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June 11, 2008

Refining class/exam reflections through two questions

I am really enjoying the continuing blog dialogue in the comments to my prior post, though I am sad to see continued vitriol (which leads me to wonder if my course innovations may have been more effective if there was not so much bad blood within the section).  In any event, rather than attack or defend what specifically transpired in our Legislation class, I would be grateful if students would devote some serious energy to these two questions:

1. Do you think there a value in having a non-traditional course in the 1L curriculum (which may require a certain measure of uncertainty about exam formats and grading expectations)?

2.  Do you think that traditional in-class exams provide a valid and fair means to evaluate and judge students' talents and abilities as lawyers?

My (flawed?) approach to our Legislation class and exam was driven by my strong belief, after 10 years of teaching that has led to growing frustrations about law school norms and status quo biases, that (a) there is great value in a non-traditional course during the 1L year, and (b) traditional in-class exams are a poor and often very unfair means to evaluate and judge students' talents and abilities.

These views grow from my strong belief in diversity, broadly conceived.  I fear that the standard 1L curriculum tends to teach and reinforce only one limited set of lawyer skills and perspectives, and then rewards those students who happen to be able to show off these limited skills during a time-pressured exam.  Through our class and assignments, I was hoping to challenge students to develop a distinct set of skills and perspectives, and then asked students to show off in a much different (and perhaps quite uncertain) way.

As I have candidly admitted, it is clear to me that I may have failed more than I succeeded with my innovations in our Legislation class, and this may be the collective price we all paid because I was trying something new for the first time.  (Relatedly, I know that the first time I taught Crim Law and Crim Pro and LW&A and other standard course I made a lot of mistakes and then improved in subsequent years.)

What is still not clear is whether my fundamental interest in innovation and diversity in class and in exam format is appreciated or loathed.  Perhaps 1Ls, who feel so much pressure from so many sources, cannot (nor should not have to) deal with radical twists on the standard 1L program.  Perhaps innovation should only be tried in upper-level course or in pass-fail courses.  Perhaps innovation should come in smaller steps with better explanation.  Or perhaps students do not share my frustration with the status quo (though I hear from a lot of alums about how misguided traditional law school programming is.)

Folks should continue to feel free attacking me, or the course, or the exam or anything else that makes them feel better.  But I hope the comments will generally migrate back to the two questions set forth above.


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1. There is certainly some value in an innovative and non-traditional 1L course. But if it is non-traditional we need to be ready to apply non-traditional grading to the course (i.e. pass/fail - of course for Harvard and Yale this is traditional). In many ways our final was very traditional: you are a clerk to the USSC here is your dilemma, what are the issues and how do you address them? In my opinion, that's pretty traditional, and our grades were certainly traditional. We tried to mix oil and water, and those efforts were rightfully met with opposition.

2. I'm terrified when we talk "greater good" like talk, such as "this is the collective price we pay for innovation". I personally do not enjoy having my law school career and professional future being sacrificial lambs in the name of innovation. If innovation is planned properly, we don't have to put such a big risk on the table. By proper planning, I suggest an agreement between the administration and the Professors of this innovative class agreeing to make the course pass fail, or to severely relax the curve. We can mitigate the risks with innovation, and then it is safe testing. In my opinion, the primary failure here is that there was a lot to risk for 70 students in the name of innovation.

3. The traditional law school exam is flawed. But I implore anyone to provide me with a suitable alternative. The LSAT is flawed, as are all standardized tests, but we need something to differentiate talent and ability in a world of GPA inflation. Similarly we need the law school exam, until someone comes up with a more effective method of testing. Every choice of exam format is going to favor some students, but that's life, if you don't like it, go into a different profession.

Those are my reflections on the questions. I will most likely not look at the blog again, so if I have offended anyone, or if anyone wants to ask me any questions, your best bet will be my e-mail - I need no further closure.

