MauledAgain

The flip side of the challenge examination is what I call the remediation semester. It’s not something I’ve ever proposed, because it probably would dissatisfy administrators, faculty, and students. It addresses what I perceive to be a set of increasing problems.

Law students arrive on the first day of law school from a diverse array of educational backgrounds, both in terms of quality and in terms of subject matter exposure. In many ways, there are significant benefits to having a classroom in which a veterinarian, a history major, an accountant, a computer science major, a police officer, a theology major, an engineer, and a geology major can engage in discussions about legal issues. Having multiple perspective enriches the law school education experience.

Yet there are drawbacks to these differences. Students who have progressed through educational systems that are not up to par face a steeper climb to law school success. It’s not their fault that they attended underfunded or de facto segregated schools, as has been the experience of at least several students who were in my classes, and those are only the ones who shared their education stories. Law schools try to help students in these situations “catch up” by offering programs delivered in the summer before they enter law school, by offering programs available to students who need remedial assistance during their time in law school, by hiring professionals to help students ameliorate basic grammar and other writing deficiencies, and by assigning mentors and tutors or assisting in the retention of tutors.

Students who have majored in certain subjects have advantages that create a background gap between them and their classmates. The flow of discussion becomes interrupted, or at least causes some students to tune out, if attention must be given to help students without a certain background “come up to speed,” especially when assigning supplemental readings or videos isn’t effective for various reasons. Students who major or have backgrounds in certain disciplines have a head start in thinking in the ways those teaching law are trying to help students incorporate into their intellectual analyses.

It’s not so much that students who major in certain subjects have an overall edge compared to their classmates. The advantage that a particular student gains in terms of background knowledge by majoring in a particular discipline is offset because that student did not major in a discipline that a classmate pursued and that gave the other classmate an advantage in structuring a thinking process. It would be wonderful if law schools could dictate a set of prerequisite undergraduate courses, though not majors, in a way similar to the organic chemistry requirement that bedevils pre-med students. Law schools hesitate, though, for two reasons. One, which I understand, is that imposing such a requirement would reduce the number of applicants, an outcome that would be harmful, if not fatal, to the financial position of law schools, both in terms of numbers of tuition-paying students and in the quality of students. The other, which I hesitate to accept, is the idea that law schools can teach anyone to become a lawyer no matter the person’s previous education provided the person has sufficient intellectual capacity.

Attempts to compensate for what I call the subject background gap have produced a variety of approaches. Some schools create mini-courses to fill in basic principles from other disciplines. In some instances, these courses are optional. In other instances, they are mandatory for students who lack an educational background in the content of the course. In still other instances, the courses are mandatory for all students, with no waiver and no challenge examination pathway to waiver, with the rationale being the value those students bring to their classmates. Some schools offer full-fledged courses with titles often ending in “for Lawyers” in order to provide a means of filling in the gap. More recently, law schools are turning to the resources available in the rest of the university, finding ways to permit law students to enroll in courses that can enhance and enrich a law student’s understanding and appreciation of the activities or transactions that generate the need for a lawyer to help prevent or solve a problem.

As helpful as these various remediation techniques are, unless they are offered at the outset, they are of no help to the student while enrolled in courses during semesters before the remediation experience is available. Would it not make sense to set up the first semester with remediation courses and projects, of varying lengths? Or perhaps, to set up something available in the summer before law school, as Harvard Law is starting this summer. That semester (summer or fall of the first year) could also include other preparatory courses such as Legal Writing, as well as one or two substantive courses least likely to be affected by education background gaps. Combined with challenge examinations, the entire law school experience could be increasingly personalized, with students finishing in anywhere from five semesters to eight semesters. Already there are students who take summer courses and thus could graduate in five semesters if it were permitted, which it is not. And there are more than a few students who because of leaves, or the need to earn additional credits, take seven or eight semesters to graduate. There is room here for law schools to explore even more possibilities as legal education moves away from the decades-ago model of a one-size-fits-all three-year experience.

One of the complaints about present day legal education is that law school takes too long to complete, and that shortening the length of the program would reduce law school tuition, the level of which is another complaint about present day legal education. Though I disagree that three years is too long, I do see a way of shortening the time a student spends in law school, though perhaps it would only eliminate one semester.

Why not permit students to obtain law school academic credit by taking and earning an A level grade on a challenge examination? Though I doubt very many students would succeed, it makes sense to provide the opportunity so that the few who would benefit could do so. Surely there are, for example, students who majored in business or accounting who could do well on a basic tax examination. There might be librarians who could excel on a Legal Research examination. In the long run, the existence of challenge examinations might entice undergraduate programs to offer law courses, perhaps taught by faculty at an affiliated law school, for which law school credit could be earned. I’ve always thought it would make sense, and in many ways be cost-effective, to offer a section or two of the basic tax course or the business organizations course in the business school. Why not offer a section of criminal procedure in an undergraduate criminology program? Why not offer a section of intellectual property law in an undergraduate computer science program? The course would enrich those programs, and for graduates of those programs who decide, at that point or later in their careers, to attend law school would save time and money.

The idea of law school challenge examinations popped is not a new one, nor is it mine alone. My first consideration of the idea occurred several decades ago, when a student in the M.T. program asked permission to take an advanced J.D. tax course without having had the prerequisite course (because he was not a J.D. student). We, that is, myself and those with the final decision-making power, decided to let him do so. The student struggled. At that point, I suggested that in the future a student be permitted to skip a prerequisite course only if the student earned an A on a challenge examination. The particular situation in question never again preseneted itself to me, but it did start me thinking about challenge examinations more thoroughly.

For as long as there have been American law schools, grades have been the subject of numerous and sometimes intense faculty discussion and a source of much distress, glee, and bewilderment for law students. Rumors about grading that circulate among law students range from those that raise concerns to those that are laughable. Never, for example, have I known a law professor to toss examinations down the steps and base grades on where the examinations landed.

When students ask me how I determine grades, I tell them. Years ago, in an effort to avoid fielding and answering that question multiple times each semester, I decided to share with students how I grade. Not only do I provide the basic information faculty now are required to provide, such as whether the grade is based on one or more examinations or papers and whether examinations are open-book or closed-book, I also explain how I translate student assessment and examination performance into a final grade. What I do is not a secret.

The final grade in my courses, other than the occasional seminar or similar course I have taught from time to time, is based on a combination of performance on semester assessments and a final examination. The semester assessment score constitutes one-third of the grade and the final examination constitutes two-thirds. In recent years, there have been ten semester assessments. Some, usually four or five, are assigned for completion outside of class. The others, usually five or six, are administered in the classroom, using student response system software. Because a student might be absent from class on the day that a semester assessment is administered, and because there is no administrable way of providing a make-up assessment, the two lowest semester assessment scores are dropped. Though I could limit the dropped scores to scores earned from in-class assessments, I permit dropping scores from out-of-class assessments because there might be a good reason for a student to fail to provide a response even though they are usually give four or five days to send an answer. The combination of the semester assessment total score and the examination score is a matter of simple arithmetic.

I grade against a standard. There is a model answer for each question. For a multiple-choice questions, the model answer is the correct selection. For a true-false question,. the model answer is the correct response accompanied by correct reasoning. One without the other does not earn credit. For short-answer questions, the model answer is what I would have answered, with points assigned to each component of the answer. For example, a semester assessment might ask a student to identify four facts that need to be determined in order to resolve the client’s problem, or to identify four questions that need to be asked of the client. A student who provides three correct facts or questions earns three-fourths of the maximum score for that assessment. A student who provides a correct response that is not in the model answer earns credit for that answer.

