all of your money."

Posted by: loafer | Oct 5, 2006 2:27:03 PM

I disagree that the expectations of the preswimmer and the prelawyer differ in any significant way. Before I went to my first swimming lesson I knew I would have to get into the water. Before I went to my first law school class I knew I would get called on. Swim teachers and law teachers are equally obligated to teach in the most effective way they know how. The swim teacher wants to keep students from drowning. The law teacher wants to keep students from being ineffective lawyers.

Posted by: Jim Green | Oct 5, 2006 2:55:54 PM

"My own view is that, to put it bluntly, their teachers often (though not always -- university academics aren't known for the depth of their pedagogical training) know better than the students, and have every right to make demands of their students that they think are necessary for the task of professional education and acculturation, regardless of whether their students like it."

This statement would be more convincing if teaching was a priority for law schools. But it is not. Law professors are not hired to teach. They are not tenured because of their teaching. Most importantly, they did not choose to be legal academics because of an interest in teaching (in the great majority of cases). Furthermore, most law professors have practiced for only a short time, in elite positions that bear little resemblance to the careers that their students will pursue. It is a farce to claim that they know very much about the future careers of their students, that they care about knowing, or that they are concerned about training their student to be lawyers. They are in these positions so that they can talk about ideas they find interesting and write papers. And that is exactly how they teach their courses. The purpose, in other words, is turned inward. It is perhaps fitting that Professor Domino's question was about policy and gay marriage rather than a legal issue that might be of use to his students in their careers--or an issue likely to appear on the exam that will be used to test students' performance in the course.

And let's be honest, Professor Domino was not really motivated by concern about lazy students. He reacted as he did because his ego was bruised, and his planned response was nothing more than an attempt to exact petty retribution. Yet rather than admit this, he tried to dress up his pettiness as a pedagogical issue. (If he were really concerned with how best to handle it, he might have started with, for example, speaking with the student one-on-one.). The idea that he considered walking out (i.e. throwing a passive-aggressive tantrum) is disturbing, to say the least.

Law school culture is in need of serious reform.

All that said, I am certainly not defending what the student did. It was extremely disrespectful, at least as presented in Professor Domino's post, involving a student admitting openly that he was not paying attention. I have taught before and I understand how this would be perceived (perhaps rightly) as a mild affront.

Posted by: Anonlawstudent | Oct 5, 2006 5:22:09 PM

I think you're right to the extent that you urge law professors, and their schools, to be more concerned with teaching. But I respectfully disagree with the statement that "It is a farce to claim that [professors] know very much about the future careers of their students, that they care about knowing, or that they are concerned about training their student to be lawyers," and with the implicit claim I take to be made by your comment that law professors don't care about teaching. Horror stories abound, to be sure. But just as professors shouldn't rush to make generalizations based on some students, so the reverse is true as well. Based on my experience teaching at three different schools, it may be that teaching is not the primary motivating factor that leads people toward careers as law professors, but it is certainly *a* motivating factor. Moreover, most law professors in my experience believe teaching, and especially the out-of-class mentoring of students, is rewarding in and of itself, whether or not they expected it to be when they entered the legal academy. And in any event, it is one of the most concrete and time-consuming activities we undertake in our varied lives as academics. For all these reasons, most of the law teachers I have known, both at fairly academic institutions and at fairly teaching-oriented institutions, do care about teaching. They do care about teaching legal skills -- although some of these skills involve the inculcation of habits of mind rather than highly specific practices or pieces of knowledge. And, again in my experience, they care about the future careers of their students, even if those career paths are likely to differ from their own. Of course, the truth of these statements varies with individual faculty members -- and even among those who care very deeply, quality is going to vary. And I would add that there are certainly good reasons to urge professors to think about ways of bringing practically oriented skills training into the classroom, whether at practically oriented schools or at utterly abstract elite institutions (although those skills may vary: not just filing briefs and getting up in court, but statistics, economics, etc.). I wouldn't urge anyone, whether students or professors, to adopt a stand-pat attitude about whether law professors, as teachers, are meeting their students' needs. Neither, however, would I adopt the consumer-oriented attitude I saw in some of the comments to Mike's post, at least without urging students to understand that professors may well have a different, and better-informed, view of what is required for an effective legal education.

Posted by: Paul Horwitz | Oct 5, 2006 6:50:16 PM

I think that the size of most law classes (at my school, often 70-120 students) is one thing that leads to the consumer mentality. When you feel like part of a herd, and know that the professor will never know more than 2 or 3 names by the end of the semester, it's easy to think "let's just move on to the exam."

