February 19, 2007

"I had to set aside that obsolescent hippie balkiness..."

It's Column #2 in my NYT gig.

This one's about some things said by the author of "Paper Chase" and my own experience as a law student and law professor. You'll probably experience this one as exceedingly conservative!

AND: Here's the full text of Column #1, as it goes to syndication.


John said...

I think that the difference in age and life experience between law school professors and students has a lot to do with the sense of animosity.

I did my first year of law school during the day, and the rest of it at night. I saw thinly veiled hostility from both sides during the day, but at night there was a sense of respect of collegiality. Most of my fellow evening students were adding law to a list of accomplishments as accountants, physicians, police officers, etc. The day students were straight out of college and I think they seemed callow even to themselves.

I liked law school. I learned a lot from the experience, not least of which was that I did not want to be an attorney. But it was just fascinating 99 percent of the time.

Daryl Herbert said...

One problem with the argument you've made is that it goes parallel for Congresspersons: they aren't there for the salaries.

They want power and prestige, and to effect their ideas of what is good and right.

Is Kennedy supposed to say that's okay for Congress, but the Judiciary has higher standards?

Ernie Fazio said...

I was very impressed with my law professors, much more than I had been with college professors. I graduated from law school in 1970 and found Hart and Kingsfield to be stereotypes, but not that far off. When I arrived, I had no inkling of what the experience was going to be like. It was impressive for a professor to learn everyone's name and seat within a week. It was intimidating and challenging to know that you could be called upon at any time in classroom discussions. I at times resented the Socratic method, the hiding of the ball as it were, but in the end the experience was exciting and worthwhile. I was in a "hippy" class at Boalt Hall that distinguished itself by having grades deemphazied--T (top 10%), M (middle 80%) and L (bottom 10%) were the only grades in most classes. Also, it was Berkeley in the 60's--1968, the third world strike, 1969, People's Park; 1970, the bombing of Cambodia. Every man had the draft and Viet Nam waiting after graduation. I counseled students how to file conscientious objector claims and to confront their draft boards, counseled soldiers and fliers who wanted to stop, and worked in legal services with some brilliant advocates. To be a hippy lawyer, one had to do the work and learn the law first. Today 37 years later, my best friends are the ones I met in law school.

The bench is an important and distinguished career move for most lawyers. It can be the end of a successful career, a political favor from a thankful executive, a stepping stone. Surely, the compensation should be adequate, but it cannot compete with corporate attorney wages. Law professors make less than corporate attorneys, but they are no less knowledgeable of the law because of it.

B said...

My degree is in music performance and conducting. Of my core classes, Music Theory with Dr. Mason was by far the most interesting. He graduated law school from U of Chicago, got his J.D. and decided after 3 years in the "real world" to follow music instead. He taught his theory classes as if he were teaching law. I never worked harder - or came out better prepared - than I did when taking Dr. Mason's classes.

Peter Palladas said...

They might be monkish scholars...

From my experience of such men and women, these 'recluses' would make some of the very finest judges - steeped in knowledge of the law, yet also super-saturated with the spirit of justice and of mercy.

And they'd be free at the point of delivery :-)

Ann Althouse said...

Daryl: The judicial methodology is supposed to be different from the political one. People in politics are free to pursue their political will and accountable to their constituents. It's a different dynamic. So, no.

Simon said...

Is the core message in this that law profs should worry less about what their students want than teaching the law as it is - "I don't need to make this relevant to your life, it's already relevant enough to your life, and if you don't see why, you're in the rong place," perhaps?

Simon said...

"The rong place." LOL. "Wrong," I mean.

andyyanks said...

As a third-year law student on the verge of graduation, I can tell you the experience of learning to “think like a lawyer” has been akin to three years in the dentist’s chair—not because my “own stories” were not solicited enough, or because the law was too often taught in the “abstract,” but because of the sheer gamesmanship involved.

Granted, the so-called “value of competition” is a powerful law school norm, and a faculty steeped in and, in most cases, advantaged by that norm, may have difficulty in questioning the fundamental premises of it: namely, that competition encourages excellence and that those who win deserve to win. Arguments to the contrary, such as the ones I am about to posit, may seem counter-intuitive, Pollyanna, or tinged with sour grapes. Yet, decades of educational research suggests that competitive grading environments actually interfere with the process of learning. That has certainly been the case in my experience, at any rate.

First year was particularly difficult for me, in part because I had not yet yielded to the culture of the curve. For one thing, I asked questions in class—an effective way to receive answers, but foolish from the standpoint of the curve, because it allowed other students (my adversaries) to benefit from the teacher’s answers. The better strategy, I have learned from observing my classmates, is to ask questions out of class or over email.

