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Thursday, July 26, 2018

Law School Classroom Techniques: Myth- or Reality-Based?

IMG_0162My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Invariably, when I finally get the results of the blind grading, several of the top performers turn out to be students who never said a word.  I harken back to my own experience.  I was never a shrinking violet in class before I went to law school.  Indeed, I have been described in the past as something of a manic expressive.  My law school organized our first-year class into small sections of about twenty-five students each.  I recall vividly the first day of class - Contracts - having read the case of Groves v. John Wunder and having no clue about anything when I was done.  Two of my classmates went on to distinguished academic careers. They and a whole bunch more in the class seemed to know what they were talking about, and had opinions from day one.  I was sufficiently intimidated on the first day never to say a word unless called on, particularly in large classes, for the next three years.

My suspicion is that the relationship of oral participation in class - and the pedagogical methods that encourage or require it - to learning outcomes or post-graduation success is grounded more in myth than reality.  I suspect the myth originates in the conception of lawyers as barristers and the purported efficacy of the Socratic method.  I have a further suspicion that it gets further support from the tenure process. That is, if you are a pre-tenured professor and being observed for tenure committee evaluation purposes, the observer is going to have a much harder time determining if you are effective if the students don't say anything but are nevertheless thinking deeply.  The availability heuristic is at work.  Orally participating students constitute available information, whether or not it is information on which one can reliably reach a conclusion.

Stay tuned for my next contrarian rant on the subject of banning laptops in the classroom. 

Posted by Jeff Lipshaw on July 26, 2018 at 03:09 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink


Larry Rosenthal points out the disconnect between class discussion and what is expected on the exam. Perhaps we should question that disconnect, and consider whether it increases the lack of transparency in first year courses. I have developed a method of teaching legal analysis in the first year that attempts to connect class to exam to practice. There's a draft of my "Unified Field Theory" for teaching legal analysis on my ssrn site, and I invite feedback.

I think it is important, both for each student and for group dynamics, to hear from every student in a class. Therefore I tend to use the method of calling on students by going down the rows, and of sticking with each student for a relatively short period of time (to get to more students per class). Of course this loses something in terms of the incentive on the part of each student to be prepared, but any technique has trade-offs.

There may be a gender bias in rewarding class participation if it involves volunteers.

Name placards are surprisingly underused in law schools, though common in business schools. It's like an app that tells you the student's name while you are conversing with that student in class. An amazing low-tech solution.

There are many reasons why people criticize the Socratic method, and many of them are valid. But one positive of the method is that it teaches (indirectly, to be sure) the need to listen closely when others speak.

Howard E. Katz

Posted by: howard e. katz | Jul 27, 2018 12:39:41 PM

I appreciate your post. It has always seemed to me that most law professors teach like they were taught without exploring the why. I also teach Contracts where I am heavily Socratic, though it does tail off, and I do not call on students for upper level courses. Consistent with what Larry Rosenthal noted, I also try to make my exams, as best I can, replicate what I do in class so I tend not to have crazy hypos etc. In my class, there is a clear correlation from those who participate (in and out of class through office hours) and grades. There are always some variations, and it is never the case that everyone who participates or comes to office hours does well, but the correlation is pretty strong, and one reason I know that is I am not great with names but I always recognize the names of those at the top of the class (again with some exceptions). But, to me, participation after class with questions and coming to office hours is just as important as in class participation. In upper level classes, I tailor my exams to benefit those who do the work, and it seems to be successful though it is much more difficult to tell.

Posted by: MLS | Jul 27, 2018 11:24:19 AM

A few thoughts:

1. If students are given no meaningful and transparent incentive to prepare for and participate in class, the quality of class participation depends as much on character traits as the quality of learning -- it exposes those who are willing to free ride or who try to say as little as possible because they are averse to public speaking, as well as those who enjoy attention or are willing to work even when incentives are unclear. It should not be a surprise that there is little correllation between performance in this context and performance on an exam where incentives are clear.

