“Professing”, Mediating and Learning by “Doing”

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How to teach, what to teach, who we are teaching and why we are choosing specific materials and methods are independent considerations. To the extent that we are seeking to achieve important goals that have to do with our students’ understanding of responsibility, professionalism, skills and defense of the core institutions of justice and the Rule of Law, it is our job to be realistic while continually striving to help the students create a rich and principled system of responsibility, commitment and performance.

 

The Power of Tradition: Why Law Professors Teach as They Generally Do

 

We replicate the methods we experienced in law school because we conclude those methods “taught” us effectively due to the fact that the typical law teacher was a highly successful law student. [1] It is just as plausible a hypothesis that we succeeded in spite of those approaches that we replicate because it is all we know and we mistakenly assume “if it ain’t broke don’t fix it”. But in relation to how lawyers to whom we provided education actually perform in many of the niches of law practice the system is “broke”.

 

Although I have no desire to emulate the approach used in colleges of education, it is unfortunate that law teachers receive no preparation for what is an extremely challenging and complex task. The situation is entirely one of on-the-job training based on trial and error performances with amazingly little input from either other law faculty (who experienced the same “training” process) or anyone who could be called a professional at teaching law students. This is one of the primary differences between clinical teachers and their more traditional counterparts.

 

Although I taught a self-designed undergraduate course at the University of Colorado in Colorado Springs titled The Economics of Poverty, I began my own development as a law teacher as a clinical teaching fellow at Harvard Law School with Gary Bellow as a mentor and four other clinical fellows as part of a team. The process involved continual critique of our own and the other Fellows’ performance and focused on both classroom and individualized teaching. There were shared approaches to overarching course goals as well as the specific outcomes that we wanted to achieve in every class as well as the best ways to conduct individualized and small group teaching and learning strategies in a live client civil and criminal clinic. A vital [and ego threatening] part of the process was a willingness to be evaluated based on our effectiveness, substance and clarity in our teaching of seminars, larger classes and in the individualized sessions with our clinical students that were sometimes recorded for assessment.

 

In the process we learned how to learn from each other and communicate honestly with our students. The defensiveness and ego protections that are too common among law teachers who have not had the opportunities to go through a total immersion process of the kind we experienced disappeared early in the process. Both as teachers and neophytes we learned how to become better at what we were doing through the shared communication about success and failure, strengths and weaknesses. Added to this was a constant attempt to figure out the substantive goals and the most effective techniques for what we were doing. It was an experience that would enrich any law teacher and remains quite rare.

 

Professing

 

Law professors have rarely been trained to consider how best to teach or how to design an integrative curriculum that enhances the ability to achieve high priority educational goals. Nor have we been explicit about many of the most important educational goals and the priorities to be assigned to those ends. Like virtually any group faced with working within an institution dominated by an established way of doing things we tend to end up repeating what we experienced in law school since we not only survived but excelled in that environment.[2]   This is not surprising. Resistance to change is a basic human characteristic and is particularly applicable to the insulated and parochial academic culture.

 

“Professing” is very useful for the transmission of large amounts of information at relatively superficial levels of student understanding. But well-written books and treatises can also serve this purpose. An irony in the process of American legal education is that we describe what is done in law school courses in the first year as a form of the “Socratic method.” Socrates engaged in direct dialogue with individuals in small groups rather than “professing.” Maxine Greene writes: “In Plato’s Apology, Socrates compares himself as a teacher with a gadfly and tells the Athenian citizens that he was “always fastening upon you, arousing and persuading and reproaching you.” To remain immobile, to refuse to inquire was to be caught napping, to resist being stirred into life. But it was not enough merely to awaken: an individual had to be brought, on his own initiative, to regard virtue. He had to be stimulated to take an active role in the search for his perfection; he had to be courageous enough to turn toward the Good.”[3] This intimate Socratic form of communication was required so that the participants’ ignorance could be dispelled and wisdom sought on an individual and highly interactive basis. The object of the dialogue needed to be brought to the point of accepting his ignorance, biases and ungrounded assumptions so that true understanding became possible.

