CELL Blog | Center for Engaged Learning in the Law

Dear friends, I stumbled today on a glorious revelation – like, the kind they had way back when God Himself would make it all windy on mountains and stuff and then appear in a cloud and scare the living daylights out of you (I’m pretty sure I just fused two different stories from two different Testaments there, but you get the drift).

Friends, this revelation I’m about to share is earth-shattering. It’s iconoclastic. It’s unfathomable in this day and age. It could bring the downfall of humanity as we know it, so I beg you: tread carefully into what you are about to read.

The revelation is this:

I get more work done… when I turn the internet…

OFF.

One of the aspects of law study I most enjoy is the nature and importance of words and phrases. As a lawyer and a teacher, I am continually reminded of the import a word or phrase has in the context of an analysis, argument or discussion. Although my students could not tolerate it, I could spend many happy class hours dissecting the phrases “traditional notions of fair play and substantial justice” and “purposeful availment” as I hold those phrases to have the same import in my discipline as my Shakespeare professor held “out damn spot” to have in Shakespearean drama.Despite our fondness for the weight of words, I suggest we have overlooked the import and implications of a phrase we use freely as legal educators. Paul Bergman’s May 21st CELL posting, “Thinking Like a Lawyer”, prompted me to rethink that traditional phrase used most often to promote the intellectual distinction of legal education. When a law student has learned to “think like a lawyer”, he has graduated to the next level of intellectual ability. As Professor Bergman suggests, when he thinks like a lawyer, a student has transcended the ability to read rules and has acquired an understanding that allows him to make legal arguments based what a case “stands for.”

This “thinking like a lawyer” concept is difficult to explain and I think we all, like Bergman, have struggled to describe to students the intellectual exercise enveloped in this phrase. However, how many of us have considered the phrase itself as part of the communication problem.

I met a law faculty colleague last summer at the Institute for Law Teaching conference in Boston. She is faculty at a Canadian law school with a student population that includes a large percentage of aboriginal students. After participating in a discussion on teaching students to “think like a lawyer” she remarked to me that this phrase lent nothing to discussions with her aboriginal students. Those students viewed the phrase as a suggestion they should become more white, more like the traditional picture of a lawyer, to succeed in law school and in the profession.

This phrase is best known as part of a statement made by the fictional Professor Kingsfield to his first year Harvard Law students: “you come in here with a skull full of mush, and, if you survive, you leave thinking like a lawyer.” Kingsfield’s words come from the novel “The Paper Chase” by John Jay Osborn, a 1970 graduate of the Harvard Law School. Although the exact origin of the phrase before Kingsfield and Osborn is undocumented, the idea of a method of thinking unique to lawyers roots itself in the teachings and methods of Christopher Columbus Langdell, the ubiquitous Dean of Harvard Law School in the late nineteenth and early twentieth centuries. Langdell essentially created the study of law through his development of the case method, elevating law study to the level of a science, comparable to the study of medicine and other physical sciences. Langdell viewed the law library as a large laboratory where students work to develop themselves as learned intellectuals – elites. In Langdell’s time and for many years following, law school was a world of study and intellectual pursuit that belonged exclusively to privileged white males.

I teach now in a private southern University and we struggle to recruit and retain minority students. As a faculty, we are aligned in our desire to create a diverse student and faculty environment and we acknowledge the importance of diverse ideas in the academy of legal study. However, despite our best efforts, I wonder sometimes if we are missing the mark as we set our sites on the text and not the sub-text of our situation.

Recently, a minority student was talking with me about some of his law school experiences. He was struggling with how a black man would fit into the apparently white world of the legal profession. He commented that if “thinking like a lawyer” meant thinking like a middle-aged white man, he was not sure he really wanted any part of it. The phrase suggested to him also a picture of an elite, white, male world where the privileged prevailed.

Honestly, the phrase suggests the same to me. I cannot forget that the elite idea of an intellectual club for legal thinkers predates any time when I would have been allowed to attend law school or accepted as a legal professional. If we want to introduce our students to the world we value, the world of reading and understanding the law, perhaps we should reconsider the label we have placed upon the very goal of our guidance. What we really want students to do is to engage in learning the law for their own goals, not ours. We want students to find a sense of themselves in law school, as individual intellectuals and professionals, not to convert themselves to better match the idea of a lawyer. When we phrase their goal as we have heard it, as it has always been phrased, we are cutting them off from themselves and from a vision of themselves in the new context of law.