2. If class participation requires signficantly different types of knowledge, skills, and abilities than performance on the final exam, we should not be surprised that there is little correllation between performance in class and on the exam. In the typical class, taught by the case and "soft socratic" methods (or, what an educator would probably call "inefficient lecture"), close reading of appellate opinions and the ability to apply a single holding to a variety of hypotheticals that usually involve very few facts is most important. On exams, analysis of relatively dense fact patterns, issue spotting, memorization of doctrine, and speed are generally required to a far greater extent that in the typical class. Thus, signficantly different types of knowledge, skills, and abilities are required.

3. As I wrote in my comment on the prior post, I think cold calling is problematic, and I have abandoned it. Nvertheless, class participation can be used as a type of formative assessment that enhances learning and performance throughout the semester, and ultimately on a summative assessment. That is possible, however, only when class is structured so that it involves the same types of knowledge, skills, and abilities that are required in the summative assessment exercise, and when students receive meaningful and transparent incentives to prepare for and participate in class, and prompt feedback on the quality of their participation. Business schools manage to do this, even in large classes. Law schools, not so much.

Larry Rosenthal

Posted by: Lawrence Rosenthal | Jul 27, 2018 9:56:19 AM

I teach Business Associations to 1Ls. It's a required 1L class at my school (Peking University School of Transnational Law). I had 117 students this past year. I call on students, going around the room, getting to around 2-5 students/day. That gives students a few days' notice of when they will be called on, which results in more interesting dialogue although it does also result in some other students not doing the reading. I figure they are all adults and will get out of the class what they put into it. It also means that my English-as-a-second-language students (i.e., all of them) get the chance to prepare to debate with me in English. In addition, a handful of highly engaged students usually pipe up with comments or questions. Believe it or not, my students find BA very controversial and debatable, even the beginning cases on agency. After most classes, I answer questions (sometimes with other questions) for another 30 minutes or so. In any event, it's far more interesting for me to discuss cases with students than to listen to myself lecture (which I do for some topics like net present value). For the most part, I think the lecturing goes in one ear and out the other.

As for the questions:

1) There is no obvious correlation between speaking and grades. My best student this year (based on blind graded exams) volunteered the most, but the second best never volunteered at all.
2) I don't award points for class participation for the same reasons as Jeff.
3) Learning how to make a point in public, in English, is an important skill for my students. I would say that is true for all law students in the US, too.

Posted by: Douglas Levene | Jul 27, 2018 9:36:56 AM


1) I can't observe any correlation between quantity of speaking and relative grade performance. I think there is a correlation between quality of speaking and performance - i.e a student who appears to know the stuff tends to do well on the exam. I think the poorest performing students tend to say nothing at all.

2) No. Two reasons. First, I am teaching classes of 80-90 students. I can't teach and keep track. Second, I have no idea how to grade for high quantity/low quality.

3) Oral presentation is part of what SOME lawyers do. If all lawyers were appellate lawyers, I could see it. And it's not too surprising that the American legal academy's Socratic procedural method is related to the substantive proposition that you can find the law "scientifically" in appellate cases.

I suspect it's different in constitutional or criminal law, but in contracts, students rarely have "positions" to be broken down. To me, the teaching job is to have them understand when it's all over how to translate a commonplace ordinary language narrative, whether of dispute or transaction, into the language of a legal theory. In other words, to get them even to see how to have a position in the first place.

As I said originally, I'm just asking whether cold-calling has a salutary effect. I'm still unpersuaded.

Posted by: Jeff Lipshaw | Jul 27, 2018 6:49:54 AM

Several questions occur to me from this post:

1) You say several students each year never say a word. What is the distribution of those who do speak a lot? What I am wondering is whether the students who speak a lot do well, joined by a few students who don't say a lot. Do you see students who speak a lot but end up at the bottom of the class? In other words, is there a correlation between participation and performance generally, but with a few good students who like to stay quiet?

2) Do you award points or credit for participation?

3) Is part of the reason for requiring participation that oral presentation is part of what lawyers do, so this forces them to work on that skill?