Thus, there is a total maximum possible score for the course. Grades reflect the percentage of that score that a student has earned. Over the years, discussions with law faculty, including those who taught me, and careful consideration of articles written about grading have shaped my decisions with respect to those percentages. A student who demonstrates he or she has learned at least something, particularly very basic concepts, ought not fail. Thus, a score that is 20 percent or more of the maximum possible score earns at least a D. On the flip side, a student whose score is at least 80 percent of the maximum possible score earns an A, which is the highest grade. Other grades fall in-between. The precise cut-off point can shift so that there is not a one point difference between one grade and another. I also re-grade examinations that earn low grades of F, D, and C minus, and those examinations that are close to the cut-off point for each grade.

I grade against a standard. I do not use a grading curve. The debate about grading curves is a long and interesting one. Why do I grade against a standard? My goal in teaching law is to prepare students for law practice. The standards that I set for the course, which dovetail to what can be called learning outcomes, are intended to match what a student ought to be able to understand, explain, and do with respect to what is covered in the course. The question that needs to be answered is whether, and if so, to what extent, has the student achieved the course standards? Students who demonstrate an accomplishment at the level of a particular grade earn that grade. The idea of telling a group of students who have demonstrated mastery of a course that only some of them will be awarded a grade of A because there are a limited number of A grades to be awarded makes no sense to me in the context of measuring preparation for the practice of law. It makes sense that there are a limited number of medals awarded in an Olympic competition, but those events involved athletes competing against each other, whereas students in a course are striving to attain an accomplishment measured by a standard and ought not be competing with each other, aside from moot court and similar competitions.

Students think that law professors “give” them grades. I have explained to students, many times, that I do not give grades. Students earn grades. Years ago, a colleague expressed surprise at the idea a student could “earn” an F grade. My response remains the same. It is the equivalent of telling someone, “You have earned nothing.” That is what I would say to someone hired to mow the lawn, who doesn’t show up, but demands to be paid. Yes, it is possible to earn nothing and possible to earn an F. Fortunately, the earning of an F has been a very rare occurrence in my courses. May it stay that way.

As I noted in an earlier post of this series, I had been warned, “You will be surprised to discover what your students did not learn.” Though I was surprised, at times, to discover that some examinations revealed a complete misunderstanding of a legal doctrine, what startled me was the discovery that many students struggled with what I call the examination answering process. I compiled a list of process errors as I reviewed examination and assessment answers with students trying to determine what they had done to earn a grade less than the grade they expected or wanted.

Too often, students misread facts. Sometimes the downside is small. For example, using the wrong name for a person identified in the question, such as substituting “Jane” for “Jean,” is harmless if there is no one named Jane. On the other hand, substituting “Jane” for “Jean” can be devastating in terms of grade if there are two people in the facts, Jean and Jane, who engaged in totally different activity. Another example of misreading facts can be illustrated by treating someone as alive who is, according to the facts, deceased. If the facts state that Bob is deceased, an answer to a wills or intestacy question that claims Bob receives or inherits property will not earn any points.

There are time when students do not answer the question that is asked. If the question asks, “Does Richard inherit from Mary?” an answer that states, “Peter inherits from Sally” suggests something is seriously wrong with the student’s approach to analyzing the facts and developing an answer. Sometimes the student shares the reason. More than once I have read an answer that begins, “You asked about the scholarship exclusion, but it’s not clear to me what the answer is, so I will discuss the extent to which the fringe benefit exclusion applies.” Along the same lines, every now and then a student will write, “You asked whether Norman inherits, but because that’s unclear, I will discuss why Peter inherits.” This pattern of changing the question from what is asked to what the student wants the question to be is detrimental. Granted, deflection of that sort happens much too often in litigation and politics, but ultimately it is not good strategy, and it certainly does not help a student do well on an examination.

Similarly, some students enter an examination convinced that a particular topic or issue will be the subject of at least one of the questions on the examination. Fortunately or unfortunately, depending on one’s perspective, it is impossible for an examination to cover every issue addressed in a course if the examination is limited, as they are, to three, four, five, or even six hours. I tell students that there will be topics or issues not covered in the examination, even putting aside topics discussed in the class principally for the purpose of alerting students about issues not within the scope of the class or that were addressed with the “this is not on the examination” assurance. I have had conversations with students after examinations in which they expressed surprise, delight, and even disappointment that a particular topic was not on the examination. “But I knew that topic so well” is the lament of a student who has concluded that his or her grade would have been higher had that topic, rather than some other one, been on the examination. I have seen examination answers that suggest a student tried to fit a discussion about a topic into as many answers as possible, even though that topic was not addressed by the examination, in what I consider to be an attempt to reframe the examination into what the student wants it to be.

A major flaw in writing examination answers occurs when a student does not follow through with his or her thinking process. For example, consider a question that asks if money transferred from an uncle to a nephew is taxable. An answer that states, “If the transfer was in exchange for services performed by the nephew for the uncle, then the transfer is included in gross income,” is flawed because it is incomplete. What if the transfer is NOT in exchange for services? No matter the area of law, any analysis that brings the student to a branching in the logic requires following through on both, or all, branches. It is a reason that mapping out a flowchart before writing the answer is recommended by many law professors.

Many law students are told that the best approach to answering a question is to use “IRAC,” which is an acronym for stating the issue, stating the rule, providing application of the rule to the facts, and stating a conclusion. The problem with that advice is that it confuses the writing of an answer with the thinking that underlies the answer. As I tell students, IRAC is a useful overarching pattern for thinking. But it can be detrimental if used in a manner that conflicts with the question being asked. For example, many of the questions I pose to students on assessments and examinations require them to answer a question, that is, state a conclusion, and then provide reasoning. When I administer semester assessments, I frequently include in the instructions a requirement such as this one: “First answer yes or no, and then provide your reasoning.” Even with that warning, I receive answers that are what I call “thinking/writing out loud.” Sometimes the answer begins with something along the lines of, “You asked whether Jennifer inherits any property from Marissa.” In answering aloud, that sort of “filler” to buy time to organize thoughts has its benefits. But it conflicts directly with what is being asked of the student by the assessment or examination question.

Time management is another contributor to students not doing well on examinations. This is a reason I, and many others, provide suggested time allocations for the questions on the examination. Consider an examination with 20 equally-weighted questions assigned to a 120-minute segment of the examination. It makes no sense to invest 20 or 30 minutes trying to answer the seventh question if the price paid for that decision is running out of time to answer the last four questions, which the student could have, and would have, answered correctly. So I do advise students that if a particular question, independent of the others, stumps them, to skip it, make note to return to it, and to proceed to the next question. One student remarked, “Everyone knows to go first for the low-hanging fruit.” I replied, “You would think, but no, not everyone knows, or at least if they know, they let the excitement and pressure of the moment cause them to forget.”

So as I have learned what sorts of process errors students make on assessments and examinations, I have taken steps to help them avoid these pitfalls. I share with them what sorts of missteps students take, and what not to do. I include instructions that remind students to proceed in a manner consistent with good question-answering practice. I do this because I think teaching law involves more than teaching doctrine.

As a general proposition, students do not like examinations and assessments. Most students understand they are necessary, but do not look forward to the experience. Many students dread examinations and assessments. During the final examination period at law schools where I have taught, the atmosphere dripped with anxiety. Though I repeatedly tell students that assessments and examinations are intended as “snapshots” to see where they are at the moment with respect to the course, the reaction usually is one of worry about failure or not obtaining a desired grade rather than, especially in the case of semester assessments, “let’s see where I am and what I need to do to improve.”

At the beginning of the semester, in every course, I share with students my advice for doing well in the course, including semester assessments and final examinations. I suggest that they focus on pre-class preparation, in-class learning methods, and post-class assimilation. I recommend that they do the assignments before class in the order presented in the syllabus. I explain that effort matters more than outcome, and that no effort is far worse than a failed effort, because a student can learn from making a failed effort. I emphasize how essential it is for students to do the reading and attempt to do the problems before class. I explain that while they are in the classroom their goal is to acquire comprehension and understanding, and not simply to gather information. I also stress the importance of devoting time after class to preparing summaries that are their own work product, because the creation of outlines, charts, graphs, or any other sort of summary is of much higher value as a learning process than simply reading something another person has prepared. I compare the difference between riding a bicycle and watching someone else ride a bicycle in the context of trying to get beneficial physical exercise. I encourage students to help others learn, because the process of teaching is one of the best ways to learn. I explain that students who do these things almost always do better on assessments and examinations than they otherwise would, and that one of the goals of semester assessments is to discourage students from leaving everything until the end of the semester.

