Wednesday, August 23, 2006

Two Classes, Two Schools of Thought, and Two Views of the Mountain


The strange thing about law school the second time around is that it is truly a "do-over." I get to take every class I wish I had taken in law school the first time around, without worrying about satisfying the requirements to my currently unused concentration in CRT or the requisite bar courses. So I get to take more jurisprudence and policy oriented classes, and this makes me very happy. I took a lot of "theory" in law school, but well, I'm not using that theory anymore. So it's rather like finishing a dance and then realizing you would have done the steps differently as soon as you stopped moving. Well, I wasn't moving for a year, and in that year I had time to think, and now I wish I had danced in a different direction--towards jurisprudence and political theory. So this is rather like being able to get another turn on the dance floor. And I intend to dance better this time around, and with greater passion.

Today being the first day of courses (well, for me at least), it is still the "shopping around" phase for most students. I never seriously did this in law school, although I wish I had. If you have misgivings about the "fit" of a course or the professor's pedagogy to your particular educational goal (you know, other than "not at 8:30 am"), then you should go with your gut. If Health Care Law takes you too far into ERISA and benefits territory away from biomedical ethics, and you wanted to learn whether you can morally and legally sell a kidney, well, this course is probably not for you.

So in that vein I sat in on the two sections of Federal Courts. I would have to, of course, take one of them. But which one? The large lecture style course taught by Superior Court Judge Prof? Or the small (15 and under) seminar taught by (coming up with cumbersome pseudonyms is getting harder with each one) Genteel Old School Law Prof? At least my seminar on "Courts As Political Engines of Social Change" (not the name of the course, but you get the idea) was a settled choice, being taught by Prominent Interdisciplinary Law Prof. I have never sat in on two sections of the same course before, since I had always been constrained by other class conflicts. But I have a ridiculously open schedule, since I only have to take two courses. And so today I had 3 hours of Federal Courts. It was a revelatory experience, leading to a number of observations.

First, the pedagogical:

I had always been an obsessively copious and frantic note-taker. I could write an ode to my laptop for how much I have depended on it for everything--notes, outlines, papers, my music library, my slideshow of the kids set to "Blackbird," etc. But maybe it's because I'm an LLM and not some anxious JD, but I'm a bit more relaxed in class now. I still take a lot of notes, but I no longer concentrate on getting everything down. I read a lot more carefully though. But despite my railing against laptop bans, I'm actually considering taking notes by hand. Don't get me wrong, I will change back the second this doesn't work, and I will defend to the death the right of every other obssessive compulsive student to furiously transcribe their lectures. There are holes in my notes, because I write much slower than I type. But I'm finding that as I approach my classes differently, I need to learn differently. While I am still very dedicated to the goal of getting a good grade, I am in the class for a lot more than just taking and passing an exam or fulfilling a course requirement. I'm taking these classes to shape and inform my master's thesis, and so my entire approach to the classes is different. If I read the course material, it's not just to pass the test--it's to shape an idea, form the basis of a footnote, support an argument, etc. So as I become more invested in the process of learning, I find that all the crutches I relied on to get me through law school the first time are not as necessary. I spend as a lot of time during lecture writing notes to remind myself to look up a law review article or consider this idea about federalism as I do taking notes, and today I got an idea about my thesis. Ironically if I had been doing this due to a laptop ban, the opposite effect would have ensued: without a laptop, I am less focused on the lecture at hand. But I am "learning" more.

Also, I had always thought that I preferred small seminars. I am one of those students that sits in the first row and raises her hand frequently. Professors love me, friends are ambivalent about this behavior, and I think I can probably be annoying to the rest of my classmates. But I think I can do this even outside a small seminar--heck, at this stage in my legal education, I have no fear of speaking up in class anymore. So whereas I used to dislike the size and anonymity of large courses, I've come around to the idea that your education is what you make of it. Also, seminars are not always the best form for every subject. I guess it depends on the subject. Courts as the Political Engines of Social Change is a rich and diverse topic, practically inviting discussion and statements of opinion. But Federal Courts? Not so much. I prefer the lecture and class-participation style course as opposed to the entirely too disorganized style of untrained students proferring their opinions on why we have a system of dual federalism. That was truly bizarre and rather a waste of an hour, as the professor kept deterring us from interesting topics of conversation (conflict of laws, privileges and immunities) to consider some abstract question of whether dual federalism is really necessary. I dunno, I rather like my ducks lined up in a row. I much preferred the great lecture this morning on the legal history behind our dual federalism system.

Second, the philosophical:

Federal Courts as taught by Superior Court Judge Prof was superior, not just because SCJP was a better lecturer and referee of discussion, but because it was both broad and focused. I liked the introduction to the legal history and jurisprudence, and how he introduced the Legal Process School (because Hart and Wechsler is of course a Legal Process text), comparing it to the Legal Realists. I am an amateur devotee of legal theory, so of course I was really happy to see that he would be talking about some of the normative and theoretical aspects of federalism jurisprudence. Also, a great discussion of Marbury v. Madison. There was a nice balance of the doctrine, the case law, and the side-discussion of the various schools of thought on the subject.

Contrast this to Federal Courts as taught by Genteel Old School Prof, who kept interrogating the question of why we have a dual federalism system and our proferred rationales of "fairness" and "uniformity," etc., although I knew him to be a staunch Legal Process guy by reputation. It was very strange. I kept wanting to ask, "you mean, you don't think that the federal courts are better and more uniform arbiters and enforcers of neutral principles of law?" I had no idea where he was going with his line of questioning, or how the course would be structured. Was he going to teach us actual law and doctrine about the federal courts and the federal system, or were we going to have abstract discussions about the constitutional structure? It was very weird, I expected a discussion of rules and the judiciary's constrained powers of interpretation and application by an LP scholar.

Contrast this further to Courts as the Political Engines of Social Change, where the professor, a political scientist by training, made it clear that he belonged to the Legal Realist/Critical Legal Studies/and their derivative schools of thought. This is more my school, although I am re-learning how to appreciate the allure of positivism. Yet this is still a departure from my totally out-there, deconstructinist, anti-doctrinal CRT training. I like that in this course, there will be consideration of empirical studies on judges-as-lawmakers, and a discussion of theories from other disciplines, such as the attitudinal model to explain decision making. I think this will be a nice counterpoint to my heavily doctrinal thesis, and will balance out the rules-based Federal Courts.

So both of these observations have led me to a very simple, obvious conclusion: there are many ways to learn the same law. I knew this as a deconstructionist, but I am saying this now as a student and aspiring teacher. Two classes on the same subject can have vastly different pedagogical strutures and methods, and can implicitly or explicitly endorse one of two dichotomous schools of thought. In a way, it's two views of the same mountain. Not necessarily in reflection of each other, or the flip side of the coin. More like two pairs of eyes or two different angles that cause the light to bend and refract or the shadows to lengthen and deepen in differing ways.

In any case, I am glad for the experience (although it was exhausting to go to class from 8:30 am to 6:10 pm). It was good to acknowledge that I am going to school for more than just a grade or degree, that there is an intellectual project that my learning will serve. And it was good to see that there are many ways of learning and teaching a subject, and that it is okay to choose which is best for me.

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