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Thursday, June 17, 2010

Best practices v. student-centeredness

There are two competing trends in the academy right now. One is the issue of "Best Practices" (a presumptuous, non-neutral term if every there was one) from the Carnegie Report, etc., which urges us to get beyond the historical Socratic class and introduce professionalism, "experiential learning," and other devices throughout the curriculum. This has particularly been a theme in civ pro, with the call to make the course more practice-oriented and more focused on what civil litigators really do (i.e., discovery and motion practice). Civ pro is often a favorite object for those who would like to put clinical/practical experiences into the doctrinal curriculum.

The other trend is the idea of "student-centeredness," which has been a major push throughout FIU. Now this is undefined. At the relatively harmless level, it could be understood as the commonsense idea that professors should be available to students, should be responsive, should be fair, should try to make education fun, should try to be creative, etc. I hope that I do those things (or I at least try). At its worst, this could be about the commodification of education and student-as-customer seeking to control curricular content and how the courses are taught.

Reading my Civ Pro evals from the just-completed semester (which generally were OK from a good class) got me thinking that these trends may conflict.

For example, I assigned several sample complaints so students can see what the documents we are talking about look like; we talked in class about their structure, organization, and content, and even spent some class time considering whether these sample complaints survive scrutiny under Twiqbal. But on the evals, several students complained about the use of these additional materials. They did not like having to print and carry them around and they did not understand why they were looking at them. I also am not sure they quite got how to read and prepare them or what they were trying to draw out from reading them.

For the first time, I did a drafting assignment, with students writing a complaint (H/T: Nancy Marder for letting me steal her materials); I gave a detailed fact pattern that included a discussion of the applicable law, along with the sample complaints they could use as models. Students just had to figure out how to plug that all into a pleading, including making decisions about parties, remedies, and what facts to include. A number of students criticized the assignment, with comments ranging from "This is not Legal Writing" to "We don't know anything about substantive law, so how can we write a complaint" to "Many of us were upset because we didn't know how to put a complaint together." Now my mistake here may have been grading the assignment (it was 15 % of the final grade); several professors I spoke with at the AALS Civ Pro Workshop said the key is to keep it non-graded.*

We also made heavy use of the course blog to post information about new and current cases or pleadings or events in the news; in several instances, I assigned these new cases or pleadings for class discussion. The idea, of course, is to introduce some current events into the class and to show how staid Supreme Court cases play out in the real world now. In fact, our school's numerical evaluation forms specifically ask whether (and how well) professors incorporate current events and developments into the course. The blog allows us to do this in real-time. But several students complained about this additional reading; they cited workload concerns with additional material and keeping up with the blog; notice concerns that this was not on the syllabus (of course, it could not be on the syllabus because no one knew about the case when I wrote the syllabus); and timing concerns that they often found out about the new reading the day before class (a fair criticism, but one that is unavoidable if the idea is to discuss new events).

To be clear, the comments and concerns discussed here appeared on only a small handful of the 50-or-so evaluation forms, so this may reflect relatively isolated discontent rather than broader disaffection. But they stuck out and I at least want to give them serious consideration.

I find it interesting (and a bit of a dilemma) that the very people curriculum-reform advocates are trying to benefit--the students--are, at least in some cases, most resistant to the additional work (and type of work) that reform introduces into the course. Of course, professors do lots of things that we believe are for the students' educational benefit even in the face of student complaints or different views (see, e.g., banning laptops); this is just one more example. And I might avoid some problems by explaining (in class or in the syllabus) some of the things I am doing, although there necessarily are limits to this.

At the end of the day--somewhat counter-intuitively--students may be more tradition-bound as to how law school classes should be structured than their professors.

  • Of course, that would take away one graded assignment (I did the drafting exercise instead of a mid-term essay), requiring me to tack another 15 % of value onto the Final Exam--when all sorts of pedagogical studies tell us that grades should not hinge too much on one big end-of-semester assignment. Alternatively, I give a second, graded mid-term writing assignment in addition to the drafting exercise--but then I get dinged for giving too much work.

