Center for Engaged Learning in the Law (CELL)2008-07-05T10:36:20ZCenter for Engaged Learning in the Law (CELL)Copyright 2008, Center for Engaged Learning in the Law (CELL)SPHPBLOGA Funeral for a Phrase Despite our fondness for the weight of words, I suggest we have overlooked the import and implications of a phrase we use freely as legal educators. Paul Bergman’s May 21st CELL posting, “Thinking Like a Lawyer”, prompted me to rethink that traditional phrase used most often to promote the intellectual distinction of legal education. When a law student has learned to “think like a lawyer”, he has graduated to the next level of intellectual ability. As Professor Bergman suggests, when he thinks like a lawyer, a student has transcended the ability to read rules and has acquired an understanding that allows him to make legal arguments based what a case “stands for.”
This “thinking like a lawyer” concept is difficult to explain and I think we all, like Bergman, have struggled to describe to students the intellectual exercise enveloped in this phrase. However, how many of us have considered the phrase itself as part of the communication problem.
I met a law faculty colleague last summer at the Institute for Law Teaching conference in Boston. She is faculty at a Canadian law school with a student population that includes a large percentage of aboriginal students. After participating in a discussion on teaching students to “think like a lawyer” she remarked to me that this phrase lent nothing to discussions with her aboriginal students. Those students viewed the phrase as a suggestion they should become more white, more like the traditional picture of a lawyer, to succeed in law school and in the profession.
This phrase is best known as part of a statement made by the fictional Professor Kingsfield to his first year Harvard Law students: “you come in here with a skull full of mush, and, if you survive, you leave thinking like a lawyer.” Kingsfield’s words come from the novel “The Paper Chase” by John Jay Osborn, a 1970 graduate of the Harvard Law School. Although the exact origin of the phrase before Kingsfield and Osborn is undocumented, the idea of a method of thinking unique to lawyers roots itself in the teachings and methods of Christopher Columbus Langdell, the ubiquitous Dean of Harvard Law School in the late nineteenth and early twentieth centuries. Langdell essentially created the study of law through his development of the case method, elevating law study to the level of a science, comparable to the study of medicine and other physical sciences. Langdell viewed the law library as a large laboratory where students work to develop themselves as learned intellectuals - elites. In Langdell’s time and for many years following, law school was a world of study and intellectual pursuit that belonged exclusively to privileged white males.
I teach now in a private southern University and we struggle to recruit and retain minority students. As a faculty, we are aligned in our desire to create a diverse student and faculty environment and we acknowledge the importance of diverse ideas in the academy of legal study. However, despite our best efforts, I wonder sometimes if we are missing the mark as we set our sites on the text and not the sub-text of our situation.
Recently, a minority student was talking with me about some of his law school experiences. He was struggling with how a black man would fit into the apparently white world of the legal profession. He commented that if “thinking like a lawyer” meant thinking like a middle-aged white man, he was not sure he really wanted any part of it. The phrase suggested to him also a picture of an elite, white, male world where the privileged prevailed.
Honestly, the phrase suggests the same to me. I cannot forget that the elite idea of an intellectual club for legal thinkers predates any time when I would have been allowed to attend law school or accepted as a legal professional. If we want to introduce our students to the world we value, the world of reading and understanding the law, perhaps we should reconsider the label we have placed upon the very goal of our guidance. What we really want students to do is to engage in learning the law for their own goals, not ours. We want students to find a sense of themselves in law school, as individual intellectuals and professionals, not to convert themselves to better match the idea of a lawyer. When we phrase their goal as we have heard it, as it has always been phrased, we are cutting them off from themselves and from a vision of themselves in the new context of law.
Thus, I have resolved to bury the phrase “thinking like a lawyer.” This comment will serve as its eulogy and as a public promise to my students that I will examine my words carefully as I stand before them advocating diversity and learning. I will still endeavor to guide students, as Professor Bergman suggests, to look at what a case or ruling stands for, then understand the role the law’s particular phrases and words play in the arguments lawyers make for their clients. I will try, however, to teach students to think as themselves … only better.
]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080615-1416232008-06-15T00:00:00Z2008-06-15T00:00:00ZTeaching Partners I speak monthly or so with several law teachers from around the US and Canada. My “teaching partners” teach a wide variety of courses – first-year requirements, upper level electives, clinics, legal writing, and seminars.
My teaching partners facilitate my professional development in several ways.