I was fortunate to be in a small torts class my first year, where the dynamic was completely different. The professor used severe Socratic method, but the students respected him, and each student had the chance to participate on an almost daily basis. With a small class, each student has the realistic possibility of being able to participate in any discussion at all. This is not true in the large classes, and forcing "once or twice per semester" participation in a huge lecture hall doesn't add anything to the learning experience there, in my opinion.

Posted by: jason giambi | Oct 5, 2006 10:12:33 PM

This post appears to have brought the defenses up. Vladeck needs to weigh in, I expect he could lighten things up.
And as for this: "And let's be honest, Professor Domino was not really motivated by concern about lazy students." and similar comments, I haven't seen anything that looks like an honest response.
Break this down into its parts: (1) disrespect and affirmatively creating a negative vibe in the classroom; (2) how individuals think they learn (or how they choose to allocate time on any particular day) v. how you think they do or should learn (or allocate time); and (3) your position of power. The first is an appropriate place for you to exercise the third with impunity. Two is where you should have an over abundance of respect for others, humility, a sense of humor, real creativity (if you truly are motivated by your concern - I don't suspect it would be hard to get someone involved in that particular discussion even if they hadn't read), and if necessary a clearly established set of class rules. You really do have a lot of power in that classroom - the post indicates that you are not confident in it yet. Don't be petty or presumptuous with it. Be confident and generous with it.

Posted by: Lawyer | Oct 6, 2006 1:33:31 AM

I think that the argument against the "angry law student" (hereinafter "ALS") commenter on the other thread can be stated more strongly than it has been thus far. Certainly, there is a large element of legal education--the internalization of legal doctrine by reading case books and treatises--that can be done just as well in private without any need for a classroom at all. Anyone with a brain could study for and pass the bar without ever having set foot in a law school. Yet students and employers nevertheless treat the credential of having attended law school (and of attending one with a good reputation) as an important one that gives some useful indication as to how good a practitioner that person is likely to be. Clients, in turn, choose law firms in part because of the law firm's ability to tout the law school pedigrees of the associates who do the bulk of the work. If law school properly consists of nothing more than doing the readings and taking the tests, then I submit that all these consumers of law degrees are acting highly irrationally. On the level of legal education that ALS seems to regard it as his prerogative to limit himself to, there is no meaningful distinction between a homeschooled lawyer and one who attended Harvard, or anything in between. Contrary to what he believes, however, the exercise of being required to participate in class is not at all irrelevant to his future job as a lawyer. I would give two reasons for this assertion. The first is that legal reasoning is discursive. I don't care how smart you are, you haven't really thought a legal problem through until you've bounced your ideas off other people coming at it from different perspectives. In real law practice, we do this ALL THE TIME. Writing a brief is not like writing a final exam that you work on alone and then turn in to the judge--at least, not if you intend to be successful. We spend a lot of time as lawyers discussing the analysis of the cases we are working on with our colleagues. Being able to do this constructively--i.e., having both the confidence in your own reasoning to state your disagreement with a partner's doctrinal analysis and the humility to gracefully recognize and build on others' corrections and additions to your own thought--is a crucial skill for any lawyer that is going to work with colleagues on complex legal issues. As a practical matter, learning how to discuss legal issues constructively with your peers is a crucial part of learning how to "think like a lawyer." In addition to the importance of discourse to legal reasoning itself, there is the other crucial lawyerly skill: communication of one's legal reasoning in a persuasive manner. Whether ALS likes it or not, real lawyers get paid largely to talk to other people--clients, judges, opposing counsel--about their understanding of the law. Yes, this also includes listening to people engage in what you consider to be malinformed bloviation. Because guess what ALS, you're not going to escape those people you hate listening to in class. They become senior partners and clients and, yes, judges. If you can't listen to them and figure out how to identify whatever common ground you have with them and use it to persuade them to understand your way of viewing the issues, then GET OUT OF LAW NOW, because that is what you are signing up to do for a living. If you can't be bothered to put in the time to prepare on a daily basis to have informed discussion about legal issues, then GET OUT OF LAW NOW, because in practice it doesn't matter whether you feel like being prepared in time for a meeting with a partner or a client or a court. The self-discipline to be able to do this habitually whether you feel like it or not, whether you're deathly busy with other things or not (trust me, you always will be) is a bona fide practical lawyerly skill. There's no question that what you do in law school is a very imperfect proxy for cultivating the skills that make one a successful lawyer. But if anything, the self discipline of being timely and prepared and respectful and able to engage with others (including others less smart than you) about complex legal issues is the aspect of law school that is MOST relevant to real practice. If law firms didn't think you were getting training in that discipline at your law school, then the "credential" of having gone there would mean a whole lot less than it does. If there is any rational basis for thinking someone who graduated from HLS is likely to be a better lawyer than someone who graduated from correspondnce school, it lies in the assumption that the Harvard student spent three years testing and being tested by very smart, motivated, professors and fellow students. Sure, you can do this outside class (and should) as well, but you're at a law school to earn a credential, which means you have to demonstrate to the institution that you actually did it. In my view, if a professor at such an institution does NOT make class preparation and participation a signficant element of the grade given, he or she is effectively abetting a fraud on the people who rely on that credential to mean something. Oh, and the commenter who is worried about messing up the curve by sharing his brilliant insights with the hoi polloi? Get over yourself. All you're doing is cheating yourself of the chance to learn that your brilliant insight isn't really as brilliant as you think, and to learn how to translate the stuff going on inside your head into a language that is useful to other people.