I also made the mistake of actively participating in class discussions—grades, I have come to learn, are rarely based on class participation (no matter what professors say). Besides, occupying the professor’s time with matters of personal interest inevitably interrupts the flow of “relevant” learning: that is, learning which might lead to a better grade on the exam. Class participation can also be construed as an unseemly attempt on the speaker’s part to seek advantage by flattering professors with feigned interest or self-serving “insights.” It also has the tendency to reveal what one knows or doesn’t know—a potentially fatal mistake in any competitive environment.

Perhaps the greatest lesson I’ve been taught about the curve came when my section’s Contracts I exam was invalidated after it was discovered several of my adversaries had obtained inside information about its contents. Many of them roared in protest when it was announced the exam would be re-administered in the spring; after all, they said, that would give “unfair advantage” to those who had done poorly on the first exam. It sounds na├»ve to me now, but prior to coming to law school, I never would have thought about it that way.

During the summer after my first year, I asked upperclassmen colleagues at my internship what they did to survive the curve. One colleague advised me to choose electives not based on subject matter or personal interest, but on whether the professors have a track record for being “generous” graders. Whether the generous grades were the result of incredibly effective teaching or from being out of touch, my colleague advised, was of secondary importance. Getting the grade was all that mattered.

Another colleague advised me to get my hands on as many upperclassman outlines as I could find. This strategy, I was told, would be particularly helpful with respect to the Constitutional Law professor I had been assigned, who was known for speaking in riddles and obliterating the grades of students who were unable to regurgitate his musings to the letter. I was especially urged to obtain a copy of a word-for-word class transcript that was rumored to be floating about—but was warned that I would “probably have to know someone on law review” to obtain access to that.

Of course, one response to this critique might be that the curve is vital to preparing students for the world of law as it is; the practice of law is competitive, one might argue, and perhaps I should get used to that. But merely because one prefers not to operate in an ultra-competitive environment does not make one less fit to practice law. According to a 2006 study published in the Yale Law Review, “Lawyers often equate advocacy with being adversarial, but there are more often situations where lawyers have an ethical duty to encourage collaborative solutions…most law school grading structures fail to take this into account.” Yale Law, incidentally, does not issue traditional grades or require a grading curve—and it is consistently ranked among the top schools in the nation.

One colleague confided that if students were evaluated on an objective performance scale, she feared no one would pass certain courses. If true, the institution has deeper problems than any grading scheme could ever remedy. Nevertheless, it raises an interesting point: the curve can provide cover for incompetent students and complacent teachers. Even if no one in a given course learns much of anything, the curve makes it appear that at least some students “got it,” even if the “best and the brightest” is actually the least incompetent of the incompetent.

Perhaps the most defensible argument for the curve is that it serves much the same purpose as the grading of eggs—it helps sort the “product” for market. But given the uniformity of most law school admittance criteria, statistics suggest the range of student abilities has narrowed over the years, and that the vast majority could truly be said to be “above average.” Obviously there are many things that go into making someone academically successful, but the fact that gamesmanship is allowed to trump genuine curiosity, and often civility under the current regime, says little about the quality or fairness of the school’s sorting mechanism.

Various studies have indicated that competitive grading structures, and in particular the curve, have a way of contributing to public perceptions of lawyers as cutthroat, greedy, and otherwise unethical people. According to one study, “the adversarial nature of legal education…encourages the development of a world view that fosters suspiciousness, hostility, and aggression.” Another suggests that in an academic environment governed by the curve, “students’ values are often deemed irrelevant, or worse yet, systematically attacked, and not replaced with meaningful substitutes” leaving a “moral vacuum that later allows for the rationalization or denial of even the most egregious conduct.”

All I know is, when I entered I law school I was much more idealistic, and much less cynical than I am today. That said, if I work hard, and play my cards right, I may just graduate with a B average—so I guess learning to “think like a lawyer” hasn’t been a total loss.

Richard Fagin said...

"[T]hey might be ideologues who see in the law whatever it is they think is good for us. Kennedy ......couldn't say that we can't trust people who don't care enough about money."

Prof. Althouse, I've been reading your blog for some time, and the above statement struck me more than anything else of yours that I have read. It is an astonishing observation and it seems to apply in every walk of life. The people we really can't trust are those that are overly interested in power rather than money, the power being that to rule other people's lives. I'll take a fundamentally honest, if truly greedy person any day over the alternative. At least at some point his greed is satisfied. The power mad are never satisfied. There is always one more aspect, one more facet of other peoples' lives that they see as deficient and in need of their correction.

Amen. Give the justices a raise.

Helene said...

Why would learning to think like a lawyer preclude abstract reasoning? The interpretation of the law as expressed in evolving case holdings requires such reasoning. It is "a pose" to deny its role, though a "pragmatic" one if one doesn't wish to have to adjust one's teaching.

Ben said...