Posted by: Howard Wasserman | Jul 26, 2018 11:03:26 PM

Jeff writes: "Orin, the first point seems circular to me. We call on them to encourage preparation but we want them prepared so that they can say something if they are called on." Nothing circular, as far as I can tell. We call on them to encourage preparation from everyone -- as they don't know who we will call on -- and we also want them to be prepared if they happen to be called on -- as it leads to better discussion.

As for learning from other students, the point isn't necessarily that a student will have a great insight (although occasionally they do.). Rather, my sense is that the key idea behind the Socratic Method is that a student will probably have a representative perspective -- a perspective other students will have going into the class. Discussing the student's perspective, and exploring its premises, strengths, and weaknesses, is thought to be a way to teach students how to break down their own positions into its premises, strengths, and weaknesses. From that perspective, you don't want students to come in with all the answers. That's boring. Rather, you want students to come in with a typical set of views that you can explore. Of course, it may not work out that way in real life; some professors are better or worse at it, and some school cultures make it more or less natural. But that's the idea, at least.

Posted by: Orin Kerr | Jul 26, 2018 7:51:23 PM

If it was good enough for Kingfield, it's good enough for me.

Posted by: YesterdayIKilledAMammoth | Jul 26, 2018 6:54:27 PM

*Michael, I am assuming there's a typo and you mean you CAN'T have those moments if nobody is talking.

Orin, the first point seems circular to me. We call on them to encourage preparation but we want them prepared so that they can say something if they are called on.

Granted it's been a long time since I was in law school as a student, but I have no recollection of ever learning anything from what another student said, right, wrong, or indifferent, in a large doctrinal course. Rather, I would hear the problem or the hypothetical, think it through in my own mind, ignore or block out what other students were saying, and wait to see how the professor's follow up conformed to my own thinking. I am pretty sure that's what the good but quiet students do in my class (which has both lecture and interactive components, but is rarely "Socratic"). Which would suggest, in my theory, that the Q&A with the student doing the talking is just a way to fill the time while other students think.

Having said that, to your point, Orin, the only rigorous cold-caller when I was in school was John Kaplan in Criminal Law. He got me in something like the third week of class and it went something like this:

Kaplan: "Mister Lipshore [N.B. significant Brooklyn accent], what was the court's holding in X v. Y?"

Lipshaw: "Ummm. The court below erred in holding that something something something."

Kaplan: "Very good, Mister Lipshore. Now why something something something."

Lipshaw (now having no clue how to answer): "Umm. Mumble-grr-mumble-mumble."

Kaplan: "Oh, Mister Lipshore, when you answered the first question, you sounded so much like a law-yuh. Now you are just babbling."

It just continues to strike me that the whole relationship between what goes on in class and what results from it is based more in lore than in fact.

*I usually don't comment on my own posts, but I will if the poster identifies himself or herself.

Posted by: Jeff Lipshaw | Jul 26, 2018 6:30:02 PM

If your learning outcomes are solely to teach doctrine, then I agree that lecture with no participation is the best way to go. However, if you think part of our job is to teach and model legal reasoning, encourage preparation, and force students to learn how to teach themselves, then participation is important.

Posted by: Profanon | Jul 26, 2018 6:20:00 PM

I would add to Orin's comment (which I agree with) that the benefits are not necessarily to the speaker, but that _someone_ is talking. That is, right answers and wrong answers and working through hypotheticals can create teaching moments in ways much different than lecturing, but you can have those moments if nobody is giving right answers or wrong answers or working through hypotheticals.

Posted by: Michael Risch | Jul 26, 2018 5:56:23 PM

I don't think the argument for calling on students is that the called-on student learns more material by virtue of speaking. Rather, I think the argument is that the risk of being called on encourages preparation by the entire class.

As for students fearing that someone else has all the answers and they don't, part of the traditional rationale of the Socratic Method is to avoid that fear. Back in the 40s, Bull Warren of Harvard -- historically considered the most difficult and challenging Socratic teacher -- wrote that he called on students in part to keep gunners who had no idea what they were talking about (but sounded smart to other students) from filling up the class discussion.

Posted by: Orin Kerr | Jul 26, 2018 5:49:39 PM

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