On his retirement from the Stanford Graduate School of Business, legendary organizational theorist Jim March addressed his faculty colleagues, reflecting on the varied motivations for human action, one of the enduring themes of his scholarship. March observed that the social sciences, particularly economics, portrayed human action as the result of a rational choice. March called this form of reasoning the “logic of consequence.” It is the domain of incentives and calculation.

But March cautioned his colleagues not to forget “a second grand tradition for understanding, motivating, and justifying action,” a tradition that views action as “based not on anticipations of consequences,” but as “attempts to fulfill obligations of personal and social identities and senses of self.” He called this the “logic of appropriateness.”

While these observations may seem incongruous, given the occasion and the audience, March assured his colleagues that they held “some mundane implications for those of us who claim to be educators.” We teach and write, March said, partly because those activities produce consequences that we value, but we also engage in those activities as an expression of our faith in the intrinsic value of ideas. We teach and write because we feel impelled to do these things, not for potential rewards, but because being a teacher or a scholar is who we are. March compared institutions of higher learning to temples:

A university is … a temple dedicated to knowledge and a human spirit of inquiry. It is a place where learning and scholarship are revered, not primarily for what they contribute to personal or social well being but for the vision of humanity that they symbolize, sustain, and pass on…. Higher education is a vision, not a calculation. It is a commitment, not a choice. Students are not customers; they are acolytes. Teaching is not a job; it is a sacrament. Research is not an investment; it is a testament.

Does this resonate with you? It does with me. For March, this attitude toward higher education has real-world implications:

The complications of confronting the ordinary realities of day-to-day life often confound such lofty sentiments, and I would not pretend that it is possible or desirable to ignore consequences altogether. But in order to sustain the temple of education, we probably need to rescue it from those deans, donors, faculty, and students who respond to incentives and calculate consequences and restore it to those who respond to senses of themselves and their callings, who support and pursue knowledge and learning because they represent a proper life, who read books not because they are relevant to their jobs but because they are not, who do research not in order to secure their reputations or improve the world but in order to honor scholarship, and who are committed to sustaining an institution of learning as an object of beauty and an affirmation of humanity.

I don't know the backstory here, whether March was reacting to a particular dean, but it reads like he has had some experiences with "deans, donors, faculty, and students who respond to incentives and calculate consequence." I count myself fortunate that my deans have been uniformly excellent on this front.

If you want to read March's entire speech, the published version of it is here.

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The legal blogosphere is all atwitter with the news that Harvard is following Stanford and Yale into the realm of pass-fail grading. The main objections to this system are twofold: pass-fail grades provide less information than more textured grading systems, and pass-fail grades encourage slacking among students. (On slacking, see Brian Leiter's experience teaching at Yale.) Meanwhile, the perceived advantages of the system are varied, though most seem at least a little bit dishonorable:

• For the faculty at these law schools, "fewer grading distinctions means much less time grading." (Orin)
• The pass-fail system is "very popular with students, in part because it enables those at the bottom of the class to post respectable transcripts that make it difficult to tell exactly where they stand relative to their classmates." (Ilya)
• For the law schools, pass-fail grading makes them more competitive with their peer schools. (Brian)

I have twice been involved in debates about changing grading systems, and after the second round, I decided never to be drawn into the fray again. The arguments go around and around on the same issues with no sense of closure.

But those were debates about the relative merits of the traditional 4.0-scale versus other ranking methods. The "new" systems -- which in practice result in two grade levels (Honors and Pass) -- seem fundamentally different from other grading systems in the level of competition engendered by the grading system. While ambitious Yale law students might be driven to compete for Honors designations, the competitive environment of Yale Law School seems quite muted in comparison with, say, Chicago.

Folks like Orin Kerr or Appalled Chicago Lawyer see the benefits of competition, but competition for grades has costs, too. As noted last fall, BYU was ranked by Princeton Review as "Most competitive law school," and in the past year I have been able to observe some of the effects of that competition. We have great students in terms of LSATs and GPAs, but the focus on grades here is intense. (And to my friends from Vandy, I take back what I wrote about that school being "hands down the most competitive law school I have seen up close.") In speaking with students, I am told that the source of the competition is attributable in large part to the bimodal distribution of law firm salaries. The fact is, if you want elite clerkships or elite law firm placements coming out of BYU, you need to do well.

Now, if you believe that scores on law school exams reflect real learning, this sort of competition seems like a good thing. On the other hand, if you believe (as I do) that an intense focus on grades sometimes comes at the expense of real learning, this sort of competition is a cause for concern. As it happens, I was reading up on law school reforms when the Harvard story broke, and I had just read the following passage from Bonita London et al., Psychological Theories Of Educational Engagement: A Multi-Method Approach To Studying Individual Engagement And Institutional Change, 60 Vand. L. Rev. 455, 457 (2007):

For many students, the institutionally sanctioned grading and ranking procedures create a distinct hierarchy among the students that translates into later potential for success. Thus, the perceived cost of falling short of one of these coveted top spots is high, e.g., less competitive internships and job prospects. A culture of competition for limited resources can make the goal of collaboration or of engaging the course material in a deep and reflective process less likely. This competitive environment may result in students not only disengaging from a learning-focused approach to the material in favor of an approach that maximizes performance, but also may lead to strained relationships among students as they compete against each other for the same limited resources.

In weighing the various grading systems, law schools must consider multiple constituencies, but I suspect that all of those constituencies would value a law school with a culture of collaboration and engagement. While I doubt that any grading system can create such a culture, does one grading system stand above the others in not undermining attempts to develop that culture? Or does the essential scarcity of elite clerkships and elite law firm placements necessarily undermine attempts to encourage collaboration and engagement?

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In prior posts on teaching, I have mentioned the "present and prepared" system. (See my syllabus for a description.) This system is not my invention -- I associate it with Randy Barnett, though I can't find any evidence on the internet regarding its origins -- but I have used it in various classes for many years. For some reason -- perhaps because BYU is the most competitive law school in the country or because I am the only professor at BYU who currently uses this system -- I have had more requests for special exceptions than I have received at any other law school. These requests have forced me to think more precisely about the goals of the system, and this post contains some reflections on that issue.

When students miss classes, the effect is not only to deprive the missing student of the experience, but to deprive the missing student's classmates. This effect is particularly important in a class that is highly interactive, like my class this semester. The purpose of the "present and prepared" system is to reward students for their contributions to the quality of the classroom experience. Obviously, the system assumes that students make contributions merely by being in class, having done the reading. In my experience, that is a reasonable assumption.

The "present and prepared" points are available to all students equally. No curve. But the system does not have the desired effect if students miss too many classes. Whether students miss the classes because they are lazy or because they are doing some noble work is irrelevant to what happens in the classroom. The fact is that when students are gone, their contributions are missed.

Of course, everyone has circumstances during the semester that may require them to be away from the law school, so I do not expect students to be perfect in their attendance and preparation. Moreover, I cannot effectively determine on a case-by-case basis which absences are reasonable and which are not -- and the thought of attempting to administer such a system would make me surrender before I even began -- so I have made a judgment that students who are present and prepared for roughly 85% or more of the classes deserve to be rewarded for their efforts with full credit, while students who are present and prepared for roughly 70% or more of the classes deserve to be rewarded for their efforts with half credit. I could have set these percentages higher or lower, but those seem like reasonable expectations to me.

