Law in Contemporary Society
[You don't need to save earlier versions on the page: the wiki, being a wiki, saves every version of everything. Just look under the "Diffs" button. So I removed the earlier draft, which gets in the way.]

Teaching, coercion, examination

-- By ScottThurman - 15 Apr 2009

Teaching and coercion

School is a normative environment. We attend school because we do not know things; we expect our teachers to tell us these things. This instruction, at its core, is instruction in how a teacher believes some thing should be done.

  • This seems remarkably narrow to me. It isn't what education literally means, and it's not what I experienced in my own education. Teachers helped me to learn, usually by inspiring me to see the interest in forming a relationship with material that was unfamiliar to me. So described, however, the project isn't captured in the remainder of this draft.

A school is not, however, a passive transmitter of these norms. School is coercive – it disciplines us, it applies force to us, it shapes us. Instructional moments between teachers and students, at their base, consist of the teacher’s belief that there is something incorrect, wrong, ignorant, or less than optimal in the student’s performance, and the teacher’s attempt to demonstrate what’s wrong, what should be changed.

  • Once again, this is not my experience, either as a student or as a teacher. If it is yours, we should talk about it as yours, rather than as if it were a universal proposition logically entailed or uniformly measured.

The presence of coercion is not itself problematic. As discussed in the opening paragraph, we are in school because we want to learn. We have voluntarily submitted to the coercion of schools, and we’re willing to submit to the discipline, to the occasional reminders that we have not, in the eyes of our teachers, mastered our subjects. The ideal student wants to feel the force of the ideal teacher, even if it is painful. The ideal student wants to be changed. And, I think most importantly, the ideal student wants to know how he or she is going to be changed before submitting to force.

  • Where is this submission to force? No school I went to after the age of nine ever forced me to do anything. School sometimes imposed grades on me, which I mostly didn't care about or ignored: after my freshman year in college they became primarily irrelevant even when they were actually "given." Teachers, like editors, sometimes disagreed with me about what I wrote, or showed me how it could have been better written from their point of view. Sometimes I agreed with them and sometimes I didn't. I don't see the force part in any of that. So far as my life as a teacher is concerned, over the course of more than 25 years, I've probably resorted to some significant form of coercion less than two dozen times, and almost always I have regretted it as useless or worse.

Evaluation as the fundamental coercive element of school

While every lecture and assignment has the capacity to affect or influence the student, the evaluation stands as the greatest coercive element in school. Here I mean for evaluation to extend beyond a single test or a set of exams (though in many classes there is only one evaluation - the final exam). Evaluation is any contact between student and teacher in which the student’s performance is reviewed and feedback is given as to how the student could more closely approach the teacher’s ideal. In this sense, evaluation is the medium of teaching, or at least the most intimate and direct form of it. While students may be able to infer from readings or lectures how to modify their behaviors and actions to converge with the teacher’s expectations, evaluation is the most direct way a teacher can indicate where and how a student should change.

  • Evaluation of work is evaluation of work. If students ask for personal advice I give it to them. The ordinary work of evaluation is determining how well people have learned, and to suggest ways to increase their productivity and enjoyment of learning. Describing that as "where and how a student should change" is accurate only if most relevant nuances are ignored.

The conventional law school class

It’s been well established that most law school professors, at least in the 1L year, do a poor job of teaching.

  • Not to me. After a quarter century of watching law school unfold, I would say that the teaching is at its best in the most cliche part of law school, the beginning. The real problems in law school teaching, I think, begin after the first year.

To build on the discussion above, law school professor seem to fail in two areas: there is no strong normative stance and there is little evaluation.

  • I think the former claim is wrong. I don't think it is true that teachers avoid normative declarations: certainly the "Socratic method" myth claims that, but one only has to spend an evening with Plato to realize that was never true even of a real imagined Socrates. The second point is correct, I think, but I don't see how that "build[s] on the discussion above."

When I’m sitting in most classes, I am not sure what I am supposed to be learning. I can tell from the teacher’s questions that I should know cases’ facts, judges’ reasoning. I know that I should memorize relevant sections of Restatements and codes. I have only vague ideas of how any of this connects to what lawyers do – changing society with words.

  • Formalism is not the best way to think about law, and teaching without explaining what one expects the teaching to accomplish is not the best way to teach. I don't think that has anything to do with "normativity" as I understand it, but maybe you meant to use the word in a sense I didn't catch. To the extent that your courses leave you in the position described, they could indeed be better taught. But I still don't get the coercion part.

