Is Law School Too Paternalistic?

Or is it just too olde school?

I'm at a strange point in my life: I've graduated from law school, am currently going back for more law school, and I have more teaching experience than most LLMs and non-joint-Ph.D. JDs. I'm prepping to be a professor even as I am the perpetual student. I know both sides of the lectern. I certainly know both sides of the grade book. It's a weird state to be in.

Thus, I'm reading all of the "debates" about banning laptops or wireless internet in the classroom and mandatory attendance policies with a bit of ambivalence. As a student, I'm kind of annoyed at such paternalistic policies, and am guilty of many charges of being unprepared (less often than most), distracted (it happens!) or absent (don't you kid yourself, you former Harvard grad law profs, I have friends who tell me even at the Top 5 attendance is not perfect). But as an aspiring prof I can't rule out implementing some paternalistic pedagogy in the future, and as a former TA I definitely sympathize with instructor frustration over unprepared, distracted, or just plain MIA students.

Prepare yourself for another link/commentary rundown. It's useful for context.

It started months ago, with Orin Kerr, writing about Professor June Entman's decision to ban laptops:

(from Prof. Entman):

Students give one primary reason for needing laptops in class: because typing is faster than writing, students can take more complete and detailed class notes with a laptop. This proposition is no doubt true for some. It entirely misperceives the purpose of class attendance, however.

There is much truth to the notion that people learn in different ways. It is equally true that no one ever became skilled at playing the piano by copying sheet music or by watching someone else play. One cannot learn to play the piano without playing the piano. You will learn to analyze only by analyzing, to articulate only by articulating, to evaluate only by evaluating. Transcribing is none of those things. Class time for practicing essential skills is limited. It is not too late in the semester for those of you who have been transcribers to make better use of class time.

Notetaking is not, however, the same as transcribing. Effective and useful notetaking involves exercising judgment about what to write down, so that one is still able to listen and to think. Class notes should be triggers for later study and review of the course materials; they should not be a substitute for studying the course materials.

My opposition to laptops, which I find confirmed by what several of you have written in your emails, is that using laptops diverts many students from thinking and participating because they are so intent on transcribing. I hope that the transition from typing to writing will have the effect, not of slowing down your transcription efforts, but of changing altogether the way some of you use your class time.

Laptops also adversely effect class discussion in other ways. The wall of vertical screens keeps me from seeing many of your faces, even those of some students who are only neighbors of a laptop. The wall hampers the flow of discussion between me and the class and among the students. Of course I am unhappy about students signing on to the Internet to play games, check email, and instant message during class. This activity is both dishonest and inconsiderate. It is annoying and distracting to other students. Before reaching my decision to eliminate laptops entirely, I tried to get the WiFi turned off on the third floor of the law building. I was unsuccessful in securing the cooperation of those on campus who control the system. For the reasons explained above, however, I believe that a no-laptop policy will not only eliminate misuse of computers, but will also improve the way many students approach the time they spend in class.

And Orly Lobel recently had this to say about the same issue:

This year, she decided laptops had a great deal to do with her students distractions. She made them the following offer – they would begin the semester with two weeks of a no-laptop policy. She would in turn post her teaching notes on TWEN. After the first two weeks, the students would take an anonymous vote on whether the no-laptop policy should remain for the rest of the semester. The results: the students loved it. They found themselves more engaged, more involved in the class discussions, and the course evaluations were the best of all years. My friend told me however she would be worried about trying out this classroom policy as a non-tenured new prawf, because there are some students who were, at least initially, resistant.My understanding is that in business schools there is a trend of banning laptops.

And Rafael Pardo did an empirical analysis of his own class absence and grading policy:

During the past two years, I required students in all of my courses to show up on time to class and to be prepared to discuss the assigned material. If they were tardy, absent or unprepared, I deemed them absent for that class session. My rule was to withdraw a student from the course who ended up being deemed absent for more than 25% of the scheduled class sessions.

But what effect, if any, did class absences have on final grades in my courses? With my first cut at the data, I’ve run a linear regression of final grade (which, for all courses, was based solely on an anonymous, in-class exam) on class absences. It seems as if class absence did influence a student’s final grade in my courses (i.e., it had statistical significance). That said, the variable has limited explanatory power: It accounts for only 5% of the variation in grades among students. Reference to the regression coefficient for class absences further suggests that the variable had only a slight influence on final grade: According to the model, a student’s final grade decreased by approximately .08 quality points (on the 4.0 grading scale) with each absence. Put another way, a student’s final grade dropped by nearly a third of a step (e.g., from B+ to B) with every four absences.

So what do I make of the data at this point? By requiring students to have attended at least 75% of class sessions, perhaps I reduced the adverse effect class absences could theoretically have on final grade.

And now, for my unasked for two cents:

What interests me is Professor Entman's pedagogical reasons for banning laptops. Most lawprofs hate students emailing. shopping online or playing spider solitaire in class–and with good reason. Much as students hate paternalist measures enacted for our own good, we grudgingly admit that it’s disrespectful to the professor and to other students who can view our screens to IM, play games, or surf the web during lecture. But to attempt to control how the students process the lecture material goes beyond paternalism–the students are probably offended because they’re basically being told that there’s only one good way to learn. What if she was heavily Socratic, believing that the dialectic method was best for learning? What if she only lectured, shutting out class participation? What makes her pedagogical method superior to any other? Most students, once they reach a certain level of age and education, do not take kindly to being told that the methods that have “worked” for them in the past are wrong and must be changed. Even when former methods don't "work" as well in law school, they will for better or worse cling to them like security blankets--excessive notes, detailed annotation, or flash cards. Students don't like to change what they think works, and it's probably because they think it works that their methods have some measure of success. They like change even less when it is to make the professor feel more comfortable or to suit the professor’s own pedagogical demands.

Law students are mature enough to know that whatever form the lecture/discussion takes (Powerpoint, classic lecture, or heavily Socratic/dialogic) there are also many ways to process the material (taking notes by hand, by laptop, or by making their own case briefs, or just listening) and that just as the professor has discretion in how s/he conveys the material, the student should have discretion in how s/he processes it. It’s a “whatever works for you” operating model. Personally, I’m in favor of an inclusive pedagogy that acknowledges that people learn in different ways–some are visual, some are verbal, and many, like me, take notes obsessively by laptop because I can no longer write by hand very efficiently or read my own handwriting.

I take very good notes, and my outlines were legendary at law school (I donated one to an outline bank at law school and it got circulated throughout the school via other orgs). That's not to say I had the best grades when it came to performing on the one-shot test, but I can say with some confidence that I really learned the material. I spent a lot of time with the material, and a lot of time in office hours. Usually, unless it's a class for which I found the lectures to be useless, I am a professor's dream. I come prepared, rarely miss class, take great notes, do great outlines, and visit office hours. And yes, I do participate. I sit in the front row. I raise my hand a lot. I make eye contact. But is what I do the best way to learn? I don't necessarily think so, it's just the way I learn. Some of my classmates did much better than I did with much less engagement. All I can say is that if I enjoyed the subjesct, I learned it well, and got whatever grade I did or didn't deserve on the final. But it's all about the test. Professors (and I am not yet one, so this is not hypocritical to say) tend to forget that for all their lecture prep, it is entirely up to the student in how s/he processes the material. Professors invest so much time in crafting their syllabi, lecture notes, or Powerpoint presentation (this too, I am familiar with) that they forget students don't share that same level of investment with the material. Most students merely want to know enough to do well on the exam and later, pass the bar. I am not advocating a student-as-consumer model of education--the professor should teach what s/he believes to be useful and interesting. But I am asking for a little reality here. Students aren't empty vessels for knowledge, torch-bearers, intellectual progeny, or guinea pigs for pedagogical experiments.

I really, really hate the idea that there are teachers who think their way is the best. It just doesn't acknowledge the intellectual diversity of a law school classroom, where for every dozen former political science majors, there are handfuls of English literature majors, math majors, science majors, or former grad students who sometimes have more pedagogical experience than their professors. And such my-way-or-the-highwayness is really limiting, refusing to acknowledge diversity in viewpoint or the potential shyness or reticent speaking style of certain members of the class (male and female, white and non-white), rewarding instead those with excellent short term memories and short turnaround time between ingestion of material and commentary (which isn't always good by the way). When I teach, I try to recognize that all my students may be different. They may be like me, shy to participate during the first two weeks (when I'm getting acclimated to the material and used to the professor's style) but a major participant in for the rest of the sixteen weeks. They may be bold, but often incorrect or uncritical in their responses. They may never want to talk. Some are note takers. Some are listeners. I want to include all of my students in the discussion rather than alienate those who need the most engagement.

I like being able to take copious notes, which is not to say they are not selective and appropriate distillations of the material. I also like taking a break from my note-taking to make comments or listen to a fellow student. But I don't want to be told that my way of ingesting and digesting the material is inferior. It works for me. I feel like I've learned a lot and have been a very engaged, "ideal" student. So what's wrong with that?