 

Professing has its own positive utilities, including information transfer and structure as well as role modeling by the teacher as effective communicator and advocate of important principles. The question, however, is when is such an educational strategy best used and when do educational goals demand the application of more individualized, smaller scale and more intimately interactive methods. I was surprised the first time I taught outside the US when teaching a course on human rights in London’s University of Westminster School of Law where I was a frequent Visiting Professor. Students did not have their own books but were expected to run around to libraries to find the assigned readings.   Books are expensive and outside the United States it is the exception rather than the rule that students purchase texts for university and law school courses. In teaching in England and Russia I supplemented some assignments with copied materials but that was quite different from the typical situation where students have to go to university libraries and read course assignments.

 

This means that I was operating in a context where it was highly questionable whether students have read the assignments prior to class or at all. That makes it unsurprising that students outside the US expect the most important material to be structured and delivered in ways that substitute for hard-to-obtain material. We are dealing with what is essentially a largely passive information transfer system in which most of the energy is generated by the teacher as performer or entertainer and the students as receptors. The format in such an environment will therefore tend to be dominated by the transfer of large amounts of information in highly structured lecture and large class modes of instruction, i.e., by professing. This represents one of the fundamental differences between American legal education and that done in other areas of university instruction, including U. S. universities that do not have to follow this approach but often do.

 

Timing Is Everything

 

In any event, the transfer of information in large bundles, with state-of-the-art expertise, and economic efficiency in terms of the number of teachers required per student are all appropriate educational elements when applied within their fields of greatest usefulness as determined by educational goals and the sophistication and experience of the participating students. I will, for example, always have very positive memories of Professor Irving Younger’s lectures on evidence and trials that I experienced at the National Institute for Trial Advocacy in Boulder, Colorado. Younger enthralled several hundred young lawyers night after night and I used the lessons learned from his lectures in my own teaching for years to come. But I and the other attendees had already graduated from law school and had at least three years of legal experience. I had represented hundreds of clients in a diverse range of cases and disputes and conducted numerous trials and other court and administrative activities. In other words, my tabula rasa was not blank, nor was those of other NITA participants.

 

This offers a critical insight into the issue of the point in time when educational experiences can be most beneficial. The Younger lectures helped a highly motivated and sophisticated group of people integrate a diverse bundle of experience at a point in time when we knew enough about what we needed to appreciate lessons from a master lecturer. Few law students possess these attributes because there are limits to the experiences they have encountered. When we seek to address the issue of the kinds of experiences law students should be provided during their current legal education aimed at obtaining a Juris Doctor degree we should simultaneously consider whether a reasonably substantial part of the solution in the areas of skills and values lies outside the schools and with the responsibility of the bench, bar and employers to create instructional mechanisms that build on the experiences and professional needs of lawyers in the first three to five years of their careers.

 

Socrates was Not a Professor

 

There is a structural deficiency in the law schools’ approach that inevitably relegates the Socratic method to achieving less than its full effect. A central deficiency involves scale. The problem is that in contrast to the Socratic ideal of personal illumination and growth the large-scale educational format used in virtually every American law school in law students’ first year of learning bears scant relationship to the method we understand to have actually been used by Socrates. The point is that while traditional methods of teaching such as powerful and/or insightful lectures to large groups have great utility in appropriate settings, they are not the exclusive or the best methodology for facilitating learning in other contexts. The listeners’ experience and ability to understand what is being said in context are important determinants of the utility of the method or mix of methods the teacher selects. Along with this goes the critical issue of timing as to when the educational experience is being offered. From the beginning of my teaching career it has struck me that large classes and lectures are not the best methods in the extremely challenging first year of a law student’s legal education, at least when they are considered to be the more or less exclusive approach. While in the abstract the traditional first year law teaching methodology might be claimed to apply the Socratic method it does so in a context foreign to the individualized and interactive Socratic culture that appears to have characterized that peripatetic teacher’s mode of instructing.

