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June 27, 2011

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Larry Rosenthal

I do not want to take the extreme position the students' opinions never matter -- they do, and they should never be banished from the classroom. That said, students, who know only too well that they will be facing an increasingly demanding job market, tend to have their eyes on the ball in a way that few law professors do. Students are looking for a marketable skill, and they correctly sense that being able to articulate their own opinion on a legal issue is not something for which a client is likely to pay much money. Students often mistakenly conclude that they will have a marketable skill if only they learn what the law "is." I try to convince my own students that if it were that easy to practice law, no one would pay much in the way of attorney's fees.

The job of a lawyer, after all, is not to express the lawyer's personal opinions, but to be able to identify and use relevant legal materials to build the strongest possible position on behalf of a client. Accordingly, what students need to learn in law school above all else are the problem-solving skills of a lawyer. That is what clients need, and will pay for. When a professor spends too much time training students as if they are going to begin their careers as judges, policymakers, or law professors who are able to rely on their own opinions on legal issues, students correctly intuit that they are not receiving the skills that they will need to survive their first years after graduation. That, I think, will be an increasing source of student dissatisfaction in the years to come, as the market increasingly demands graduates who are ready to make money for their employers.

Larry Rosenthal
Chapman University School of Law

Orin Kerr

Maybe my experience is quirky, but I've found that slightly rephrasing the question can have a dramatic influence on how students consider requests for student input.

If you ask a student, "what do you think about the Court's opinion?", some students in the class will react negatively. They will see that question as just asking for feelings, or just academic mumbo jumbo that is unrelated to The Law. On the other hand, if you ask them, "Is this case correctly decided or incorrectly decided?", and follow up by asking the student to explain why, then the same students often will see that as a rigorous question about the law. Of course, we know that these are two ways of asking essentially the same question: In both instances, Professors are seeking a normative view from the student about the Court's opinion that can be debated and analyzed to better understand the issues. But my experience is that by phrasing the question in a more legal-sounding way, it tends to draw a more positive response from students.

anon

Professor, as a recent law school graduate who strongly dislikes such discussions, I'll offer my own subjective reasons why I generally dislike them, which may or may not apply to how you conduct your course.

1. Teacher preparedness: when a professor asks what the students think for a substantial portion of the class, it gives the impression that the teacher is not well prepared. If only, say, 30 minutes of a 50-minute class period are "controlled" by the professor walking through opinions, asking direct (or even Socratic) questions, analyzing the historical framework, and so on, that leaves a sizable period of time (20 out of 50) for the professor to, mostly, check out and simply moderate student chatter. Compared to other professors with tight management over all 50 minutes, it seems like the teacher is just mailing it in.

2. Expertise: I was particularly annoyed in undergrad when 18-year-olds were being asked open-ended questions by 50-year-old PhD professors about what they "thought" about Faulkner. But I paid an exorbitant sum of money to be taught by a professor, one who'd spent her last 30 years reading Faulkner. Why in the world would I want a substantial period of time taken up with the musings of near-children? In law, it's much the same way--unless the professor has no professional background or no depth of knowledge of the course, her understanding far exceeds that of the students, and I would much prefer to hear more from her expertise.

3. Relevance: While the cold, hard facts about practical application might fall on deaf ears, the lack of context for why "opinion" matters is significant. Students don't understand why opinion matters. I understand that there are, of course, good reasons--filling in gaps in the law, making the best argument when precedent runs out, giving you a time to reflect on the "why" before practice, and so on. But most professors don't build that bridge. And the relevance is very quickly lost when, day after day, the inane musings of students fill the class.

4. Quality of comments: Sometimes, comments from fellow students are good. And sometimes they are very, very bad. On the whole, I thought the bulk was very bad--people trying to show off, or suck up, or wedge in irrelevant political positions. So when one student commandeers the attention of an entire class providing a very low-quality comment, it makes the entire exercise feel like a waste of time.

5. Time and place: in the classroom setting, it often feels inappropriate to let a single student at a time talk and hold the entire class's attention for a period of a minute or two, especially when that student is speaking off-the-cuff and reacting to the professor. Classtime feels like it ought to be a more meaningful endeavor than allowing wild pontification and speculation.