At the beginning of this semester, one of my students observed that she would not have any of "her days" left over if I counted callback absences against her. Somehow, she got it into her mind that the days on which she would be doing call backs were separate from "her days." I suggested that she had the wrong idea about "her days." The point is not to have five personal days plus any number of additional absences, as long as you have a good reason.

In the past, I have made accommodations for people who are seriously ill or have other debilitating problems. Otherwise, I assume students allocate their days to their best uses, whether those uses are call backs or family reunions or trips to the hospital. But if a student cannot attend at least 85 percent of the classes, it seems to me that the student shouldn't expect the same reward as someone who has been able to achieve that. In the end, about two-thirds of the class typically receives full credit and another one-sixth or so of the class receives half credit. Those numbers suggest that the policy is not overly harsh, and the effect on the quality of the classroom discussion is substantial.

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In a prior post, I was bragging about moving my PowerPoint lectures outside of the classroom by creating presentations with audio through Adobe Presenter. This is a lot of work, by the way, and I am not doing this just for fun. But why am I doing it? Yesterday, I received this email from one of my students: "I apologize if this seems like a dense question, but after watching the slides and doing the reading, it seems like they cover exactly the same thing.  Am I correct about this?"

Um ... yeah. Suddenly, I realized that by moving the slides outside of the classroom, I had changed their function. This was my response:

Actually, that is not only a perfectly sensible observation, but it also made me stop to consider why I am doing these slides. (That was sort of implied in your question, right?)

When I first started PowerPoint in the 90s, I used the slides as a means of getting everyone's brain on the topic in class. Then it occurred to me that this was not a terribly valuable use of class time. So I revised my slides to aid in organizing the class discussion. Rather than just lecturing from them, I would use them in conjunction with Socratic questioning. I actually liked that fairly well.

Putting them online destroys both of these functions, but several of your classmates have pointed out different functions: (1) some have told me that they are visual or aural learners, and the slides (especially the diagrams) really help them to understand the principles better; and (2) the slides provide an emphasis that the reading assignments lack (i.e., you can tell something about what I think it important by the subjects I choose to discuss and the subjects I choose to omit from the slides). Finally, I believe that repetition is quite beneficial to learning, so reading the book and listening to the slides are mutually reinforcing activities.

Now I will ask you the question that I asked my student: is that a convincing case for online slide presentations?

The question is whether using PowerPoint in this way is a material aid to learning. I should disclose the that students like the slides, and many have commented with approval on my decision to move them online. Some have told me that they listen to the presentations more than once. Another student told me that she takes notes while she listens and that having the presentations online allows her to stop the audio so that she can complete her notes or reflect on the principles being covered. Of course, she could do the same thing from the casebook, but she uses the slides (after reading, of course ... she is a conscientious student).

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Another professor recently told me that education is the only product that consumers want less than they paid for. Maybe that is true of some students, but I suspect the reason professors sometimes feel like that is because we misinterpret what some students are paying for. Many students value their legal education, but a significant minority seem to value only their diploma. For these students, keeping class simple -- one three-hour, crammable exam at the end of the semester -- is optimal.

By contrast, my class (here, here, here, here, for example) is a nightmare. When I first looked at the enrollment in my Business Associations course in August, I had 91 students. Within a few days after I sent my syllabus to the students, that number dropped to about 80. Today, we stand at 69.

What's the problem? Am a suddenly a horrible teacher? Maybe. But I have spoken to a number of the students who remain in the class, and they are uniformly enthusiastic. After the last class, one student wrote to me via email: "I now feel like if I learn remember nothing else from this semester, I will remember the material on partnership formation forever."

Another: "The exercise was actually very enjoyable and informative for me. I only hope the class got as much out of it as I did."

And another: "I really think that [the activities in class] are really helpful to the students because they enable the class to analyze and implement in simulated situations the principles learned in the reading assignments. For instance, today I got a better grasp on the importance of establishing a [business association] as soon there is the agreement. This helps to avoid confusion on the role played in the partnership by each participant."

And these are just the emails. At least a dozen students have told me orally during the past week that they feel engaged in the class and are very much looking forward to the remainder of the semester. Moreover, the students in my Quality Circle have offered extensive feedback, already helping me to work out many kinks, but the main thrust of their feedback is that the class is headed in the right direction, that this class seems much more useful to them than most of their traditional classes.

So what about those drops? When I inquired with other students, this is what I heard:

• Many students don't like teams from bad experiences as undergraduates. One student felt that this would account for most of the drops, at least the early ones.
• The present and prepared system (described in my syllabus) allows students to miss only a week and a half of classes before their grades are negatively affected. Some students feel the need to miss more than that to secure a summer job. I am sympathetic to this concern, and I actually changed the policy one week into the class to accommodate conflicts with on-campus interviews. In the end, however, I decided that this class would not function for the students who missed big chunks of the semester (one student told me that a student last year missed 32 days during the semester looking for a job!!!), so I held the line on excusing all recruitment-related absences. And I know that some students dropped for this reason.
• Some students told me that my class was just too much work. By establishing incentives to be prepared for every class period, giving mid-term evaluations, and assigning team projects, I was increasing the workload beyond what they were willing to bear.
• My favorite: this semester is my first time teaching this course at BYU, and I am using a new edition of my casebook ... which means that there are no canned outlines floating around the law school. The other section of this course, which will be taught next semester, has lots of outlines in circulation. Wow.

So what lessons should I take away from this? I used to see the high enrollments in my classes as a badge of honor (I'm popular! I'm a good teacher!), but this experience has made me reconsider that position. I am a relatively strict grader, so I have always known that students were not taking my classes because the classes were easy A's, but it never occurred to me that they were taking my classes because there were available outlines and I didn't demand too much of their brains until the few days before the final exam. I am not suggesting that high enrollments are a counter-indicator of teaching quality, but rather that enrollments may be skewed by the presence of students who are looking for a combination of entertainment value and limited demands on their time and energy, rather than a high-quality learning experience.

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One of the most important aspects my course re-design project this summer was my strategy to move my PowerPoint lectures outside of the classroom. When I explained to my teaching advisers at the BYU Center for Teaching and Learning the tension between my desire for adequate, if not comprehensive, coverage and the time demands of interactive, team-based learning, their first question was this: can you move any of your current classroom activities outside the classroom to free up more of your classroom time?

I have always used PowerPoint lectures to introduce new topics. These lectures condense and reformulate the readings, ideally providing students with simple takeaways on each topic. I try to keep these lectures short, usually around 5-10 minutes, and students rarely speak. These lectures seemed like perfect candidates for internet distribution.

Over the past few years, I have also used PowerPoint slides to discuss cases, and I have found that they can be very effective at giving students a "picture" of a case (usually a diagram tracking the various transactions that prompted the litigation). During these discussions, I typically call on a student or students, and we engage in the traditional Socratic analysis of the case. But as I reflected on this over the summer, I realized that these segments of class were not very engaging, nor were they as necessary for second- and third-year law students, who have traveled a good distance up the learning curve of legal analysis, as they were for first-year students. (See Steve Bainbridge, who also makes this point.)

While these PowerPoint sessions may not be the most valuable use of class time, the students seem to value them relatively highly. So I have decided to retain the activities, but move them outside the classroom.