Posted by: cmn | Oct 6, 2006 12:54:08 PM

"In my view, if a professor at such an institution does NOT make class preparation and participation a signficant element of the grade given, he or she is effectively abetting a fraud on the people who rely on that credential to mean something."

Class participation is almost never a significant part of the grade. Grades are based on exams. Career opportunities (at many schools, whether you can even work as a lwyer) are determined by grades. So the message is actually that your ability to participate effectively is not important. It is only important how you do on the final exam. Professors compound this impression by giving exams that do not test understanding of anything that was discussed at length in class. I doubt Professor Domino will ask his students to evaluate arguments for gay marriage on his final exam. I doubt he even gives an exam that tests the ability to analyze cases. He likely gives traditional issue spotting exams.

Incidentally, your description of legal practice most accurately fits elite practice, not what most lawyers do. Most lawyers do not engage in lengthy discussions of their brief arguments, as most do not write complex briefs.

And regardless, the argument that teacher knows best requires a certain amount of trust in your professors. They do not deserve that trust, when everything about the law school as an institution indicates an indifference to teaching, starting with the fact that even lower-tier law schools feeding a local market hire relatively "green" HLS grads with three years of appellate practice instead of experienced local practitioners with a sincere interest in training new lawyers.

Posted by: Anonlawstudent | Oct 6, 2006 1:28:16 PM

This "teacher knows best" attitude might be more appropriate if the students in question were 18-year-old undergraduates rather than adults seeking a post-baccalaureate education.

Posted by: NJG from NYC | Oct 6, 2006 10:11:17 PM

if only learning "how to think like a lawyer" were as complicated as learning how to swim, your analogy would be apt.

The trouble is that most 1Ls and every 2L knows by this point in the year how to do this adequately. The fact that students can pass their exams without going to class proves this. If it doesn't, then professors are failing to write exams that test supposedly the most important part of law school--and whose fault is that?

Posted by: A delicious cake | Oct 7, 2006 3:14:30 AM

Let's just be honest about one thing: knowing how to prepare for class or how to answer a professor's questions has nothing to do with being a lawyer. As far as I can tell it has absolutely no relevance to my practice or the practice of any other lawyer I know. When I turn in work to a partner he does not ask me a set of pushy and often patently ridiculous questions designed to show me how wrong I am. If I did something wrong, he/she will tell me, not ask me a series of leading questions. When I sit in on a conference call or meeting with clients they do not query random attorneys in the room to see if we are prepared.

Knowing how to analyze a case is not something that takes three years, and like the above poster said, it is a farce to claim that law professors are training their students to be lawyers. They do no more of that college professors do.

Posted by: Tiny dancer | Oct 7, 2006 4:22:10 AM

In all the thousands of hours I've spent in a classroom, I have never once heard a student say anything worth hearing. If professors think my education is improved by listening to my classmates, they are simply mistaken.

At best, time spent listening to fellow students is wasted. At worst, it undermines the learning process by injecting confusion and bad information.

Posted by: You know I'm right. | Oct 8, 2006 7:39:19 PM

In addition to what Anonymous Law Student said, you may want to get rid of the forced curve.

Why? Because it doesn't necessarily foster competition. Why doesn't it encourage beneficial competition? Because the grades are seen as arbitrary. Arbitrary grading combined with a forced curve encourages laziness. After all, if working ten hours a day gets you the same grades as working three hours, why not just work three?

This is why you see a noticeable difference between forced curves in pre-med science classes and forced curves in law school. In science classes, a forced curve exists -- but arbitrary grades don't. Effort and intelligence are clearly correlated to your place on the curve. In law school, it isn't.

Incidentially, it's why my friends and I always worked harder in my legal writing courses than in our other classes. The lack of a forced curve meant we were graded on the actual quality of our work, and consequently, we worked substantially harder.

Posted by: LST | Oct 9, 2006 12:07:57 PM

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