Thus, I have resolved to bury the phrase “thinking like a lawyer.” This comment will serve as its eulogy and as a public promise to my students that I will examine my words carefully as I stand before them advocating diversity and learning. I will still endeavor to guide students, as Professor Bergman suggests, to look at what a case or ruling stands for, then understand the role the law’s particular phrases and words play in the arguments lawyers make for their clients. I will try, however, to teach students to think as themselves … only better.

Steven Friedland
Professor of Law, Elon University, Greensboro, NC

Steven Friedland comes to Elon from Nova Southeastern University (NSU), Ft. Lauderdale, Fla., where he has been a professor of law for 20 years. At NSU he was awarded various teaching honors, including several law school “teacher of the year” awards and one university-wide honor. He has taught at law schools across the southeast, including the University of Florida, the University of Georgia, Georgia State University and the University of Miami. While in practice, he served as an Assistant U.S. Attorney for the District of Columbia. A co-author of two books published by Carolina Academic Press, “Techniques For Teaching Law” and “Teaching the Law School Curriculum,” he is a national leader and frequent speaker and consultant on improving law school teaching, including the establishment of law schools in Japan. He is on the Board of Advisors for the Institute for Law School Teaching and has directed NSU’s Guardian Ad Litem and Street Law programs. Friedland has a bachelor’s degree from the State University of New York at Binghamton, a juris doctor from Harvard Law School, and a master of laws and a doctor of jurisprudence degree from Columbia Law School, where he was also a Dollard Fellow in Law, Medicine and Psychiatry.

Michael Hunter Schwartz
Washburn University School of Law
Director of Ex-L, Professor of Law
B.A., Mass Communications, University of California, Berkeley, 1984
J.D., University of California, Hastings College of the Law, 1987

Professor Schwartz has been teaching law full-time since 1991. He previously taught at Western State University College of Law and at Charleston School of Law. Before becoming a law professor, Professor Schwartz practiced in the areas of contract law, construction law, insurance law and entertainment law with two, large California-based law firms.

Professor Schwartz possesses particular expertise in the fields of law school teaching, assessment of legal education and law student learning. He has authored two books designed to help students succeed in law school, on the bar exam and in law practice, each of which includes a scholarly teacher’s manual and both of which have been adopted at multiple law schools. He also has written two law review articles and four shorter works addressing various topics relating to law school teaching and learning, and he is on the Steering Committee for and is a contributing author to the Clinical Legal Education Association’s “Best Practices for Legal Education” Project. Professor Schwartz has delivered presentations on teaching and learning topics at conferences sponsored by the International Society for the Scholarship of Teaching and Learning, the American Association of Law Schools, the Center for Computer-Assisted Legal Instruction, the Institute for Law School Teaching, and the Association of Legal Writing Directors. In addition, he has delivered law teaching and learning presentations as an invited speaker to the law faculties at Hastings College of the Law, Santa Clara University School of Law, Mercer University School of Law, John Marshall Law School (Atlanta), The John Marshall Law School (Chicago), Albany Law School, Southern New England School of Law and University of District of Columbia School of Law. At Albany and at John Marshall in Chicago, in addition to delivering presentations, Professor Schwartz served as a consultant on teaching; he visited classes and authored written reports addressing his observations. Professor Schwartz also has consulted with the University of Denver School of Law and Hamline University School of Law on the development of their academic support programs.

Professor Schwartz is serving as Chair of the American Association of Law Schools (AALS) Balance in Legal Education Section (formerly Humanizing Legal Education Section) in 2008.

Gerald Hess
B.S., University of Wisconsin, 1976
J.D., University of Wisconsin Law School, 1982. Order of the Coif

Professor Hess has taught at Gonzaga University School of Law since 1988. Professor Hess founded the Institute for Law School Teaching in 1991 and was its director until 2004. He has served as a co-editor of The Law Teacher, as a member of the Advisory Committee for the Journal of Legal Education, and as an inaugural member of the editorial board of the Canadian Legal Education Annual Review.

Professor Hess is a co-author and co-editor of two books on teaching and learning in law school: Techniques for Teaching Law and Teaching the Law School Curriculum. He co-produced two videotapes and accompanying faculty development materials: Principles for Enhancing Legal Education and Teach to the Whole Class: Barriers and Pathways to Learning. He has published articles in the areas of commercial law, civil procedure, environmental law, and teaching and learning in law school.

