Tuesday, March 13, 2007

Class Participation

Posted by Jeff Lipshaw

Perry_2Miranda Fleischer (Colorado, left), guest-blogging over at PrawfsBlawg, has engendered an interesting discussion on evaluation of law school class participation.

There is another variant on this discussion if you teach at a school like Tulane that does not permit adjustment of anonymously determined exam grades on account of participation.  You can pre-announce an attendance policy (which can include non-preparedness) but even then you are only permitted to lower the grade, and even that is done automatically through the academic services office.  All of which is to say that none of the above makes any difference.

Several colleagues here and I have discussed the general issue of unpreparedness in the last few days.  We have tentatively identified three theses.  One:  the expectation of participation from the Socratic model of teaching is unrealistic in many courses.  I am teaching two Code courses - Article 2Socrates (Sales) and Article 9 (Secured Transactions).  Unlike many other courses, there are right answers (as Miranda points out for her tax classes), and "policy debates" are far fewer than in classes like criminal law or constitutional law.  I will pose questions, and often use the students as foils, but the idea of dragging the Code materials out of them, rather than teaching it to them, doesn't seem to make much sense.  [I took Securities Regulation in the spring semester of 1979 from Professor Kenneth Scott at Stanford.  I am teaching the class this coming fall.  Now granted that many things, in terms of the regulatory specifics, have changed in twenty-eight years, but the basic bones of Section 5 of the '33 Act and the exemptions and exceptions under Section 4 are still the same.  His lectures - lectures, mind you - were so organized and, as I recall, interesting, that I retained my class notes all these years, and I expect to be able to go back to them for at least some pieces of class prep.  What's wrong with that???]

Two:  large "required" upper level courses (e.g., evidence, business associations) can have a surly audience.  Many of them are there under a sense of duress, and unlike the 1Ls, they realize it doesn't make any difference any more how surly they are.

Three:  what is the proper expectation in a grad school?  Do professors in other disciplines at this level take attendance?  Grade on participation in class discussions?  Put tick marks and such on the seating chart for good comments?  When I was a practicing lawyer, I couldn't take notes on my own questioning because I would lose the thread of the examination.  I can't imagine trying to teach a class and administer points at the same time!


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Yes, but even in code classes aren't there a lot of areas to discuss? To me, the interesting part about code classes is what the code doesn't cover, and that creates openings for discussion.

For example, let's say you have a non-binding letter of intent between two companies that calls for support for a product. Company A buys PART from Company B, but Company B fails to provide support, but other than that PART works properly.

Is there a breach of warranty? Can a non-binding letter of intent create a fitness for particular purpose claim? Can Company A reject the PART as imperfect because support wasn't provided?

That's just one example, but I can think of many more in sales that both require students to learn and apply the code as well as debate policy.

Posted by: Michael Risch | Mar 13, 2007 7:30:46 AM

Michael - I'd agree there are many opportunities for argument (or argumentation) and rather fewer for debate. We can debate, for example, the policy issues around the rent-to-own industry's victory in the sale versus security interest. As to the issue of class participation, however, it's probably not the case that students have a lot of passionate stored up around the IWFPP as opposed to, say, whether hate crimes ought to be crimes in themselves.

In your example, I could have the students make arguments first on the subject whether the UCC even applies to a support obligation in a non-binding LOI (sale of good or service?). Then we could have arguments on the parol evidence rule - whether there was a writing that constitutes the final expression of the parties. And then finally whether the non-binding LOI worked to satisfy the element of the IWFPP that seller had reason to know buyer's particular purpose and that buyer was relying on seller's skill or judgment.

But that's an exercise in argumentation, and it's merely one way of going about the process of teaching the substance of the Code. It's certainly helpful in teaching the indeterminacy of many portions of the Code.

And, once again, there is the question of efficacy and efficiency. As to pedagogical efficacy, do I really want to get my point across by dragging it out of a marginally prepared student in the process of teaching argumentation? As to efficiency, do I really want to spend that much time on particular debate when I have an entire Article of the Code to cover?

All good questions. Thanks for the comment!

Posted by: Jeff Lipshaw | Mar 13, 2007 8:05:32 AM

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