• First, each of my “teaching partners” is a dedicated, thoughtful legal educator. In every conversation with them, I get insight into teaching and learning. • Second, since they teach at other schools, they often have a perspective that is shaped by the culture at their schools, which may be quite different from the culture at my school. Their perspectives give me a broader view of legal education. • Third, because they are not at my school, I can whine and vent in ways I may not want to do with colleagues at my school. • Fourth, when I hear about their interactions with their students and colleagues, I learn more about my relationships at my school. • Fifth, we help one another brainstorm potential responses to the professional challenges come with being a teacher. • Sixth, they offer generous feedback on my scholarship about teaching and learning. • Seventh, they have become my co-authors for books and articles on legal education and my co-presenters in faculty development activities.
I could go on. Suffice it to say that my teaching partners are highlights of my professional life.
For those committed to continuous improvement in teaching, like-minded colleagues at other schools can be a wonderful asset. Our willingness to connect and support one another on a regular basis is a gift we give and receive. ]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080602-1300052008-06-02T00:00:00Z2008-06-02T00:00:00ZWant to Contribute to a Book on Law Teaching and Learning? I. Before Class Begins – Course "Under Construction" a. Syllabus b. Materials c. Resources – Phone Numbers, Web Sites, Books and People d. Evaluation e. What Students Say f. What Practitioners Say g. "To Do" Lists
II. During Class A. Communicating With Your Mouth Shut a. Physical Layout b. Other Mechanical Issues B. Communicating With Your Mouth Open:Questioning Techniques C. Innovation D. What Students Say: Do’s and Don’t’s E. What Practitioners Say: Do’s and Don’t’s
III. After and Outside Class h. Mobile learning i. Other learning j. Innovations k. What Students Say l. What Practitioners Say m. Technology Tips and Resources
IV. Inspiration
V. What Practitioners Say Law Schools Should and Should Not Do
VI. Helpful Resources: Helpful Law Teaching Web Sites; and Helpful Books & Articles
Comments should range from one sentence to one page and can be submitted as a comment to this post or to sfriedland2@elon.edu or jlaw@elon.edu. You will be notified by September 1st if your contribution will become part of the book.
thanks,
Steve Friedland ]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080530-1557132008-05-30T00:00:00Z2008-05-30T00:00:00ZThinking Like a Lawyer If you are or are about to be a 1L and you share my understanding of the purpose of law school, I hope what I'm about to say here is helpful. You do have to learn a lot of rules, but knowing rules is not an end in itself. You learn rules so that you can make arguments about their application to novel factual situations, and the process of making such arguments (in the classroom and on exams) is what you may consider thinking like a lawyer.
Because rules are helpful to you only insofar as you can use them to support or undermine their application to new factual contexts, you should also be suspicious about the advice to identify an opinion's "holding." All holdings are contingent, because their meaning depends on how they are interpreted in future cases. In other words, what a case "stands for" is a matter of argument, and an appellate court judge can no more forever determine what a case "stands for" than an author or a painter can forever determine how readers or viewers will interpret their works.
I hope that this general perspective on what law school is all about, particularly for 1L's, is helpful to you.]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080521-1651312008-05-21T00:00:00Z2008-05-21T00:00:00ZTeaching by Showing Good Stuff My bet is that world-class athletes don't get better by watching novices do their sport, or by watching others mess up. Sure, they probably review and critique their own performance, and then watch as many outstanding athletes as they can. If I am a mediocre golfer, wouldn't it be better for me to watch Tiger Woods play than to critique someone at my level?
No question that developing a critical and analytical eye is crucial to improve performance. But perhaps we need to balance this approach with emphasizing good examples and noticing what people are doing right. A clinical colleague tells me about lots of videos that can be used to teach clinical skills. But most of these movies show bad examples. Turns out, it is hard to find good examples. As my colleague pointed out, it is really scary to put yourself out there as a good example. What if people disagreed? What if colleagues and students found flaws in your performance?
This brings up a question. If we the educators have a hard time putting together a video or sample document, how hard it is for the student? Perhaps we might need to adjust our expectations a tad.
]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080520-1729412008-05-20T00:00:00Z2008-05-20T00:00:00ZToo easy? NOT! So true. Each time I write problems or tests, I worry that students will lose all respect for me. That they will resent studying so hard and then being tested only on the easy stuff. I will be revealed to be an intellectual lightweight, a complete law professor fraud.