Now, these are just a few critiques. And they can often be solved--more well-prepared teacher inclusion of opinion into classtime; asking students to draw from their relevant expertise (business background, parent in manufacturing, immigrant history, etc.); bridging how opinion fits in with the black letter law; controlling when students run wild; and bringing opinion to more appropriate forums (e.g., more open-door time in the office to discuss the effects, circulating an email after class, moving opinion discussion to online forums, making students prepare a short paper on the subject, allowing them a few minutes for everyone to collaborate in small groups all at once).

Disclosure: I think about this a lot, but I lack the pedigree to be a law professor, so all comments should come with a grain of salt.

Jessica Owley

To take up another vein, I was a little surprised to see that you were *happy* about the wardrobe comment. I am always dismayed when students comment on my appearance.

It is very common for female professors (and especially younger female professors) to get comments on their clothing/hair/accessories from students (and sometimes colleagues). I just breeze over these comments, but when seeking feedback on my teaching or course materials, I really don't care if you like my boots or think I need a new hairstyle.

Jim Milles

I had a few of the same comments in my Cyberlaw (actually Online Speech and Privacy) class. I spend a lot of time in that class drawing out student opinions, since the class is about the world they live in, and I really want to hear their opinions about their expectations of privacy online, their practices using Facebook, their thoughts airport screening, and other emerging issues. This is an area that, I think, invites critical thought about the disjunction between courts and legislatures and the way real people experience online media and control over their own information.

I got a couple of complaints about the class getting "sidetracked" into "political" issues, but I don't see how you can teach about Speech and Privacy without getting into peoples' differing views on controversial issues. For example, I followed up the covert reporting cases like Food Lion with a video clip of Lila Rose, the young woman who went undercover with a camera at Planned Parenthood offices, and had a good discussion on conflicting views of speech and privacy. One or two students complained about abortion coming up in a class on speech and privacy (!), but the overwhelming majority really liked bringing in current issues.

Bill Reynolds

I find that asking students to make an argument--"How would you argue for a reversal on appeal"--works very well. Students do understand that they are being trained to make arguments. I also explain to them why I call on them--public speaking will be part of their tool kit, and it helps when they know that. I also explain that cold calling is essential to bringing them to class well prepared; that also works.

I taught electronic contracting for awhile and explained that most of them knew more about it than I did, and I hoped they would help the class out with their knowledge. That led to great discussions and very good evaluations.

My bottom line, I guess, is to explain what I am doing.

Mary Dudziak

One of anon's suggestions is to give students time in small groups. I do that -- and I wonder what others' experience is. In my 14th amendment class, which I offered for the first time last spring, when we got to the end of a particular area of the law, I gave them a hypothetical case, and divided students into groups representing different sides. After they had 15 min. or so to talk about their argument, two students from each side would make oral arguments. One of the best things about this is that I was able to see what they understood well, and what the gaps were in their understanding. Then I could deal with any problems when summing up that part of the class the next day. At the end of the semester I gave them a multi-issue hypo that was like an exam question requiring issue spotting, and we spent an entire class period on oral arguments & discussion of the arguments.

The students loved this and it worked well, and it got everyone in the class participating in some way. But b/c the class was offered for the first time, it wasn't huge. I've used this approach much less frequently in a big first year con law class -- worried that students would think it was a waste of time. In a large class, I'm not able to go around to every group during their discussions -- to answer questions and nudge them in the right direction if they're off-track.

Have others used small group work in large classes? How do you do it?

Matt

I was going to comment on this post, but Anon's (at 7:38 am) comments earlier pretty much sum up what I and other classmates bemoaned about student participation. It definitely has a place in classroom discussion, but it can quickly become a detriment, at least in the eyes of many students.

For whatever reason, some students feel the need to monopolize the class discussion time. Really making an effort to get the class involved improves the quality of the discussion. Some people have things to say, but aren't as "aggressive" in getting the professor's attention. Consequently, they feel left out and become withdrawn from class participation.

Also, as others have suggested, the types of questions you ask the class are important. No one really cares to hear someone philosophize or make inane comments. In this economy, students are very attuned to doing well, and so they inevitably want the class discussion to focus on what will be tested. It's likely that other students' comments will not be tested. Perhaps if you have a short talk with the class about how you see class discussion integrating with the material, people will be more receptive. My Property professor laid out her ground rules for class participation/discussion, and I think it eliminated some - but not all - of the apprehension about students participating.

