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Friday, March 04, 2011

Class is for the prawfs?

Something I thought of but did not mention in my post about how SCOTUS arguments are increasingly dominated by justices' questions and Justice Kagan's suggestion that oral argument is the chance for the justices to speak (to the parties and to one another): While I do not disagree with her point, there feels like a show-off quality to that attitude. Oral argument is the only part of the job that the justices do in public and they are, to some extent, "performing." And that performative idea is ever-increasing as more attention gets paid to oral arguments. Not that there is anything wrong with that. But it seems self-aggrandizing. It also makes the institutuional opposition to cameras in the courtroom more puzzling. Wouldn't they want a broader audience? Or are they saving themselves from themselves--the presence of the cameras would cause the justices themselves (not the attorneys) to amp-up that performance for the cameras.

A comenter then offers the following:

I think about it as analogous to being a professor. Many of us like it when our students engage with the material and interact with us--at least in class if not in our offices or at all hours via email. We do hold class for the students, but it's partially our chance to interact with a captive audience about stuff we find really interesting.

I agree with the analogy and I had the same thought as I was writing the original post: Class is for us. It is where we get to hold forth on what we enjoy and what we like to talk about, often trying out new ideas or new ways of approaching or talking about the material. Indeed, that is (in part) why many of us enter the academy in the first place--an unlimited opportunity to talk about what we love. And most of us do it in the form of a colloquy/interrogation similar to how justices conduct oral argument, where students react and respond to us and we are driving the train (at least in the traditional/common way of conducting a law school class). And everyone is left wondering whether the event is actually doing what it is supposed to be doing--elaborating on briefs or imparting substantive knowledge.

Of course, I immediately recoiled from that idea, for fear the Carnegie Report Cops would come beating down my door. Wouldn't they say that everything wrong with legal education is captured in the idea that the classroom is about the professor and not entirely about the students and how best they learn and the practical experience they need to become practicing lawyers? Wouldn't they say that truly good and experiential legal learning--what law students really need--is lost while professors "show off" for their students?

Posted by Howard Wasserman on March 4, 2011 at 08:31 AM in Howard Wasserman, Teaching Law | Permalink


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The biggest thrill I get out of class is leading the class to some realization about a case or statute or legal practice that they didn't have just from reading the materials. Do other professors enjoy something different? I'm having a little trouble imagining what it might be.

Posted by: Bruce Boyden | Mar 4, 2011 5:18:39 PM


So it seems that I misread you. But it still seems you are mixing two distinct sense of "performance." Justices perform in the sense of doing their job at oral argument by asking questions relevant to their decision, and they also perform in the sense of showboating. You say that you enjoy the performance; but it is not clear which meaning you bear. I enjoy seeing the Justices do their jobs; and I don't particularly enjoy the showboating -- though it is understandable since some light-heartedness is useful once in a while.

The key, though, is that none of this is relevant to Kagan's quote. You seem to think that Kagan saying "Oral argument is for the Justices" means that oral argument is for Justices to showboat. But I understood her to say something entirely different, that oral argument is where Justices do (and should) control the framing and the agenda, in contrast to briefs where lawyers have complete control of what issues are presented as well as how those issues are framed. It has nothing to do with "performance" in the theatrical sense of the word.

Posted by: TJ | Mar 4, 2011 4:53:17 PM

Hmm. I did not see myself (writing much-too-early this morning, obviously) as disagreeing with Kagan--thus the reason I said "I do not disagree with her point." I enjoy watching/listening/reading oral arguments, just as I enjoy teaching. I did not intend to suggest that I believed the performative part (of either teaching or argument) was wrong; I agree that this performance is, in part, what makes effective teaching and learning, as well as effective judging. Nor was I trying to suggest the justices were not doing their jobs or not "working" or not doing what they are supposed to do.

My point (apparently not made well) was that there is a risk of getting lost in the performance--if a judge asks questions without giving attorneys a chance to respond, if a professor does not give students a chance to answer or does not guide students in the right direction. True, that would be bad teaching/judging and not all teaching/judging is bad. I was just pointing out the risk (and noting that much experiential learning is about taking the spotlight off that performance).

Posted by: Howard Wasserman | Mar 4, 2011 3:39:57 PM

Howard, I'm largely with Orin. I think you have seriously misread Kagan's quote in that you clearly think it is an improper attitude. But all she is saying is that oral argument should be about what the Justices find interesting. And "interesting" here means relevant to their actual job, of deciding the case. I do not see her as saying that oral argument are the opportunity for Justices to show off for extraenous purposes.

At bottom, your mistake is that you are weaving between normative and descriptive. Normatively, oral argument should be about the Justices deciding cases, not for anyone to show off; and class should be about the students, not for anyone to show off. But descriptively, that doesn't always happen, and that is true of both cases. Can (and do) some lawyers just ignore what the Justices find interesting and stick only to their talking points or show off to please clients? Well, yes, and those are bad lawyers. Can (and do) some professors just ignore the students and act entirely self-indulgently? Well, yes, and those are bad teachers. Conversely, the Justices do sometimes seem to show off; and so to do some students. None of these problematic acts in reality find any support in Kagan's quote.

Posted by: TJ | Mar 4, 2011 2:51:03 PM


I disagree with you on both oral arguments and class.

In my view, oral argument is for the Justices because it's their job to decide cases . They use oral argument to do their job as best they can. It's a very significant part of the process for them, and they rely on it to do the best job they can: Oral argument time is working time for them. If that strikes you as "show-off-y", that's just an unfortunate impression.

On the other hand, class is NOT for us. It's for our students, who are paying lots of money and going into a lot of debt so they can take our classes and pay our salaries. Of course, we're performing, but we're performing because learning requires presentation: Making a class fun and interesting makes it more likely students will engage with the material, and the more likely they are to engage with it, the more likely they are to really learn it and remember it. It so happens that most of us really like teaching, too, but that's why we decided to become teachers, not the goal of teaching.

Posted by: Orin Kerr | Mar 4, 2011 2:28:35 PM

And this is exactly why I record all of my class sessions and give the students online access to the videos, no questions asked. I think you're right that class is often for the professors, and perhaps unlike you, I think it's a pathology.

Posted by: James Grimmelmann | Mar 4, 2011 10:14:24 AM

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