Posted by Howard Wasserman on June 17, 2010 at 08:29 AM in Howard Wasserman, Teaching Law | Permalink


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Good point. We do need courses on billing time. It's a scandal that they don't exist now. Even more urgently, we should offer classes on rain-making. There would be little worse than having our analytically-sharp graduates relegated to the ranks of [shudder] service partners.

Posted by: Vladimir | Jun 21, 2010 2:11:14 AM

Also, on the practical skills front, how are lawyers supposed to learn the business management side of working in a law firm? I'm thinking about things like how to draft an engagement letter, how to bill a client for hourly work, what sort of expenses can be billed to a client, what the market flat-rate is for various legal services, etc. Even if you work at a firm for several years and fill out time sheets on a weekly basis, you may have no idea what the final bill looks like or how much of your time is written off.

You don't need to turn law school into a trade school, but how many schools offer even just a 1 or 2 hour class on the business aspects of being a lawyer? Compare that to the number that teach classes on "law and literature."

Posted by: BL1Y | Jun 20, 2010 1:47:48 PM

Vladimir: Perhaps you need to reread what I wrote. I never said the desires of law firms matter in legal education. You stated "Practical skills, let's face it, are easy to learn and can be picked up in practice; legal theory cannot." I was disagreeing with the factual accuracy of this.

Practical skills, such as technical writing, cost-effective research, and making sense of OED-sized statutes do not always come easily on the job, especially for people who are either unemployed or working in a position with little supervision or mentoring. This is a problem that also needs to be addressed by law firms, but law professors need to stop telling themselves it's okay to go light on the skills, because the students are getting it elsewhere. The truth of the matter is, many of them are not.

I do agree that law professors should put a great deal of emphasis on analytical skills. The trouble is that a lot of professors' analytical skills are crap.

Crack open any journal with the phrase "Law and..." in the title and you can easily find numerous examples of professors making basic factual errors and using sloppy reasoning.

Just look at the coverage of the Arizona immigration law on this blog. Numerous professors have proven themselves incapable of understanding a bill that is in, I presume, their area of expertise.

The last time the Legal Writing Institute published an article discussing teaching deductive reasoning (1997), an example argument given by the author contained an invalid argument (the example was given as a valid argument, not to demonstrate the mistake). My Philosophy 101 students would be embarrassed (and failing) if they made the same kind of error. But, they also had someone checking their work. It's not like we can hold law professors to the same standards as college freshmen.

Posted by: BL1Y | Jun 20, 2010 12:58:22 AM


I understand your frustration. But where we differ is in your point that law firms don't want to train new recruits in practice skills, so law schools should. Unlike you, I don't think it matters one bit what law firms want. What students need -- especially those who will practice in profit-oriented law firms -- is perspecitve, analytical skills, and also theory, so they can have a critical perspective against which to measure what they do day in and day out. Otherwise, they may consider what law firms do as "normal," rather than something peculiar and contingent, something to be problematized. The last thing the academy should do is take its cues from large corporate law firms. Law faculties do not and should not work for hiring partners.

Jeff: You're right that the current structure of the legal academy is incoherent and unstable, the product of chance accumulations over time. It will be interesting to see whether things just keep cruising along, or if there is a marked change in the next 20 years or so!

Posted by: Vladimir | Jun 19, 2010 8:54:41 PM

Oops. Last word "country." Too much wine late on a Saturday afternoon here in God's country.

Posted by: Jeff Lipshaw | Jun 19, 2010 5:07:27 PM

BL1Y, law schools may not be cash cows at the top of the prestige pyramid, but I think they are lower down. (The fight between schools and "central" for control of the budget occurs in lots of places, and I have to believe it's more than just for the sake of control.)

In any event, they are cash cows in the sense that we'd agree: they provide the cover for lots of faculty who, but for the size of the professional school (even in a small law school), wouldn't have a job. There would be far fewer jobs open every year in "Departments of Juridical Science" around the county.