Regarding the issue of internet in the classroom, I may grumble at it, but it's probably a good idea most of the time, except when I want to Google or Westlaw something (and then, I really, really hate it). At my old law school, there is no wireless, so it was easy enough for Administration to disable ethernet capability during class. Still, while students were unable to check email, pay bills online, or surf/shop/IM, they did tons of other things. Spider solitaire (a truly bewildering game), Freecell, or incomprehensibly, Minesweeper. Those who don't normally pay attention probably won't even if you disable internet access. Take away laptops? Check your or your siblings' old notebooks from the 1970s-80s and look at all the doodles, to-do lists, and messages between seat neighbors. I took notes by hand all throughout college (nearly illegible, and not very good) and they have tons of embarassing marginalia (mostly nerd jokes like "woldich noldich" in my Medieval lit class, or "will I or won't I" in response to the question "so are you going out with ____ later?"). If you go olde school on your students, they'll just turn it back on you. You know, like a catapult.

So if students' will "disobey" you at every turn, what's the point of the restrictions? Why is it considered akin to "disobedience" anyway? Most law students (except this prodigy we had) are adults. If they want to fritter their time away, why not let them? A common angst-filled response to the decision to cut ethernet was "I'm f--king 27 years old, and if I want to waste my $Multiple K tuition, it's my right to do so." Again, this is not to endorse the student-as-consumer model of education. The professor has every right to craft the structure and material of his or her course and make some general pedagogical demands (as in, "don't talk when I'm talking" or "be prepared"). The exception is when student personal disobedience detracts from the learning experience of their classmates. To this end, I believe general pedagogical rules about decorum, collegiality, attendance (if no one is there to discuss the material, not much point to having class), and preparedness (ditto, and time wasting) can be enforced.

But to extend that to a paternalistic model that regulates not only group behavior but individual behavior is a bit too much for me. I admit, it is hard to contain individual behavior--I can't help watching someone play solitaire if it's on the screen in front of me, and it is a little distracting. But you know what? I'm as much an adult as the person frittering away his or her time in front of me. I can choose not to be distracted visually by something by looking away. This is not the same as my inability to elect out of attending an empty classroom, being forced to listen to some unprepared dolt, or subjected to boorish commentary by a classmate. Those the professor, as the person in charge of our collective learning, should regulate. But my personal processing of the material? No thanks.

I may not have completely agreed with spending 6 weeks on mens rea and 2 weeks on all inchoate crimes--but I respect the professor's decision to teach the material that way. I may have chafed at learning property law without learning about the Takings Clause--but again, whatever, I dealt with it. I actually loved Torts, even though we didn't learn about intentional torts. I had a great professor. He was engaging, interesting, and dialogic without being excessively Socratic and a great lecturer without being too dogmatic. I went to class every day, and office hours often enough to be remembered as a 2L and 3L (don't lie, you law profs, you forget those who didn't make themselves known to you). But what I liked best was that I was able to learn the way that worked for me. One of my favorite classes was Employment Discrimination law, where the professor had an absence policy--but it didn't matter, class was good enough for everyone to come--and we're talking 2Ls and 3Ls at a 9:30 am Friday class. It is the right of the professor to structure the material the way s/he sees fit--but it is also his or her responsibilty to respect the many methods of learning of the students, and to make the material as engaging as possible. You are here to teach, not merely to present. If the only responsibility was the recitation of facts, then one of those voice synthesizer things could work, or else just hire a college student to read out loud a digest of the material. But if the goal of being a professor is to teach and to impart knowledge and to guide the students through the process of learning, then there is much greater responsibility--even more responsibility than your students have--to be good, because in the being good, there is the doing of good. That good being, of course, the education of young minds and the profoundly transformative effect knowledge has on the young. Once you know something, you can never go back to your state of ignorance. And young people are really ignorant. I know this, because I am a young person.

I have learned so much from my professors, and not merely blackletter law (actually, what is that?) I have learned legal history, philosophy, ethics, and once in a while, humor. Law professors have the enviable ability to teach facts, impart wisdom, and inspire their students (by example and oratory) to do "right." And that is the greatest good. Learning the law and going to a good class were the only things I liked about law school. Don't mess up the only things that gave me joy and satisfaction. I say this to you, not as a consumer of education, but as one invested psychically in the quality of my education.

For more on teaching, professors' rights and responsibilities, and "students as consumers":

Jeff Lipshaw on Teaching and Scholarship

Michael Froomkin on Professors' Not Crossing Strike Lines Though It Inconveniences Students

Steve Vladek on the same

More Steve Vladek

My Unecessary Thoughts On the Strikes