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Friday, February 01, 2008

Occasions of learning

I teach English; which is to say, I help students work toward answers while trying to avoid asking the questions. 

I'm interested this month, as a guest blogger, in asking whether the Socratic mode of legal education helps or hurts budding lawyers, morally speaking.  So I'll be writing about pedagogy, but at the same time I'll be writing about pedantry:  the attitude that encourages litigators, emulating their professors, to ask only questions to which they already know the answers, and to insist upon the completeness and precision of answers rather than the process of answering.

This line of discussion isn't meant to be an advocacy of mediation, or 'encounter sessions,' or any such nonsense; nor is it even to push for the value of Truth and Reconciliation Commissions (though I think that's what the DOJ is going to need).  I think there's no doubt that the antagonistic and highly mannered airing of evidence and testimony -- which is to say, courtroom drama -- works much better than any known alternatives as a way of handling disputes and civilizing the task of getting to an outcome when viewpoints diverge widely. 

But surely, it seems to me, part of the deliberative excellence of the courtroom scenario is in precisely what is missing from the law-school classroom:  the presence of the jury.  They are present and paying close attention, not just for the answering of questions but also for the asking.  What does it take to give that answer? the jury asks about each witness response; but also, What does it take to ask that question?  What moral posture is being occupied by the cross-examining lawyer?  Like the audience in other kinds of drama, the jury has the power to decide how it feels not just about what is said but also about how it is elicited.

I've been teaching at Phillips Exeter Academy, and every table here has exactly twelve kids.  No one is the foreman.   And the pedagogy centers on the belief that students' social identity is their best motive for learning.  Teachers are urged not to set the agenda:  this ethos puts the students in charge of their own time, which they can collectively waste or make fruitful.  Happily, the culture has evolved a long way:  there is nothing cool here about being unprepared for class.  There are a few 'gunners,' but most kids come into the room with some questions about the text and the willingness to listen.  They react to each other not as debaters but as social individuals -- the girl always out of dress code, the guy who affects a garish tie over a Hawaiian golf shirt every day, the Gay-Straight Alliance president, the linebacker, the lone Republican, the girl who laughs a lot and has ideas but never quotes the text.  Credibility is constantly in flux, and disagreement is rarely the mode of progress.

Is this transposition of social life into the intellectual sphere much different from the jury system -- with its implicit belief that jurors' social instincts are their best guidelines as to what the law requires them to conclude?  Why else do we as a society care that jurors should be a defendant's PEERS?

In passing, in this first brief post, let me note how different the juror's moral posture is from that of the law professor.  The juror wants to know how to decide among the parties; her choice is among people.  The professor wants to develop the most fruitful lines of questioning; her choice is among vectors.  Improvising, grabbing hold of that which is most suggestive or most contentious, swinging from thought to thought and then to an opposite thought, the professor blazes a new trail through familiar terrain for each group of students; it is exhilarating work, Tarzan stuff.  But here at the Academy I've been taught (for example, by the great seminar teacher Nita Pettigrew) that in wielding even the smallest machete the teacher sets herself apart and adds extra meanings.  To blaze the trail, even when others seem to choosing at each decision point, is to claim a very certain kind of power.

Of this power one should be very wary, and ambivalent.  On the one hand, there is no doubt that to ask the questions is to control the situation; hence the term 'examination,' used both in court and in class.  At the same time, though, Kierkegaard said that "the ultimate idea in all questioning is that the person asked must himself possess the truth and acquire it by himself."  Hence the law professor is by turns the bully and the naive Columbo-figure. "Let me just mention one more thing," he says, and the student finds a light bulb in her head she didn't know was plugged in.

I'll never forget a certain session of a class in 'higher-ed and the law,' at a time when I was considering a career in administration.  The question at hand was whether a student with a heart condition should be allowed to play varsity basketball, fully aware of and accepting his three percent chance of dying on the court in the next four years.  I was the only one who said Yes, and the professor, the Harvard General Counsel, asked me slyly, with an innocent tone, "And then what is learned by the fifteen thousand students in the stands on the night that he is carried off with a sheet over his face?"

There was no opportunity for me to answer this question in a thoughtful way; it carried its own answer.  But in such rhetorical questions, of the kind that litigators master, there is an extraordinary assumption:  the professor says, You are learning the law.  But I am not telling you anything you don't already know.  Your moral intuitions are the main point, and in learning the law you learn to answer the questions the world puts to you, in your own way.

I am still not sure that those fifteen thousand kids wouldn't learn something beautiful on that occasion.  The fifty of us, that night at the Ed School, learned something useful, but it's a lesson I think I'd rather forget.

Before I sign off on day one, then, two examples.  One:  a postadolescent of whom I once read was badly injured, allegedly, by her boyfriend on a spring-break trip.  As she emerged from anesthesia in a strange town she encountered his lawyer, who asked, Do you want him to go to jail?  The answer of course, was no, and she signed an affidavit exonerating him.   It was several weeks before she came to terms with the fact that she was scared of him.  Two:   the teacher asks at the English table, What is at issue in this debate Frank and Jane are having?  Are they really disagreeing?  And someone answers, They're just arguing about which gender is better than the other.  The conversation is fully derailed -- but it goes to surprising places.

These are two different models of learning:  one, the well-paid lawyer's; the other, the schoolteacher's.  Think Arnie Becker and Ichabod Crane.  Which one gets to the bottom of things?  I propose to keep asking that question in various ways this month, and hope that in doing so I'm not too obviously biased toward societal (superficial) rather than professional (esoteric) values.

Prof. Markel and I used to live in a community whose motto was Occasionem Cognosce:  Know the occasion.  In the seal, a fist grabs a handful of arrows, and the implication is clear.  Seize the day.  To know is to do.  And surely that is for the cognoscenti.  But there are other kinds of knowing, less Platonically gnostic and more paradoxical, and I wonder if we couldn't use a little Kierkegaard to nudge us away, just a smidge, from the Socratic -- and toward a different kind of faith, more passive but more patient, in collective modes of understanding.

I'm reminded here of a game I play in class sometimes, in which each kid has to take on a certain role -- the Interrupter, the Disagreer, the Swerver.  There's always one kid who is instructed to finish every comment by trailing off into the sentence, "I don't know -- does that make any sense?"  No one ever notices this tic, and even the boldest kids are able to fit it in nonchalantly, as if negating their comment is a perfectly legitimate way to conclude it.  I'm barely resisting the temptation here to ask whether the above makes any sense, and will successfully resist it only by pointing out that if I asked that question I would only be fishing for compliments or encouragement, and not really acknowledging how complex are the issues I am raising.

Jim von der Heydt

Posted by Jim von der Heydt on February 1, 2008 at 08:50 PM in Deliberation and voices | Permalink

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Interesting post. What do you make of the adversary system? The notion that a lawyer should only ask a question that he or she knows the answer to is actually a bit limited. Most litigators consume most of their time in discovery turning every stone in order to learn the answer to EVERY question, so that there is no question the lawyer can ask (on either side) that he or she doesn't know the answer to. Indeed, deposition questions often start very open ended for the reasons you describe.

Of course, at trial the jury sees only select questions, but the adversary system means that each side will present all of the question it finds to be relevant or interesting. Does this affect your analysis?

Posted by: Michael Risch | Feb 2, 2008 7:47:03 AM

I might also add that the socratic method, in its ideal form, also teaches active listening - the very skill the jury exercises, nearly exclusively throughout the trial.

I hasten to add that there are probably more effective ways to teach active listening than the socratic method, but in a group setting, I'm not sure what they might be. Others might have ideas.

I have found active listening skills is increasingly difficult to teach in the web-surfing/instant messaging crowd. However, litigation experiences seem to demonstrate that scant few lawyers listen to the answers a witness gives on discovery. Even less listening seems to go on at trial, even during cross-exam. A focus on just the 'talking' with Socratic teaching, and not also on the 'listening' is, I think, perhaps only half of the equation.

Thoughts?

Posted by: Erik S. Knutsen | Feb 2, 2008 10:20:41 PM

Prof. Knutsen: An outstanding point that gets to one of the things I'm most interested in this month, i.e., How is a lawyer like a teacher? If the jury isn't kept listening actively -- partly because things are intrinsically interesting, and partly because those things are constantly shown to be relevant to the job they have to do -- then nothing is being learned and nothing accomplished for the client or the state except perhaps by hand-waving and misdirection. (I think juries take their jobs so seriously, though, that things they don't understand have to get rehashed in the jury room until they're satisfied that they know what they were supposed to be learning -- the equivalent of the wonderful cram sessions we all remember with classmates in college.)

I'd suggest also that Prof. Knutsen's comment is a perfect answer to Prof. Risch's: if one doesn't focus on the nature of the listening, one might consider open-ended depositions to be a corrective to the power dynamic created by litigators' leading questions in court. But I'd submit that because the deposition is open-ended, because there is no jury there, and because the listening is half-hearted, a deposition is no 'occasion' in the sense I mean it in the post title. It's more like a bench experiment than a class session, and whatever is learned is learned in the same way penicillin was discovered (by chance) or the way genomes are sequenced (by brute force). Things are indeed 'discovered,' but not 'learned' or 'taught' in the way I'm interested in probing.

Meanwhile, yesterday at noon my third daughter, Iris, was born; so I'll be posting lightly but keeping track of any developments on the Blawg.

Thanks for your interest in this rather abstract question I've put forward.

Jim vdH

Posted by: Jim von der Heydt | Feb 3, 2008 7:31:30 AM

Does anyone want to try to make the case that one's law-school classmates, in the Socratic classroom, are a kind of jury, and that in preparing to render (and then revising) their social verdicts ("gunner," "slacker," "brilliant," "grinder," etc.) are creating healthier occasions of learning than I have implied?

Posted by: Jim von der Heydt | Feb 3, 2008 7:36:25 AM

I think there's no doubt that the antagonistic and highly mannered airing of evidence and testimony -- which is to say, courtroom drama -- works much better than any known alternatives as a way of handling disputes and civilizing the task of getting to an outcome when viewpoints diverge widely.
Actually, there is quite a lot of doubt. Cf. the debate between Langbein (52 U. CHI. L. REV. 823; 82 NWULR 763) and Allen et al. (82 Nw. U. L. Rev. 705, 82 Nw. U. L. Rev. 785), with a "neutral" point of view presented by Reitz (75 Iowa L. Rev. 987). See also Gross (85 Mich. L. Rev. 734) with respect to criminal procedure, discussing and dismissing the available empirical studies.

Posted by: Positroll | Feb 4, 2008 9:23:55 AM

Great cites, but I'm not sure how easy will be my access to those journals. Remember, I'm an English teacher.
What modes of dispute or prosecution are suggested in these studies to replace the adversary system?

JvdH

Posted by: Jim von der Heydt | Feb 4, 2008 2:59:04 PM

Well, Langbeins first paper is titled "The German advantage in civil procedure" - this should give you an idea ... ;-) (it's also an adversary system btw, although with a more important role for the judge as a neutral fact finder). I am pretty sure Prof. Markel will be able to send you electronic copies of the papers if you ask him politely. Else I might try to find them somewhere in the depths of my computer ...

Posted by: Positroll | Feb 6, 2008 11:53:26 AM

Roger Rosenblatt's complaint about some college curricula is that the courses are designed to "make students proud of who they are - to establish self-esteem". He believes the goal, instead, should be to make students feel humble, make them think they're "in the thrall of the best minds thinking the best thoughts that have ever been thought..." in order to inspire students to "lead a life that's useful."

I do believe that the Socratic method you talk about using in your classroom is a wonderful technique to get students to learn how to think, how to analyze, create and to communicate, but - playing devil's advocate - how, in this process, do you avoid students studying themselves as opposed to studying content outside themselves: the great ideas and minds and, yes, facts of history and literature? (Time constraints and the search for simply understood answers would seem to support the narrow, mostly rhetorical, "self-informed" questioning process in the courtroom).

Posted by: CFDP | Feb 12, 2008 10:28:19 AM

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