The challenge then became a technological one. Lectures are easy to record, and PowerPoint slides are easy to produce, but I was looking for an effective means of combining the lecture with the slides. Enter Adobe Presenter. This simple add-on to Microsoft PowerPoint allows me to record a lecture in my office while syncing the lecture with the PowerPoint slides. You can see an example of the results here. We are still working out some of the technical kinks, and I need to become more comfortable speaking to a microphone, but I am encouraged by this first effort, and my goal is to do as many presentations as possible outside of class, reserving the class time for more active learning that I will blog about in a future post.

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Inspired by various posts on teaching around the legal blogosphere, Jerome M. Organ, Professor of Law and Associate Dean of Academic Affairs at the University of St. Thomas School of Law in Minneapolis sent me a thoughtful and provocative email, which I reproduce in relevant part below with Jerry's permission:

I am writing to try to tie some threads together from some of your observations, and Eugene Volokh's and  Ann Althouse's observations and some of the responses that you have received to your postings, particularly from students focused on grades and competition for grades and jobs.

Eugene Volokh stated – "I want to argue that students — though they of course pay lots of money to us — are not just customers of legal education, but are also in a sense a sort of employee: Law school classes rely on students' participating in the class, as a means of helping educate the other students. Learning, the theory goes, is a cooperative endeavor, in which students benefit from hearing each other's comments."

Ann Althouse, in response, stated – "They should feel an ethical responsibility to the classroom community they asked to join and to the rejected applicants they are displacing."

And yet, when you posted a syllabus explicitly requiring that your students work together as a "classroom community" and engage in "team" projects that might impact their grades, one student expressed significant reservations about collaboration (particularly if it impacted grades) and several people posted comments objecting to the team approach and demonstrating the view that law school is a competitive environment in which students must compete as individuals for grades (and the corresponding high paying jobs at a big firm).

There would appear to be a significant tension between what we as professors have as aspirations for our "classroom communities of learning" and for what students have been acclimated to understand as their "classrooms of competition."

Dean Cramton wrote 30 years ago about the "ordinary religion of the classroom," including the following quote on individualism, competition and professionalism:

. . . Too often the young lawyer must grope alone toward an effective strategy for mingling humanism and professionalism in the lawyer-client relationship.

The atomistic character of the student’s work in law school accentuates this difficulty.  Much professional work involves cooperative activity, but law school does little to assist a law student to work effectively as a member of a team.  The competitive environment of law school tends to pit each student against all others and, not surprisingly, feelings of isolation, suspicion, and hostility develop among students.

Knowledgeable observers comment that law students become more isolated, suspicious, and verbally aggressive as they progress through law school; their aptitude for verbal articulation increases, but they rarely stop to listen to others.  If so, will they be good counselors?  Will they need to unlearn a number of things in order to operate successfully as a professional?   The sharing, helping and serving aspects of human endeavor, especially important to future professionals, are not recognized adequately in the law school experience.

Roger C. Cramton, Ordinary Religion of the Law School Classroom, 29 Journal of Legal Education 247, 262 (1978)

If the "ordinary religion of the classroom" still communicates a message of individual, atomistic competition (and I would suggest that the student's response to your syllabus and some of the comments to your post evidence that this competitive environment remains as part of the "ordinary religion of the classroom"), then students are likely to act on that cultural signal and function based on competitive individualism and are going to be resistant to our calls for them to engage in a "classroom community of learning" based on a collaborative model.  Indeed, if I am functioning within a "competitive" context, and I believe I have a better understanding of the material than some of my classmates, my rational choice will be to refrain from participating (and possibly to participate with misinformation and sow confusion) so that I do not erode my perceived competitive advantage by "helping" my classmates come to a better understanding of the material.

My point here is that we are sending mixed signals. Eugene Volokh and Ann Althouse and Gordon Smith may be encouraging, perhaps somewhat explicitly, the communal nature of the learning experience where each participant benefits from the insights and contributions of a diversity of voices drawing on different educational and experiential backgrounds, but there appear to be other "signals" our students are receiving (from us or others on the faculty or from each other) that convince many of them that this is an atomistic competitive environment in which collaboration and teamwork are to be avoided (and perhaps disdained).

Notably, for those students pursuing joint degrees, particularly JD/MBA students, the cultural shift from the atomism of legal education to the collaboration of the business school environment can be jarring.

The reality is that law school can be (and should be) more collaborative.  This happens in clinical contexts and perhaps intermittently in some courses, but I suspect very few law schools are intentional about creating an institutional commitment to collaborative learning that overrides the culture of individual, atomistic competition that Cramton described and which still manifests itself in this new millenium.

Here at the University of St. Thomas, we have tried to tackle this issue to some degree with a week-long introductory course as part of our Orientation Week in which we have students read and discuss excerpt's from Cramton's article, Joseph Singer's recent article on Normative Methods for Lawyers, my colleague Rob Vischer's article Legal Advice as Moral Perspective, Patrick Schiltz's article On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession and my article From Those to Whom Much has Been Given, Much is Expected:  Vocation, Catholic Social Teaching, and the Culture of a Catholic Law School, along with a variety of other materials related to the role of the lawyer, the pressures of the legal profession and the challenges of legal education.  While one of the primary motives for this course is to engage students in an explicit conversation about integrating their moral compass into their professional identity  (the third apprenticeship reflected in the recent Carnegie Report – Educating Lawyers), part of our purpose also is to explicitly engage students in a conversation about whether they want to define their success in law school and in the profession by the types of extrinsic rewards that are identified with "winning the competition" -– grades, big firm jobs, large salaries -– or whether they want to define their success in law school and in the profession based on intrinsic factors -- their sense of mastery of material and the development of understanding about those job opportunities within the legal profession that reflect their vocation -– using their gifts and expertise to serve society.    (While we didn’t assign any excerpts from Larry Krieger’s and Ken Sheldon’s research on law student well-being, we do reference the literature in the positive psychology field highlighting that those motivated by intrinsic factors have a much greater tendency for well-being and fulfillment than those motivated by extrinsic factors.)

If students can shift their paradigm from a perception that all are competing against each other for some extrinsic goal –- great grades that will lead to high-paying jobs –- to a paradigm motivated by intrinsic factors -- that each is trying to live out his or her vocation as law student and spouse and parent and friend and volunteer while beginning to discern his or her vocation as a lawyer –- it becomes much easier to promote collaboration rather than competition. I cannot be in competition with someone else to find and live out my vocation. I can also find joy in supporting others (who may perform better than me on a law school exam) because I am not competing with them as they try to find and live out their vocation.

Nicely done, Jerry. I assume it is not mere coincidence that St. Thomas' law school website contains the subtitle, "Faith, Reason, Community."

The elephant in this room is the law school curve, which has always been justified in part as an incentive mechanism for students and in part as a sorting mechanism used by law schools to make their graduates more employable (by identifying the "best" of those graduates for judges and big firms). Jerry's post accurately identifies the mixed messages we send to students, and I wonder: can "communities of learning" flourish in "classrooms of competition"? Or must one triumph over the other?

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Teaching has become all the rage in the legal blogosphere over the past week, and Eugene Volokh adds an important contribution on the importance of class participation. This is a pitch I have been making to my students for years, and I made it again this morning in my first Business Associations class of the new semester:

I want to argue that students — though they of course pay lots of money to us — are not just customers of legal education, but are also in a sense a sort of employee: Law school classes rely on students' participating in the class, as a means of helping educate the other students. Learning, the theory goes, is a cooperative endeavor, in which students benefit from hearing each other's comments.

