The Problem with Class Discussions

gordonhylton1In her recent post, “Is Anybody Out There,” Marquette law student student Tiffany Winter bemoaned the fact that few of her Marquette Law School classes have featured meaningful class discussions. In a comment to Tiffany’s post, Professor David Papke suggested that at least part of the problem may lie with the “pedagogical starting point of most law professors.” By this he means that law professors typically attempt to convey to students their own substantial knowledge of the subject matter rather than leading them, to use Papke’s phrase, “on a voyage of discovery.”

I basically agree with David Papke, although I have a slightly different take on the sources of the problem (i., e., the lack of vibrant in-class discussions). Like Professor Papke, I entered law teaching with a background in Arts & Sciences teaching, and at the outset of my career more than twenty years ago, I resolved not to duplicate the teaching styles to which I had been exposed in law school.

At the time, it seemed to me that there were basically two types of law teachers.One type sought to impart a particular understanding of the subject matter of the course through a highly manipulative use of questions called the “Socratic Method.”(As my friend Stavros Macrakis once put it, “You are led around by the nose until you say exactly what the questioner wants you to say.”) The other type possessed a strong, ideologically-based notion what the law of a particular area should be, and class time was devoted to illustrating the correctness of the professor’s vision.Meaningful class discussions occasionally occurred in both formats but neither style of teaching required them or necessarily encouraged them.

When I was in law school, I particularly enjoyed taking classes in legal history because those courses did offer a less authoritative approach to law and often lent themselves to extremely valuable class discussions. My legal history professors at the University of Virginia–Ted White, Chuck McCurdy, and Steve Presser–genuinely seemed interested in learning what their students thought about the material being studied. I did not have this feeling about any of my other classes.

As it turned out, I have been much more of a “socratic” style teacher than I would have ever predicted at the start of my law teaching career. That is partly because I have come to appreciate the way in which the method does in fact sharpen the analytical skills of students. (That it also turns them into aggressive interrogators who terrorize their non-lawyer, non-law student acquaintances is an unfortunate side-effect.)

But it is also because I have learned that the discussion model of legal education works only when students come to class thoroughly prepared. Modern casebooks are really textbooks, and every section contains a substantial amount of substantive materials that can be learned through careful reading. If every student came to class having carefully studied the assigned materials, the class could be devoted to a meaningful group discussion.

Unfortunately, I have found at Marquette and elsewhere that an instructor cannot assume that students have done this, particularly in upper level classes. Most students either scan the assignment or don’t read it at all, and come to class expecting the professor to identify for them what is really important in the assignment. It is hard to have a meaningful discussion of the persuasiveness of Justice Blackmun’s dissenting opinion in Kaiser Aetna v. United States when only a handful of students in the class can remember without checking what the case is about.

The problem is not simply one of student indifference or a matter of student priorities. Law courses have become laden down with detail. Forty years ago, the typical three-year law course consisted of 30 three-credit courses, 29 of which were essentially doctrinal. (Usually there was a 3-credit trial practice course taught in the third year.)

With that many courses devoted to just covering the substance of the law, a professor could maintain a slower pace, cover less, and provide more opportunity for discussion. Property, Torts, and Trusts and Estates are the three law school courses that I have taught most frequently during my career as a law professor. When I was in law school in the mid-1970’s, all three were year-long courses. However, for most of my teaching career, all three have been taught as one semester courses. The range of topics is slightly more narrow in the one-semester courses, but only slightly. In Property and T&E I cover all the topics that I would cover in a year long course and in Torts, I omit only a small number of subject areas. I also use the same casebook that I would use were I offering the course over a full-year. As a result, assignments are much longer and much more material must be “covered” in each class.

This is clearly a phenomenon not limited to the courses that I teach. The incorporation of courses on alternative dispute resolution and industry specialty courses like sports law and health law into the curriculum, the expansion of legal writing, and the increase in clinical opportunities have significantly reduced the number of traditional law courses that students take during law school, which has created pressure for the existing doctrinal courses to cover more ground than ever before.

Understandably, heavier work loads encourage students to embrace the “we go to class so that the professor will tell what we really need to know” view of legal education. Professors, sensing that students are not learning what they should from the assignments, find that lecturing on the assigned material does in fact help correct the problem. Once a critical mass of students embrace this view of classes, those students who show an interest in discussing the broader policy or jurisprudential aspects of the assigned material often appear to their peers as getting in the way of learning.

