Student's Perspective: An Argument against Opinion Discourse in Law School

This issue is always a perennial favorite:  How should we be teaching our classes, and is there something we could be doing a bit better? If we allow discussion, how far should we let it go before other students start to beomce frustrated?

I'm sure many have seen teaching evaluations that sound something like this: "I'd like to hear less discussion and more blackletter law."  After starting a discussion with a student, Chris Judge (Syracuse '12), I aksed him to share his thoughts with us at The Faculty Lounge. 

 

Christopher Judge

In her June 27, 2011 thefacultylounge.com post, Teaching Evaluations and Student Voices, Jaqueline Lipton addressed teaching evaluations that she received from law students criticizing her incorporation of student opinion into her Cyberlaw class.  Lipton asked, “Where do students get the idea that their opinions don't matter?”  The question, as posited by Lipton, is too narrow.  The more relevant question is, “why do law students feel that the opinions of their classmates are not worth hearing during class?”  Speaking on behalf of those that are aggravated by the misuse of opinion discourse in law school, I hope to answer that question from the perspective of a third year law student. 

Although anti-intellectual to do so, your average student does the math when thinking about the investment they make in law school without job security, calculating the cost of each moment of class time.  For example, at Syracuse University College of Law, a member of the class of 2012 will pay $43,250 in tuition for the 2011-12 year.  At this rate, each hour of a semester-long, three-credit class costs about $133.07; each minute, $2.28; each second, $0.036.  However, I am convinced that the economic value of student opinion is merely an afterthought concocted by students in order to justify, rather than explain, resentment of student opinion during class.  It might be argued that disdain for the opinion of fellow law students during class is related to the legal community’s above average level of narcissism; however I argue that the answer is that law students simply do not perceive opinion discourse during class as having significant intellectual value. 

            There are several reasons why law students do not find significant intellectual value in opinion discourse during class.  First, law students work extremely hard on their homework.  Perhaps it has something to do with the fundamentally focused nature of reading the text book contrasting with the free-flowing and seemingly infinite nature of opinion discourse, but after spending between two to four hours of our personal time preparing for each class, tired law students want to give validation to their sacrifice by reviewing specifically what they read and then promptly go home to their loved ones (or television sets). 

Second, opinion discourse is perceived as unlikely to appear on the final exam.  Even if the final exam does include a policy oriented question on the exact topic that is discussed, the opinion expressed during class is usually available in the assigned reading or could be thought of while writing the final exam essay.

            Third, very few law students see themselves in a position to actually shape most, if not all, areas of the law.  Even if the law student could remember a particular class conversation beyond several months of the final exam, most law students see themselves as researchers or litigants, being either neutral or told which position to advocate.   The simple truth is that most students just want to pass the bar and find a job; not yet ready to appreciate a future role in shaping the law. 

The fourth, and final, reason is that law students have recognized that opinion in law classes is abused by a number of groups.  One of these groups are “law school gunners,” those law students who insist on raising their hand at every opportunity.  Regardless of suggestions to ignore gunners, the reality is that, as irritation caused by gunners increases, students lose focus on the substance of the course and opinion discourse. 

            Unprepared students comprise another group that abuses opinion discourse.  If a student did not do the reading for the class, a well-known strategy to avoid getting called on (and possibly embarrassed) later is to volunteer for the questions that either call for opinion or do not require actual knowledge of the homework.  Thus, opinion discourse is often associated with comments that do not require actual knowledge (of the reading).

            Although a well-known education tool, opinion discourse has also been abused by professors who are not prepared to lecture for the full class time.  Without a willingness to narrowly tailor questions that call for discourse or the ability to maintain an appropriate level of control over the conversation, opinion based conversation leads to tangential comments and stories, i.e., information that could not possibly be on the final exam. 

            If a professor narrowly tailors questions, removes the distraction of laptops, and maintains strict control over discourse, opinion can be fruitful and enjoyable; however, unless that happens, due to the perceived lack of value on the final exam or in a future career, when a law student hears a comment begin with “Well, I think that…”, it is an invitation to stop listening.

 

For the full version of this essay, contact Christopher Judge at [email protected]. 