Posted by: Jeff Lipshaw | Jun 19, 2010 5:06:26 PM

Jeff: Law schools actually aren't really much of cash cows. While they do contribute back to the parent university, these amounts are relatively small, and general just cover the extra administrative costs a law school creates. What they do give to the school is a bit of prestige.

You are spot-on about what motivates law students when picking schools. They're not picking them based on what the school actually offers, but because employment opportunities will be better. This is how Antonin Scalia explained it:

“By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

But, even if you wanted to pick a school based on the education and training they provide, it would be extremely hard to. There is little information out there, and much of it is misleading or pure puffery.

For instance, if you checked out NYU's Lawyering Program page, you would be told "NYU is the only top tier law school committed to giving sophisticated, in-depth attention, from the first year of legal study, to the interactive, fact-sensitive and interpretive work that is fundamental to excellence in practice." (Please note the awkward sentence structure...from a program that's teaching writing skills.)

You would not be told that you would receive no feedback from your professor on the largest project of your 1L year (a mock oral argument). And, you would not be told that your professor would not even be present for the argument. But, you might be told that "In each of seven increasingly complex exercises, students [...] engage in painstaking critique of their planning and execution." (From "Thinking Like a Lawyer" by NYU Lawyering Program Director Peggy Cooper Davis.)

Posted by: BL1Y | Jun 19, 2010 4:50:13 PM

Vladimir and BL1Y:

Interesting discussion. Here's a view from a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class.)

How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.

1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.

2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?

My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry, or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).

Posted by: Jeff Lipshaw | Jun 19, 2010 11:13:18 AM

Vladimir: Passing the buck to law firms to provide all of a lawyer's skills training ignores the way the legal industry operates. Many law school graduates will be dropped into positions where they receive little guidance or mentoring, but are expected, on day 1, to perform at a level that warrants billing a client $300 an hour. Many other graduates, especially during the recession, won't be able to find jobs at law firms at all and will set out as a solo practitioner (last year there was a ~50% rise in graduates hanging up a shingle, not to mention people who were laid off and decided to set up their own shop). Do you think it is okay to graduate a student who does not possess the minimal skills and knowledge needed to practice law?

I do agree with you that someone who has a deep understanding of the practical side of legal practice is going to have a hard time getting a job teaching law. But, that just means the whole academy is broken, not that skills shouldn't be the focus. Hiring research-focused faculty absolutely has to go. I'm sure there is some value to their work, but send them over to teach in a PhD program, not a professional school.

The solution is pretty simple: replace Law and Literature and Biblical Jurisprudence with Contracts Drafting and Advanced Legal Research. UCLA has 5 professors specializing in Law and Popular Culture, 10 in Law and Economics, and 14 in Law and Humanities. Now, there probably is a place for each of these disciplines, but the number of professors specializing in them has to be compared to other areas. UCLA has 2 antitrust specialists, 2 real estate specialists, and only 1 person specializing in trust and estates, and only 1 in trademark.

And, UCLA is not unique in this regard. Stanford has 7 discrimination specialists, and 6 people specializing in race and the law. It has 1 trial advocacy specialist (kind of hard to bring a discrimination suit without trial advocacy skills).

Minnesota has 6 feminist theory specialists, and 1 legal writing specialist.

The completely lopsided focus of law schools reminds me of the scene from Down Periscope where the XO is berating the cook for his poor organization of the pantry: "Which one do you think we'll be using more often? The coffee....or the lard? You think we're all going to jump out of bed in the morning and have a big, tall, steaming cup of PIGFAT?"

It's a good idea to keep the lard in the kitchen somewhere, but I don't think anyone can deny, with a straight face, that we don't need a lot more coffee.