Also, I want to underline this again, don't let one or a group of students monopolize the discussion. It breeds resentment, from what I can tell. Obviously if no one else wants to talk, you might have to lean on people who are willing to talk.

Nick J. Sciullo

I'd like to respond to Anon's comments. I do believe that law school is predominately a professional school, but there are many law grads that go on to not practice (by choice, not simply because of bad Bar Exam results). Law school grads go on to work in government (non-attorney jobs), non-profits, businesses, consulting firms, public relations, graduate school, and academia (undergraduate, graduate, and law school). So, I think we should consider the benefits that not only those who desire to be lawyers receive, but also those who don't desire to be lawyers or are unable to secure attorney jobs.

I've laid out the points Anon made and I'll simple respond in a paragraph after the original point....

ANON: 1. Teacher preparedness: when a professor asks what the students think for a substantial portion of the class, it gives the impression that the teacher is not well prepared. If only, say, 30 minutes of a 50-minute class period are "controlled" by the professor walking through opinions, asking direct (or even Socratic) questions, analyzing the historical framework, and so on, that leaves a sizable period of time (20 out of 50) for the professor to, mostly, check out and simply moderate student chatter. Compared to other professors with tight management over all 50 minutes, it seems like the teacher is just mailing it in.

ME: I never had the impression that a teacher was using discussion as a way to mask a lack of preparedness. In fact, I thought the opposite was true. If a teacher is unwilling to engage in class discussion, it is likely because they have not thought about pursuing the cases or policies beyond what is in the text. Discussion is organic and requires a teacher to remain on their toes as an active participant and moderator. My perception is that a teacher who hides behind the Socratic method or simply wants to read from the text (some law professors are unfortunately doing this) is doing the disservice by not being prepared.

ANON: Expertise: I was particularly annoyed in undergrad when 18-year-olds were being asked open-ended questions by 50-year-old PhD professors about what they "thought" about Faulkner. But I paid an exorbitant sum of money to be taught by a professor, one who'd spent her last 30 years reading Faulkner. Why in the world would I want a substantial period of time taken up with the musings of near-children? In law, it's much the same way--unless the professor has no professional background or no depth of knowledge of the course, her understanding far exceeds that of the students, and I would much prefer to hear more from her expertise.

ME: Some of the most interesting things we can learn are from our peers. Law school student bodies can be diverse across a number of indicators and the stories people tell and the questions they ask can be important to shaping understanding of the law. To be sure, there's always that student in the class who assumes they know everything or has completely checked out and is asking questions about unicorns, but my experience was that even these experiences helped me think differently about the law and develop new ideas and opinions. It helped me come to the "black letter law" a new way. A law professor's experience or where there is not experience, pure knowledge, is likely preferable most of the time. But, I'd welcome a question from students as opportunities to reconsider what I knew and was learning.

ANON: Relevance: While the cold, hard facts about practical application might fall on deaf ears, the lack of context for why "opinion" matters is significant. Students don't understand why opinion matters. I understand that there are, of course, good reasons--filling in gaps in the law, making the best argument when precedent runs out, giving you a time to reflect on the "why" before practice, and so on. But most professors don't build that bridge. And the relevance is very quickly lost when, day after day, the inane musings of students fill the class.

ME: This doesn't seem to be an argument against allowing student opinions. This argument seems to suggest that professors ought to do a better job explaining why opinion matters or framing it better in relations to established law. That's probably a good suggestion. Facts do of course matter in law, and unfortunately it is where there seems to be less time spent. Even a casual review of new law review articles tends to show that there is more time spent on the legal issues than the facts. Luckily the "Law Stories" series of texts helps bring back facts to the discussion, but many casebooks are somewhat scant on the facts they lay out. Focusing on facts is not mutually exclusive with student opinion. Focusing on facts also helps students engage counterfactuals and other arguments that may provide them access to higher grades on hypotheticals on law school and Bar exams.

ANON: Quality of comments: Sometimes, comments from fellow students are good. And sometimes they are very, very bad. On the whole, I thought the bulk was very bad--people trying to show off, or suck up, or wedge in irrelevant political positions. So when one student commandeers the attention of an entire class providing a very low-quality comment, it makes the entire exercise feel like a waste of time.