Eugene is engaged in a debate about whether banning laptops is libertarian or paternalistic, and I am not at all interested in that, but I am interested in the notion of students as participants in the learning process. For many years, I have used the "present and prepared" system (which I describe in my syllabus) precisely to reward students who contribute to the learning environment in the classroom. My own experience suggests that this is a more useful and less controversial means of inducing quality classroom discussions than banning laptops.

The most interesting aspect of Eugene's post, however, is his description of the modern Socratic classroom:

Most law school classes are between seminars and lectures: The professor talks more than he does in a seminar, and class discussion is less important than in a seminar, but class discussion still takes up a large part of the time, and the professor's conversations with the students — and sometimes students' conservations with each other — are an important pedagogical tool. Some question whether it's an effective tool; perhaps we'd be better off lecturing more and drawing the students in less. But most of our classes do heavily rely (rightly or wrongly) on this tool.

This means that whether students are paying attention in class affects not just themselves, but their classmates. Students who tune out, either because they're distracted by non-class materials, or because they are so focused on taking verbatim notes that they aren't really mentally engaging the information, aren't doing the job they're supposed to do. (Again, I recognize that they're not being directly paid for the job, but rather have to pay us; but part of the educational transaction is that they get an education and a credential in exchange for money and class participation.) When fewer students participate in class, other students get less out of the class discussion. When a student is called on and doesn't give a good answer, other students get less out of the class discussion (especially since time is wasted, and the conversation is interrupted).

Notice the classroom dynamic: the professor is speaking with some students (usually one at a time, though some professors manage to involve several students simultaneously) while other students listen. Or not. The non-participants may "tune out" because they are distracted or bored or busily acting as scribes.

In my view, student passivity is the core challenge in the modern law school classroom. Eugene observes that most classes are larger than seminars. As a result, a single teacher cannot engage each student in the classroom personally, so we resort to theater to hold their attention. We speak in excited tones to show our passion for our subject and we bring props (like PowerPoint slides) and tell stories or jokes. Or we become very rigorous in our questioning of the students so that, like Kingsfield, we scare the bejabbers out of them. (Or we hold auctions! I don't intend to be critical of J.W.'s exercise, which I did in my Securities Regulation class last semester. It's a wonderfully engaging exercise, especially for the first day.) At the end of the semester, if we have been entertaining or impressive enough, the students reward us with high scores on our teacher evaluations. Ugh!

If you are unhappy with that state of affairs, I would suggest that you give teams a try. Even if you don't like the idea of assigning team projects for grades (a topic that I will address in a separate post), using teams in class is a no-brainer.

I first experimented with teams several years ago, but my efforts were tentative. I asked the students to work as teams only a couple of times during the semester. Each time I requested that they form ad hoc teams for the day. These were serious design problems. My students had become accustomed to the modern Socratic classroom, and the team assignments disrupted their routines. As a result, the students inevitably wasted time getting organized and spent many awkward minutes moving from the passivity to which they had been accustomed to a group interaction. They viewed the teams as a "gimmick," and often never achieved any sort of meaningful discussion.

When my teaching advisors from CTL first suggested last fall that I move in the direction of using teams, therefore, I was very skeptical. But their pitch was simple for someone who was seeking a more engaging classroom: start from the first day, making teamwork part of the classroom routine, so that your students expect to be engaged with each other every day.

I tried this approach in both of my classes last semester, more systematically in Securities Regulation. One day, as I walked around the classroom listening to my students discuss a hypothetical problem from the casebook, I had a revelatory moment. Instead of having me and one student discuss this problem as a not-very-gripping theater performance, I was watching all 50 students in the class engaging with the problem. All of them were speaking the words of securities regulation. All of them were struggling to one degree or another with the basic themes of the course. They were looking at each other, not at their computers. And they appeared to be thinking!

And that's how I became sold on teams in the classroom.

P.S. For a provocative and insightful follow-up to Eugene's post, read Ann Althouse's thought experiment, concluding that students "should feel an ethical responsibility to the classroom community they asked to join and to the rejected applicants they are displacing."

I probably should note that I expect classroom participation beyond the team discussions (see the present and prepared system referenced above), but those portions of my class are now much smaller than they once were.

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Thanks Gordon for the introduction, I am honored by the invitation to visit at the Conglomerate. Today was my first day teaching, and since the Conglomerate’s sage advice about the teaching market got me into this mess in the first place (See Gordon here and Christine here.) I thought that I would talk about an exercise I conducted on my first day teaching Securities Regulation.

We ran an auction for a “gift certificate for dinner for two, plus drinks, at a local restaurant,” the proceeds of which would be donated to the American Cancer Society. I informed them, by way of a disclosure statement via email, that I informally asked some friends on the faculty what they would bid based on the same limited information that the students received. I told the students that the result of that informal survey was an average bid of $93.50, and I mentioned that if the students obtained the item for lower than its value they might even sell it for a profit. My disclosure email was riddled with the sort of dry and equivocal statements one might find in a registration statement, and my first day sales pitch was a little more puffed up.

The result: The winning bid was $85 for a $10 gift certificate to McDonald’s. I think it got their attention, which was a good intro to my overview of what we’ll cover in the class. (Also, at the end of class I let the winner keep her money and the gift certificate, and I promised to make the donation anyway.) My hope is to use this as a teaching tool for all of the chapters that follow, from “what is an investment” to 10b-5 liability and beyond.

I get excited about Sec Reg, but most people find it to be a bit of a snoozer. I remember having law professors that went out of their way to make classes interesting; including using items in the news, showing 3 minute movie clips, corny knock-knock jokes, and one who even kept wind up stuffed animals around her podium. As long as it doesn’t suck up too much class time, I think it’s a useful pedagogical device. It lightens an otherwise dry subject, breaks up monotony, and piques their interest. I would be interested to hear from readers what sorts of gimmicks they use or have seen put to effective use as teaching aids in their legal courses.

I am looking forward to our time together.

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Day 6 - hello again, but probably for the last time.  My expiration date is fast approaching, but I've thoroughly enjoyed being a guest blogger.  Thanks, Gordon!

The comments to my Friday post on teaching transactional law highlighted for me the fraught nature of any discussion of pedagogical reform.  On the one hand, any mention of "skills" seems to summon up the specter that law school is to regress into a mere trade school.  On the other hand, true believers want much more.  They want a significant overhaul of the curriculum to incorporate more transactional thinking.  For me, however, there is a middle ground that promises to bear real fruit without disrupting what I believe to be the high quality results that law schools currently produce.

As I mentioned in Friday's post, the first step is to incorporate much more in the way of transactional thinking into our upper-level business law courses.  Happily, we can do this on our own and without the permission of our associate deans or faculties.  We can simply change what and how we teach.  (More problematically, however, it probably also means placing a greater emphasis on hiring faculty who have enough experience to have developed some deal sense of their own.)

Today, then, I want to comment on what I see to be the main challenges facing attempts to incorporate more transactional skills into the curriculum.  On the positive side, I've heard a lot of terrific ideas and I know that many very serious people  are striving to improve what we do.  On the negative side, however, I think that most of the ideas that I've encountered so far fit within one of the following categories:

• Too little - many of the proposals (including mine?) are likely to have impact only at the margins.  While important - margins matter and we shouldn't ignore the pursuit of excellence - they fall short of real reform.
• Too much - I doubt that there are many law schools that would entertain the kind of full-scale reform that has been envisioned by some.  Certainly, I share interest in the goals, but most law school faculties are too entrenched in what they do to engage in a complete overhaul in favor of transactional theory and skills.
• Impossible to replicate - several schools have programs that are absolutely fantastic, but that cannot be replicated by law schools that aren't in New York or Philadelphia or that have faculties (and alumni bases) that aren't sufficiently well connected with prominent dealmakers.

Thus, we are left with the usual (and somewhat obvious solutions) - a small business clinic, externships, full-scale simulations, and perhaps some sort of partnering with the business school.  All of these are excellent and worth doing.  However, they tend to be expensive (both in terms of faculty time and financial resources), reach relatively few students, and strike an uncomfortable balance between the teaching of doctrine and theory, on the one hand, and skills, on the other.  Thus, at the University of Oregon, we've begun experimenting with another model that I think is worth discussing.

We now offer two "transactional practice labs" which, just like your high school chemistry or biology lab, is appended to a traditional doctrinal course.  Thus, my course on Mergers & Acquisitions, as well as my colleague's course on real estate finance, each have a lab.  The labs are one-credit, pass/fail, and taught by adjuncts.  The very simple notion is that I (and my colleague) teach doctrine in the regular course, while students - who are simultaneously enrolled in the lab - learn transactional skills from practicing attorneys by engaging in a small-scale, semester-long deal while in the lab.  The idea isn't to graduate students with partner-level dealmaking skills, something that is beyond the capability of law school, but to give students a sense of what is involved in dealmaking so that they can hone their skills more effectively and more quickly once in practice.

The advantages of this model are several.  First, we have the labs sponsored by law firms, not by lawyers.  As a result, they are done pro bono (meaning that they cost us nothing) and involve a number of attorneys.  Second, they are completely scalable.  Almost any class could have a lab and they require very little supervision from the faculty member because the adjuncts are doing for our students almost exactly what they do in their professional lives.  Third, I believe they successfully navigate the tension between teaching doctrine and teaching skills - the academic faculty teach theory and doctrine while practicing attorneys teach skills.  Finally, they offer a host of non-academic but important benefits - they involve alumni more significantly in the school; they provide students with training in professionalism (several of the classes meet in the offices of the sponsoring law firm, several in the law school, the latter generally on football weekends); and they have a positive impact on job placement.  In fact, for a school like the University of Oregon that is outside of any major metropolitan area, these last few benefits are especially important.

Interest in the labs (and, as a result, the underlying doctrinal courses) is growing fast.  In the first year, we had nine M&A lab students.  In the second, twelve.  And this year we are attempting to accommodate over twenty by recruiting a second law firm to sponsor a second section.  Meanwhile, the sponsoring firm was so impressed by the results that they have floated the idea that they would involve some of their new hires as students.  Compare this to the fact that we recently increased the size of our small business clinic from eight to twelve students annually.  Certainly, this is terrific and I support it whole-heartedly, but the increase was difficult and expensive and unlikely to be repeated.

I spoke about the labs in more detail at Emory's transactional skills conference this past spring, and will again at the AALS mid-year meeting this coming summer.  I believe the transcripts of the Emory conference will be published in the fall in the University of Tennessee's journal Transactions, and I am hoping to complete a paper on the subject this winter.  Thus, if you are at all interested in the course format, I hope to have a lot more information available in the coming months.

Oh yes, and one final note - yes, it has been only two weeks since the new (and mostly awful) Star Wars movie was released; and yes, my six-year-old daughter has already dragged me to see it for a second time!  Thanks for reading.  Cheers all.

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Day 5 as a guest blogger - I'm really enjoying Gordon's meditations on teaching (as well as Stephen Bainbridge's), and I'm learning a lot.  But I think they're also important in that they signify that something larger is afoot.  It may be the Carnegie Foundation report, or perhaps just the growth of a critical mass of former dealmakers entering legal academia, but I feel as if the teaching of what is generally thought of as transactional law is finally getting some serious attention.  As Tina Stark mentioned in an earlier post, Emory just hosted a well-attended and very successful conference on the teaching of transactional skills (where I met both Gordon and Usha).  Meanwhile, the University of Washington has a similar conference planned for early September, and next summer's mid-year meeting of the AALS business law section will have a significant teaching emphasis as well.  Thus, I feel as if we're in the midst of a "moment" during which some serious people are re-imagining (or at least open to re-imagining) what it is that we do.

As I've given this a fair amount of thought lately (I spoke at Emory and will again at the AALS meeting this summer), I thought I'd share a few of my own ideas on teaching transactional law in what is admittedly a fairly long and meandering post.  Most importantly, I believe, we need to get comfortable with the notion that upper level business courses are not the place to be teaching basic legal analysis.  I agree wholeheartedly with Bainbridge (and Gordon?) that, if students aren't "getting it" during the first year, there's little I can do to help them in a course like Business Associations or M&A.  But this partly misses the point and so mis-diagnoses the problem.  The real issue that I see is that law school is three years but, by Bainbridge's own analysis, most of the important learning is completed by the end of year one.  What keeps me up at night is wondering why, if the goal is merely to teach students to "think like lawyers" (feel free to insert "litigators" or "judges" if you prefer - and I do); why is law school three years?  What value do the second and third years provide?  Clearly, the general answer must be that the goal of law school isn't merely to teach students to think like litigators.  There must be something more that we do (or should do) during the second and third years.

My answer, then, is that we have to strive to teach something different.  But it is not enough to merely teach additional or different content.  The second and third year of law school should not be an extended (and expensive) BAR/BRI course.  Instead, we should be attempting to teach a different way of thinking.  Just as the first year of law school seeks to immerse students in a new problem-solving methodology, the second and third year should attempt to achieve something equally as profound.

So what can we do/teach that is different.  There are really two answers to this.  The first is skills - law as a craft.  The second is teaching students how to "think like a transactional lawyer."  Note, then, how this simple notion re-conceives the law school experience:

• Year one = learn how litigators and judges use legal reasoning and analysis to resolve disputes;
• Year two = learn how businesspeople and transactional attorneys use law (as well as finance and economics) to identify, assess, minimize, and avoid risk and uncertainty; and
• Year three = learn the skills that litigators and transactional attorneys rely upon in their day-to-day practice.

If this conception is roughly correct - and it certainly is not at the margins, only in its general, broad scheme - it suggests to me that the litigation-oriented faculty at most law schools is already doing a terrific job.  Few can doubt that the first year of law school, through some magic recipe that no one quite understands (and that should probably not be examined too closely lest it be somehow contaminated), does a fine job of teaching students to think like litigators.  Then, if your law school is at all like mine, the second- and third-year curriculum is replete with litigation-oriented skills courses like trial practice, appellate advocacy, advanced legal research, negotiation and mediation, not to mention experiential opportunities like judicial externships and moot court competitions.  What seems to me to be less certain is whether we on the transactional side our doing our jobs.

Today, then, I'll give a few thoughts on what I think a second-year transactionally oriented course like Business Associations should encompass.  On Monday (which, alas, is probably going to be my last day as a guest blogger), I'll share some additional thoughts on how we might go about teaching transactional skills in the third year of law school.  Hopefully, I'll turn all this into an article of some sort (did I mention that I'm up for tenure this year?).