Professor Hess is a frequent speaker at national conferences about legal education. He conducts workshops on law teaching at law schools in the United States, Canada, and Japan. Professor Hess has been the chair of the AALS Teaching Methods Section and is a faculty member and educational consultant at the National Judicial College.

Before attending law school, Professor Hess taught wonderful and challenging children in grades 2, 4, and 5. He is married to Dr. Layne Stromwall and has two children, Mike and Amanda.

Barbara Glesner Fines
Ruby M. Hulen Professor of Law B.Ph., J.D., LL.M.
University of Missouri-Kansas City School of Law

Professor Glesner Fines has been on the faculty of UMKC Law School since 1986. She teaches Professional Responsibility, Family Law, Ethical Issues in the Representation of Families, Seminar in Family Violence, and Remedies. She co-directs the Child and Family Services Clinic, Family Court Clerkship, Legal Aid Clinic, and the Guardian ad Litem Workshop. She is the director of the Structured Study Group program. Course and resource pages for Professor Glesner Fines’ classes and for the Teaching & Learning Law project can be found on her Home Page.

Professor Glesner Fines received her Masters of Law Degree from Yale University in 1986 and her J.D. (cum laude) from the University of Wisconsin Law School in 1983. She holds a Bachelors of Philosophy degree from Thomas Jefferson College of Grand Valley State University (1980), and was selected as the distinguished alumna in 1998. Prior to joining the faculty at UMKC, Professor Glesner Fines taught at the law schools of the University of Oklahoma and the University of Cincinnati.

Professor Glesner Fines’ research interests focus on professional responsibility issues and family law, as well as aspects of legal education. She is President of the Center for Computer-Assisted Legal Instruction (CALI) and serves on the advisory board for the Institute for Law School Teaching. She also hosts the website for the AALS Section on Academic Support.

Kerri L. Sigler
Elon University School of Law, Greensboro, N.C.

Kerri is currently a second-year law student concentrating in Litigation. She is Chair of the Academic Committee of the International Law Society; Chair of the Arabic Language Group; member of Moot Court’s Seton Hall Team; a Legal Research & Writing Scholar; winner of Best Comprehensive Performance in Contracts I; winner of SBA’s “Most Likely to Bill 100 Hours In A Day” award; a teaching assistant; a 1L mentor; and a member of the law school softball team. Law school is the fulfillment of a lifelong dream for Kerri, which inspires her belief that the experience should be both educational and ridiculously fun. In her largely non-existent spare time, Kerri enjoys reading, hiking, indoor rock climbing, and watching football. GO STEELERS!!!

This blog is intended to contribute to the discourse on teaching and learning in law, from the inspirational to the whimsical, to the mechanical.  It includes the varying perspectives of teachers, administrators, learners and practicioners.  We are searching for a theme that will reflect the professionalism and quality of the teaching and learning that currently occurs at the law school. It contains posts from multiple authors addressing such topics as best practives, assessment in legal education, course design and devleopment, student preparation, faculty expectations, etc.

Ok, guilty as charged – it is really easy to critique others’ performances. When a student speaks in class, or writes out analysis, my default is to look for what is missing or ineffective – for ways to improve the student’s work. We do this a lot in law school. But what if we shifted this approach?

My bet is that world-class athletes don’t get better by watching novices do their sport, or by watching others mess up. Sure, they probably review and critique their own performance, and then watch as many outstanding athletes as they can. If I am a mediocre golfer, wouldn’t it be better for me to watch Tiger Woods play than to critique someone at my level?

No question that developing a critical and analytical eye is crucial to improve performance. But perhaps we need to balance this approach with emphasizing good examples and noticing what people are doing right. A clinical colleague tells me about lots of videos that can be used to teach clinical skills. But most of these movies show bad examples. Turns out, it is hard to find good examples. As my colleague pointed out, it is really scary to put yourself out there as a good example. What if people disagreed? What if colleagues and students found flaws in your performance?

This brings up a question. If we the educators have a hard time putting together a video or sample document, how hard it is for the student? Perhaps we might need to adjust our expectations a tad.

Over the course of my career in legal education, I’ve developed positive relationships with colleagues at other schools. Several of my distant colleagues have become my friends. But for purposes of this post, my focus is on my professional relationship with them as teachers.

I speak monthly or so with several law teachers from around the US and Canada. My “teaching partners” teach a wide variety of courses – first-year requirements, upper level electives, clinics, legal writing, and seminars.

My teaching partners facilitate my professional development in several ways.