At the end of the semester, in every course, I share with students my advice for final examination preparation. It makes no sense to stay up all night, focusing on one or two issues, because the lack of sleep is counterproductive, and the worry about those one or two issues will distract students while they are taking the examination. I emphasize the need to stay healthy, eat properly, continue engaging in physical exercise, and getting sufficient sleep. I advise them to avoid, where possible, what I call “externalities,” namely distractions arising from situations and events from other parts of their life, as, for example, the night before an examination is not a good time to get into a discussion about wedding plans. I then share with them a story. When I was a law student, one of my then professors who later became a colleague advised me to go to the movies the evening before the examination in his course. I told him that he had just proven what many students had said about him was true, that he was crazy. He laughed. Years later, after I had joined the faculty, I began to figure out that he was absolutely right. I told him. He smiled. I think he took some delight in having been called crazy. It is a crazy idea. I explain to my students that it is important to give the brain time to absorb, organize, and put into memory what the student has been reviewing, that engaging in mindless activity helps the brain do this, and pushing the brain to review until the early morning hours is much like running a practice marathon the day before a marathon. I note that the mindless activity need not be a movie, but it needs to be something that occupies the mind in a manner that distracts the brain from focusing on the course material.

Every now and then a student will tell me, after grades are released, that he or she followed my advice even though they thought I was a bit crazy. I laugh and ask them if they remember the story I had shared. They laugh. In this respect the cycle of law teaching continues.

When I was a law student and discussions took place about bringing me back to teach law, one member of the law faculty, trying to provide a full disclosure about the prospect, shared with me what he considered to be the two most burdensome aspects of being on a law faculty. One was faculty meetings, which ended up not being all that horrible. The other was preparation and grading of examinations. Though preparing and grading examinations and assessments is not horrible, it is challenging and at the same time rewarding and disappointing.

Preparing examinations and assessments is challenging because questions need to be drafted carefully so that they can be answered. Open-ended “who can sue whom for what” questions might not give raise enough issues to provide students with a sufficiently wide range of opportunities to demonstrate what they learned. Multiple choice questions need to be designed so that there is only one correct answer, and not zero or two or more correct answers. True-false questions need to be crafted so that the proposition is true or false under all circumstances and not sometimes true and sometimes false. The range of questions on an examination, or on the combination of semester assessments and the final examination need, to be a fair representation of what was covered in the course. The coverage needs to be balanced in order to avoid making a large portion of the grade dependent on a topic that was explored for only a small portion of the semester. Otherwise, a student who has done well learning the course material but for the one topic will end up with a grade that does not fairly represent the student’s accomplishment. The questions on an examination, or on the combination of semester assessments and the final examination, need to of varying difficulty, to give students opportunities to show that they learned something, mastered the material, or ended up somewhere in-between.

Grading examinations is challenging for several reasons. Until the advent of examination software that generates printed answers, reading handwritten responses sometimes is near impossible. Examination software has its flaws, which I won’t detail at this point, but most of the flaws are a matter of logistics or inconvenience rather than response validity. Grading examinations often is tedious, particularly in high enrollment courses.

Grading examinations often is disappointing. The disappointment arises from the realization students did not learn as much as they ought to have learned. As I was warned, “You will be surprised to discover what your students did not learn.” The use of semester exercises has softened this disappointment, especially as it provides a method for getting students on track sooner rather than later. The disappointment can be exacerbated when a wrong answer, rather than simply being a matter of a student missing a fine point on one or more of the challenging questions, is a statement that reveals that the student somehow missed basic concepts repeatedly visited throughout the semester.

Grading examinations often is rewarding. For example, an examination that achieves 85 to 99 percent range of the maximum possible score, though perhaps being more a reflection of the student’s talent and efforts and not so much the professor’s teaching ability, reinforces the belief that it indeed is possible for students to earn high scores. As another example, when it turns out that all of the grades are passing grades or, better, all of the grades are above a C-minus, or even better, many of the grades are in the honor range, the same sense of success is felt. Contrary to what some students think, law faculty want their students to do well, and aren’t trying to write examinations designed to generate low scores. We want students to learn, and the better that students perform on examinations and assessments, the more pleased we are.

For decades, the pattern of determining grades in most law school classes was the administration of a final examination. In seminars, the grade rested primarily on a paper. In Trial Practice, clinics, and similar courses, the grade reflected a subjective evaluation of student performance.

Rarely, if ever, did a student obtain feedback on whether the student was making satisfactory progress through the semester. Often, professorial reaction to classroom participation did not reveal if the student was on track or way off base. As a consequence, students who did not acquire the requisite understanding would enter a final examination without realizing that they were destined to do poorly.

When I started teaching law, one of my former law professors turned colleague warned me, “When you grade the final examination, you will learn how much the students did not learn.” That startled me, because I had always approached teaching -- I had done teaching and tutoring throughout my school years -- with the goal of maximizing what students learned. It became even more troublesome when, after sitting down with students unhappy with their grades, I realized that students often did poorly because the same error in thinking or other bad intellectual habit permeated their examination answers. Too many times a student would say to me, “I wish I had known this before the exam.” It only took several semesters of this experience to decide to do something to change the pattern.

I decided to implement the same sort of testing-and-feedback approach that I had experienced in my elementary and high school education. Daily and weekly tests were the norm, not the exception. Students on the wrong track could be helped to reorient themselves before they wandered too far afield. Perhaps to the surprise of many, to do this I needed to obtain faculty permission. Suffice it to say that it was granted over strong opposition. Some saw my proposal as an attempt to help students prepare for the examination. Others worried that students would devote more time to my course, and less time to their other courses, if they knew that a graded exercise was scheduled, so the approval of my proposal included a requirement that graded exercises be unannounced. Student reaction evolved from initial annoyance at the beginning of the semester to appreciation by the end of the semester. I designed the exercises to give students an opportunity to learn not only substantive law but also to understand how their reading and thinking processes did or did not help them properly analyze and answer a question.

Twenty years after I began what is now formative assessment, law schools began to respond to practitioner complaints about the insufficient readiness of law school graduates for law practice by exploring the idea of adopting formative assessment. I remember being told more than several times as the discussion of formative assessment proposals was underway, “You’ve been doing this for years. Tell us about it.” What I shared did not necessarily delight others. “It’s a lot of work. Questions need to be designed, and then graded. I provide an analysis that I share with the class, in which I share my model answer, and explain what was wrong with each erroneous response offered by students.” Each semester requires the design of new questions. The offset, though it probably is only a partial offset, is reduction of the size and time allotment for the final examination, which reduces the time needed to grade that final examination.

The big question is, “Does it work?” The answer is “Absolutely.” For example, one of my favorite types of assessment question is the “What additional facts do you need to obtain from the client?” Students who encounter this type of question for the first time on a final examination often struggle with it. By giving students one or two questions of this type during the semester, along with feedback, I allow them to learn what they are doing correctly and what they need to refine or reform, so that when they get to the final examination, they are in a better position to do well. So, yes, in some respects I am preparing students for the final examination, but in reality I am preparing them for practice, because the final examination, designed well, prepares students for practice. How? To quote one of my former professors turned colleague, “Examinations are learning experiences.” Indeed they are, and by spreading that experience throughout the semester rather than leaving it all until the end, a teacher increases the chances of students acquiring a better understanding than they otherwise would achieve.