To my mind, the key to approaching the question of how to teach students to think like a dealmaker is to conceive of the discipline more as craft than science.  We must read cases - if indeed it is cases that we read - not to identify or assess the law, but to ask questions like "why did the parties end up in this mess?" and "how can we help our clients avoid this and other similar messes?"  For us, the cases and the law are merely the starting points.  I tell my Business Associations students on the first day each year that the "law" has only partial interest for me.  Instead, I care much more about the process.  Just as the first year of law school is intended to immerse students in how lawyers argue and judges decide cases, my transactional law courses are intended to immerse students in how businesspeople think and behave and in how lawyers deal with uncertainty.  For me, then, the law is just one more uncertainty that lawyers help their clients deal with (as in "I cannot tell you for sure that doing x will not invite litigation nor that we would be certain to prevail; therefore, you the client must either factor into your decision the possibility of such litigation or I the lawyer must help uncover a different, more certain strategy that will lead to the same or a better result").  Certainly, knowing how to think like a litigator is absolutely critical for transactional lawyers in that it enables us to (a) identify legal uncertainties, and (b) do the research and analysis necessary to assess the level of uncertainty and, hopefully, to minimize the degree of uncertainty.  That is why no transactional teacher should question the value of focusing the first year on litigation-oriented legal analysis.  Mastering litigation must come first.  However, for the transactional attorney, it is merely the beginning, not the end, of the endeavor.

What this suggests to me is that we should be talking a lot about business.  Certainly, I include a lot of economics and finance in my courses, but I try to avoid making it just theory.  Instead, I focus our discussions on practical business questions.  For every case, I ask what the risks were that the parties were faced with, and how they managed (or failed to manage) those risks.  To take an example from next Tuesday's class, when we discuss veil piercing, we spend less time on the theory and legal rules and more on the fact that limited liability is a mirage for most small businesses given that lenders and other significant creditors invariably require a personal guarantee or some other collateral.  Likewise, when we discuss double taxation, we also discuss planning techniques that enable small (and large) businesses to avoid the second layer of tax.  Law matters, certainly, as does finance theory.  But the practical implications of a creditor's risk of non-payment may well trump all.

And no, I don't lecture.  Although I am open to a lot of experimentation and doubt there is one "best" way to teach, and although I give my share of mini-lectures as introductions or wrap-ups or on particularly difficult issues, I mostly ask questions.  Lots of questions.  And mostly questions that the students have no business knowing the answers to (at least not until I'm finished with them).  Just as we begin the first year by immersing students in questions they never considered before but that, with repetition, quickly become familiar, I do the same in Business Associations.  I start with things like "why did the parties enter into this particular transaction?" and "what were they hoping to achieve?"  "What risks were they concerned about in choosing this particular course of action?" and "did they successfully navigate those risks?"  "What could they have done better?"

What I strive to do in my transactional courses is help students gain a feel for how to manage uncertainty.  Again, my real goal is to help them "think like a transactional lawyer."  Just as (most) students complete the first year of law school with a sort of intuition about how law works - can't we all pretty much predict what the law is within a certain area even if we know nothing about it? - I want my students to gain a sort of intuition about dealmaking.  I want them to value things like certainty, price, timing and social issues.  I want them to gain a feel for how a regulation or contract provision can be manipulated or avoided by unscrupulous (or sometimes by very scrupulous) lawyers and clients.  I want them, above all, to be experts in uncertainty - how to spot it, assess it, minimize it, and avoid it.  If I can do this, then I feel that the second and third years actually have value and that I am teaching something that the students don't already know.  This is all very had to pinpoint and even harder to describe, but I hope my meanderings at least provide a partial idea.  By keeping the goal always in mind, I think the process - and I'm sure there are many equally successfully processes - will be fairly easy to capture.

As a final note, we should remember that we also need to prepare our students to interact successfully with businesspeople, something they may not have done before.  In part, this means helping students - especially those with little or no background in business - to learn how businesspeople think and make decisions.  However, vocabulary and lingo are perhaps equally important.  To make this point, I joke each year that business law students should practice looking into a mirror and keeping a straight face while saying words and phrases like "synergies," "core competencies" and (here I think I may be dating myself back to the dealmaking days of the Internet boom) "bricks to clicks"  and "the new new thing" ...

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A few weeks ago, I sent my syllabus to the students enrolled in my Business Associations course this fall. I told the students that I had been re-designing my course to increase the level of student engagement. Based on enrollment, I gather that some of the students were not thrilled about this. Prior to the email, the course was maxed out for the size of the classroom, and I have dropped over 10 students in the intervening weeks. (Thus, another benefit of threatening to engage the students: fewer exams at the end of the semester!)

With regard to one student, however, I didn't have to speculate about his reaction. He sent me an email detailing his "issues" with the grading:

(1) With regard to my plan to have each student team "grade" homework assignments of three other student teams, he wrote, "When enforcing the law school curve, I do not believe that students should be grading each others' assignments when they have an overwhelming incentive to give low grades to boost their own. This invites dishonesty and unfairness. I guarantee you that students will not hesitate to slash the grades of others to get ahead. Keep grading entirely in your own hands."

(2) With regard to my plan to evaluate some of the assignments on a team basis, rather than student by student, he wrote, "As we will being ranked in the law school as individuals, it is senseless to base grades—to any extent whatsoever—on the performance of others. I understand the pedagogical goals behind group work, but those can still be accomplished while grading us as individuals rather than as teams."

Later in my series of posts on teaching, I will write more about the student's substantive concerns, but this post is about process. How would you respond to this email? I confess that my initial reaction was not very charitable. My inclination was to invite this student to hit the road. Take Business Associations from someone else if you don't like my class!

Fortunately, I had the good sense to sleep on it. The more I thought about it, the more I realized that this could be a great learning opportunity for both of us. I believe the student had some legitimate concerns (though at least the first concern was misplaced, and I have revised my syllabus in an attempt to make that clearer), but his method of expressing those concerns was way out of bounds.

So I responded as follows ...

Prior to sending this email, I have read and re-read your email to me. I have been waffling about what to write or whether to write anything at all, but I was finally persuaded to write by the hope that my reply might be helpful to you. So please read it in that spirit....

In your email, you "guaranteed" that students in the class would be dishonest and unfair, and you called my plan for the course "senseless," even as you assured me that you fully understood my pedagogical goals. You also commanded, "Keep grading entirely in your own hands."

You are the only student who has written to express concern about the team projects, though I am certain you are not alone. While I sympathize with some of the substantive concerns expressed in your email and hope to explain my approach more fully on the first day of class, I am troubled by the tone of your messages. In my 14 years of law teaching at six law schools and several international programs, I have encountered only three other students who have addressed me in a manner comparable to this. You can infer from the previous sentence that these are memorable experiences for me.

I am writing in hopes of encouraging you to reflect on your decision to send those messages. Obviously, you are frustrated by the prospect of having your work graded by other students, but insolence and condescension rarely persuade. As you may know, I am a blogger, and in the heat of an exchange, I am sometimes tempted to adopt a tone similar to the tone of your emails. Indeed, I have sometimes succumbed to that temptation. But when I have gotten some distance from those exchanges, I almost always regret having pressed "send." Those messages may be cheered by my supporters, but they often cause the other side to become even more stubborn in their position. And they make me look petty and immature.