 

The First Year Is the Most Important

 

If the critical foundation of a law student’s understanding of the analytic and decision making processes said to form the basis for a lawyer’s performance are to be developed in the first year of the educational experience—and if that process requires deep immersion in the subject matter and method and frequent interaction with the “Socratic” teacher—then it is fair to conclude that the structure of the American law school is turned upside down in terms of the scale of classes in the first year compared to the upper levels. The skewed structure and sequencing of the American law school curriculum exists not to serve the best interests of the vast majority of students who enroll in law school expecting to learn the essential skills and values of lawyers but of largely esoteric law faculty who are pursuing their own preferences and agendas thinly masked by the claims to scholarship and intellectual integrity.

 

The deficiency in the typical American law school class in the first year of instruction relates to several factors. These include how the methodology is applied, the size of the class, and the continual pressures of course coverage that generate an inexorable rhythm and compelling need for the teacher to move on.   At least equally important are the infrequency of direct student participation in the interactive dialogue and the degree of vicariousness of the student experience. Even if a teacher is skilled in the Socratic technique–which can be a very interactive and dynamic device by which to facilitate learning–the large numbers of students in first year law courses means that most students are passive observers most of the time. In some classes some students are passive observers all the time and never engage with the Socratic inquisitor and facilitator. When this occurs the students are not actively engaged in the learning process even though it is this active participation that is at the center of the most effective learning.

 

The size of classes in the first year creates a critical constraint on the teacher’s ability to consistently apply active learning methods. The large class structure that still dominates the law schools was not chosen primarily for pedagogical reasons. Law schools needed to teach significant numbers of students inexpensively so that universities could make money. [4] Such economic compulsions are fully understandable and still dominate law schools. The law school structure resulted from 19th century universities’ economic desires that allowed proprietary law schools and lawyers to buy the more prestigious stamp of university legitimacy compared with proprietary schools for profit and apprenticeships. This history has little relationship to a carefully designed educational strategy.

 

The Law Teacher as a Mediator of Experience

 

I want to offer the idea that a central role of the law teacher is the “mediation of experience.”   Part of mediating experience is helping our students learn to use their experience to better function within the complex and often harsh terms of reality. But the law teacher faces an immense challenge in attempting to mediate between the terms of reality and the relative innocence of youthful or inexperienced university students who lack the kinds of real-life experiences that benefit most significantly from a skilled teacher’s mediation and guidance in ways that facilitate students’ ability to integrate, enhance and interpret the bodies of raw data generated by the experience. This difficulty is enhanced because there is difficult line between understanding reality and dealing with the cynicism of how functioning systems in the real world operate and the behaviors they demand from participants. One of the hardest parts of being a law teacher is that the legal system is so far below what we want it to be in terms of achieving justice and offering professional quality legal services that we risk becoming cynical when critiquing the conditions of that system.

 

The Special Intensity of Active Learning

 

Engagement, responsibility, and accountability for one’s decisions create a different and more richly textured learning for all participants, bringing the experience to life. It is not that transferring information to large groups of students through lectures does not offer educational utility. Nor am I saying that there is nothing learned in large first year law classes where due to the numbers of students and the compulsion of material coverage most of the students’ contact with an approach such as the Socratic dialogue is comprised of vicarious observations of others under a momentary spotlight on the “hot seat”.

 

Our tendency to use “professing” as a central pedagogical method reflects other factors than a lack of student access to material. Lecture and large class formats offer more controlled and static pedagogical contexts than exist in using more active educational methodologies such as dynamic interaction and dialogue in which we teachers may be exposed as something less than omniscient. It would probably be most educationally useful to offer the large informational classes in the second year of law school after the students have been exposed to the more intense knowledge experiences in the first part of their educational process and have learned the analytic and strategic ways in which law and its people and institutions work. The “active” teacher surrenders a degree of control and distance. This shift in control can be threatening and humbling for both teacher and student because it requires skills of adaptation, recognition and improvisational dialogue that are difficult to master.

