Tuesday, August 28, 2007

II.Toward a kinder, gentler (and more intellectually rigorous) law school --Proposal (rev'd)

What follow are some preliminary thoughts in that direction, a proposed model of a more collegial and mutually respectful educational process for our law school. The model demands more from all of us, teachers and students alike. I suspect that few will agree with all of its implications and entailments. Much help will be needed from students and fellow faculty members to think it through and, perhaps, to test it in practice, on an experimental basis. Perhaps it will be of interest to legal educators and law students elsewhere, but my primary focus is on UW.

The model rests on the conception that faculty are senior colleagues, and students are junior colleagues (and responsible adults), engaged in the shared enterprise of training future professionals. The model presumes respect, of one another and of the importance of the joint enterprise. It also presumes responsibilities as well as rights, again going in both directions.

Most fundamentally, we as students and teachers share a responsibility to and for the collective educational project. We all learn from one another, in ways conducive to life-long learning, the cultivation of professional skills, and service to our clients and our communities.

In this model, we value diversity, in substantial part, because of its tremendous liberating potential to expand the range of perspectives and life experiences from which we can all learn, as well as for the opportunity to learn to work effectively with others who differ, in all kinds of ways, from ourselves and our own experiences of the world (and of the self). We also promote diversity to enhance the likelihood of extending the reach of affordable and high quality legal assistance to all elements of the community, particularly to those currently not adequately served by the existing legal profession.

The world, and the social and professional realities we inhabit, are not simple ones. Conflicts are rife, and our society has gone a long way in approving the single-minded pursuit of individual gain, while downplaying elements of community, solidarity, and a fair-minded regard for the needs of others.

Some of this is inescapable in the human condition, and it has found its place within our halls. Law school is a competitive place (perhaps less intensely so at Wisconsin that at some other institutions). “The system” is set up (here as virtually everywhere else) so that some advance their own prospects at the expense of others, creating resentment, disillusionment, and intellectual and emotional withdrawal by all too many of our students. This is perhaps most obvious in our system of examinations, recommended and quasi-mandatory curves, and grades. (Recent grading reform may help some, but I would argue not enough, on this score.) It is powerfully and sadly reflected in widespread negative student attitudes toward fellow students who speak in class with “too much” frequency, seriousness, preparation, or engagement.

These issues also bear a disheartening relationship to the supposed traditional model of the faculty-student “Socratic” exchange, as portrayed in One L or The Paper Chase, in which sadistic professors, abusing their superior authority, knowledge, and experience, demean and humiliate students who cannot live up to impossible standards.

I experienced some (but relatively little) of this behavior in my own education. To be candid, I thought at the time, and now even more so in retrospect, that a measure of experience learning to survive attack and to respond quickly and effectively to intellectual intimidation was probably good for my development as a lawyer (and to my masculine identity; I suspect there may well be an important gendered aspect of this, worthy of discussion in its own right). From discussions with (particularly male?) faculty colleagues of a certain age, I suspect that others also look back on such experiences with a peculiar mix of nostalgia, pain, and gratitude.

Times and practices have changed since those years, mostly for the better. I do not emulate this model in my own teaching, and have not seen much of it in my colleagues’ teaching here at Wisconsin. I do understand that some students may perceive their experience here as a (perhaps somewhat muted) form of my hyperbolic description. We need to talk more openly about this.

The nature of our surrounding environment also affects our reality in a second, and at least equally important sense. If we are to respond effectively as lawyers and public citizens to a world that is complex and rife with conflict, we must seek to understand it, both through the production of knowledge (our research mission) and through the fearless examination of sometimes uncomfortable and emotionally-frought realities of life around us. We must learn to engage with competing perspectives and arguments, many of which we (in perhaps differing ways) will also find distasteful, or even offensive.

As lawyers and as legal educators, we are committed to the proposition that the best response to “bad” positions is through better development and use of complex evidence and through better arguments. Better arguments, by and large, are developed through careful and critical scrutiny of what makes the competing arguments tick, both in their internal logic and in the ways they depend on what we perceive to be incorrect beliefs and only partial truths.

The skills of an effective lawyer vitally depend on this capacity for critical examination. The process by which this capacity is cultivated (and made memorable to our students) is intrinsically an edgy and sometimes risky one. Even when done with the utmost skill and sensitivity, and with dedication to the objective of a more just society (as I think is characteristically the case here at Wisconsin), it will sometimes miscarry. Offense may be given, and feelings may be hurt. It comes with the territory.

To abandon the territory is to be derelict in our responsibility to train students properly to be professionals and public citizens. The trick is to find a way to turn that offense, and those hurt feelings, back into the classroom, to advance our collective learning (certainly including the learning of the teacher).

The great “teachable moments” often come in such circumstances. One of the tragedies of recent weeks is that we have not--at least thus far--adequately taken advantage of the potential teaching moment created by the compounded miscommunications and misunderstandings that have brought such pain to our community. The March 20 Forum was a useful start. But there are further discussions and hard work to come, if we are to make the most of this moment of opportunity. Let us not allow this precious occasion for collective reflection, engagement, and constructive change be lost in our understandable shared desire to put recent difficulties behind us.

Please, engage.

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