Some courses, by their very nature, necessarily include formative assessment. The courses in Legal Writing require students to turn in assignments throughout the semester, which are graded and returned. In courses like Trial Practice and clinics, students are given feedback almost continuously, though usually without specific grades or scores assigned to each aspect of what a student does. The standards for seminars require at least an outline and a first draft, on which the professor comments in order to provide feedback and guidance. It is not surprising, therefore, to see that the grades in these courses usually are higher than those in other courses. It’s another indication that assessment and feedback throughout the semester indeed works.

Formative assessment, despite being championed by the American Bar Associations and some practitioners and faculty, has not yet become the norm. In some courses, faculty have added a mid-term examination. In others, , faculty have added three or four assignments throughout the semester. I am unaware of any courses where I teach, or elsewhere, in which students are presented with ten exercises throughout the semester, other than the courses I have taught and the one I am teaching.

There is one more advantage to formative assessment and feedback throughout the semester that I ought to point out. Not only does it give students a better degree of confidence in their ability to learn and adjust their studying patterns, it also reduces examination anxiety. Students enter the examination period knowing what they have accomplished, and knowing that not everything about their grade rests on their examination performance. In fact, most students know that no matter what they do on the examination, they are not going to fail the course or earn one of the very low passing grades. Reduction of examination anxiety, a particularly intense cause of poor examination performance, increases the chances of a better examination performance than might otherwise occur.

The American Bar Association requires, as part of its accreditation standards, that law schools adopt, publish, and adhere to sound academic standards, including those for regular class attendance. Law schools have enacted an assortment of attendance rules, some of them so fuzzy that it seems impossible to predict what is required, and others so precise that a particular number of absences causes exclusion from the course. At law schools with attendance rules that necessitate the taking of attendance during each class, the responsibility for doing so almost always rests on the faculty. The days of someone from the administrative offices coming into the room to compare who is in the room with a seating chart, as was the case during my first year of law school, are pretty much long gone.

My views on attendance differ from what the ABA and law schools mandate. Though I question the wisdom of attendance policies, I have complied and continue to comply with those that are in place wherever I have taught.

Why do I object to the requirement of attendance?

First, I question one of its rationales. Presumably, the requirement exists so that law degrees are not awarded to students who did not attend class. If a student, though, can attain adequate grades despite not attending class, ought not the student earn the degree? The answer, I think, is that classes ought to be taught in a manner that makes attendance critical to earning a grade sufficient to contribute to the required grade point average for graduation.

Second, I disagree with another of its rationales. The notion that to let students miss class and perhaps risk not graduating while at the same time collecting tuition from them is somehow wrong makes no sense. Students choose to enroll and pay tuition. If they don’t wish to collect what they’ve purchased, that is a choice for them to make. A person who purchases a ticket to a movie isn’t compelled to attend, and doesn’t otherwise face adverse consequences from the theater. Is it the law school’s responsibility to act as the student’s parent?

Third, compelling a student to attend class doesn’t mean the student will be mentally present. Physical presence alone means little or nothing. Aside from illness and other emergencies, students who fail to attend class do so because they dislike the course, dislike the professor, are uninterested in the material, or have a psychological issue of some kind. Compelling attendance does nothing to get to the root of the problem.

Fourth, what mechanisms are effective in compelling attendance? If a student who has too many absences is excluded from the course, isn’t that result inconsistent with one of the purposes for the rule? If the student is required to do make-up work, doesn’t that put a burden on whomever needs to design the assignment, and supervise its completion? If the student’s grade is reduced, does that not send an erroneous message to those who rely on the student’s transcript to make hiring and other decisions, considering that it understates the student’s course achievement and neglects to reveal the student’s failure to attend a sufficient number of classes?

Yet, though I disagree with the idea of compelling attendance, I do recognize the need to pay attention to situations in which a particular student is absent for more than a few classes in a row. When someone in the classroom, whether the professor or other students, notices that someone has been absent, it is wise to notify the administration so that someone with the proper authority can check on the welfare of the student. This, however, can be done without the distraction of attendance sheets being passed through the room, and the additional burden of administrators maintaining attendance spreadsheets.

For me, once the student response (or clicker) system became available, taking attendance was almost effortless. It simply required that there be at least one question during a class that required student responses through the software. Because the number of questions posed during a class were far more than one, attendance was taken automatically. Out of consideration for students who face adverse consequences for missing class, I always made certain that on at least one question every student responded, by taking a moment to remind them that failure to answer could result in being charged with an absence. Interestingly, attendance patterns in my courses before the attendance rules were strengthened and seriously enforced and after those changes did not vary, other than putting an end to the existence of an occasional “phantom” who failed to attend any classes.

Another transformative development that changed the law teaching atmosphere was the invention of the laptop computer. When a laptop first showed up in a law school classroom, it was a novelty. One or two students with backgrounds in computer science or simply with an interest in electronic equipment would bring in laptops. In one course that focused on the relationship between the practice of law and digital technology, an interesting discussion ensued that focused on whether the PC or the MAC was the better choice.

The novelty quickly became a norm, to the point where a student without a laptop was an anomaly. For me, students bringing laptops offered advantages. Students could take notes more quickly, could view visual materials more easily than squinting at what at that time were small, distant, and otherwise inadequate screens, could then transform their notes into outlines and other study guides, and if beset by certain learning or other disabilities, could use the laptop as a remediation. But it wasn’t long before some law faculty began complaining about laptops. The primary objection was that laptops were distractions. Hundreds of articles and commentaries, dozens of studies, and numerous in-person conversations illustrated the zealousness with which those on each side of the debate held their ground.

I explored this issue more than 13 years ago in To Allow Laptops or Not to Allow Laptops: That is the Question Most of what I wrote continues to be determinative for me. Though faculty have the academic freedom to ban laptops, I do not think doing so is wise. Distractions existed before laptops were brought into the classroom, and the banning of laptops does not eliminate or even reduce distractions. When I was a student, and early in my law teaching career, I encountered or became aware of students who played bingo, passed notes, did crossword puzzles, circulated sports betting pool sheets, and played cards. A student using a laptop for activities not related to the class can distract other students, but a student passing a note or doing a crossword puzzle is no less of a distraction.

What causes the distraction is not the laptop, or the note passing. It’s the inattentive, unprofessional, and immature student who causes the distraction that presents a challenge not solved by banning laptops. Direct intervention, whether it is a reaction to a student doing a crossword puzzles or engaging in online shopping, is necessary when the distraction is disruptive. Faculty have intervened in the past and will need to do so in the future. The few times I intervened, the effect was not only to end the distracting behavior but to reduce future instances of such behavior in that course for the semester. Perhaps lowering the grade of a student who causes too much distraction, however measured, would have a much more powerful impact and generate less adverse reaction from students prohibited from using laptops.

There are ways to prevent student laptop use from causing distractions. The key is to keep the students so busy with the class that they don’t have time to play games or shop online during class. When students know that the next set of student response questions might be projected with a “this is being graded” alert, it becomes risky to get into distracting behavior when the next moment might bring a graded exercise. Some faculty might find calling on students to be effective in holding their attention. Moving through the material at a brisk pace energizes the environment. Using visuals, such as pictures related to a case, keeps students focused.

What causes students to engage in distracting behavior, with or without laptops, isn’t the passed note or the laptop. It’s student inattention. In many instances, faculty contribute to the problem. A student who is in a course because it is required, or because it is on a bar examination, is more likely to let his or her mind wander or to play games unless some more compelling reason exists to pay attention. Selecting several students to be responsible for discussion on a particular day invites other students to tune out. I’m not saying that all student inattention can be attributed to ineffective teaching, but enough of it is so attributable that faculty who encounter substantial numbers of inattentive students ought ask themselves what they can do to change the classroom atmosphere. If it’s just one or two students, then it’s probably not the professor, but then it’s simply a matter of pulling those students aside privately and laying down the law.

One goal of legal education is to teach future lawyers that professionals need to be responsible. Teaching law students to be responsible requires more than denying them the opportunity to be irresponsible. It requires guiding them around the tempting distractions. If law faculty become too controlling, how are the students going to fend for themselves after graduation when the faculty isn’t there to control things for them?