The usual excuses offered for the ambiguity of law school instruction are unpersuasive. We are told that law school instruction is ambiguous because the practice of law is complex and ever changing. But that mistakes the type of normative stance I want the teacher to take. I understand that legal arguments are rarely absolutely right or wrong. I understand that our professors cannot give us easy answers about when a set of facts meets some standard or passes some legal test. I understand that a case does not, necessarily, have a stable, universally understood holding. But I don’t want to know if I’m right or wrong; I want to know if that path I took to get to the answer was more or less effective. And, given the range and diversity of legal arguments, I want to understand as well as I can what criteria the professor has used to evaluate that efficacy. Such feedback gives me the tools to both determine how I can further change and, perhaps more importantly, if I agree enough with the professor’s stance to want to change.

  • I don't understand this objection, particularly given where you are in the process. During the first semester or so, the only real question evaluation answers is whether you are comprehending and producing law talk correctly. There's some ambiguity about that, but not much. In the second semester, the issue moves beyond whether you have understood the documents linguistically and whether you can talk about them non-absurdly, and begins to shift to whether you have learned to think about the context, both within the legal system and in the larger ecology of social relations, in which cases are decided, legislation is interpreted, and administrative process occurs. Once again, I don't see where the issue of whether you want to change is relevant.

Of course, to be in a position to offer us feedback, professor must give us opportunities to demonstrate our legal skills. In most of our classes, students will be given at most two or three opportunities to demonstrate their progress in legal reasoning before the final. Or, more accurately, we’ll be given two or three opportunities to recite some facts from a case, or to sniff out whatever ball the professor is hiding. With no ability to get real, meaningful evaluations before the final, our study becomes more exhausting (because we have no normative goals, we do not know the parameters of the evaluation -- neither what content will be covered on the final exam, nor, more openly, what skills we’re supposed to be developing) and our performance more arbitrary. Maybe this sort of evaluation mirrors the management style of a large law firm: vague directives, little over-sight, and idiosyncratic standards. But that seems like a bad way to run a law firm, and a worse way to run a school.

  • But that seems to be a complaint that you're not being told how to take the exam. Since having an exam is stupid, teaching you how to take the exam would also be stupid. Helping you learn how to make richer contextual analyses of legal material you only learned to interpret at all the day before yesterday would indeed be better done in a more interactive fashion than the large student-faculty ratio required by the economics of law school would seem to support. With contemporary technology, however, the interactivity of large law classes can be improved, as I am trying to do. That still has no relationship either to how law practices are managed or to the issue of coercion we are supposed to be dealing with.

Evaluations as resistance

It’s been suggested (maybe I’m straw-manning) that all this discussion about grades and exams is sound and fury. I disagree. Evaluations are the heart of teaching. By allowing teachers to give vague normative standards and no substantive feedback, students have excused teachers from teaching at all. Currently, teachers wait to teach until exam day – the exam can easily be the first time that a student realizes, “I’ve not learned this right.”

  • Indeed. See my EvaluationPolicy. But that doesn't establish that "evaluations are the heart of teaching," which is still just an assertion on your part and not one my experience leads me to believe, nor does it establish the claim about coercion from which you began.

In a law school where teachers were forced to give frequent evaluations, students could eexperience several substantive teaching moments. Moreover, teachers would be under a harder-to-ignore burden: they would have to determine much earlier in the semester what their normative goals for the class were and whether their teaching methods were effective moving the class toward those goals.

  • I don't think this is an issue of force, either. Talk about forcing teachers is no more sensible than talk about forcing students. You mean, I think, that if teachers had tools that provided frequent opportunities for evaluating student performance in multiple contexts, it would be easier for them to determine how well students are learning, what's interfering with the learning process for individual students, and how to increase not only their effectiveness in learning but their pleasure in it. I agree entirely with that, and am trying to devise means that would make such outcomes more possible for teachers.

I don't mean to make it sound like teachers must bear an inordinate amount of the burden in ensuring learning. Learning is a collaborative effort, which requires a heavy investment on both parties. Rather, I think that by extending the evaluation process, teachers would be making it more possible for students to determine both if they wanted to learn (that is, if they wanted to be changed in the way the teacher offered) and if they actually were learning.

  • Here we're just back to your initial formulation again, which doesn't have any more solid a base under it than it had 1,000 words ago. In my comments on the first draft I suggested letting this issue drop, in favor of the idea you sported at the end of that draft, and which you dropped here instead. So now I find myself feeling that the purpose being served by this draft—with its renewed emphasis on force, coercion, being made to change, and the like—is as a sort of psychic note in a bottle: a part of you is telling us it's trapped on a prison island and wants to escape from being convict labor. Who made you convict labor I don't know; it wasn't I, and it wasn't law school.


Webs Webs

r6 - 08 Jan 2010 - 22:11:27 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM