Tuesday, May 28, 2013

"A Critique of Best Practices in Legal Education: Five Things All Law Professors Should Know"

This is a new article by Professor Michael T. Gibson (Oklahoma City) available at 42 U. Balt. L. Rev. 1 (2012).  While I only skimmed it, part of Professor Gibson's premise is that the authors of Best Practices for Legal Education have gone too far in their criticism of the Socratic Method since there's lots of empirical evidence that says it's a highly effective pedagogy, including the research reflected in Ken Bain's book What the Best College Teachers Do.

Professor Gibson also argues that, like cognitive psychologist Daniel Willingham before him, helping students to think analytically is hard work which unavoidably involves some discomfort and pain on their part.  Thus, Professor Gibson says that a related shortcoming of Best Practices is that it is overly concerned about shielding law students from the pain associated with deep learning.  Thus - in my words, not his - we need to make our students suck it up more than we have to adequately prepare them for the rigors of practice where no client or judge will give one whit about their feelings, only the quality of their work. An excerpt from the introduction:

As for our efforts to follow the lead of the great philosopher, Best Practices alleges that Socratic dialogue is merely our way to “control[] the dialogue, invite[] the student to ‘guess what [we're] thinking,’ and then inevitably find[] the response lacking. The result is a climate in which ‘never is heard an encouraging word and ...  thoughts remain cloudy all day.”’ If by now we are searching for an encouraging word, Best Practices declares that our ways of thinking are “fundamentally negative[,] ... critical, pessimistic, and depersonalizing.”
To be fair, Best Practices later recognizes that we do some things well, and it has some excellent suggestions for improving our teaching. To be candid, you will need considerable patience (or very thick skin) to reach those parts of the book. The authors of Best Practices sincerely want to improve legal education, but they sometimes seem more interested in venting their frustrations than in reaching their audience. I know talented, intelligent, conscientious litigators who have endured expensive and dysfunctional discovery procedures under the thumb of judges who humiliated them, encouraged them to abandon their ethics and values, undermined their self-worth, required them to guess what the judges were thinking, and created an atmosphere that was “fundamentally negative[,] ... critical, pessimistic, and depersonalizing.” But those attorneys did not voice their feelings in their trial briefs. Whatever the merits of Best Practices' allegations and opinions, neither their tone nor their conclusionary nature will encourage law faculty to keep reading.
That is a shame. Much of Best Practices is well worth reading. And while I disagree with some of it, it has caused me to think about what I do in (and out of) the classroom. Best Practices has helped me recognize sins I have long committed, and it has opened my eyes to a strange new world that I had barely glimpsed during twenty-eight years in the classroom. It has unintentionally challenged me to spend two years reading and thinking about an astounding amount of empirical research on higher education. Finally, just as I challenge my best students to confront some dark parts of the law, Best   Practices has inspired me to confront some of the dark parts of legal education.
Part B of this article, “Raising Students to Higher Levels of Learning,” reveals a treasure that Best Practices buries. While the book says it draws on “long-recognized principles of sound educational practices,” it refers only once to a classic book on how people learn. Even worse, it does not mention once that book's key concept of education: the idea that people learn in six stages or levels, which must be climbed in a specific order. This article presents those six levels, shows where they appear in legal education, explains how we should use them to structure our Socratic dialogues with individual students and our class sessions, suggests how students can use them to assess their own learning, and suggests how we can use them to assess our teaching.
Part C, “Being Honest with Students: Disclosing What We Really Want Them to Learn,” explains what Best Practices means when it insists that we tell our students what we want them to learn. Part C shows why this recommendation is neither trite nor a matter of spoon feeding students. It explains how even conscientious faculty--including myself--routinely and unintentionally deceive students, and suggests how we can correct this problem.
Part D, “Resisting the Urge to Abandon the Socratic Dialogue,” admits that, as Best Practices contends, some faculty abuse Socratic dialogue, but it shows that some exemplary teachers--both in law and out of law--endorse the technique, that many of the technique's supposed sins are the fault of others, and that Best Practices' goal of making education painless conflicts with the realities of human learning.
Part E, “Engaging Students: the Promises and Perils of Problems,” corrects Best Practices' assumption that the problem method is devoid of flaws. Part E identifies several weaknesses of the problem method and shows how to avoid those weaknesses.
Finally, Part F, “How the Best Teachers Treat Students,” argues that Best Practices pays far too little attention to current empirical research, especially work done in the rest of higher education. In doing so, it fails to provide the types of evidence and arguments needed to persuade traditional law faculty, and it sometimes shortchanges the empirical research it does use. Accordingly, Part F introduces law faculty to one of the most important recent books about teaching in higher education and to the immense amount of current empirical research, in both law schools and higher education in general, which Best Practices overlooks. This empirical research will be the focus of the next article in this series: A Critique of Best Practices in Legal Education, Part II: What Introverted Law Professors Need to Know About Empirical Research on Faculty--Student Interaction and About Group Work.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2013/05/a-critique-of-best-practices-in-legal-education-five-things-all-law-professors-should-know.html

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