Law School Discussion

for those that have started law school

Re: for those that have started law school
« Reply #50 on: October 08, 2006, 09:11:53 AM »
Yeah, but really, they need to do more than just ask questions. Asking the questions just reinforces the very notion that it -- what's fair, what's efficient, etc - is common sense. And it just ain't so.

Do you think it makes a difference if they use those questions to break down people's "common sense" reactions to a case with respect to, say, fairness?

It could, if the kids had anything to draw on. The problem is that you have all sorts mixed in -- engineers who've never read Aristotle, economists who wouldn't know a laffer curve if it fondled them, etc. It's no good just asking the question; you have to say, "look, there is something called 'sociology' which complicates the notion of duress; there's something called 'literature' which complicates the idea of narrative; there's something called 'behavioral economics' which complicates the idea of utility; there's something called 'psychology' and something else called 'psychoanalysis' which makes 'mens rea' a troublesome conflict. But they don't do that. Maybe they -- the people who teach -- don't feel confident in their own grasp of these things, or maybe they do and they just don't see their job as doing anything other than getting through the casebook with as little fuss as possible. I'd guess that it's the latter. Raise those issue, and you'd have to deal with legal ed in an entirely different way; none of this business of pretending that holdings can be reconciled in any systematic way (this is, I think, a mistake that all metatheories, including, ironically, CLS, make).

A better approach would be to treat very, very few cases and explore the decision-making process in each of them. Look at the trial transcript, including the procedural motions to include/exclude certain evidence, a biography of the appellate judge, the kinds of narrative strategies used at the appellate level, what happened to the plaintiff and defendant after the resolution of the case, etc -- and back this up with a plausible multidisciplinary approach. Law is violence, law schools should take the law seriously. Instead, what they do -- what they seem to be engineered to do -- is to encourage students to both treat it as trivial AND to respect it. You've got to admire that they pull it off so well, but it doesn't exactly advance the cause of justice.

I think you've hit the nail on the head in terms of the capabilities of the class. While there are some students who do have experience in multiple areas due to multiple majors or varied work experience, many have a limited field of knowledge related strictly to their major and limited to no real-world experience from which to draw. As much as professors may want to try to ask more esoteric questions, in many cases, the students just don't respond. Lots of my professors will just make you answer something, but if the class is just not getting it, then the prof just has to move on.

Alamo

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Re: for those that have started law school
« Reply #51 on: October 08, 2006, 09:56:27 AM »
Yeah, but really, they need to do more than just ask questions. Asking the questions just reinforces the very notion that it -- what's fair, what's efficient, etc - is common sense. And it just ain't so.

Do you think it makes a difference if they use those questions to break down people's "common sense" reactions to a case with respect to, say, fairness?

It could, if the kids had anything to draw on. The problem is that you have all sorts mixed in -- engineers who've never read Aristotle, economists who wouldn't know a laffer curve if it fondled them, etc. It's no good just asking the question; you have to say, "look, there is something called 'sociology' which complicates the notion of duress; there's something called 'literature' which complicates the idea of narrative; there's something called 'behavioral economics' which complicates the idea of utility; there's something called 'psychology' and something else called 'psychoanalysis' which makes 'mens rea' a troublesome conflict. But they don't do that. Maybe they -- the people who teach -- don't feel confident in their own grasp of these things, or maybe they do and they just don't see their job as doing anything other than getting through the casebook with as little fuss as possible. I'd guess that it's the latter. Raise those issue, and you'd have to deal with legal ed in an entirely different way; none of this business of pretending that holdings can be reconciled in any systematic way (this is, I think, a mistake that all metatheories, including, ironically, CLS, make).

A better approach would be to treat very, very few cases and explore the decision-making process in each of them. Look at the trial transcript, including the procedural motions to include/exclude certain evidence, a biography of the appellate judge, the kinds of narrative strategies used at the appellate level, what happened to the plaintiff and defendant after the resolution of the case, etc -- and back this up with a plausible multidisciplinary approach. Law is violence, law schools should take the law seriously. Instead, what they do -- what they seem to be engineered to do -- is to encourage students to both treat it as trivial AND to respect it. You've got to admire that they pull it off so well, but it doesn't exactly advance the cause of justice.

I think you've hit the nail on the head in terms of the capabilities of the class. While there are some students who do have experience in multiple areas due to multiple majors or varied work experience, many have a limited field of knowledge related strictly to their major and limited to no real-world experience from which to draw. As much as professors may want to try to ask more esoteric questions, in many cases, the students just don't respond. Lots of my professors will just make you answer something, but if the class is just not getting it, then the prof just has to move on.

I second the comments on class capabilities, and would add that a number of people, particularly the more linear, engineer-type thinkers wouldn't really get much out of many such discussions and would start zoning out pretty quickly.  Not that it would provide no benefit to them, but if you view the teacher's job in terms of maximizing pedagogical utility for the greatest number of students (I do, I'd expect that many may not view it so simplistically), discussion of this must necessarily be limited in order to cover all of the concepts necessary to build a solid foundation of legal knowledge.