And then I remember the mantra. If I were a student taking a test, would I really be mad if the test were straightforward and easy? Answer: No. I would be relieved and happy. I would be ok being able to leave an exam early.
To get a reality check, I have a colleague read the exam. How long does it take just to read the test? What distracted you? What was confusing about the call of the question?
This spring, students had spent a lot of time working on problems - essentially a series of mini essays, similar to those on an exam. I had provided lots of sample answers. The exam was open book, open everything. I worried. Too easy?
I gave the exam to my colleague. There were 3 essay questions, yes, all with subparts. My colleague said it was not too easy. She suggested that the first question looked basic, the second a little more challenging, the third more complex. I agreed. I stopped worrying.
After the exam, I ran into some of the students. Another reality check. Too easy? No, they said. In fact, it was hard to complete the exam within the three hours. These were bright bright students, the ones who soared in all their courses. It's hard to make an exam too easy. Even when we think it is simple, we forget that we have years of experience and legal training that gives us such an edge over even the most studious 3L.
Too easy? Not!
]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080518-2004392008-05-19T00:00:00Z2008-05-19T00:00:00ZA Contracts Hypothetical (Or: That Sound You Here Is The Sound Of My Falling GPA….Wait For It……. WAIT For It…………… SPLAT!) Two-hundred students sign duly executed contracts with Spiral University of Rhetorical and Rancorous Engagement in All [but the] Law (hereinafter “SURREAL”) whereby they agree to pay (or finance) an astronomical sum of money at 6% interest over 3 years in exchange for a legal education, parceled out in 2-3 hour courses taught by a variety excellent professors with excellent pedigrees, excellent professors without excellent pedigrees, and professors with only excellent pedigrees. SURREAL assures these students, in writing, they will be well-prepared to pass their courses and the Bar exam throughout these 3 years, thus constituting the required consideration for its part of this contract.
Of the 200 students having signed contracts with SURREAL, 35 choose an elective course called “Procedural Adventures In Neverland” (hereinafter “PAIN”) and study diligently, often compiling 55-page outlines complete with tables of contents; translating hundreds of pages of impenetrable Supreme Court Sanskrit; creating PowerPoint slides to rival the gods; and actually paying more attention to the professor (who falls into Category Three Pedigree, above) than to the most current Scrabble game. These 35 students were told the course would be graded on the basis of a single, final exam. This exam was advertised in writing in the syllabus, but only after two weeks of the course had already gone by. Still, the 35 students remained in PAIN, prepared to take this final examination, having studied PAIN diligently and worked hard to understand the basics, as-taught by the professor (who was, they were told, an expert in PAIN). Prior to the exam, the professor assured the students the exam would cover topics taught throughout PAIN, and the students prepared to be tested in PAIN accordingly.
Upon receiving the exam, the 35 students of PAIN realized they had either been misled or that they had received the wrong examination. None of the 35 students recognized the call of the question, nor did any of them have any idea what the question was asking them to do. None of the words used in the calls of any of the questions bore any relationship to PAIN although, ironically, the questions did manage to illicit a lot of agony, despair, hopelessness, panic, and even prayer (I’m told Jesus just laughed and mumbled something about having had nothing to do with that convoluted pile of _____). None of the outlines of any of the students were of any use to any of them, nor was the textbook, nor any of the cases, nor any of the facts in the 2-page fact pattern preceding the question itself. As one student aptly analogized afterward, “It was like being trained to be a mechanic – learning how to fix the problems of a car that was already right in front of you based on general principles of car maintenance – and then showing up for your mechanic’s exam and being asked not to fix a car, but rather to design and build one from scratch. Obviously, the mechanic would fail, and obviously, so did all of us.”
Your Task:
You are a law student (or law professor) having already taken Contracts I and II. Thirty-five students come to you telling you this tale of SURREAL PAIN, asking for your advice. Prepare a blog comment in the space provided below outlining the following:
(1) whether SURREAL is liable for an affirmative misrepresentation of PAIN;
(2) whether the SURREAL professor of the course is liable for an affirmative misrepresentation of PAIN;
(3) whether the SURREAL contract was unconscionable on the basis of PAIN;
(4) whether the delay in receiving the PAIN syllabus constitutes a breach of the SURREAL contract, or any part thereof, or whether the students remaining in the course after having received said syllabus 2 weeks late constitutes implied acceptance of PAIN’s terms on their parts;
(5) whether, under the UCC, receipt of a final exam bearing no resemblance to the one for which the students contracted constituted a breach of the contract without a corresponding letter of accommodation, or whether the taking of the exam in spite of this fact constituted the acceptance of non-conforming goods via counter-offer by the students
As you write, bear in mind to following quote by someone who, granted, did not go to an American Ivy League school, but did go to Oxford, which is way better than American Ivy League schools anyway. In considering this quote, please discuss its relationship to the Separation of Powers Doctrine and to the Doctrine of SURREAL PAIN.