Posted by: Alex | Jun 11, 2008 9:51:05 AM

This bad blood you’re referring to is centered on your “innovative” teaching techniques. Have you considered that you failed us when you refused to teach us anything substantive? Or that we didn’t fail you by not being excited to be your science project? Our section, sadly enough, unified around our vitriol for your class. Ok, so a student released some of his frustrations in an arguably offensive post. I’m offended as well. Surely, many students are pacified by their grades, but even those that received the top scores acknowledge that they don’t have the first clue about statutory interpretation. As attorneys we will be arguing in front of a court of law; we can’t pull out the Berman constitutional doubt doctrine.

Posted by: Ringleader | Jun 11, 2008 9:59:15 PM

To be blunt, I feel that I gained more knowledge in legal research.

Posted by: DickNixon | Jun 12, 2008 12:30:12 AM

Ringleader and DickNixon: did you folks do the reading from the text?

If you did, why would/did you need me to spoon-feed/review the substantive material well covered in the text?

If you did not, why did you expect (or demand) all your learning in the class was going to take place in our very limited time together in class?

As comments are shared on this blog, I am growing ever more troubled by how much law students apparently want and need to be motivated by fear. I suspect folks stopped doing the reading because they no longer feared being called upon in class and/or no longer feared the reading would help them on the exam (even though I am pretty confident that those who did more of the reading did better in class and on the exam).

Similarly, I sense that many turned against my efforts at innovation because of fear of how I would grade and broader fears about their "law school career and professional future." For so many reasons, single class/grade and one professor cannot dramatically impact your law school career and professional future for the worse (though one professor can dramatically help your law school career and professional future).

What I find especially sad is that all this fear seems to be leading many students to make many bad choices --- bad choices about whether they do the reading, about whether they participate in class discussions, about how they pick class, about what jobs they seek.

Everyone can --- and many do --- lead professional lives as lawyers driven by fear about the next case or paycheck. That is why, in my view, so many lawyers are so unhappy. (Some law profs also operate in fear --- fear of letting students use computers/internet in class, fear of trying new thngs that might fail in the classroom, fear of talking honestly to students about flaws in the law and legal education, etc.)

I was hoping through my innovative approach to encourage learning and professionalism driven by joy --- joy of discovering new ideas and new approaches to the law, joy of discovering one could combine personal interests with professional obligations, joy of using new technologies, perhaps even the joy of realizing that professors often do dumb things that fail.

I really am sorry that my only achievement, apparently, was to unify the section "around our vitriol for [my] class." I have used much more innovate techniques in uppper-level (elective) classes and have generally been successful. Apparently I need to be much less bod when dealing with 1Ls, even in the second semester. Thanks for helping me see this important lesson.

Posted by: Doug B. | Jun 12, 2008 12:33:38 PM

I see that we're back to anonymous belligerent posting. So I guess the trend here is, go to law school to become a professional, yet act as unprofessionally as possible throughout your law school years. Interesting paradox.

I largely agree with Alex's comments that there has to be some balance between non-traditional course work and a fair grading system. However, I would argue that the lack of practical application that a traditional in-class law school exam has is troubling, and results in it being a detrimental way to evaluate one's lawyering abilities. I think that the way that the '100% of your grade single exam,' traditional law school class is conducted results in lawyers graduating law school, passing the bar, getting a job, and not having a clue in hell how to be a lawyer.

I'm not proposing any specific, sure-fire methods to improve upon the traditional law school exam; only that law school coursework should be coupled with more substantive, practical application. For example, maybe instead of a 3-hour in class exam, students should be required to write a 15 page memo to the professor discussing principles of that particular subject of law and relevant statutory/case law. Or students should be given a hypothetical relevant to a particular subject and be required to advocate a particular position in a research-driven brief (a la Legal Writing). These are just ideas, kids...just ideas.

Clearly the traditional law school method is a flawed system. Coming up with innovative, practical approaches to remedying the system is certainly necessary. Berman - unlike some of my colleagues, I applaud your efforts this semester. (And as a side note, from my discussions with students from other sections, no one, regardless of section, seemed to learn much from Legislation this semester - maybe a change in the Legislation curriculum is in order?).