When I went to law school I expected to be intellectually kicked around a little by smart, witty professors. I looked forward to being challenged by fellow students. To my disappointment, my experience was that too few professors were willing to put students on the spot, and spirited arguments rarely broke out in class between fellow students. That said, the classes where the professors embraced the Socratic method and made students think on their feet in front of their classmates are the classes I loved and remember. Moreover, those moments of being asked difficult questions while the eyes of the room are upon you, and your cheeks are rapidly blushing, surely better approximate the practice of law. It's the same feeling I get when I'm asked a difficult question from a judge during oral argument. Having a little success in front of your law school classmates when the heat is on goes a long way when your attempting to gently persuade a judge that a premise to their question is wrong.

I liked your article.

J.Mott said...

I just read your article in the NY Times. I've also ready some of the comments here, and I have to say I particularly agree with AndyYanks. I myself am a first-year law student in Professor Osborn's class. I am also a physician, and practiced Anesthesiology and Critical Care Medicine for many years, so I am constantly comparing and contrasting the study and practice of science and medicine with the study of law.

And I can quite honestly say, that while I personally came to law school in order to better understand HOW lawyers think and how they are taught to think that way, I am not here in order to LEARN to think like a lawyer. Heaven forfend. "Thinking like a lawyer," at least as it is taught in law school, is not something to which I aspire. In fact, looking at it objectively, I wouldn't really call it "thinking" at all, insomuch as "thinking" to me implies inquiring into the truth of a thing.

The law (and "thinking like a lawyer") is responsible for much of the predicament in which the world now finds itself. Lawyers are trained in making analogies, and arguments, for their clients. They are for the most part divorced from the real issues of right and wrong, good and bad, wise and foolish. Any "justice" which is won, is only won at the behest of a paying client, or class of clients.

The "justice" which has resulted in the world speaks for itself: absolutely mind-numbing inequalities in the distribution of wealth and education (with accompanying famine, deadly epidemics, and genocide); unconscionable military spending on three continents for decades on end; unmentionable violations of human rights in places all over the world; widespread extinctions of species and irretrievably depleted resources; unchecked expansions of the human population coinciding in so many places with its senseless extermination; and to cap it all off, an impending, now quite inevitable global disaster that will displace, and disrupt the lives (and governments) of millions of some of the poorest people all over the globe.

We train more folks in law here in the U.S. than does probably any other country. And we are a very, very wealthy and powerful nation. We also have the highest per capita prison population of any country IN THE WORLD. We have been and continue to be the largest contributor of greenhouse gases. We have spent more on our military, and less on the welfare of persons outside of our land, historically, than perhaps any other people.

I know that "law" is not the same as "justice." I never want to "think like a lawyer." I never want to be so selfish as to "practice law" in a country like the United States (do we NEED another lawyer???) I want to learn to think like a responsible, caring, engaged human citizen of the planet Earth. Unfortunately, it's not possible to do that without understanding the mindset of those who have for generations so selfishly engineered our current predicament; or those, like you, who bury their heads SO DEEPLY in the legal sands that they seem to be able to do nothing besides promulgating "the law" in its current state without ever acknowledging the inherent hypocrisy of doing so.

Gregg Ivers said...

Dear Ann:

I am a professor of government at American University, where I primarily teach undergraduates (and have for 18 years). Students vary wildly in what they expect from their professors, and I have never hesitated to tell them why I do things the way I do, and that sounds pretty close to the way you teach.

I also blog. You can, if you like, read two recent posts on teaching, students, bias, etc. Go to the index page on the right and click on "Students are biased . . . so what?" and "Professors are biased . . . so what?"

http://www.greggivers.com (and click on the "Blog" tab)

Needless to say, I enjoyed your column in the NYT this morning.

LoafingOaf said...

andyyanks: First year was particularly difficult for me, in part because I had not yet yielded to the culture of the curve. For one thing, I asked questions in class—an effective way to receive answers, but foolish from the standpoint of the curve, because it allowed other students (my adversaries) to benefit from the teacher’s answers. The better strategy, I have learned from observing my classmates, is to ask questions out of class or over email.

I may have been naively oblivious to some of the cut-throat competitiveness going on around me, but I didn't notice a lot of that sort of thing at law school. Which doesn't mean it wasn't happening, I suppose. I wonder if you were choosing to get caught up in that, or if your school just had a very different culture than mine.

I'm pretty sure I wouldn't have made it to the first semester exams, and would've dropped out, if my fellow 1L students hadn't been so supportive to me and each other.

Like we were all in this torturous experience together, so we'll help each other through this first year.

So, I dunno, maybe there's big differences from school to school. But at least in the first year, when you're spending all day with the same people and you're all in the same boat, it's difficult for me to imagine viewing other students as adversaries.

Again, maybe I was naive. But it didn't hurt me if I was, and really, my section of my 1L class felt like a family.

josil said...

the arguments used to increase the pay of judges has the flavor of lawyerly thought processes; i.e., devoid of economic, much less quantitative, reasoning. i can find equally or even more persuasive argumnets for increasing the pay of trash collectors.