In recent years, one of the law teaching techniques that has been getting a good bit of attention and even some implementation is the so-called flipping of the classroom. Flipping the classroom isn’t something unique to law teaching, and in fact has its origins elsewhere in education but has been brought into legal education.

Flipping the classroom consists of recording lectures to which students can listen before class, so that the time in class can be devoted to discussion. The notion of recorded lectures meshes well with online legal education. But the concept poses some challenges.

First, in some respects students should be able to glean from reading assignments before class what is being spoken to them in a recorded lecture. I wonder if the cultural shift away from reading and in the direction of audio and video communication contributes to the need to hear, rather than read, the words that express whatever it is needs to be communicated as part of the learning process. Reading is, and will continue to be, an essential element of legal analysis, and enabling the drift away from reading is counterproductive. Imagine hearing, rather than reading, an Internal Revenue Code provision.

Second, opening time for discussion in the classroom is beneficial if the students are willing to engage in discussion. As noted in an earlier post in this series, students increasingly are reluctant to speak out, at least in some courses. Anecdotal evidence suggests that at least part of the reluctance is due to how other students react, often in ways that are not conducive to the development of analytical reasoning. Countering this reluctance by compelling students to speak can be inefficient because it wastes time, ineffective because it generates unhelpful responses, and problematic because it can heighten student anxiety.

Third, to the extent students fail to listen to the recorded lectures before the class, what can be accomplished in class is not an improvement over what can be accomplished when students fail to do the assigned reading. Something else is needed to engage students outside of the classroom before class, and I will discuss that later in this series.

There probably are some courses in which recorded lectures available before class can enhance the experience in the classroom. I can imagine that in courses such as Trial Practice, Pre-Trial Civil Practice, clinics, and other endeavors in which the classroom experience involves a much larger “doing” component, getting the preliminaries out of the way before class could be helpful.

Though I have my misgivings about the value of flipping the classroom, and whether it really is that much of an innovation, if any, when I have thought about doing it in my courses, I have realized the futility of limiting myself to audio. My classes involve significant visual elements. So I would need to video record these segments, and that requires a much higher level of support from various administrative offices. It would require some way of coordinating words with the graphics or other visual aids that are necessary to make the words meaningful.

Finally, recording lectures to be heard before class, whether in audio or video format, is a major step in the direction of taking the course online. Will it strengthen the temptation for students to skip class, thinking that they’ve learned from the lecture what they need for the examination and that what their classmates have to say is of much less value? Will it bring pressure from students to put the in-class portion online through some sort of synchronous technology? If so, does the bandwidth exist to support interaction among 90 students in a class? The implications of taking a course partway online need to be carefully examined. Each step needs to be deliberate, and not an uncontrolled slide into a fully online course.

When I began teaching law, one of the questions posed by those interviewing me focused on my intentions with respect to office hours. My reply at the time was simple. Unless I was in the classroom, at a faculty or committee meeting, or at lunch, I would be in my office. That response satisfied those who had asked the question.

As the years passed, I discovered that office hours were an inefficient way of making myself available to answer student questions. There were several problems. First, to start in on a project that required any amount of uninterrupted time was risky because there was no way of knowing if a student would knock on the door. Second, when students came by unannounced and discovered that another student or a group of students were in the office, their frustration at times was evident. If this happened during the days before the final examination, they often would invite themselves in because they “also have the same question,” and then the discussion would need to restart. Third, if a doctor’s appointment or some other variation in schedule was necessary, there was no easy way to tell students so that they would avoid a wasted trip to the office. Fourth, making appointments usually involved two trips by the student, one to make the appointment and another for the appointment,

Of all the areas in which digital technology transformed teaching law, it surely was the invention of email. Now, students could ask a question without coming to the office. They could ask the question from home. They could ask the question at two in the morning, though they might not receive an immediate response. They could ask the question when it was fresh in their minds, rather than trying to read their handwritten marginal note hours or a day or two later while trying to figure out what exactly concerned them. If the question was complicated, they could schedule an appointment with ease.

The situation became even better when internet discussion boards appeared. Though today that space is filled with commercial third-party products, the first discussion board that I used was one put together by one of the “tech guys” back in the 1990s. Though not sophisticated, and lacking many of the bells and whistles found in present-day discussion boards, it worked. It permitted students to engage in discussions with each other as they could in the classroom, thus giving a hint of an element later to be incorporated into online legal education. Even better, it improved what happened in the classroom. An example is the best way to explain what happened. Before the discussion board appeared, if a student came up after class with a question, say, about something discussed 20 minutes into the class, and my conversation suggested to me I needed to share the question and my response in order to correct or clarify something, I needed to wait until the next class, delay continuing with the scheduled order of discussion, ask students to take their minds back to the place 20 minutes into the class that met two or three days earlier, explain the question and my response, and then jump back to where we would have been. It was, in a word, disruptive. With the implementation of the discussion board, the student could ask the question, in person or by email, I could craft my reply, and then share that exchange shortly after it happened, rather than waiting until, and disrupting, the class that would occur a day or two or three later.

Though the use of email and discussion boards have been beneficial, recent years have brought some challenges. In short, many students do not use or want to use email. So far, the answer has been an institutional requirement that they use their university-provided email account, or some other account to which they forward their university email. Many students are solid members of the “texting generation.” I rarely text, for several reasons, especially the inability to write more than a sound bite, and the dexterity challenges of using a tiny “keyboard.” Texting is fine for asking a question that can be answered with a word or two, or a number. It is far from ideal for communications related to a law course. Another challenge is a reluctance by students to post on discussion boards, a reluctance that matches the growth in the number of students unwilling to speak up voluntarily in the classroom. Considering that they will be spending their professional careers speaking at meetings, in courtrooms, at presentation, to the press, and so on, the unwillingness to speak out in the classroom or on a discussion board might make things more difficult in the future than they otherwise would be. Yet all in all, the use of email and discussion board posts as surrogates for office hours is one of the more significant improvements in law teaching that I have observed during my teaching career.

Even before I started teaching law, I knew that one of the milestones in a law teaching career, and in other teaching careers, was the attainment of tenure. In short, tenure is a status that prevents dismissal of a faculty member absent some severe violation of law or University rules, and that is designed to protect academic freedom so that administrators cannot dictate the viewpoint of faculty. That one-sentence description is an oversimplification but is sufficient for purposes of this series.

Generally, tenure is awarded to faculty who have met predetermined standards with respect to teaching, scholarship, and service. As a practical matter, the teaching and service aspects don’t get near the attention that scholarship receives. Unless someone is horrendous in the classroom or neglects their teaching obligations, teaching isn’t the most challenging hurdle. Nor is service, sometimes broken down into service to the law school, to the university, and to the community. Again, it isn’t a steep challenge to be of service, by sitting on committees, making presentations for the entire campus or for outside organizations, or by participating on boards of outside organizations or in other activities beneficial to the community. It is the scholarship requirement that generates anxiety among untenured faculty on the tenure track. How much? How long? Where must it be published? What sort of outside reviews will be written? How much groundbreaking must its conclusions be? The percentage of law faculty awarded tenure is fairly high, and someone being rejected for tenure often creates quite a stir.

To deal with the scholarship anxiety, some law schools release untenured faculty from teaching assignments for one semester or even an academic year so that they can focus on scholarship. At schools not providing this accommodation, claims that the focus on scholarship “distract” from teaching often are made. Certainly the “need to publish” is part of what underlies the press for reduced teaching loads, even after tenure is obtained, because scholarship, and to a lesser extent teaching and service, continue to be important because they are elements of adjustments made to a law faculty’s compensation package.