Comments

[Jennifer Hendricks]

I think your point about faculty needing to use opinion discourse well (which includes dealing with your second and fourth points), rather than as a crutch, is well taken. Two objections, however:

(1) On your first point: Why on earth would you want to spend class time "reviewing" the assigned readings? For 1Ls, yes, you have to spend a fair amount of time walking through the material. But upper level students should know how to read a case or statute. Except when particularly difficult material requires some parsing, class time can be used to make connections to other material, practice applying the new material to problems, discuss implications and policy options, lecture to transmit additional information not in the book, etc.

(2) Law students radically underestimate the degree to which they will have opportunities to shape the law, even as young lawyers. That does not excuse us from preparing them to do so. The point is not to remember the particular opinion-oriented discussion any more than we expect students to remember the holdings of every case we assign. Since we seem to be past the point of students assuming that their professors know more than they do about what they need to learn in law school, I suppose that means we either have to make an affirmative case that this stuff matters and/or put it on the exam.

[Jeffrey Harrison]

I did not read the original post but I think there are two interesting points here. The first is testing. If a professor tests on black letter law, the "opinions" are pretty useless as far as the exam. I am sure many of us give open book exams with the message being, "All the rules will be at your finger tips. That is not what this test is about."

The second point is the purpose of soliciting "opinion." I thought the purpose of opinion was to allow each student to engage in a process of analysis -- does that make sense, what else does the case say, what are the policy implications of the comment? In short, a way of simulating the thinking in which lawyers engage.

The post may be right but, if it is, I'd say it reflects the teachers he had.

[recent grad]

I think perhaps one of the problems here is that "opinion" and "black letter law" are really at two extreme ends of a wide spectrum of possible contributions to a class. Mr. Judge's essay seems to be focused on student contributions furthest away from black letter law, the "I think/I feel/I believe" statements that certainly can be timewasters (there was a kind of jaw-dropping moment in my Con Law class once when a classmate declared that they did not agree with affirmative action, and when invited to explain why, simply said, "I don't feel comfortable discussing that." Well, okay then. THAT was unproductive). However, I took Prof. Lipton's discussion of "opinion" to be somewhat broader, and to encompass the process of analysis that Jeffrey Harrison refers to. (To make up an example, it seems entirely possible to discuss how well retributive theories apply to cyberlaw, and to offer pros and cons, without necessarily expressing one's own personal "opinion" about whether retribution is the best way to approach cyberlaw. Which may be a crappy example as I'm not especially good at criminal law theories or cyberlaw...)

I agree with Mr. Judge that I was never especially interested in my classmates' "opinions," in that I never really cared much one way or another whether (say) they thought the death penalty was a good thing or a bad thing. But I did feel very much that I could learn from (say) my classmates' comments on the possible strengths and weaknesses of the death penalty for achieving the goals of retribution/deterrence/justice (I don't know why I am so wedded to crim law hypos tonight), and certainly the analyses they came up with were going to be colored by the opinions underlying them. I sort of feel like Mr. Judge treats all student participation as if it's pure opinion, and that he sets up a dichotomy between students talking about their own feelings and professors lecturing the black letter law, without acknowledging that there's an awful lot in the middle. Maybe he has only had classes that operate at those two extremes, which would be a shame. (To be fair, it's actually a lot easier to lecture exclusively than it is to structure a class discussion that encourages productive student contributions.) As others have suggested, this seems only to indict bad teaching, not the purpose of having students share their perspectives in class.

[Doug B.]

I wonder if the author of this post or other students have a different view if/when "opinion discourse" takes place outside the classroom. For example, I often run a class blog with my traditional classes through which I am urging student "opinion discourse" via the blog's comments (and I tell students that blog comments count toward their class participation grade, which is 35% of their total grade). I also surmise that some other faculty facilitate this kind of discourse via TWEN.

Intriguingly, I find I have historically had a much easier time getting 1Ls than upper-level students to engage on my class blogs. I suspect that is in part because upper-level student come to assume/believe (wrongly in my classes but perhaps rightly in others?) that frequent participation never really impacts a grade much (but gives one a harmful gunner reputation). It may also be because upper-level students (perhaps wisely) fear saying the wrong thing on the internet...