Friday, July 13, 2012

Is a Law Student Any Different Than a Horse? What If Buck Brannaman Were a Law Professor?

Posted by Jeff Lipshaw

Buck_poster2I've been reflecting this summer on the student evaluations from my evening first-year contracts class, and the creation of learning environments.   Here's what the data tells me.   In my upper-level classes (securities regulation and unincorporated business entities), I get numerical evaluations that are substantially above the school's mean scores.  In my contracts class, however, the scores are below the mean, reflecting what I think is a fairly bi-modal distribution.  

There are lots of nice comments, but the negative ones about which I am most concerned are that I am not sufficiently kind to many student questions or discussion that I think are going to lead nowhere helpful.  (To be fair to myself, there are also students who are happy that I do this.)   My reasoned conclusion is that the upper-level classes are significantly more self-selecting.  The students who stay long enough to fill out evaluations like my style.  The first-year students have no choice in the matter.

I had already come up with a technical solution for next year.  I decided that I would institute a "question period" at the end of each class, and what I would call (taking a cue from something we used in the corporate world) the "parking lot" - i.e., interesting question or comments, but "may we place that in the parking lot so as not to lose the thread we are on now?"

Then I watched a movie the other night that my riding instructor, Nadine DeYoung, of Torch Valley 2174950
 in Ellsworth, Michigan (right), recommended to me.  Those of you who are already sick of my ad nauseam horseback riding learning metaphors can stop here, but it's my most intense ongoing learning experience, and it's hard not to see the application when I'm on the other side of the figurative podium.

The movie is Bucka documentary that won the Audience Award at the 2011 Sundance Festival.  It is about Buck Brannaman, who was the technical adviser on Robert Redford's The Horse Whisperer.  Brannaman tours the country teaching his particular method of horsemanship.  I won't try to say much more about it, except that it is an inspirational story of someone who survived his own abusive father and appears, by sheer act of will, to have overcome blame.  He has a dual commitment to excellence and learning that, it seems to me, can only arise from both an unshakeable confidence and a concomitant humility.  

I was awed by his technical riding and roping skills (he can rope a horse's back leg), but the law professor teaching insight I took from the film is that the solution to my issue is not merely technical.  There's a question of "feel" in both riding and teaching, and acquiring the feel is a matter of doing, not thinking.   (I should add that Nadine's best and most effective teaching statement to me this summer has been:  "Your problem is that you think too much and get in your own way.  Stop thinking.")

IMG_0250The scene I recommend to every teacher is the one in which Brannaman demonstrates to riders what it feels like to the horse to be yanked on with the reins and the bit.  The rider stands on the ground , holding the rope in front of him as though he were the horse.  Brannaman stands next to him, holding the ends of the rope as though they were reins.  Then he jerks them a couple times and the rider flinches.  After a couple instances of this, Brannaman only needs to move his hands (not the rope) to make the rider flinch.

The lesson is that horses, who are a lot dumber than humans (in some ways), learn to fear the very tools that the trainer is using as the means of teaching.  (A piece of wisdom from another of my trainers, Alyce McNeil, at Verrill Farm Stable in Concord, Massachusetts, along the same lines, when talking about a horse that bites while getting tacked up:  "We don't get bad horses; we make them.")  It doesn't mean being a spineless wimp either:  Brannaman's motto is "Gentle in what you do; firm in how you do it."

The non-technical or "affective" lesson is that students (horses and humans) are not objects, but subjects.  There needs to be an empathetic "aha" moment of "otherness" even to understand that there's a problem in the first place.  Some students, like some horses, don't mind you jerking on the reins.  But some do, and the question is whether that means something.

July 13, 2012 | Permalink | Comments (1)

Yale's Ph.D. in Law - The Copernican View

Posted by Jeff Lipshaw

6a00d8341c4eab53ef0177433fdb6c970d-200wiThe Yale Law School's announcement that it will award a Ph.D. in Law has agitated electrons around the blogosphere, provoking approval, disdain, speculation, and derision.  My view is closest to Dan Filler's "meh."