As I understand it, that's pretty much what first year is - the foundation.  After first year, you'll likely get into classes that can expand on what I think are the really interesting questions.  At Yale, I'm sure it'll be a more in-depth experience from the beginning.

Still, it's not like legal ed is the simple memorization of a bunch of facts, and even theories.  Doing the sort of advocacy and counselling that most of us will do in practice, I think it is important to understand the underlying issues behind the principles - otherwise, you'll have trouble even knowing which principles should apply in differing situations.  Teaching students to simply apply rules without thinking of the corresponding reasoning that led to the rule in the first place, which often requires a relevant history lesson, will lead to bad lawyering, and I hope that it's not the way any school teaches.  All holdings may not be reconcilable, but they're certainly not random, nor are they produced in a vacuum.

In looking at each of your disciplines and asking the corresponding deeper questions, I'd say it's varied a lot from question to question.  In crim law, we've spent a lot of time looking at the notions and history that underlie mens rea and differing theories of punishment, (even discussing Foucault for a while).  In terms of literature and narrative, I don't know that I've heard either of those words spoken by a prof since I've been here.  Utility and duress issues have fallen somewhere in between. 

I can't say I agree with your approach to looking at a few cases very closely, unless you'd like for a JD to take 8 years instead of 3; there's simply too much material to really learn everything you need to know and get into that much depth for each case.

redemption

Re: for those that have started law school
« Reply #52 on: October 08, 2006, 10:00:22 AM »

I think you've hit the nail on the head in terms of the capabilities of the class. While there are some students who do have experience in multiple areas due to multiple majors or varied work experience, many have a limited field of knowledge related strictly to their major and limited to no real-world experience from which to draw. As much as professors may want to try to ask more esoteric questions, in many cases, the students just don't respond. Lots of my professors will just make you answer something, but if the class is just not getting it, then the prof just has to move on.

Yeah but. These kids have graduated from high school, graduated from college, and now are going to graduate from law school, all without being taught anything. Why? Because at each stage of their education the people who are supposed to facilitate their education say (or think) that they weren't taught properly before they arrived there. I mean, there are consequences to that. Somebody, at some point, has to say "look, it's kind of important that we don't turn out zombies", and actually help students to become knowledgeable and thoughtful people. When we look across the globe and see those kids in the white caps memorizing and regurgitating the Holy Koran, we are appalled -- "but they need a proper education!". Why are not appalled when older kids, about in graduate education, about to have real clients with real problems, go through exactly the same thing?

Part of the answer, I suppose, is that schools know that real legal ed comes later, in the apprenticeship process. But I really believe that not grounding people (who are paying quite a lot of money) in some basic skills can't be a good thing, and that it can't be made up for in some warehouse doing discovery as a biglaw litigation serf.


Yeah, me.

Re: for those that have started law school
« Reply #53 on: October 08, 2006, 10:02:25 AM »

I think you've hit the nail on the head in terms of the capabilities of the class. While there are some students who do have experience in multiple areas due to multiple majors or varied work experience, many have a limited field of knowledge related strictly to their major and limited to no real-world experience from which to draw. As much as professors may want to try to ask more esoteric questions, in many cases, the students just don't respond. Lots of my professors will just make you answer something, but if the class is just not getting it, then the prof just has to move on.

Yeah but. These kids have graduated from high school, graduated from college, and now are going to graduate from law school, all without being taught anything. Why? Because at each stage of their education the people who are supposed to facilitate their education say (or think) that they weren't taught properly before they arrived there. I mean, there are consequences to that. Somebody, at some point, has to say "look, it's kind of important that we don't turn out zombies", and actually help students to become knowledgeable and thoughtful people. When we look across the globe and see those kids in the white caps memorizing and regurgitating the Holy Koran, we are appalled -- "but they need a proper education!". Why are not appalled when older kids, about in graduate education, about to have real clients with real problems, go through exactly the same thing?

Part of the answer, I suppose, is that schools know that real legal ed comes later, in the apprenticeship process. But I really believe that not grounding people (who are paying quite a lot of money) in some basic skills can't be a good thing, and that it can't be made up for in some warehouse doing discovery as a biglaw litigation serf.

have you considered the possibility that there might in fact be value in turning out zombies?

yes, that's a serious question.

Re: for those that have started law school
« Reply #54 on: October 08, 2006, 10:11:27 AM »

I think you've hit the nail on the head in terms of the capabilities of the class. While there are some students who do have experience in multiple areas due to multiple majors or varied work experience, many have a limited field of knowledge related strictly to their major and limited to no real-world experience from which to draw. As much as professors may want to try to ask more esoteric questions, in many cases, the students just don't respond. Lots of my professors will just make you answer something, but if the class is just not getting it, then the prof just has to move on.