 

One of the obstacles to real reform in legal education is the law professoriate themselves. Interactive teaching strategies are difficult, threatening and require skills of listening, perception, “thinking on your feet” and spontaneity. They also benefit from the teacher having had enough experience in the practice of law so as to bring that knowledge to bear in the context of teaching. Mastery of intensely interactive methods requires capabilities similar to improvisational theater and “stand-up comedy”. Not everyone is good at these approaches and to some extent they represent a surrender of direct control over the process of communication. The skills required are more nuanced than for the organized lecture approach to teaching that is largely transfer of information. The safer and more traditional approach is to retain control by “professing” according to a carefully prepared agenda. This leaves little opportunity for student discussion or dialogue.

 

Role-Playing, Observation and Critique

 

One useful instructional method is role-playing. It can be role-playing by the students, and I use student participation role-playing exercises quite often. But there is also law teacher role-playing and demonstration. In my Trial Advocacy and Dispute Resolution courses I often end up attempting to demonstrate appropriate ways of doing something, usually after students have sought to perform that skill themselves. This has the advantage of the students understanding that we law teachers might actually know what we are talking about. It also has the result of showing students that we are far from perfect. I have made mistakes when role-playing and students enjoy bringing that to my attention. But they learn through that process of my mistakes and successes, just as they do through a critique of their own performance and that of fellow students.

 

The methods of critique used in such activities are linked directly to the development of a deeper understanding of analytic, synthetic and strategic thought and application that are at the heart of the idea of “thinking like a lawyer.” Interactive methods of teaching are a central part of legal education aimed at allowing students to internalize the skills and understanding in an individual way. In the U.S. a central element of such courses is an intensive process of critique and analysis between teacher and student. Part of that process requires the law teacher to create the experiences and opportunities for student performance that allow for the possibility of a meaningful critique.

 

Central to the idea of critique is that our ego is exposed. In such a context the person being critiqued tends to be apprehensive and defensive. Critique aimed at enhancing self-awareness and insight is in fact far closer to a Socratic methodology than what occurs in many law school classes that purport to rely on that pedagogical strategy. For the process to be useful a trust relationship must be created between teacher and student. Often this means a one-to-one interaction in which the teacher and student are the sole participants. People communicate differently and less honestly when other people are around. There are a variety of skills involved in critique. The essence of the approach emerges from the understanding that the primary aim is for the teacher to guide the students into a path of principled commitment to living their life as the best lawyer they can be.

 

In this idea of critique, I create instruments of self-evaluation by students. Students have to perform a legal task and in advance of the performance are required to write an analysis of what they will be doing, their goals and how they plan on achieving them. That allows us to see their level of knowledge and clarity of thought prior to action. Then after they perform the task or exercise they must produce another written analysis of what happened. This helps bridge the gap between what they planned and what actually occurred. The evaluation process is sensitive, but as students develop an understanding and degree of trust with each other I can draw them into being comfortable in participating in a shared process of evaluation with other students. They learn from each other’s perspectives. We all know that it is easier to critique others than oneself. With the expanded critique we can all learn even more but it has to be done very carefully and only after a sense of teamwork has been established.

 

In addressing the need for educational reform in American legal education it is nonetheless easy to understand from a financial and staffing perspective why lectures and large classes have dominated law schools. Heavy or even exclusive reliance on this methodology was understandable and necessary in a university world where the students’ notes substituted for non-existent or extremely expensive texts. The presentation of dense masses of otherwise inaccessible knowledge through the lecture medium made complete sense as an efficient method for transmitting large amounts of data to students who otherwise lacked access to the information. The premium in such a context is automatically placed on accurate note taking with the teacher’s role being one of massive, organized information transfer. That is not a justification at this point.

 

All Things With No Teacher

 

I spoke above of the fact that the teacher inevitably creates and imposes a personalized pattern on student perception through choices of subject matter, method, classroom dynamic and role modeling behavior. In the midst of that process we must always keep in mind that our responsibility is to ensure that our students develop their own patterns and self-reliant skill sets so that they are prepared to engage in lives of effective and principled professionals. In The Warrior Lawyer I applied the strategic thought of Sun Tzu and Musashi to the conditions of American law practice.[5] The discipline of strategy provides a methodology that cuts across the barriers of compartmentalized disciplines and uses knowledge of the past and present as the foundation for determining the probabilities and risks involved in actions that still needs to be taken. It resists the confines of disciplines that define, construct and restrict the way we are taught to see the world. Such a comprehensive strategic methodology allows us to more fully comprehend our individual selves and our world. It also enables us to act more effectively in that world. For me this reflects the individual responsibility to go beyond our teachers’ limits to create our own systems and to seek to facilitate this same capability in our own students.

