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Saturday, August 05, 2006

Professor-Student Wars and the Second-Person Standpoint

As we turn to a new school year, thoughts turn again to teaching and students, and that's reflected here in the various posts over the last couple days.  I read my co-guest blogger Michael O'Hear's most thoughtful post and the comments just before running out to get our dog's monthly fluoxetine fix at Costco ($6.30 for 30 pills - isn't America great?), and I've been thinking about it the whole time.

I want to begin with some anecdotal observations and link this back to some theoretical work I have admired.  Over twenty-five years intervened between when I stepped out of a law school class as a student and when I stepped back in as a teacher.  In 1979, Bill Gates was still just a couple years removed from dropping out of Harvard and hypertext was still a gleam in Tim Berners-Lee's eye; in 2005, laptops and wireless access in the classroom were an issue.   So even though I had experienced my own "Torture by Power Point" in the corporate world, squirming through hours on end of strategic and operational business reviews, I was not fully prepared for  re-immersion in the multi-media world of the new law school.  (Ask any of my Sales students about my attempt to introduce the Arabian Score v. Lasma Arabian race horse case in Doug Whaley's book with the theme music from Mister Ed.  It was a technological disaster.)

I've previously blogged on the subject of setting up mutually conflicting hypothetical imperatives as the basis for archetypal organizational disputes, and Michael's theme - it's not you, it's us - reminded me this is a nice case in point.  Remember that a hypothetical imperative is an "if - then" directive to action under which the validity of the directive in the "then" clause depends upon situation posed in the "if" clause (hence it is hypothetical).  "If you want to get into a good law school, then do well on your LSATs."   Directing somebody to do well on LSATS is absurd if the person doesn't want to get into law school.  This contrasts with a categorical imperative that, by definition, has no "if" clause; it is always true.  "Do unto others as you would have them do unto you." 

The basic hypothetical imperative works in organizations like this:  "if we want to be more successful and get along better, then you should stop  doing what you do, and interfering with me, and instead accommodate what I do in the way I am used to doing things."

Bear with me for a personal anecdote as illustration.  Faced with teaching a standard doctrinal class for the first time, believing myself to be an engaging sort of person, wanting very much to prove that I could be a professor as I remembered my professors,  and most of all, wanting to shed the  canard of "practitioner,"  I had a pretty clear vision what I wanted to do, and how I wanted to do it.  The idea of Power Point was, for some (entrenched?) reason, anathema.  Perhaps that I could not imagine Gerald Gunther, or Bill Cohen, or Bill Baxter, or John Kaplan standing in front of a Power Point outline.  I also came from a management philosophy heavily biased toward personal accountability and delegation (versus command-and-control).

The academic dean asked each professor teaching a IL class to give a practice exam question late in the term.  It was clear several weeks into the fall term that the students (a wonderful group by the way) were engaged in the usual first term struggle, panicked about what exams would be like, and struggling mightily with the concept of consideration in my class.  I put it to the class, and on overwhelming vote, agreed to give an early practice exam (sounds like what Orin does, but monitored by the LRW profs on a timed basis), based solely on the first sixty-one pages of reading and class discussion.  I did not grade them or even write a full model answer, but I did a pre-test extra session on how I approached exams, wrote and posted an outline of the model answer, conducted a special review session, and did a sign-up for appointments for anyone who wanted to spend thirty minutes while I looked over and reacted to the answer in real time. 

Apparently the student panic manifested itself in a consensus among at least some students that they wanted it as a take-home.   The exam was to take place from 4:00 p.m. to 5:00 p.m. on the same day as my class, which ended at 2:50 p.m.   The class started with a student asking "does it have to be a timed exam?  do you care if we do it as a take-home?"  My mode of going ballistic is probably a forced calm combined with somewhat snarky  sarcasm.  I said, "Are you a legally competent adult?  It's your decision.  I don't care whether you take it home or don't take it at all. There's no attendance taken and I won't know one way or the other.   But  [the LRW prof] and I aren't doing this for us; we are doing it for you.  Now, if you want to pass up the chance, after all this panic, and all the prep we've done, to find out what it's like to take an exam in the heat of a timed session, to feel the pressure of reading, assimilating, organizing and writing a coherent answer in fifty minute, that's your call.  I think you would be inordinately foolish, but I'm not going to decide for you."

So let's assess how professor and students (who, by the way, seem to like each other) are seeing themselves and the other right about now.  I see myself as  carrying on a noble tradition, designed to foster critical thinking and independence, particularly in the face of the world of gray areas and conflicting rules the students will face in their careers.  The students appear to be, in a word, molly-coddled.  The phrase that pops into my mind is "enabling behavior" as for addicts:  see what your soccer moms, television-shortened attention spans, and Power Point outlines have done.

I can't speak for all the students, but based on later discussion, I think there is some basis for this characterization of their concurrent reaction.  They see themselves as victimized by this bizarre language and culture they are being asked to absorb, in a teaching method by and large that is foreign to them, with no clear answers.  And it is coming, at least in my case, from a first-time professor who seems, for the sake of tormenting and confusing them, adamant in not providing a term-long syllabus by which they can anchor themselves, or giving a Power Point outline to organize where we are, or ever coming to a clean, crisp conclusion either at the beginning or end of class.  (As opposed to in the office, where the final line is often "why do I understand it in here but not in class?")

Each side's case can be put in the form of a hypothetical imperative:  if you want to [learn well] [teach well], then you should stop resisting doing things [my][our] way, listen to [me][us], and accommodate [my][our] way.  And this, if not resolved, just cycles.  (If you have any doubt, put into this format any one of your best fights with spouse, partner, significant other, parent, child.)