Scores of articles and commentaries have been written about the balance that should exist among scholarship, teaching, and service. For me, enough of my scholarship meshed with what I was teaching that, rather than conflicting, the two were symbiotic in many instances. Instead, for me the issue was and continued to be the definition of acceptable scholarship. By publishing enough that met the acceptable scholarship standard I avoided letting the issue become a factor in my tenure and compensation decisions, but I never passed up an opportunity to point out that my scholarship was much more than just what most faculty considered to be acceptable scholarship. Two examples should suffice to illustrate the issue, one that is becoming increasingly a concern for law faculty generally.

The first involves placement of one’s writing. My early post-law-school publications, written before I became a member of a law faculty, were published in what are called “practitioner publications.” These are journals that focus on matters of concern to practitioners, and that usually publish articles that offer practical advice or otherwise bring to the attention of practitioners traps, snags, and other problems that await. My writings tended to predict specific issues that were lurking, the most well-known from that era being an examination of the tax issues posed by surrogate motherhood. Law faculty, though, for decades, tended to consider practitioner journals of a lesser quality than law reviews associated with law schools. Some faculty still hold that view. Law reviews are almost always edited by law students. My experience with law reviews edited by law students has not caused me to agree that somehow they are better than practitioner journals. Over time, at least in the tax field, several practitioner journals eventually did acquire outstanding reputations, as they managed to attract increasing numbers of law faculty authors. But perhaps it’s just a matter of what a colleague once told me, “Tax is different.” Perhaps.

The second involves the form of one’s writing. As digital technology developed, and the internet became pervasive, it was not uncommon for people from all sorts of disciplines to write and self-publish commentaries on various online forums. The most notable form of this sort of writing was and is the blog. The question, as I posed it, is simple. Is a writing on a blog necessarily not scholarship? Many said yes. I disagree. I think it depends on the content of the writing. Though most blog posts, even on blogs dedicated to law, are devoid of analytical reasoning, even though many serve excellent purposes as conduits to share professional information about events and individuals, there are blog posts that are at least of the same quality, or better, than one finds in law reviews. Aside from the fact that the usual delay in getting something published in a law review, which can be crucial in areas of law experiencing rapid changes, blog posts open up a door to reader-author communication that is rare in the law review area. Of course, not everything I write on MauledAgain comes close to being scholarship, but there are more than a few topics where the combination of the posts addressing an issue are the equivalent of a law review article.

When I’ve asked why law schools, and some other institutions of higher learning, consider scholarship to be so essential that it can preclude an excellent teacher who is not inclined to write from obtaining tenure, I’ve been told that it brings attention and prestige to the institution. When I reply that writings that appear in practitioner publications and blogs probably reach a wider audience, I’ve been told that the audience that institutions want to reach might not be the same as that reached by publications other than law reviews. As I write this, I remember the visitor from another school who, when asked by me whether she was writing to help judges resolve the issue in question, help students learn about the issue, help legislators deal with it, or help practitioners understand the issue, replied to me, “I write for other scholars.” Hopefully that approach to the role of law schools is fading away or is going to fade away.

My point is not a gripe about how my blog writing and practitioner journal publications were treated, because it did not matter. My concern is for the next generation of law faculty, and the one that follows, because the environment in which they will be sharing their analytical reasoning will have evolved. The question is whether tenure and compensation standards will evolve quickly enough to match that evolution.

When the questions of smaller classes, online legal education, and learning outcomes comes up in discussion, one of the concerns that gets attention is the impact of these adaptations on teaching loads. There aren’t many topics as near and dear to the hearts of law faculty as teaching loads. The tension, of course, is between faculty, who prefer lighter loads, and administrators and trustees, who prefer heavier loads. That tension reflects the challenge of striking a balance between educational quality and cost.

The question of calculating an appropriate teaching load is one that perplexes teachers and administrators at every educational level, from pre-school through graduate programs. Those unfamiliar with the demands of teaching don’t understand why a teacher can’t be in the classroom for as many hours as an assembly-line worker is in the factory. And even those who do understand the reasons will argue about the proportion of time spent in the classroom and invested in other activities. Compounding the discussion is the inability of many to agree on how to take into account one-on-one or one-on-several communications between faculty and students, whether in the classroom after a class, in the office, or through email and online forums. There also is disagreement over the impact of enrollment numbers. Does a class of 40 students require twice as much out-of-class time as a class of 20 students? Certainly twice as much time is needed to grade or evaluate examinations, papers, exercises, and assessments. But is twice as much time required to prepare a syllabus or course materials? No. Is there a difference between teaching two sections of the same course and teaching two different courses? Certainly. I started my law school teaching career at a school that, at the time, treated the second section of a course as equivalent to half the value of the first section in calculating teaching load class hours. Do I think that was appropriate, accurate, and fair? Maybe. There were twice as many examinations to grade and twice as many students asking questions outside of class, but only one syllabus and set of course materials to put together, one examination to prepare, and one period of pre-class preparation at the beginning of each class day (both sections meeting on the same day, sometimes back-to-back).

During my law teaching career the standard teaching load was expressed in various ways, and I don’t think there ever was a formal definition of the minimum or maximum, though there were some agreed norms and principles that bore on the question. At the beginning of my law teaching career I was in the classroom eight hours a week each semester, with three of those hours being a “duplicate” of the other three. I also had additional courses in the form of directed research papers and a section of legal writing. When I moved to where I spent most of my law teaching career, I was in the classroom five hours a week one semester and seven hours a week during the other, with no duplication, but six of those hours were in the LL.M./M.T. program. Thus, I taught five courses during the academic year, two being three-credit J.D. courses, and three being two-credit graduate courses. I was told that I was carrying a “full” load. There were colleagues in the J.D. program who taught two three-credit J.D. courses each semester, the same number of classroom contact hours but only four courses. None of those figures necessarily correlated with the number of examinations each of us needed to grade. One of my colleagues declined to teach graduate courses because he considered a two-credit graduate course to be the equivalent of a three-credit J.D. course, but the administration disagreed. I agreed with my colleague but because I was hired in part to teach in the graduate program my position on the matter meant nothing.

Yet as time progressed, and my total classroom contact hours for an academic year reached 13, pressure from law faculty across the nation for reduced teaching loads began to mount. Eventually, some law schools relented, and in many instances the yearly teaching load became three courses and 9 or 10 classroom contact hours. Justification for the reduction varied, but one major factor was hiring competition, because a law school offering a candidate a reduced teaching load was more attractive than one requiring 12 or even more yearly classroom contact hours.

Because I enjoy teaching, I didn’t press for a reduction in my teaching load, other than the time when I decided that the “emergency” increase in my teaching load had lasted for almost a decade and thus was no longer an “emergency.” The increase, though, was minor, and my decision was more a matter of trying to influence faculty hiring that to eliminate an hour of classroom time from my schedule, as it had no effect on the number of courses I was teaching.

My disagreement with those who want reduced teaching loads is that law schools are schools, and schools are places where teaching occurs. Of course, a reduced teaching load makes no sense without being compared to a number from which it is being reduced. So there are two issues. One is determining the appropriate teaching load, whether expressed as number of courses, number of classroom contact hours, number of students, or some combination thereof. The other is determining the circumstances under which the teaching load for individual faculty should vary from the appropriate teaching load. Law faculties have invested enormous amounts of time debating these issues. Ultimately, the determination requires taking into account what else a faculty member is doing that benefits the mission of a law school. That requires examining some of the other activities of law faculty.

Overshadowing all of these thoughts about teaching law is the explosion in online education, a phenomenon that has not left legal education untouched. In fact, law schools across the country are offering online courses and online programs. The advantages of online education are well known, bringing opportunities to people otherwise unable to attend courses on campus, presumably reducing costs though that is debatable, and creating flexibility in terms of scheduling. On the other hand, the challenges of online education are daunting. Though it is easy, from a theoretical perspective, to propose “putting a course online,” the practical reality of making that work, from technological requirements to pedagogical concerns, means that the developer of the course must invest much more time in preparation than is required for a traditional in-classroom course.