Yeah but. These kids have graduated from high school, graduated from college, and now are going to graduate from law school, all without being taught anything. Why? Because at each stage of their education the people who are supposed to facilitate their education say (or think) that they weren't taught properly before they arrived there. I mean, there are consequences to that. Somebody, at some point, has to say "look, it's kind of important that we don't turn out zombies", and actually help students to become knowledgeable and thoughtful people. When we look across the globe and see those kids in the white caps memorizing and regurgitating the Holy Koran, we are appalled -- "but they need a proper education!". Why are not appalled when older kids, about in graduate education, about to have real clients with real problems, go through exactly the same thing?

Part of the answer, I suppose, is that schools know that real legal ed comes later, in the apprenticeship process. But I really believe that not grounding people (who are paying quite a lot of money) in some basic skills can't be a good thing, and that it can't be made up for in some warehouse doing discovery as a biglaw litigation serf.



I get where you're coming from. I think a big argument at any level of education is that the prior level did not do its job. Where high school and undergrad can at least spend some time remediating, there is a certain level that is assumed in law school that may not actually be there. I do find it appalling that some students seem to completely lack critical thinking skills. My professors do tend to encourage it, but not everyone responds favorably to being asked the more esoteric questions. I think there is a large divide between what happens in school and in the real world, and that also encourages the problem. Law is considering what is happening in the real world, and if you haven't actually had much experience there, considering the nuances and policy decisions probably isn't in your frame of reference.

redemption

Re: for those that have started law school
« Reply #55 on: October 08, 2006, 10:21:59 AM »
I second the comments on class capabilities, and would add that a number of people, particularly the more linear, engineer-type thinkers wouldn't really get much out of many such discussions and would start zoning out pretty quickly.  Not that it would provide no benefit to them, but if you view the teacher's job in terms of maximizing pedagogical utility for the greatest number of students (I do, I'd expect that many may not view it so simplistically), discussion of this must necessarily be limited in order to cover all of the concepts necessary to build a solid foundation of legal knowledge.

As I understand it, that's pretty much what first year is - the foundation.  After first year, you'll likely get into classes that can expand on what I think are the really interesting questions.  At Yale, I'm sure it'll be a more in-depth experience from the beginning.

Still, it's not like legal ed is the simple memorization of a bunch of facts, and even theories.  Doing the sort of advocacy and counselling that most of us will do in practice, I think it is important to understand the underlying issues behind the principles - otherwise, you'll have trouble even knowing which principles should apply in differing situations.  Teaching students to simply apply rules without thinking of the corresponding reasoning that led to the rule in the first place, which often requires a relevant history lesson, will lead to bad lawyering, and I hope that it's not the way any school teaches.  All holdings may not be reconcilable, but they're certainly not random, nor are they produced in a vacuum.

In looking at each of your disciplines and asking the corresponding deeper questions, I'd say it's varied a lot from question to question.  In crim law, we've spent a lot of time looking at the notions and history that underlie mens rea and differing theories of punishment, (even discussing Foucault for a while).  In terms of literature and narrative, I don't know that I've heard either of those words spoken by a prof since I've been here.  Utility and duress issues have fallen somewhere in between. 

I can't say I agree with your approach to looking at a few cases very closely, unless you'd like for a JD to take 8 years instead of 3; there's simply too much material to really learn everything you need to know and get into that much depth for each case.

Aw, hell. You just became exhibit A of what I'm afraid of, Alamo.  :D

redemption

Re: for those that have started law school
« Reply #56 on: October 08, 2006, 10:23:31 AM »

have you considered the possibility that there might in fact be value in turning out zombies?

yes, that's a serious question.

I've considered that angle and more. There's always a benefit to someone; my concern is that it's not to the benefit of the students themselves.


Yeah, me.

Re: for those that have started law school
« Reply #57 on: October 08, 2006, 10:26:13 AM »

have you considered the possibility that there might in fact be value in turning out zombies?

yes, that's a serious question.

I've considered that angle and more. There's always a benefit to someone; my concern is that it's not to the benefit of the students themselves.

you're too altruistic.  most of those students are not you or anyone you know.  screw them.

redemption

Re: for those that have started law school
« Reply #58 on: October 08, 2006, 10:26:49 AM »

I get where you're coming from. I think a big argument at any level of education is that the prior level did not do its job. Where high school and undergrad can at least spend some time remediating, there is a certain level that is assumed in law school that may not actually be there. I do find it appalling that some students seem to completely lack critical thinking skills. My professors do tend to encourage it, but not everyone responds favorably to being asked the more esoteric questions. I think there is a large divide between what happens in school and in the real world, and that also encourages the problem. Law is considering what is happening in the real world, and if you haven't actually had much experience there, considering the nuances and policy decisions probably isn't in your frame of reference.

It's a sad business all around.

redemption

Re: for those that have started law school
« Reply #59 on: October 08, 2006, 10:33:08 AM »

you're too altruistic.  most of those students are not you or anyone you know.  screw them.

I know lots of people, and they're not so different from me. They want to know things, to be able to do things properly. I really believe that. Last year's crowd, for example, had a healthy percentage of people who wanted to help people with law; this year they'll think that they're well on their way to doing so, to being skilled. They'll bandy about "unjust enrichment" and think it means something. Would you want a lawyer like that if you were in trouble? 'course not.

And change your damned name.