“Pain is an event. It happens to you, and you deal with it whatever way you can.”
- Hugh Laurie, The Gun Seller
Yes, indeed, Hugh. Yes, indeed. PAIN is, indeed, an event, and you deal with it whatever way you can. Like, for instance, by blogging… or by failing miserably.
…………SPLAT! ]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080514-2011462008-05-15T00:00:00Z2008-05-15T00:00:00ZI Never Much Liked Standup Comedy (Or: Save It For The Stage, Gallagher!) (Or: No Really – Sometimes We Really Do Have To Teach Ourselves The Course) In all honesty, a lot of time that phrase is uttered in empty frustration, and beneath it lies not the fact that the professor didn’t teach, but only the fact that the students feel they didn’t learn very much, which may very well be due to a number of variables too numerous to discuss. And a lot of times, what students are griping about is little more than the unthinkable fact that they had to work really hard to understand a concept that was never easy for anyone to explain/understand, and their professor hasn’t made it the essence of clarity either.
But then there are those classes you really do teach to yourself, and I have been privileged enough to have taken such a course.
Let me say from the outset: I gave up on this course early on (about week 5), attended only because each attendance was mandatory in the syllabus, and used my class time to vastly improve my Scrabble game. I admit this straight out, right here, from the beginning.
But why did I – a pretty darn studious nerd by most standards – give up on a course so early and to such an extent? And where do I get off telling an expert in the given field that I had to teach the course to myself?
Well, to start with, I never much cared for standup comedy. I mean, I used to like watermelon-smashing Gallagher back in the day, but aside from him, standup comics never really held my attention very well. When the standup comic is my law professor, the result is just disastrous. Don’t get me wrong: I think my previous blogs have made my preference for comedic relief pretty evident, and I love when a professor is a funny professor as well as a good one. But when the professor is only funny…
The first few days of this particular course were darn funny. We liked this professor. This professor amused us. But then we all started to realize we were really only being amused, and this course was a little lacking in substance. Actually…no…it was a LOT lacking in substance. And this book was a wretched plague upon humanity (I submit that no book should be 1/3 text, 1/3 parenthetical phrases, and 1/3 footnotes. NO BOOK. EVER. It’s evil and vile and wrong.) so no help there. And… wait… did the professor just start blatantly substituting opinion for fact…? Oh my. I know that isn’t what the Court held… Maybe it’s what you think it should have held… But… Um… It didn’t. For the sake of my own GPA, I think this would be a good time to tune this one out.
Scrabble, anyone? Yes, indeed. And this time, I wasn’t playing against the slackers. Oh no! I was playing against the top brass, kids. The cream of the crop. The presidents, the editors, and the holders of really impressive GPAs. We had all given up.
But the proof is in the pudding, as they say, and my proof that I really did have to teach this course to myself (and that I could, which amused me terrifically) came during the days leading up the exam. I was sent an outline by a student who had clearly done nothing but transcribe everything our amusing professor said. I read this outline to see if I had, in fact, missed anything important in those mandatory lost hours. Beneath the tears of laughter streaming down my face was the realization that this entire outline – a loose transcription of the entire course – was just pure gibberish. It made NO logical sense. Something to do with an eight-year old… everything is “clearly” this or that, except that it’s all about as clear as mud… oh, wait… now something to do with due process of law…grandmothers…hookers… were the grandmothers also the hookers…? I passed this outline around to my friends – also rather studious types – and watched as their eyes grew wide and they started doubling over in laughter (well, those of them that didn’t leap to their feet to find the poor person who was perhaps relying on these 30 pages of total bunk).