•    First, each of my “teaching partners” is a dedicated, thoughtful legal educator. In every conversation with them, I get insight into teaching and learning.
•    Second, since they teach at other schools, they often have a perspective that is shaped by the culture at their schools, which may be quite different from the culture at my school. Their perspectives give me a broader view of legal education.
•    Third, because they are not at my school, I can whine and vent in ways I may not want to do with colleagues at my school.
•    Fourth, when I hear about their interactions with their students and colleagues, I learn more about my relationships at my school.
•    Fifth, we help one another brainstorm potential responses to the professional challenges come with being a teacher.
•    Sixth, they offer generous feedback on my scholarship about teaching and learning.
•    Seventh, they have become my co-authors for books and articles on legal education and my co-presenters in faculty development activities.

I could go on. Suffice it to say that my teaching partners are highlights of my professional life.

For those committed to continuous improvement in teaching, like-minded colleagues at other schools can be a wonderful asset. Our willingness to connect and support one another on a regular basis is a gift we give and receive.

The Center for Engaged Learning in the Law (CELL) plans to publish a short book on law teaching and learning this fall with the Carolina Academic Press. The goal of the book is to provide a handy and concise reference guide from the perspectives of practitioners, students and teachers. While much of the book will be taken from posts on this blog, additional contributions are sought. Comments on the following topics are especially desired:

I.    Before Class Begins – Course “Under Construction”
a.    Syllabus
b.    Materials
c.    Resources – Phone Numbers, Web Sites, Books and People
d.    Evaluation
e.    What Students Say
f.    What Practitioners Say
g.    “To Do” Lists

II. During Class
A.    Communicating With Your Mouth Shut
a.    Physical Layout
b.    Other Mechanical Issues
B.    Communicating With Your Mouth Open:Questioning Techniques
C.    Innovation
D.    What Students Say: Do’s and Don’t’s
E.    What Practitioners Say: Do’s and Don’t’s

III.    After and Outside Class
h.    Mobile learning
i.    Other learning
j.    Innovations
k.    What Students Say
l.    What Practitioners Say
m.    Technology Tips and Resources

IV. Inspiration

V. What Practitioners Say Law Schools Should and Should Not Do

VI. Helpful Resources: Helpful Law Teaching Web Sites; and
Helpful Books & Articles

Comments should range from one sentence to one page and can be submitted as a comment to this post or to sfriedland2@elon.edu or jlaw@elon.edu. You will be notified by September 1st if your contribution will become part of the book.

thanks,

Steve Friedland

Like many entering law students today, I came to law school with the understanding that its purpose was not to teach me rules, but to teach me how to think like a lawyer. This puzzled me because we seemed to spend a lot of class (and exam) time on rules. And I was never sure if or when I was thinking like a lawyer.

If you are or are about to be a 1L and you share my understanding of the purpose of law school, I hope what I’m about to say here is helpful. You do have to learn a lot of rules, but knowing rules is not an end in itself. You learn rules so that you can make arguments about their application to novel factual situations, and the process of making such arguments (in the classroom and on exams) is what you may consider thinking like a lawyer.

Because rules are helpful to you only insofar as you can use them to support or undermine their application to new factual contexts, you should also be suspicious about the advice to identify an opinion’s “holding.” All holdings are contingent, because their meaning depends on how they are interpreted in future cases. In other words, what a case “stands for” is a matter of argument, and an appellate court judge can no more forever determine what a case “stands for” than an author or a painter can forever determine how readers or viewers will interpret their works.

I hope that this general perspective on what law school is all about, particularly for 1L’s, is helpful to you.

There’s this weird worry I get as a teacher – that I am making things too easy. Fortunately for my students, I chant the mantra of a senior colleague: “you can’t make it too easy.”

So true. Each time I write problems or tests, I worry that students will lose all respect for me. That they will resent studying so hard and then being tested only on the easy stuff. I will be revealed to be an intellectual lightweight, a complete law professor fraud.

And then I remember the mantra. If I were a student taking a test, would I really be mad if the test were straightforward and easy? Answer: No. I would be relieved and happy. I would be ok being able to leave an exam early.

To get a reality check, I have a colleague read the exam. How long does it take just to read the test? What distracted you? What was confusing about the call of the question?

This spring, students had spent a lot of time working on problems – essentially a series of mini essays, similar to those on an exam. I had provided lots of sample answers. The exam was open book, open everything. I worried. Too easy?