 

Musashi advocated the concept of “all things with no teacher” in A Book of Five Rings. The most important principle is that our overriding goal is to help students take personal responsibility for their own learning, in essence, the responsibility for creating themselves. Musashi’s vision of the best teacher was that “the teacher is as a needle, the disciple is as thread.” The teacher draws the student through the experience and is the student’s facilitator in the creation of a learning environment or “learning tapestry”. The learning environment designed and facilitated by the teacher is a critical element that makes possible the insights students take away from the experience. The fabric used for the learning process and the initial design of the tapestry are selected by the teacher and this is done by using patterns with which that person is familiar. But the teacher’s goal is that the students learn to become the artists and weavers and that they develop the skills, insights and sense of craft required to continue the professional and intellectual project on their own terms, with their values and according to their abilities and characteristics.

 

I have lived without following any particular Way. With the virtue of strategy I practice many arts and abilities–all things with no teacher.[6]

 

It is important to understand that this principle doesn’t mean the teacher is rendered obsolete. It stands for the proposition that intellectual flexibility, adaptability, and the recognition that “all roads” can lead to a productive learning experience are critical elements of the teaching method. This concept supports the goal that students must be taught to accept responsibility for their own learning throughout their life. This includes the proposition that they must seek to grow beyond the teacher in knowledge, skill, and understanding.

 

Teachers share their knowledge and in doing so also inculcate students with concepts that expand the students’ understanding. While a source of knowledge and power, this simultaneously limits students’ ability to see beyond the logic and structure of the teacher’s approach. In other words, the teacher and the material through which the educational message is implemented create a pattern that may have some generalizable meaning but is also the teacher’s individualized and structured cognitive variation on how the experience should be interpreted and understood. As students explore within this pattern they are not only empowered by the interpretation [if it is done well] but limited by the experiences created by the teacher and by the teacher’s own limitations and perspectives in how the offered knowledge, philosophy and experience is to be translated by students. This insight has had significant implications for my own work. I have sought to operate as an educational strategist who seeks to acquire and synthesize experiences that “push the envelope” of my personal and professional limits in the direction of “all things with no teacher” in my own life.

 

The driving force behind this view of pedagogic responsibility is that no one will be around to hold students’ hands after they graduate and begin law practice. While we teachers are necessary parts of the students’ developmental process we will not be around after they graduate and enter the profession. Both the quality of their professionalism as a lawyer and the need to protect their clients’ wellbeing require that students accept the responsibility of independent thinking and action. This means they must be able to apply their minds and skills to solve their clients’ problems. Otherwise they will at best be mediocre professionals and at worst betrayers of people who agree to place their fate in the lawyers’ hands.

 

 

 

 

 

 

[1] Keynes notes that academics have a tendency to become “academic scribblers” who have few original thoughts of their own after the early years of their careers. See, John Maynard Keynes, The General Theory of Employment, Interest and Money 383, 384 (Harcourt, Brace & Co. 1935). Richard Hofstadter makes much the same observation in stating that intellectuals often live off a “frozen store of ideas.” R. Hofstadter, Anti-Intellectualism in American Life (1965).

[2]One of the reasons orthodoxy possesses such power is suggested in Peter Berger, Invitation to Sociology: A Humanistic Perspective (1963). Berger observes: “[M]ost of the time we ourselves desire just that which society expects of us. We want to obey the rules. We want the parts that society has assigned to us. 93. Berger adds: “Institutions carry within them a principle of inertia, perhaps founded ultimately on the hard rock of human stupidity.” at 68.

[3] Maxine Greene, Teacher as Stranger 72 (1973).

[4] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983).

[5] David Barnhizer, The Warrior Lawyer: Powerful Strategies for Winning Legal Battles (Transnational 1997).

[6] Musashi, A Book of Five Rings.

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