And then we all got to the tedious act of starting all over from scratch – the much-debated outline of one of my favorite profs in-hand of course (which saved my butt, thank you very much) – and teaching the course to ourselves. We went to Westlaw and printed the syllabi of every main case (a daunting list). We put them in binders. We read them start to finish. We made them into chronological lists to see patterns over time (our book liked to talk in chronology but have us read the cases from the middle outward in all directions). We printed law review articles covering the policies behind the more prominent cases. We debated the pros and cons. We made mock tests for each other based off other (reliable) outlines and supplements. We read other texts and mountains of cram books. And in four days, we taught ourselves the basics of the course. And I’m pretty sure my friends and I passed (perhaps only by the Grace of God, but we passed).
I’m told this sort of occurrence – standup comedy in lieu of teaching – happens as a result of knowing one’s subject so well, and having written so many books containing naught but your own opinion on the subject, that, when teaching, one forgets to mention the rule to which one’s opinion applies. One neglects to account for the fact that most students can’t really debate the subtleties of the policies behind a rule until they, you know, know the rule. And one perhaps forgets that one’s own opinion is not how it is, no matter how much that’s how one believes it should be.
So when your students tell you they had to teach a course to themselves, keep this little diatribe in mind. I’m sure the vast majority of you will immediately defer to my blog about whiny students, assured as you are that your teaching prowess is second-to-none and certainly a lot better than Gallagher standup. But if perchance you should have a doubt or two, here remains a little food for thought.
]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080512-2241222008-05-13T00:00:00Z2008-05-13T00:00:00ZHopes and Fears I was hopeful. I was skeptical. My hopes and fears were realized.
Some of the meeting descended into faculty whining about students – indifferent work ethic, failure to listen, deficient writing skills, etc. I think these faculty members needed to get these comments out before moving on to more productive matters. The semester had just ended and my colleagues were feeling a bit of burn out.
However, I believe that my colleagues care about their students and work hard to be effective teachers. Much of the meeting reflected my colleagues’ commitment to their students’ learning.
We explored what level of analytical sophistication we should expect from students by the end of the first semester.
We agree that we needed to help students integrate their learning in their first year courses.
We discussed our obligation to give feedback to students in the first semester of law school and committed to giving a midterm exams (graded or practice) in October.
I left the meeting with hope. We had taken a small step to collaborate for the benefit of our students. We had reaffirmed the need for us to support one another’s efforts to help our students become effective lawyers.
Big changes start with little actions. ]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080508-1039582008-05-08T00:00:00Z2008-05-08T00:00:00ZImproving Learning by Listening to Students Similar to the Student Group Instructional Diagnoses Gerry Hess referred to in his earlier blog, I prepared three questions for my colleague. What aspects of Team Based Learning had worked well over the semester? What could be improved? What suggestions did students have for adapting the Team Based Learning strategy to other courses? I introduced my colleague to my Remedies students at the beginning of the last class of the semester, and told them that she would collect their feedback anonymously. I left the room; she exited 30 minutes later with pages of notes.
When we talked about her findings the next day, it was fascinating to hear about students' perceptions. A skilled interviewer, my colleague was able to listen to what was said as well as what was unsaid. She also asked a number of follow-up questions to clarify her understanding of students' comments. Several of the findings were particularly surprising. For example, many of the students really liked the Team Based Learning model, as it reduced stress, greatly eliminated the sense of working in isolation, allowed them to learn more by hearing the classmates' perspectives and reading their classmates' analyses of problems, and made the time go faster because they were more engaged. But many of these students commented that this approach worked only because this was a small elective course and because most of them already knew each other. It would not work in a large required course, such as Torts, which is exactly where I am considering trying this strategy next fall.
Not only was the material from my colleague's class interview fascinating, but it also provided helpful information that I hadn't received from a variety of minute papers and course questionnaires I used during the semester. For example, by the end of the semester, students had heard from a guest speaker, had practiced making trial-level arguments about the validity of different kinds of remedies and how to measure them, completed a team assessment project and written a number of different documents. At the end of the course, they came up with a number of creative ideas for how we could have applied a number of different problems and different projects to the Team Based Learning.
It's great to have this kind of in-depth feedback during and at the end of the course. I'll take what my colleague learned and compare it to the student course evaluations. And even though they suggested otherwise, I am planning to use a Team Based Learning approach to teaching Torts and Legal Writing next year. I'm hopeful that I can persuade my colleague to again come to class and learn about how it worked the second time around. ]]>http://idd.elon.edu/blogs/law/index.php?entry=entry080428-1606012008-04-28T00:00:00Z2008-04-28T00:00:00Z