But in the end, I agree with Tiffany Winter. Classes involving informed, lively discussions are the best classes, and instructors should do what it takes to assure that such discussions occur.

This Post Has 5 Comments

  1. Travis Miller

    It is an interesting question. However, the fact is not that upper level students fail to read or identify the key points in cases. To the contrary, by the time a law student reaches an upper level, they have realized that the key to the course is understanding the professor’s interpretation of the area of legal study.

    This is a valuable skill, as it teaches students to direct legal analysis to the reader. However, in such instances, a meaningful class discussion will always be muted. There is a reason for this. If the final outcome in the form of the grade is based solely on the demonstration of the groups average understanding of the point of view of the professor, the rewarded value of the course is in the ability to absorb that individuals perspective and present it back in a manner that that individual deems satisfactory. Just an observation.

  2. David R. Papke

    Like Gordon Hylton and Bruce Boyden, I benefited greatly from taking graduate-level history and legal history classes at roughly the same time I was in law school. The legal historians with whom I studied included Robert Cover and Robert Stevens. Both were superb instructors, and, among other things, their efforts launched the thought that it might be rewarding to pursue a career as an academic. It was also valuable to contrast what happened in my conventional law school classes with what what was going on in the history classes. As Bruce Boyden suggested in his recent post, the legal history classes were much more interpretative in character and blessed with rich, animated, and genuine discussions.

    I agree with Gordon Hylton that the drive for “coverage” is one of the factors that limits discussion in contemporary law school classes. Professors feel a responsibility to “cover” as much as possible. Students want professors to “cover” as much of the impossibly long casebooks as possible. Discussion is one of the casualties. But might the drive for coverage be a specialized example of the ethos of quantitative consumption? Might the thinking be that the more laws I serve up or acquire, the better things are? The actual number of laws that have to be taught or learned in law school, after all, is arbitrary. Coverage is never complete, and it might be more valuable in a true educational sense to think about a smaller number of laws in depth and pause to compare thoughts on them using – believe it or not – discussion!

  3. Gordon Hylton

    In every state but Wisconsin, the pressure to cover as much material as possible in conventional law school courses can be traced directly to the bar examination. For better or worse, we are a profession that, again, outside of Wisconsin, views knowledge of the law as the primary prerequisite to becoming a licensed lawyer.

    No one was ever asked their opinion as to what the law should be on a bar examination.

  4. Irene Calboli

    I believe class discussion varies in law school depending on the type of class. Seminars, workshops, and upper-level classes (those classes where students should, or are supposed to, know the foundation of the topic) have often great and insighful class discussion, or at least this is my experience. First-year courses and survey classes often have less, due to the fact that the basics have to be learned in the class, and also due to the number of students and the limited time of each session. Professors are, however, like orchestra directors and have to set the tone of the class, including the discussion (sometime I am a nose-leader, while other times I just want to have as many different positions expressed on one issuse so students can understand how different the interpretation of one issue can be). Good (and well prepared) participation is a must for class dicussion, and I have the magic power (because of my position) to start it and also somewhat control it (not allowing the same people to talk all the time, and involving those who are less prone to talk by gentle, but firming “cold calling”). Still, as Professor Hylton rightly puts is, the bar examination drives a lot of the law school teaching. I would go even further and say that the (legitimate and important) pressure to find jobs and to practice law well also calls for a good preparation of my students. First we need to give them the black letter law, then we can build a good discussion, which will be based on rules, legal principles, legal strategies, etc.

  5. Thomas Foley

    My unsolicited advice to students disappointed at the dearth of discussion in law school classes is to locate your professor’s office, plant yourself in a chair, and discuss to your heart’s content (within reason: they’re busy too).

    I was always enormously gratified and enriched by the faculty’s willingness to engage outside of the class, as well as amazed at how deserted of students their office blocks usually were.

    I won’t mention any names (because if I started to, this comment would get very, very long) but in my time, every instructor was unfailingly more than accommodating when it came to elucidating or expanding on the material presented in class.

    Remember, the professors teach their areas of interest, meaning they’re very interested in those areas, and they’re also very generous about sharing their knowledge and experience. So go get your money’s worth.

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