ME: This is an unnecessarily negative point of view. Sure, law school classmates aren't always the brightest. It is true no matter what your cohort is: co-workers, family, departmental faculty, undergraduate classmates, etc. The showing off is always obnoxious, but it will happen in study groups, extracurricular, class, bar review, Facebook posts, etc. In class, a show off might benefit the class by being correct or might be chastised for being incorrect by the professor, which would also be helpful as most wrong ideas aren't individual ideas. The proclivity of students to include political opinions in discussions is high. Law school is political, as is the law. Political opinions come out in legal opinions, law review articles, power point presentations from professors, even the way in which professors treat students in class. It's a political world and if one looks closely at just about any law related act or artifact, there's a political message to be found. While grandstanding for President Obama or the Tea Party is not particularly helpful, opinions that voice liberal or conservative criticisms of criminal law, property rights, etc all have their place because they help students to understand the motivating factors and socio-historical conditions in which judges make decisions and scholars offer comments. We should use these opportunities to learn more about the law and the process of legal decision-making.

ANON: Time and place: in the classroom setting, it often feels inappropriate to let a single student at a time talk and hold the entire class's attention for a period of a minute or two, especially when that student is speaking off-the-cuff and reacting to the professor. Classtime feels like it ought to be a more meaningful endeavor than allowing wild pontification and speculation.

ME: Discussion is absolutely necessary for understanding the law. It is thee discussions that help students hone their ability to talk about the law in practice and on exams. We have all been confronted by inane comments or wild diversions, but that's a way of life. Clients will do the same thing when you speak with them (Of course, billing them for these diversions may ease the pain!). The task is to take what you can from these incidents and use them to your advantage. Did the student phrase something differently? Were you persuaded or nor persuaded by their reasoning? What is it about this legal opinion the causes a political reaction? How could a judge have better written the opinion to both uphold the law and provide political cover for themselves? These sorts of questions help think more deeply about the law and the way the law evolves.

It seems to me that learning about the law must be more broadly construed. It's not just about the casebook. Sure black letter law matters and it's important for practitioners, but I would frame student comments as part of the ongoing evolution of law, part of a continual dialogue. It's part of the process of thinking about the law that we all need whether sitting for a Bar exam, simply trying to pass a class, preparing a law review article, or working with the law in other contexts. Law school is not only teaching you about the law, but about how to think because it is these thinking skills that help law students succeed.

Jacqui Lipton

Thanks to everyone for these detailed and thoughtful comments. I think some of the really useful takeaways (some of which I do already and some of which I could do better) include giving students some opportunities to talk to each other as Mary suggested and also clarifying the professor's expectations and reasoning about class participation and level/nature of in-class discussions. I have used some small group discussions even in big classes but you do have to be very mindful about timing and make sure that you as the professor have enough time to gauge the different students'/groups' views even if you can't do it by talking to each group individually in every class. I also wonder to what extent the subject matter affects how you involve students. I think subjects like online privacy, cyberlaw etc may lend themselves to different kinds of class discussions than some more black letter subjects where you really do need to focus on learning a lot of *relatively* clear legal principles (to the extent that any legal principle is ever clear). Certainly when I used to teach con law and contract law in Australia, I took a much more black letter approach than I do with cyberlaw, and con law at least has a great potential to turn into a more "philosophical" course if you let it.

I should also note (if this is any reassurance to students) that I have never engaged in lengthy class discussions to pad time because I am unprepared. I have generally used it to try to get students to argue with each other (or with me) to hone their analytic and problem solving skills. Again, I may not have done it as successfully as I hoped, but I wouldn't want students to feel that professors generally don't take their teaching responsibilities seriously.

And Jessica, I'm with you re comments on clothing and appearance. I was being a little tongue-in-cheek on that one. But I was touched that students liked my shawls and wraps in the fall because I was TWP (teaching while pregnant) and using the accessories to try and cover my ever growing belly!

Chris Liebig

It seems like there's a lot of territory between asking students their opinions, on the one hand, and straight lecturing, on the other. I know that whenever I find myself lecturing, I think, why bother to get everyone together in one room for this? I could just write it down and they could read it at their leisure.

I'd be curious to hear Anon's thoughts about the Socratic method. If I ask a student, "What should the legal rule be?", I don't usually do it just to survey his or her opinion. I do it to get the student (and all the students) to think about the implications of a given approach to an issue. I might then follow up by asking, "But what if the facts were such-and-such," to test the implications of that proposed rule. That kind of discussion seems valuable to me -- more valuable than, say, just lecturing and taking the occasional question.

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