I gave the exam to my colleague. There were 3 essay questions, yes, all with subparts. My colleague said it was not too easy. She suggested that the first question looked basic, the second a little more challenging, the third more complex. I agreed. I stopped worrying.

After the exam, I ran into some of the students. Another reality check. Too easy? No, they said. In fact, it was hard to complete the exam within the three hours. These were bright bright students, the ones who soared in all their courses. It’s hard to make an exam too easy. Even when we think it is simple, we forget that we have years of experience and legal training that gives us such an edge over even the most studious 3L.

Too easy? Not!

The Problem:

Two-hundred students sign duly executed contracts with Spiral University of Rhetorical and Rancorous Engagement in All [but the] Law (hereinafter “SURREAL”) whereby they agree to pay (or finance) an astronomical sum of money at 6% interest over 3 years in exchange for a legal education, parceled out in 2-3 hour courses taught by a variety excellent professors with excellent pedigrees, excellent professors without excellent pedigrees, and professors with only excellent pedigrees. SURREAL assures these students, in writing, they will be well-prepared to pass their courses and the Bar exam throughout these 3 years, thus constituting the required consideration for its part of this contract.

Of the 200 students having signed contracts with SURREAL, 35 choose an elective course called “Procedural Adventures In Neverland” (hereinafter “PAIN”) and study diligently, often compiling 55-page outlines complete with tables of contents; translating hundreds of pages of impenetrable Supreme Court Sanskrit; creating PowerPoint slides to rival the gods; and actually paying more attention to the professor (who falls into Category Three Pedigree, above) than to the most current Scrabble game. These 35 students were told the course would be graded on the basis of a single, final exam. This exam was advertised in writing in the syllabus, but only after two weeks of the course had already gone by. Still, the 35 students remained in PAIN, prepared to take this final examination, having studied PAIN diligently and worked hard to understand the basics, as-taught by the professor (who was, they were told, an expert in PAIN). Prior to the exam, the professor assured the students the exam would cover topics taught throughout PAIN, and the students prepared to be tested in PAIN accordingly.

Upon receiving the exam, the 35 students of PAIN realized they had either been misled or that they had received the wrong examination. None of the 35 students recognized the call of the question, nor did any of them have any idea what the question was asking them to do. None of the words used in the calls of any of the questions bore any relationship to PAIN although, ironically, the questions did manage to illicit a lot of agony, despair, hopelessness, panic, and even prayer (I’m told Jesus just laughed and mumbled something about having had nothing to do with that convoluted pile of _____). None of the outlines of any of the students were of any use to any of them, nor was the textbook, nor any of the cases, nor any of the facts in the 2-page fact pattern preceding the question itself. As one student aptly analogized afterward, “It was like being trained to be a mechanic – learning how to fix the problems of a car that was already right in front of you based on general principles of car maintenance – and then showing up for your mechanic’s exam and being asked not to fix a car, but rather to design and build one from scratch. Obviously, the mechanic would fail, and obviously, so did all of us.”

Your Task:

You are a law student (or law professor) having already taken Contracts I and II. Thirty-five students come to you telling you this tale of SURREAL PAIN, asking for your advice. Prepare a blog comment in the space provided below outlining the following:

(1) whether SURREAL is liable for an affirmative misrepresentation of PAIN;

(2) whether the SURREAL professor of the course is liable for an affirmative misrepresentation of PAIN;

(3) whether the SURREAL contract was unconscionable on the basis of PAIN;

(4) whether the delay in receiving the PAIN syllabus constitutes a breach of the SURREAL contract, or any part thereof, or whether the students remaining in the course after having received said syllabus 2 weeks late constitutes implied acceptance of PAIN’s terms on their parts;

(5) whether, under the UCC, receipt of a final exam bearing no resemblance to the one for which the students contracted constituted a breach of the contract without a corresponding letter of accommodation, or whether the taking of the exam in spite of this fact constituted the acceptance of non-conforming goods via counter-offer by the students

As you write, bear in mind to following quote by someone who, granted, did not go to an American Ivy League school, but did go to Oxford, which is way better than American Ivy League schools anyway. In considering this quote, please discuss its relationship to the Separation of Powers Doctrine and to the Doctrine of SURREAL PAIN.

“Pain is an event. It happens to you, and you deal with it whatever way you can.”

– Hugh Laurie, The Gun Seller

Yes, indeed, Hugh. Yes, indeed. PAIN is, indeed, an event, and you deal with it whatever way you can. Like, for instance, by blogging… or by failing miserably.

…………SPLAT!