My foremost reaction to what I have observed as several of my colleagues created online courses is that the process of creating the course requires implementation of mechanisms that had not been considered necessary in on-campus courses. It is one thing to go into a classroom and present problems to be discussed by students, but it is an entirely different proposition to craft the problem ahead of time, word for word, along with whatever response choices are presented. The logistical challenges, from attendance to review, from synchronous communication to effective methods of asynchronous interaction, are complex and interesting, but beyond the scope of this series, because they deserve an entire series of their own (hopefully written by someone much more immersed in the process than I have been).

What flows from my foremost reaction is the notion that many of the techniques adapted to online teaching have great value in the on-campus courses. In many instances, they improve those in-classroom experiences. Of course, some of the techniques adapted to online teaching were developed for on-campus courses before and at about the same time online learning began to get attention. For example, providing students with a means to communicate with faculty other than in the classroom or after a trek to the faculty member’s office has multiple advantages. From something as simple as email to something more refined such as an online discussion board, some years before the idea of putting the entire educational experience of a course online gained traction.

Will online education change teaching law? Yes, it already has and will continue to do so. Will there eventually be, as some have predicted or feared, on person teaching a particular subject to all law students in the country? Hopefully not and probably not. Just the idea of grading tens of thousands of exams, or answering hundreds of thousands of emails is mind-numbing. Certainly there should be no support for the time-worn undergraduate approach of having one person lecture to a thousand or more students while leaving the interaction to graduate students responsible for several dozen students. Having been enrolled in a course of that nature while in college, I would not be among those advocating bringing its features into the world on online legal education.

A few years ago, the American Bar Association mandated the establishment and publication of learning outcomes as a condition of accreditation. It also mandated that law schools measure and improve student learning, and provide feedback.

What are learning outcomes? The ABA definition simply sates that a law school must “establish learning outcomes that shall, at a minimum, include competency in the following: (a) Knowledge and understanding of substantive and procedural law; (b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context; (c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and (d) Other professional skills needed for competent and ethical participation as a member of the legal profession.” In other words, law schools must identify what it is they are trying to teach their students, in conformity with the broad and fuzzy standards provided by the ABA.

Why do I call these standards fuzzy? I do so because I don’t know what is meant, for example, by “knowledge and understanding of substantive and procedural law.” How much knowledge and understanding? How much tax law must a student learn and understand from sitting through a basic federal income tax course? The ABA leaves the decision up to each school, explaining that “The outcomes should identify the desired knowledge, skills and values that a school believes that its students should master.” Yet even with a particular school, when two or more professors are teaching the same course in multiple sections, complete agreement on what should be covered and the depth to which topics should be examined is difficult, if not impossible, to reach. All of the faculty teaching basic federal income tax, for example, agree that gross income needs to be covered, but whether the tax treatment of scholarships, fringe benefits, or housing for members of the military should get any attention, and if so, how much, can be debated for a long time.

Of course, measuring learning outcomes requires the establishment of benchmarks that define what a student needs to learn and understand. How that measurement can be accomplished is an issue I discuss later in this series.

How should law faculty determine the “desired knowledge, skills and values” that it believes the students should master? I don’t know what faculty at different law schools are doing, even the one at which I have taught, because since retiring I have no longer attended faculty meetings nor have had access to the process of making these determinations. If asked, I would recommend surveying lawyers, including those working in law firms, accounting firms, corporate legal departments, and government agencies, as well as judges and law clerks. They are the ones who know what needs to be learned and understood. The degree to which law faculty and legal professional outside law schools interact has increased significantly over the past 50 years, but there is much room for improvement. For example, there are more and more instances of law faculty team teaching with practitioners, which is yet another reason I support the expansion of team-taught courses.

One of the challenges in shaping the scope and depth of “knowledge, skills and values” that a law school faculty believes it ought to be teaching is the varied career paths that await law school graduates. What a lawyer in a large law firm might consider important doesn’t necessarily match up with what a lawyer in a corporate legal department, a lawyer in a small law firm, or a judge in a rural county think needs the most attention. Like faculty teaching multiple sections of a course, these individuals probably agree on some standards and benchmarks and disagree on others. This is not to say that learning outcomes cannot be established, as many law schools have taken that step, but it is to point out it is not easy to do so, and it is only the first step of increasingly challenging steps in the entire learning outcomes process.

When my relatives and friends who are, or have been, teachers in the K-12 systems react to my mention of law school faculties facing the challenge of developing learning outcomes, they point out that learning about learning outcomes was something they did while being educated to become teachers. When I was first hired to teach law school, a close relative who is a teacher said to me, “But you don’t have a degree in education!” My reply, “No one on the law faculty has a degree in education,” was met with a incredulous expression of disbelief and horror. Unlike many law faculty, I and some others had at least a bit of familiarity with the art of teaching, for reasons independent of, and usually preceding, our law teaching careers. For decades, law faculties generally taught by replicating their own law school experiences, though over time that approach diminished as increasing numbers of law faculty pushed for experimentation and change. Yet the learning outcomes mandate has prompted law schools to retain third-party educational specialists to visit, in order to offer programs and other sessions designed to help law faculty understand the entire learning outcomes world. I wonder whether, at some point, law schools will find it more economical and efficient, when hiring faculty, to favor those who have taken at least some education courses.

For some law faculty, like myself, learning outcomes is nothing new. Some of us have invested time during the first class of a course explaining to students what we intend for them to learn, why we have that expectation, and how we have designed the course to assist them in achieving those goals. Over time, that approach will become the norm. Many law schools are already at that point, or at least close to it in the sense that most of their courses include that sort of introduction.

Aside from questions of transactional courses, team teaching, and the balance between theory and practical reality, one of the factors having a significant impact on the law teaching and law learning experience is class size. I’ve taught classes with as many as 165 students and classes with as few as 7 students. There is a difference.

When asked about class size, many law faculty would think first in terms of the impact of class size on the unenviable task of grading examinations and other assignments. Unquestionably, given the choice between grading 165 examinations and 7 examinations, almost all faculty would select the latter. But the impact of class size on examination grading challenges is just one aspect of the class size concern.

There are certain types of law courses universally considered to require limited enrollment. It is impossible for one professor to take 165 or even 65 or 25 students through a Trial Practice course, a seminar course with a paper requirement, or a clinic experience, to give three examples. It’s not so much that the amount of work expected of each student is that much different from what is expected in other courses. It’s the difference in the type of work, work that requires a significant amount of one-on-one, or one-on-two, interaction. Yet the benefits of one-on-one attention also exist in other courses. When a class size is small, the interaction between student and professor but also among students can be more extensive, focus more closely on what needs he most attention, and more productive.

As formative assessment becomes more prevalent in all law courses, a topic I address later in this series, the experience of small classes will need to migrate into the larger classes. The prospect of offering 90 students (now that 165-student classes are no longer offered where I teach because of 90-seat classroom limitations) the same sort of one-on-one attention provided in small courses is daunting, and discourages many faculty from adopting much, if anything, in the way of formative assessment.

The solution, it seems to me, is to reduce class size across the board. The learning experience in a class of 50, 70, or 90 students suffers when compared to the experience in a class of 15, 30, or 40 students. Most faculty would agree, but would also point out the financial and logistical impediments to such an across-the-board reduction. Yet it is possible, with changes in how law faculty task balance is arrayed, an issue I discuss later in this series. As a preview, lest anyone think that I advocate smaller classes in order to reduce the number of examinations and other assessments to be graded, the smaller class sizes would be accompanied by an increase in the number of classes taught. The simple reality is that reducing class sizes does not reduce the total number of students who present examinations and other assessments needing to be graded.

As much as I consider practical reality to be more determinative of most things in life and law, there still is a place for, and a need for, theoretical perspectives on law. There needs to be a balance between, on the one hand, examinations of what is wrong with law and what law ought to be and, on the other hand, an understanding of theories that give rise to the laws that exist.
When the examination of law begins with theory, it best suits instances where those contemplating and considering the theory and the resulting law are already proficient in that area of law. When theory comes into play in the company of those unfamiliar with the law, it often is better to learn the law and then examine its theoretical underpinnings. That approach makes it easier, I think, to understand the origins for, and justifications of, the law in question.