And yes, I have time to write Legislation posts while at work. It's ok - I work for the federal government.

Posted by: Drew | Jun 12, 2008 1:03:37 PM

After bemoaning the inadequacies of our case book throughout the entire semester, the bombshell is dropped that all substantive knowledge to be gained from the course could be sought through it. I find this exceptionally humorous.

Posted by: DickNixon | Jun 12, 2008 1:07:38 PM

There is indeed value to having a “non-traditional” course during the 1L year—or any other year in school. And I think the first step in innovation is a solid understanding of the subject matter and clearly defined expectations—knowing what it is you want to convey to the students.

One of the most significant moments during my own educational career was the midterm for one of my undergraduate classes at Penn. We came in, having thoroughly reviewed all the reading material, ready to pound out an essay, only to find that the entire class had been divided into groups of four and each group had to answer one very open-ended question. The kicker, as if the surprise group was not enough? We had to draw out our answer with magic markers on a large sheet of butcher paper—and no words were allowed.

Other aspects of the class were “non-traditional.” The professor rarely people said things in class. There was none of that affirmation so many of us seek—good answer! Great question. Instead, we had to learn to figure out for ourselves whether we had good answers, good thoughts.

That midterm changed the way that I though about schools, colleges, teaching. The professor shook the educational ground I had become so familiar with—go to class, take notes, have the professor say “good job.” And it largely helped shape my own career interests (education law and policy). But the professor was an adjunct—his full time job was as a high school principal in West Philly. He had been a teacher for many years before that. The class was Urban Education—and it was something he had lived and breathed for his whole career, and a class he had taught many times before I had him.

Later, when I was a teacher, I also embraced “non traditional” teaching methods. I used a lot of rock and roll music to teach my 9th grade Los Angeles students about English language and literature. But I found that I was best able to be innovative after I had substantial practice and experience teaching the class. My first semester of teaching was a disaster--and I quickly reverted to being what I never wanted to be--a traditional teacher. Once i got the hang of teaching that class, I could be much more creative.

Professor Berman, you clearly have a very deep knowledge of the class material. But I think part of the problems with your innovative approach stemmed from the fact that you had not taught the class before. I would get frustrated in class when you would express that those of us who had been upset were just One L’s who were so locked into the system. Many of us who were most adamant about our frustrations were some of the “non traditional” students who’d been out of school a few years—or in my case, more than a few.

You did, in my opinion, an excellent job with the final format—and I completely agree with Drew on the flaws with the 100 percent of your grade determined by one thing. The class itself had some good ideas that we got excited about but then grew frustrated with when they were not implemented very well, like the “whos.” In some ways, the fact that you were so energetic and enthusiastic about being different made things worse. We got our expectations way up, and then became frustrated.

So I guess my point is that I certainly encourage innovation in classes and creative approaches—and it’s refreshing to have them in the One L year. But I think having experience with the course curriculum first, and having taught that particular class before, helps ensure that the innovative approach will be more successful.

Posted by: stephanie | Jun 12, 2008 1:51:44 PM

I won't argue against having innovative classes in law school, because I agree that they could prove quite beneficial. However, I'm not totally clear how this class was innovative. Non-traditional yes, but innovative? It seems to me that we are equating non-traditional and innovative without any foundation. I don't feel that a course being non-traditional is either necessary or sufficient to qualify as being innovative. For instance, had we proceeded through the course of legislation exactly as any other 1L course, only with the additional use of our "who's" being part of the course (by this I mean actually doing something with them), I would certainly call that innovative. This would be an example of a traditional course that has become innovative in its teaching.

I felt that 2/3 of the course was a forum on a number of current events marked by a slight venture off into the civil rights act. When preparing for a class (try and stifle your laughter) I felt that reading the NYT, Economist, Drudge, etc was a better use of my time than reading our case book. Perhaps this was incorrect as it now seems Prof. Berman is becoming a larger advocate for the Eskridge book than I think anyone was aware during the semester, but I digress. My point is that we spent much of our time on current debates and the media's interest rather than anything contained within that book. I'm not here to debate the merits of such an approach - I am simply presenting it as what I feel constituted around 2/3 of the course.

After this, class took a dramatic shift. I think there was a collective realization that while having such cafe style discussions was fun, there was no real way to evaluate our performance. So we completely shifted into reading 2 cases. But wait, reading and analyzing cases - I thought this was an innovative course designed to get away from traditional law school? What happened to the dialogue of which we had become accustomed? Was our final seriously an analysis of those two cases in a standard format?

During the time leading up to the final, I had every reason to suspect a question inquiring as to whether I wanted to be a fireman or a police man. Class did not have any direct focus and was seemingly designed around challenging preconceived notions and trying to stimulate discussion. In theory, this might be a valid use of our time, but I cannot think of a way to grade our class using any of the tools currently available within the law school's curve. Implementing a class such as this might very well have worked and even flourished had it been designated pass/fail. But it wasn't, and I think we all realized this toward the end.

Claiming our final was fair is all but irrelevant. It was fair given the last few weeks of the course, but what point did the rest of the class serve? Let's be honest, we could have skipped every day in the beginning, turned in the mid-term (which required almost nothing from class discussions), and attended the final 2-3 weeks and learned everything you needed to know for the final.

I just don't see how all this so-called "innovation" played into the culmination of this course.

Posted by: DickNixon | Jun 12, 2008 4:47:59 PM

DickNixon (et al.): Let me expand on a few points regarding the casebook, class topics and innovation:

1. I beat up on the casebook as a foundation for class discussion because I came to realize --- based in part on poor student discussions during the first few weeks of class --- that many themes/concepts in the book were too advanced for a Spring 1L class and also were somewhat dated in light of 2008 political/legal realities and debates (e.g., there are right now relatively few active LEGAL debates over "one person, one vote" or campaign finance law, though there remains LOTS of political debates on these and related topics.

2. Though I dissed the casebook as a basis for in class discussion, I meant to stress (and perhaps failed to make clear) my extraordinary respect for the massive amount of substantive knowledge in the casebook. Truth is, the casebook really more of a treatise than a casebook, which makes it great for substantive knowledege, but not so great for teaching skills in the classroom.

3. I view class time as a opportunity to work on lawyering skills more than a chance to present substantive knowledge --- and I am glad you got in the habit of reading the NY Times and other thoughtful current publications as part of class prep. Great practicing lawyers read (or at least skim) dozens of periodicals every day/week and never crack a casebook. In terms of developing lawyer skills, I am pleased how by "non-traditional" approach impacted how you approached class prep.

4. Another key lawyer skill is to see connections between current debates and controversies and long-standing debates. The current big "one person, one vote" and campaign finance concerns of our time involve how the parties select their nominees and how $$$ influenced the success or failure of various candidates in the primary process. We discussed these matters in class because they provided, in my view, a valuable up-to-date perspective on the (somewhat dated) issues covered in the casebook.

5. I do not want to debate the semantics of what is innovative, but a mid-term paper, a blog, and a combined take home/in class final are new to for me in a 1L class. You are right that I became somewhat less "innovative" after all the complaints, but we still focused on current statutory controversies in a way that few other class do. To my knowledge, it is rare (and I think innovative) to focus on cases decided or taken up by courts only days before in a 1L class. And, in my view, the best exam answers we able to bring insights from the class discussions all year long and from the casebook.

I continue to be intrigued (and a bit troubled) by my sense that students think that "the point" of a class like Legislation is to learn substantive materials and to learn that material by having the prof teach like it is a high school civics class AND/OR by having an exam that will "force" students to learn what they otherwise might not be motivated to learn without the fear of a bad grade.

