Legal Commentary

There are two competing trends in the academy right now. One is the issue of "Best Practices" (a presumptuous, non-neutral term if every there was one) from the Carnegie Report, etc., which urges us to get beyond the historical Socratic class and introduce professionalism, "experiential learning," and other devices throughout the curriculum. This has particularly been a theme in civ pro, with the call to make the course more practice-oriented and more focused on what civil litigators really do (i.e., discovery and motion practice). Civ pro is often a favorite object for those who would like to put clinical/practical experiences into the doctrinal curriculum.

The other trend is the idea of "student-centeredness," which has been a major push throughout FIU. Now this is undefined. At the relatively harmless level, it could be understood as the commonsense idea that professors should be available to students, should be responsive, should be fair, should try to make education fun, should try to be creative, etc. I hope that I do those things (or I at least try). At its worst, this could be about the commodification of education and student-as-customer seeking to control curricular content and how the courses are taught.

Reading my Civ Pro evals from the just-completed semester (which generally were OK from a good class) got me thinking that these trends may conflict.

For example, I assigned several sample complaints so students can see what the documents we are talking about look like; we talked in class about their structure, organization, and content, and even spent some class time considering whether these sample complaints survive scrutiny under Twiqbal. But on the evals, several students complained about the use of these additional materials. They did not like having to print and carry them around and they did not understand why they were looking at them. I also am not sure they quite got how to read and prepare them or what they were trying to draw out from reading them.

For the first time, I did a drafting assignment, with students writing a complaint (H/T: Nancy Marder for letting me steal her materials); I gave a detailed fact pattern that included a discussion of the applicable law, along with the sample complaints they could use as models. Students just had to figure out how to plug that all into a pleading, including making decisions about parties, remedies, and what facts to include. A number of students criticized the assignment, with comments ranging from "This is not Legal Writing" to "We don't know anything about substantive law, so how can we write a complaint" to "Many of us were upset because we didn't know how to put a complaint together." Now my mistake here may have been grading the assignment (it was 15 % of the final grade); several professors I spoke with at the AALS Civ Pro Workshop said the key is to keep it non-graded.*

We also made heavy use of the course blog to post information about new and current cases or pleadings or events in the news; in several instances, I assigned these new cases or pleadings for class discussion. The idea, of course, is to introduce some current events into the class and to show how staid Supreme Court cases play out in the real world now. In fact, our school's numerical evaluation forms specifically ask whether (and how well) professors incorporate current events and developments into the course. The blog allows us to do this in real-time. But several students complained about this additional reading; they cited workload concerns with additional material and keeping up with the blog; notice concerns that this was not on the syllabus (of course, it could not be on the syllabus because no one knew about the case when I wrote the syllabus); and timing concerns that they often found out about the new reading the day before class (a fair criticism, but one that is unavoidable if the idea is to discuss new events).

To be clear, the comments and concerns discussed here appeared on only a small handful of the 50-or-so evaluation forms, so this may reflect relatively isolated discontent rather than broader disaffection. But they stuck out and I at least want to give them serious consideration.

I find it interesting (and a bit of a dilemma) that the very people curriculum-reform advocates are trying to benefit--the students--are, at least in some cases, most resistant to the additional work (and type of work) that reform introduces into the course. Of course, professors do lots of things that we believe are for the students' educational benefit even in the face of student complaints or different views (see, e.g., banning laptops); this is just one more example. And I might avoid some problems by explaining (in class or in the syllabus) some of the things I am doing, although there necessarily are limits to this.

At the end of the day--somewhat counter-intuitively--students may be more tradition-bound as to how law school classes should be structured than their professors.

• Of course, that would take away one graded assignment (I did the drafting exercise instead of a mid-term essay), requiring me to tack another 15 % of value onto the Final Exam--when all sorts of pedagogical studies tell us that grades should not hinge too much on one big end-of-semester assignment. Alternatively, I give a second, graded mid-term writing assignment in addition to the drafting exercise--but then I get dinged for giving too much work.