The bottom line is that you are not doing yourself or the causes you advocate any favors by communicating in that way, and if in the future you behave similarly toward judges or senior lawyers, you won't be doing BYU Law School any favors either.

I won't reprint his lengthy reply, but it began, "I am so absolutely and so sincerely sorry about my message." He explained to me some things about the context in which he sent the initial email and why various outside stresses and strains may have resulted in him writing a message that sounded so hostile. He was extremely sincere, and I was really quite moved by his desire to make amends. Far from being on my black list, this student is now someone I quite look forward to having in class, even though we have never met.

Reflecting on my own life experiences, remembering those occasions when someone older and perhaps wiser had gone out of their way to help me by correcting me, rather than just ignoring me or aggressively putting me in my place, I suspect this student learned something meaningful from that exchange. And it reminded me that my job here extends beyond the classroom and beyond corporate law.

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In response to yesterday's post on teaching, Matt Bodie expressed an interest in knowing more about what was behind this tweet: "organizing my students into teams and creating a Quality Circle."

I discovered quality circles in education through Eric Orts. See Eric W. Orts, Quality Circles in Law Teaching, 47 J. Legal Educ. 425 (1997). Eric borrowed the idea from industry, and he is not the only educator to use the concept. He describes quality circles as follows:

The idea of quality circles in teaching derives from Japanese management techniques to increase workers' motivation and productivity. Quality circles are widely used by businesses throughout the world. They elicit employees' views "to determine how to improve quality, increase production, improve working conditions, and reduce costs." They are especially helpful in non-profit organizations given the absence of direct economic feedback.

Quality circles in teaching substitute students for employees. As quality circles in business encourage workers to take responsibility for improving the performance of the enterprise, so quality circles in teaching ask students to take responsibility for their own learning in the classroom.

In my post on evaluations, I endorsed the idea: "By using a quality circle, you can create your own system of reflective feedback. No need to wait for the law school administration to implement a whole new system of evaluations."

I used a quality circle once, shortly after Eric's article was published, and it seemed to work well. I was inspired to go back to the idea this semester because I am trying out a number of new ideas in my Business Associations course. (If you would like to see the syllabus, go here. As I have noted in prior posts, this is the syllabus I created with the help of counselors from BYU's Center for Teaching and Learning. Lots of useful information on that website, if you were interested.)

The nuts and bolts, according to Eric (with some commentary by me):

• "At the beginning of the term, announce that a quality circle will be used to provide feedback about your teaching, the classroom experience, and student performance in class. Ask for a handful of students to volunteer for the quality circle as a service to other students. Or ask the class to hold an election."

I announced the idea via email and asked for five volunteers. My email read in part, "Unfortunately, I cannot pay you for your advice, nor will I bump up your grade. The only credit for participating, therefore, is the knowledge that you will be influencing the development of the course. And some fun conversations. And perhaps some good cheese, if you catch me at the right time of day." In response, I had 15 volunteers, and I ended up choosing seven "from a hat."

• "Volunteers should be willing to devote about an hour each week to the task. If you take class participation into account in grading, it is important to emphasize that participation in the quality circle will not be considered. This would inhibit frank discussion in quality circle meetings and would be unfair to other students."

We have planned to meet each Monday afternoon during the semester. I asked the students to devote an hour per week to the Quality Circle. My hope is that we can do the meeting in about half an hour, and they can use the other time to discuss the class with their classmates. While I am eager for feedback from the students, one of my secret hopes is that these conversations will allow members of the Quality Circle to explain the structure of the class to other students, thus giving the entire class a better understanding of the pedagogical motivations for class activities.

• "Before volunteers are selected, you may want to announce that you would prefer a diverse group of students. Indicate which interests you wish to have represented. At Michigan, for example, I asked an African-American student who happened to ask a question after class and another student who expressed an early interest in the details of the final exam to volunteer."

I know a number of students in my class because I taught them in first-year Contracts. After seeing the 15 volunteers that I received in a class of 80 or so students, I wasn't too concerned about not having a diverse Quality Circle, so I asked my secretary to select the students because she didn't know any of them. Four women, three men. And at least one University of Utah undergraduate ...

• "Once the members of the quality circle are identified, circulate a list to the rest of the class. The students in my group at Michigan gave their e-mail addresses as well as telephone numbers. E-mail can often take the place of meetings."

I put the Quality Circle students' names in the syllabus, and email is now ubiquitous, so I don't think any of the students in the class will have trouble contacting the Quality Circle.

• "Frequency and duration of quality circle meetings will vary according to the availability and preferences of teacher and students. My group at Michigan met once every three weeks for forty-five minutes to an hour, ending for the semester several weeks before final exams. I handled the predictable flurry of last-minute questions either in class or by e-mail."

So Eric's group met less than he is recommending. As noted above, we are planning to meet once a week. If we don't need that many meetings, we can cut back. I figure it's easier to cut back than to add meetings, and I really don't like long meetings.

• "In the quality circle meetings, focus discussion on your teaching and the dynamics of the classroom. You might touch on the following topics: classroom ecology and culture, readings and assignments, discussion of cases and problems, your communication and movement in class, problematic students, evaluations, grading, and exams."

All good ideas. I am not sure you need a checklist. In my one prior experience, I just asked students for comments, and took their comments seriously without getting defensive. That emboldened them to make more comments, and we just took it from there. By the way, I think the point about not getting defensive cannot be overemphasized. If you have good reasons for structuring your class the way you do, explain those to the students, but don't take offense if they don't share your enthusiasm for teams or multiple choice exams. If you get defensive, you will shut down the conversation and deprive yourself of some useful insights.

• "After each quality circle meeting, I take a few minutes at the beginning of the next class to report the results of the meeting and then ask quality circle members and the rest of the class for comments. Giving your recollection of the meetings shows you listened and took your students seriously. A more daring alternative is to ask student representatives to report on quality circle meetings."

I had forgotten about the "more daring alternative." I actually like that idea. Last time, I did the reporting, and students seemed to appreciate that I was putting some effort into the class, not just mailing it in.

Finally, Eric lists some benefits of Quality Circles:

• Quality circles give constructive criticism of your teaching when you can do something about it.
• Quality circles let you counter students' criticisms.
• Quality circles let you explain where you're coming from.
• Quality circles help with diversity issues.
• Quality circles give you a mechanism for criticizing your students.
• Quality circles give students a sense of ownership of the class.

Good stuff. Useful outcomes.

If you like the idea, you might also want to check out Gerald F. Hess, Student Involvement in Improving Law Teaching and Learning, 67 UMKC L. Rev. 343 (1998), Hess refers to the groups as "Student Advisory Teams." The Hess article is longer and includes much more on the underlying educational theory.

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Steve Bainbridge describes one of his teachers at the University of Virginia Law School. Then Steve writes about his own philosophy of teaching law:

I eventually came to two conclusions. First, if students couldn’t think like lawyers by the time they got to me in their second or third year of law school, there was very little I could do to help them except suggest another line of work.

Second, the Socratic method doesn’t really teach you to “think like a lawyer.” At best, it teaches you to think like a litigator.

That first insight caused him to talk more and ask fewer questions. That second insight causes him to talk about economics and business, not just legal doctrine. And gradually, he came to this:

I had always lectured some. I defy even Professor Scott to teach the Capital Asset Pricing Model Socratically. As my teaching became more oriented towards transactions, and business and economics became more important, and identifying sources of value in the underlying deals out of which the cases arose became the key task, grilling law students seemed less and less effective.