So there is something special in an insight like Michael's:  the problem is me, not you.  (I actually like that better than the first person plural because it enforces the idea of accountability.)  But I don't think the answer lies in attributing fault to the other (blame) or to oneself (mea culpa), because the problem is  mutual, mirror-image, and from the standpoint of each protagonist, absolutely clear.   Stepping back, the problem would not exist but for the fact that you and I each want a result, but are trying to impose our self-generated hypothetical imperatives on each other.

And now a diminishing returns warning.   I am far better at explanatory modeling of this dynamic than in proposing normative solutions.  As I mentioned in the entrenched interests post, the solution we tried at Great Lakes was deontological, and much of what you have read here was significantly influenced by that experience.  But that approach had its problems as well.  You walk a fine, fine line sounding like you are preaching interpersonal moral duties in the business world, and the approach may have strayed over the line not in its substance, but in its presentation.  Nor is a blog post the place to try for a more fulsome explication.  I'm convinced, however, that there are tremendous insights in the work around the second-person standpoint by Rob Kar (Loyola - Los Angeles), which in turn keys off insights from Stephen Darwall at Michigan.

That work focuses on second-person claims, something with which I continue to wrestle, because I think claims and demands are legal in nature, and law doesn't resolve this problem.  But in the interim, the best students, like Belle Lettre, try to get beyond their own angst, and try to figure out if there is some method in the madness being presented to them (to Orin's and Michael's point, it helps if it is done well).  And it struck me that the best teachers (maybe the ones who are doing it well) try to get beyond their own entrenched interest in doing it the way John Kaplan or Bill Baxter or Clark Byse did it (whether we loved it or hated it), and be thoughtful about what it all sounds and looks like to a student.

Posted by Jeff Lipshaw on August 5, 2006 at 06:36 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink


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Yes. I agree with two points here.

1. I'm not sure that pure Socratic can never ever be done well, but doing it because "IT'S MY WAY, DAMMIT" is not a good reason to do it. I remember seeing a news story on training medical interns (36 hour shifts without sleep, for example), and there seemed to be a view that it was a kind of rite of passage. Like, now it's our turn to do it to them. Is there a similar attitude among law professors? As I said, my admittedly limited experience is that the overwhelming majority of law professors take pride in their pedagogy, not in deliberately inflicting pain.

What students need to understand, however, is that the law is a highly imperfect model overlaid on an immensely complex world. The professors' common gripe is that students want RULES and CLEAR answers. The best defense of Socratic method is that it is an attempt to show how the model and the world interact so as not to provide clear answers. I think it has diminishing returns or is counter-productive, however, when the students get more tangled up in dealing with the pedagogical method than understanding the point.

Brian Leiter's re-posting of his views on the subject has rekindled this discussion around the blogosphere.

2. Even if your personality has been shaped by the time you get to law school, what you take away as the right way to be a lawyer has not. To the extent that the case method shows problems being resolved by adversarial argument, I think that some newly-minted lawyers go off into the world thinking all problems are so resolved. Again, I recall from when I was in law school some exercises on client counseling in which it was not uncommon that the initial interactions between student-lawyer and client were adversarial (e.g., cross-examining, defensive, etc.).

Posted by: Jeff Lipshaw | Aug 8, 2006 5:31:08 AM

I appreciate your anonymous civility - you must be a decent person. And I can see now that I owe you an (anonymous) apology - my remarks look personal, or trolly. They weren't intended to be, at all. But regardless, you misunderstand. Here's a thought experiment: if I paid your salary according to how much your students learned, how much they really *understood*, how much they had grown as people, would you (the impersonal You) use traditional methods of legal instruction, or the "Socratic" method? Of course the answer is "not a chance in hell." You'd share with them what you've learned and give them plenty of practice, feedback, and positive reinforcement. Lawyers are presumably being paid to think. I submit to you that traditional legal teaching makes them worse at thinking, not better. And I further submit to you that this same training worsens whatever preexisting personality problems they might be carrying. Contrary to your implication, pointing out the problem is in fact the beginning of the solution, not part of the cycle. That's my two cents.

Posted by: Guest | Aug 7, 2006 9:57:13 PM

I have to admit that responding to an anonymous poster evokes a weird feeling, that one has lost one's grip on things (like Sandra Bullock in the otherwise forgettable The Net). But it's a decent straight line nonetheless, and I don't have to worry about offending a real person with a sharp response.

1. Most good law students were insecure and competitive before they ever showed up at law school, and will be insecure and competitive long after they have left. Blaming it on the pedagogy is as pointless as blaming it on potty training. In fact, that's the whole point. Students blaming teachers, and teachers blaming students simply justifies doing what each has always done.

2. I suppose there are law professors who don't view teaching as one of their core competencies, but somehow I haven't managed to meet one in the last couple years. The overwhelming majority seem to me to be highly reflective about pedagogy, even as they worry about whether the teaching "counts." Bitter one-liners, as though professors get up in the morning and think "let's see, how can I deny students the benefit of my training and talent today?" are symptomatic of just the kind of outlook that keeps the cycle cycling. Look instead at the responses to Michael's post on "it's not you, it's us."

Posted by: Jeff Lipshaw | Aug 7, 2006 4:15:31 AM

An excellent example of how traditional law school pedagogy encourages students to be insecure and competitive. It's ironic, isn't it, that in order to get hired as a law prof, you have to be one of the best and brightest, and have gone to the finest schools, and in order to function as a law prof, you have to deny your students the benefit of that training and talent? What a waste.

Posted by: Guest | Aug 6, 2006 4:23:03 PM

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