I do not mean to be defensive here: my goal is to explain what motivated my (obviously flawed) approach to teaching this class. My goal was not to spend a semester trying yo teach "everything you needed to know for the final." Rather, I was hoping in our brief time together to teach you a few new ideas, perspectives and skills that I think students need to know to be a happy and successful lawyers.

I have learned over the last 5 months that I communicated my goals for the course poorly. But some comments on the blog lately lead me to wonder whether the bigger problem was my goal of trying to enhance students' ideas, perspectives and skills rather than just teach some basic doctrines.

The problem I have with a focus on doctrine in the classroom --- especially in a course like Legislation --- is that many legal doctrines taught during the 1L year will be forgotten or dated by the time students start their first real jobs (and/or can be easily looked up if enduring). In other words, lots of doctrines fade and the doctrines that persist can be readily learned from books. A students' development of new ideas, perspectives and skills, however, should persist (and be ever enhanced) if law professors are doing their job well.

I hope DickNixon and stephanie and Drew and others will keep this dialogue going. I am continuing to learn a lot about student desires and expectations from this thread, and I continue to want to learn and improve my ideas, perspectives and skills as a professor in the classroom.

Posted by: Doug B. | Jun 14, 2008 6:23:45 AM

My number one concern is not the fact that i did not get an A in the course, but the fact that after the class and exam are over and I have received feedback through grades I cannot pinpoint and determine what I could have done differently to have possibly received a higher grade, besides dropping the course and taking it later with a different professor.
I have not done as well as I would have liked in other classes, but I could always see where I could have done certain things differently in order to have received a better grade.
In my entire career as a student, I have never been unable to pinpoint something I could have done better in order to receive a better grade, until now. After grades were posted, I was left with a feeling of frustration at the fact that I have no idea where I went wrong and what I could have done differently. This evaluation is an important one to be able to make in order to learn from mistakes and do better in the future. Unfortunately I was unable to apply it for this course.
At the end of it all, legislation was a disappointment. I feel like I did not learn what the other sections did, and have no idea what I did to get the grade I received. I probably should have dropped just to be able to eventually learn legislation. I am here to learn, and in all the other 1st year courses I learned the subject taught. The only thing I learned from legislation was that I should have heeded the red flags and dropped the course.

Posted by: anonymous | Jun 16, 2008 12:59:19 PM

Anonymous at 12:59:19 PM: I hope you will come in talk about your performance in course, so that I can help you understand what you could/should have done better (and perhaps help you appreciate what you actually may have learned in this class).

Posted by: Doug B. | Jun 16, 2008 5:27:05 PM

I took a straw poll of some friends from other sections after reading the posts regarding our legislation class: while many of them were bored by the book and the class, not many of them had outright animosity towards either. I think my impression of our section's reaction to this class is that it certainly includes not only boredom, but also hostility and anger. I don't think you'd find such harsh and strong reactions by other sections to their legislation classes. Ultimately, this should be feedback in of itself: I don't think any first year law student should come out of a required course absolutely hating it. While the stayed, tried, and true method of teaching 1st year law might cause attorneys to never remember anything about their Torts or Contracts class, I think you'd rather have this than widespread negative reactions to an "innovative" course. Thus, I second (or third at this point) Alex's earlier comments, especially point 2. Innovation is best left to courses where students have a choice whether or not to gamble. 1st year is not the appropriate venue for tinkering.

For the record, and I don't think this was a big secret, I enjoyed the class, thoroughly. But, and I don't know if its a good thing for me to admit this, I spent upwards of 75% of the class time playing solitaire while waiting for something new to be said which would grab my attention...which is when I would speak up. And since I sat in back row I can now call out all of my fellow classmates (go ahead guys, read the email address and name, I'm not posting anonymously...my 'guns' are waiting for any negative responses) and say that 90-95% of the class was doing the same. We did this because class was not the traditional Socratic method nor did it really cover the readings much. If either had been present, you would have had a lot more students paying attention during class rather than setting new high scores on every game on addictinggames.com

Posted by: Jimmie | Jul 3, 2008 7:47:55 PM

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