The following, as rationale for the program, strikes me as a view of the legal academy that assumes Yale and its equivalents are at the center and everything revolves around them:

β€œIt’s becoming increasingly hard to transition directly from law practice to teaching,” [Dean Bob Post] said. He explained that to secure entry-level appointments at law schools, candidates are now expected to present a relatively mature scholarly profile; they need a defined research agenda and a substantial portfolio of writing.

It's probably fair to expect that Yale won't be the only school offering a Ph.D. in law, but my guess is Tamanahab that it's not going to change the landscape or the contours of the "Failing Law Schools" debate (of which Brian Tamanaha's book is the most thorough catalog) too much.  

This is hardly a scientific study, but I just scrolled down part of the first column of the Stanford Law School faculty directory, and the law degrees (J.D. and otherwise) read something like:  Berkeley, Yale, Yale, Harvard, Yale, Stanford, Northwestern, Chicago, Yale, Harvard, Yale, Yale, Northwestern, Harvard, Stanford, Berkeley.  Somehow I don't see the Yale Ph.D. in Law causing a seismic shift at Stanford or its peers.

Nor do I see a big trend toward Yale Ph.D.s in Law doing a lot of teaching of civ pro at fourth tier schools.

Nor do I see enough volume, given the time commitment, to having a significant impact on the supply of entry-level law professors at mid-range schools.  There are 800-1,000 FAR entries a year, and 100-150 new hires a year.  How many of those 100-150 are going to be taken by candidates who wouldn't otherwise be in the pool?  Indeed, my guess is that, if anything, the program[s] will cannibalize other Ph.D. programs, and perhaps a few of the existing VAP programs or other paths to the legal professoriat.  (That's a supply-side analysis.  On the demand side, were I the dean of a non-elite school, I'd be wary of having a faculty dominated by Ph.D.s in Law in terms of intellectual diversity and for its effect on my relationships with other constituencies, like the alumni base.)

The real question, it seems to me, is whether this portends the Great Schism, the differentiated legal education system - "research-oriented law schools [co-existing] alongside law schools that focus on training good lawyers at a reasonable cost" - that Brian Tamanaha advocates.  (Failing Law Schools, pp. 172-76.)

Again, call me a skeptic.  Apart from issues of pure contraction (i.e., schools get smaller, by hook, crook, implosion, or design), the vast majority of non-elite but solid schools won't have the luxury either of being the Department of Legal Studies populated by Yale Ph.D.s or bare bones practitioner training centers.  

As I have argued in the past, those middle-range schools are going to have to find a way to accommodate the scholarly career path of the faculty with the desire of the overwhelming majority of students and alums for practical professional training.  Which means that faculty members (as I believe most do now) will have to be committed to both scholarly thinking and first-rate teaching, even if they do not always overlap.  And academic leadership will have to be committed to articulating to non-academic constituencies both the nature of a legal academic career and why it can live in harmony (even if not complete overlap) with the obligations of a professional school instructor.

July 13, 2012 in Current events | Permalink | Comments (1)

Sunday, July 8, 2012

A "Complicated Marxist"

The Big Think just posted a wonderful video of Slovenian philosopher Slavoj Zizek, who describes himself as a "complicated Marxist" because he holds in his mind simultaneously the virtues of individual capitalists with the problems of domination and inequality that are endemic to the capitalist system.  

I am posting the Zizek interview here because many of the problems currently afflicting legal education and the legal industry that I write about here are, more formidably, mere symptoms of broader problems that flow from a rapidly globalizing world economy--a topic so complex that we seldom acknowledge it.  That said, Frank Pasquale, in a post called "Jobless Futures," does an admirable job of cataloging our collective confusion. 

Zizek suggests that the solution to engage in serious thinking rather than misguided, ill-conceived activism.  Ah, now this should be the competitive advantage of a university-based graduate-level law degree--in addition to practical lawyering skills, we should be practicing with our students the science and art of critical thinking.  The best lawyers sidestep ideology and can think through issues on par with Zizek, whom we don't have to wholly agree with to admire.

[posted by Bill Henderson]

July 8, 2012 in Blog posts worth reading, Current events, New and Noteworthy, Structural change, Video interviews | Permalink | Comments (1)