Posted by: BL1Y | Jun 19, 2010 9:48:05 AM

BL1Y, I really believe you miss two fundamental points. The first is that, while law students may want practical skills, they are not aware of what they really need. Law students need theory and legal reasoning above all else. Practical skills, let's face it, are easy to learn and can be picked up in practice; legal theory cannot. The best lawyers are both excellent legal analysts and have the capacity to be deeply reflective about law and its proper uses and place. The rest of the rote and rote-like stuff isn't best emphasized in law school. And we should aspire to train all law students to be the best type of theoretically-informed lawyers.

I know that's controversial, and that lots of people disagree with me. Fair enough. But if you do, then things get quite interesting in my view. BL1Y writes, "If your weakness as a civil procedure professor is that you're not good at drafting or analyzing pleadings, you probably need to reconsider your career." That's exactly wrong as a descriptive matter in the world of the modern legal academy. The trouble is that anyone who is strong in this kind of stuff is going to have a hard time getting a job teaching law. The legal academy does not want technical practitioner types, with lots of discovery experience; get out of practice and into teaching within 3 years is the advice now circulating to those who aspire to teach. Which means that the people we're hiring are the least able to teach pleading drafting and discovery.

So to reiterate my key point: either the "student centered" teach skills thing has to go, or hiring a research intensive, non-doctrinal, law-and faculty has to go. I don't see how the two can coherently coexist.

Posted by: Vladimir | Jun 18, 2010 9:06:30 PM

1. Lou Mulligan notes that students expect all-or-nothing final examinations because that is the norm. The norm needs to be broken, and it does get easier -- I speak from experience -- when one's colleagues get on board the common sense approach of giving feedback during the semester, no matter the particulars of the assignment.

2. Some of the comments that Howard received match ones that I have received over the years. They boil down to a complaint about the volume of work, and the occasional last-minute nature of changes or additions required by current events. Those of us teaching tax deal with change at an absurdly brisk rate. Students need to understand the realities of the profession into which they plan to go: high workloads, ever-changing assignments, clients who bring "new" facts moments before a trial, hearing, or deposition, multiple supervisors demanding the professional's time and imposing conflicting deadlines, and so on. I don't advocate replicating the insanity of law practice in the classroom, because at some point it becomes pedagogically counter-productive, but enough with the "let's reduce the reading load to some sort of superficial level" trend of the past 25 years.

3. It is much easier to listen to, or read, information, memorize it, and regurgitate it than it is to take various bits of information, sort out the relevant from the irrelevant, re-arrange and re-construct them, and use that process to solve or prevent problems. Lawyers solve or prevent problems. If all that lawyers did was to regurgitate information, computers could replace attorneys.

4. Perhaps making law school from the outset closer to law practice reality will give students a better idea of whether they want to invest more time, effort, and money preparing for a legal career. Too many students graduate from law school only to discover that the profession isn't what they thought it would be and that their law school experience did not disavow them of their misplaced expectations.

5. Howard notes that the complaints (in contrast to constructive criticisms) come from a handful of evaluations. That's also the norm with student reactions. Most are content, neither overly enthused nor disenchanted, and say nothing much. The handful who gripe often are the ones who are least willing to shift out of college first-gear into graduate school second-gear and then doctoral program third-gear while preparing for professional overdrive. Some of them are among those who, years later, will apologize for being so critical.

6. Finally, it is essential that students be told WHY a faculty member is doing what he or she is doing: why topics are covered in a particular order, why semester exercises are assigned, why a new statutory provision, case, or ruling is being introduced into the syllabus after the beginning of the semester, and so on. Students ought not be required to figure out the pedagogy on their own; that might make sense in a school of education but we law faculty ought remember we are not preparing future law professors but future practitioners.

Posted by: James Edward Maule | Jun 18, 2010 7:55:18 PM

BL1Y really does have a point. "Student-centeredness" in no way presupposes that there is "exactly one right way to teach any law school class." What it does (or ought to) mean is that a teacher needs to take into account the needs (intellectual and practical) of his or her students, not focus on what he or she imagines that she does, or likes to do, best. What students think they need may not always be what the teacher thinks they need. That's what makes you the teacher. But one ineffective way of thinking about what students need is to think about what you like about yourself.