For example, when in the wills and trusts course I cover intestacy, I first have the students examine the statutes based on per stripes, per capita with representation, and per capita at each generation. After learning and understanding what those statutes require and how they apply in different fact situations, we then embark on an exploration of the theories and rationales underlying each approach. To take the opposite approach would have students playing with concepts without appreciating the significance of each rationale.

There are those who think that deviating from a theoretical approach transforms law schools into “trade schools” and gets students caught up in worries about “how to find the courthouse.” I disagree. There are others, especially students, who think that wandering into the world of theory is a waste of time that distracts from learning what to do. I disagree. And there are still others who claim that theory and practical reality are so inherently intertwined that both must be addressed. I agree.

When law schools first began to offer clinics, opposition was strong from many sectors of the law school professoriate. Those teaching clinics were usually kept off the tenure track, and were considered in some ways different and unfortunately in some cases, “lesser” than those teaching doctrinal courses. Similar treatment was, and often still is, experienced by those teaching Legal Writing. Slowly, the realization that these aspects of learning law are essential has permeated law schools, in part because of observation and re-evaluation of these programs, in part because of pressure from the ABA, and in part because of demands by students for additional opportunities to engage in clinic work. Because at most schools, financial and other limitations prevent clinics from accommodating all students, the development of externships as an alternative pathway to experiencing law in a practical setting has accelerated. Much progress has been made. More awaits. Sometimes I wonder, if someone who taught in American law schools during the 1950s and 1960s were to reappear and visit the twenty-first century American law schools, how they would react to the strong presence of clinics, putting aside their jaw-dropping reaction to the physical and technological evolution that has taken place. I suspect they would be somewhat bewildered but ready to ask question, listen to answers, and perhaps argue.

When the idea of a transactional course is suggested, a common reaction is the concern that very few law faculty can, or want to, teach a course that is cross-disciplinary within the law. I remember being told, “I’m a [fill in subject] person. How can I put [fill in different subject] into the course?” The same concerns have been raised when the idea of teaching professional ethics within a doctrinal course is presented.

Those unfamiliar with law schools might ask, “Why can’t someone teach multiple courses, Teachers in the K-12 system often teach multiple subjects.” My response would be, “Most law faculty can teach multiple subjects, even within one course, especially if those subjects are close to each other on the law subject matrix. But doing so requires the reshaping of a course, and cannot be done unless other law faculty also re-arrange courses so that topics aren’t abandoned or duplicated.” But I also point out that the easier solution is team teaching.

Team teaching, of course, is not new to law schools. There have been team-taught courses for decades, though not very common. Team teaching takes two forms. One is a time split, with one teacher taking responsibility for particular classes, and another taking responsibility for other classes. The split could be as simple as one person teaching the first 10 classes, and another teaching the remaining 16. Or those teaching the course could alternate, or come up with some other sort of split. The other form is what I call shared presence. That is, both (or all) of those teaching the course are in the class at the same time. I have team taught in that manner, and it worked out very well. In some respects it was an improvement over what otherwise would have happened, because each of the two of us brought a different perspective and a different bundle of topics in which we had expertise to the course. The course, I should point out, was a newly constructed offering that was put together on relatively short notice, a task easier for the two of us than it would have been for either one of us alone. I have also team taught other courses, and they have worked out well. I am fully aware of the potential risks, having been a student in a graduate law course that was team taught by two professors who ended up arguing with each other, and after a few weeks one of them disappeared. That, however, is the exception and not the rule when it comes to team teaching. Team teaching is very common in other academic fields and there’s no reason for it to be a rarity in law schools.

Many years ago, the ABA mandated that law schools require students to take a course in legal ethics, a requirement that evolved into a requirement that students enroll in a Professional Responsibility course. That requirement, in turn, has been expanded to require attention to what is called professional development. The ABA made this requirement part of the standards that law schools must meet in order to be accredited, a status that is necessary for its graduates to sit for the bar examination in most states.

Not long after the ABA added the ethics requirement, it went further and highly recommended incorporating ethical issues into doctrinal courses. The theory made sense, because ethics questions are easier to understand and resolve in the context of a substantive legal issue. In reality, though, very few law faculty brought those questions into doctrinal courses. In contrast, there are those, including myself, who have done so. For example, the question of how to represent a married couple fits well when discussing a married couple who seek will and trust drafting assistance. But would that not be a duplication when the same questions are considered in the family law context? Is that not a duplication inconsistent with one of my motivations for advocating transactional courses? The answer is the difference between how the conflict of interest analysis applies in a will drafting situation and how it applies in a divorce situation. The answer also rests in the notion that a transactional course that could be called So They Want to Get Married or Live Together would include not only representation with respect to ante-nuptial agreements but also with respect to their will drafting decisions. Those two problem prevention opportunities are better addressed as they are in practice, as part of one transactional situation, than when they are split, as they are in most law school curricula, between two courses. And, yes, there would be the companion So Their Marriage or Relationship Didn’t Work Out course.

It seems to me that the topics addressed in Professional Responsibility courses can be divided and placed into substantive transactional courses and in the evolving Professional Development course. Putting rules and application of rules in context makes them easier to learn, easier to appreciate, and easier to apply.

Law school pedagogy has evolved since the days of Paper Chase. The practice of zeroing in on one student and grilling that student about an appellate case has diminished, though some law professors still use that approach. Students were, or are, asked to identify the appellant and appellee, to explain the procedural posture of the case, to describe the issue, to state the holding, and to explain the rationale of the court. Preparation for this experience required, or requires, students to “brief the case,” which is a short-hand reference to reading the case, usually multiple times, and writing out the responses to each of the tasks, in expectation of being the student questioned when the case comes up for consideration in the classroom. By the time students finish the first year of study, they ought to be able to dissect a case in this manner. For that reason, this approach faded somewhat in some upper-year courses even earlier than it began to fade in some first-year courses. Compounding the shift is the existence in the upper-year curriculum of courses that are based entirely or mostly on statutory law and not case law.

Though I usually enjoyed being the target of professorial questioning when I was in law school, I also considered it not as helpful to becoming a lawyer as it professed to be. That conclusion was reinforced by my practice experiences when I graduated and went “out into the practice world.” It became very clear to me, quickly, that lawyers were not briefing cases but were almost always confronting another aspect of law.

That is why I tell my students, lawyers try to help clients prevent problems and to help clients solve problems. Whether the client is someone coming into a law office, or a judge for whom the attorney is serving as clerk, or a corporation for whom the attorney is working in-house, or a public official on whose staff the attorney serves, attorneys are constantly trying to prevent or solve problems. When approached through the lens of a transaction, the skills that are valuable in dealing with problems in this manner are much easier to describe, explore, critique, and develop.

Teaching from the problem method approach, that is, examining fact situations to ascertain how a problem could have been avoided, and how the problem, if not avoided, can be solved, dovetails nicely with a transactional approach to teaching law. It makes no sense to restrict the legal analysis to a narrowly defined area of law when trying to resolve a landlord-tenant dispute or a computer hacking.

The conclusion that a combination of the problem method in the context of a transactional approach isn’t to propose that all doctrinal courses that examine one area of law are of little or no value or should be eliminated wholesale. Nor is it to suggest that case analysis needs to be abandoned. But it is to suggest that when the pieces of traditional doctrinal courses that fit well into a transactional course are removed, the traditional doctrinal courses will be smaller in terms of time and credits, and perhaps more likely to be moved from the first year to an upper year or vice versa. And it is to suggest that the case method is a useful tool that should be part of a collection of similar tools used in a transactional course rather than as the sole approach to a course focused entirely on doctrine. Case analysis, standing alone, is much less powerful than when coupled with a problem method approach focused on the transactions planned or encountered by clients.