Gradually, bit by bit, I freed myself from the trappings of the soft Socratic method. Away with panels! Away with volunteers! Away with questions! Up with PowerPoint!

Once I went through the 12 step program and became what Brian Leiter calls a “recovering Socratic teacher,” I noticed that I had some interesting company. Leiter, for example, has written that: “There is no evidence—as in ‘none’—that the Socratic Method is an effective teaching tool. And there is much evidence that it’s a recipe for total confusion.”

Having seen Steve in action, I can testify that he is an excellent lecturer. I fully understand why students flock to his Business Associations class, and I congratulate him on receiving the  Rutter Award for Teaching Excellence.

In the following paragraphs, I am going to say a few words about my own teaching philosophy, but I don't intend this post as a challenge Steve, who has obviously found his groove. Instead, I view this post -- and others in this series, which started here and can be located in the future under the Category "Teaching" -- as a set of "meditations" on teaching that are mostly about helping me to explain to myself what I am doing, with the hope that others may benefit.

Like Steve I have always been willing to experiment with my teaching, and my teaching style has evolved substantially over the years. I noted this past spring that I had been working with the BYU Center for Teaching and Learning on new teaching strategies. This effort was not inspired by poor student evaluations -- to the contrary, I have long been at or near the top of the heap on that measure -- but rather by the nagging sense that I could do better. What bothered me most was this thought: is it possible that I was very good at teaching even if my students weren't doing much learning?

My experience has been that law faculties aren't very clear in the way we think about this. If we are to have a meaningful discussion about teaching and learning, however, we must begin from the premise that good teaching necessarily leads to significant learning. If the students aren't learning, what's the point?

That seems pretty straightforward, but here's the problem: traditional law classes don't have very good measures of teaching or learning. If you think that the quality of teaching is measured effectively by traditional student evalutations, you might want to take a look at my first post in this series. Based on my own experience, observations, and reading, teachers can achieve very good evaluations without instilling much learning. Thus, good evaluations are not equivalent to good teaching. Also, traditional law school exams are not very effective measures of learning. This requires a fuller discussion, but I will save that for another post.

The point of this post is simply to establish that the right way to evaluate the quality of teaching is to measure the quality of learning. In future posts, I will talk about finding better measurements of teaching and learning, but I will confess that this is an ongoing search for me. In the meantime, I have decided that the best learning is likely to occur when students are engaged in various ways with the subject matter of the class. Reading, listening, observing, writing/drafting, solving problems (both alone and as part of a team), interviewing, counseling, etc. are all ways in which students might be engaged. The longer I teach, the more I strive to use precious classtime for interpersonal engagement among students (i.e., working as teams), and the less I rely on lectures or socratic method. This semester, I am striving to move my lectures online and out of the classroom. The socratic method may still have a place in my classroom, but I hope to make that place smaller and more purposeful than before.

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August is not the time of year when I normally think about student evaluations, but I have been re-designing my Business Associations course this summer, and in doing some background reading on teaching, I stumbled across an interesting article by Deborah J. Merritt called Bias, The Brain, and Student Evaluations, 82 St. John's L. Rev. 235 (2008). After describing several interesting studies exploring the importance of nonverbal behavior on student evaluations, Merritt offers this indictment of the present system:

The research on student evaluations is troubling. It confirms not some connection between a professor's style and student evaluations, but an overwhelming link between those two factors. Nonverbal behaviors appear to matter much more than anything else in student ratings. Enthusiastic gestures and vocal tones can mask gobbledygook, smiles count more than sample exam questions, and impressions formed in thirty seconds accurately foretell end-of-semester evaluations. The strong connection between mere nonverbal behaviors and student evaluations creates a very narrow definition of good teaching. By relying on the current student evaluation system, law schools implicitly endorse an inflexible, largely stylistic, and homogeneous description of good teaching. Rather than encouraging faculty to use nonverbal behaviors to complement excellent classroom content, organization, and explanations, the present evaluation system largely eliminates the "dog" of substance, leaving only the "tail" of style to designate good teaching. Neither law students nor faculty benefit from such a narrow definition of good teaching.

The psychology literature, moreover, identifies three further difficulties with the disproportionate role that nonverbal behaviors play in student evaluations. First, the behaviors that most influence these evaluations are rooted in physiology, culture, personality, and habit. Those behaviors are difficult for any faculty member to alter and they often reflect characteristics like race, gender, nationality, or socioeconomic class. Second, the current evaluation process allows social stereotypes to filter students' perceptions of instructor behaviors. Students see the nonverbal behaviors of some faculty differently than they view identical behaviors in other professors, potentially placing women and minority faculty at a greater disadvantage. Finally, the ratings that students award through the present evaluation system bear little relationship to objective measures of learning. The current system of student evaluations, in other words, rewards and penalizes faculty according to relatively trivial indicia, rather than what they accomplish in the classroom.

None of this seems new, exactly, but that's a nice synthesis of the perceived problems with the present system. Given my present interest in obtaining a better understanding of teaching and learning, I am most intrigued by the last complaint: that evaluations do not correlate with learning.

Can evaluations help us to become better teachers? Many law professors, particularly young law professors, use evaluations as an aid to improvement. After my first semester of teaching, for example, I went through the student evaluations and found five or six suggestions for improvement. In the next semester, I worked on those things. I did this every semester until the evaluations became too predictable to be useful. Now, I still read them, but usually rather quickly, unless I am looking for feedback on a specific part of the class (e.g., last semester I used teams for the first time, and I was curious to see how the students reacted in the evaluations).

But what if I wanted to know whether my teaching resulted in meaningful learning? Or whether certain changes in my teaching improved learning? Could evaluations guide me? The research summarized by Merritt suggests not: "The cumulative research suggests that there is little, if any, positive association between the ratings students give faculty and the amount they learn. The most recent study, in fact, suggests a negative correlation between evaluations and learning."

Hmm. Not so good. So, should we abandon our hope of improving our teaching -- rather than just improving our scores -- from student evaluations? Merritt says not so fast:

Students have essential feedback to offer faculty on teaching. They can tell professors what they learned from a course and how that compared to what they expected to learn. They can describe the educational techniques that worked for them and those that did not. They can provide suggestions for how a faculty member might teach differently. Law students can assess the quality of their educational experience in myriad ways.

The key to unlocking this information is in the evaluation technique. We need a technique that allows students to be reflective, not reflexive. Merritt suggests something along the lines of Gregory Munro's Small-Group Instructional Diagnosis. The idea is to have small groups of students provide feedback to a facilitator: "The students discuss their perspectives as a group, expanding the information available to each student, checking individual biases, establishing accountability, and implicitly noting the seriousness of the process and need for accuracy. These group discussions reduce cognitive overload by focusing attention and providing adequate time for thoughtful assessment."

In this part of her paper, Merritt cites to Eric Orts' short essay on the use of quality circles in the classroom. Eric W. Orts, Quality Circles in Law Teaching, 47 J. Legal Educ. 425 (1997). By using a quality circle, you can create your own system of reflective feedback. No need to wait for the law school administration to implement a whole new system of evaluations. I used a quality circle once, shortly after Eric's article was published, and it seemed to work well. I am not sure why I haven't gone back to it, but reading Merritt's article has inspired me to try it again.

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