Posted by: Bernie Burk | Jun 18, 2010 3:16:58 PM

There absolutely can be a satisfactory reply to Marc's critique. It is true that there is not one thing that all law students want. But, there is something that about 90-95% of law students want, which is to be able to practice as a minimally competent attorney when they graduate.

Yes, professors have different strengths and weaknesses, but that doesn't mean that it shouldn't be the norm to have students read pleadings and have a drafting exercise. If your weakness as a civil procedure professor is that you're not good at drafting or analyzing pleadings, you probably need to reconsider your career.

If you don't understand mechanical things such as discovery, that's not an excuse to only teach theory. Get up off your ass and learn the basics of the subject matter you're teaching.

Posted by: BL1Y | Jun 18, 2010 11:07:47 AM

Marc's comments are particularly astute, and I don't think there can be a satisfactory reply to his critique.

I want to elaborate on just one point he made. Marc states, correctly, that teachers have varied strengths, and that it is generally best for us to play to our strengths. Given that faculty are increasingly coming to teaching with minimal practice experience, isn't it more than a little perverse to emphasize mechanical stuff such as discovery? Wouldn't it make more sense to emphasize the theory in which we're far more adept? If not, don't we have a serious problem, in that our research and teaching goals are pulling in opposite directions?

Posted by: Vladimir | Jun 17, 2010 3:11:55 PM

One of the many puzzling things about the "best practices" recommendations is that they simultaneously advocate "professionalism" and "values" education right alongside skills training in the more mechanical components of legal practice. The idea seems to be that one becomes a professional -- and a professionally minded person who has internalized the profession's values -- exactly by becoming technically proficient, more fluid at processing discovery, more knowledgeable about filing requirements, and so on. The marriage of these two ideas looks to produce something like the ethic of the technician as the ne plus ultra -- a fully bureaucratized professionalism. I wonder if the best practices cadre had Judge Posner's thoughts about professionalism in mind when they issued their recommendations, or if the similarities are unintentional.

As for student-centeredness, maybe we ought to be thinking about teacher-centeredness. The model of student-centeredness presupposes that there is exactly one right way to teach any law school class -- one sort of thing that students want, a thing that teachers ought to be giving them. I do not think that learning goes on this way (unless one thinks that the delivery of data is the same thing as learning). Teachers have different strengths and weaknesses, and students will miss out on a unique kind of learning experience if a teacher is not able to tailor a program of instruction to his or her strengths. Each civ pro course may not be entirely unique, but teachers ought to be encouraged to incorporate their own substantive and stylistic strengths to shape any given civ pro course. The model of student-centeredness flattens courses in what is likely to be an intellectually stifling manner.

Posted by: Marc DeGirolami | Jun 17, 2010 3:01:51 PM

I'm still a student, and while I don't have a strong opinion about graded vs. non-graded, I would strongly encourage you to keep the practical stuff in your course. These are 1Ls, they have no idea what they need to learn. I bet you'll have at least a handful thanking you when they get back from their summer internships. I know I would have. On the other hand, extra reading that isn't on the syllabus and gets assigned at the last minute is a HUGE annoyance for ultra-busy law students, many of whom try to plan ahead in order to get all of their assigned work done when it needs to be done without going insane.

Posted by: Patrick | Jun 17, 2010 1:05:29 PM

Despite the literature regarding the ill effects of all-or-nothing final exams, students expect that approach in law school. Any break from that norm will garner some off-putting comments. Sigh.

I do exercises in my civ pro and contracts classes similar to what you employ. But I do three slightly different things: (1) I do them as group exercises, (2) there is always an oral presentation/argument component, (3) I grade on a good-faith-effort basis with the opportunity for the top teams to earn step up (B to a B+ say) on the final. I came to this approach after several years of tweaking and, at least for me, it works well and I receive positive feedback.

Posted by: Lou Mulligan | Jun 17, 2010 9:48:32 AM

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