Anti-law school propaganda.

Yikes. That was mean. I must say I laughed at the law professor (at 1:50): "I will assign you an enormous amount of reading, and then proceed to humiliate you during lecture." (No real law professor would say that. Even if he'd admit to an intention to humiliate students with the Socratic method — and I've never run across a law professor who did — he wouldn't refer to the Socratic dialogue as "lecture." And he probably wouldn't assign a lot of material. The most Socratic fun/torture is done with just a couple cases per class.)

(Via Prof. Jacobson.)

"The fact that Daley’s appointment did not work out shouldn’t, perhaps, come as a surprise."

"As a millionaire boardroom Democrat, he was out of step with an increasingly populist political climate. And as someone without much personal connection with Obama, his margin of error was likely slim from the very start. In the end, the most interesting question about Daley’s rise and fall probably pertains to President Obama’s management style—namely, why he decided to hire Daley into such a precarious position to begin with."

Paul Starobin, writing in TNR, actually blames Obama a little bit for something. That's surprising! Now, that's the last paragraph of the article, stating "the most interesting question." Who really cares about Daley? Let's get some sharp analysis of "President Obama’s management style." Or is that supposed to be an eternal enigma?

"Instead of offering a quick answer and moving on to another subject, Mr. Santorum began a Socratic lecture..."

"... repeatedly asking the students questions."

A Socratic dialogue?! Oh, no. It's like he actually cares about educating students! The very idea! When he could have offered a quick answer and moved on to another subject...

"I was determined... not to raise a soft, entitled child...."

"Classical music was the opposite of decline, the opposite of laziness, vulgarity, and spoiledness."

I read books with a pen in hand and mark passages I want to be able to find later. That's the only thing I marked in "Battle Hymn of the Tiger Mother," which I'd read about a third of a few weeks ago and picked up and read to the end yesterday. Those 2 quotes appear on page 22 (of the hardback). As you probably know, the book is a memoir written by a lawprof, Amy Chua, who goes to great lengths driving her 2 daughters to learn to play the piano and violin and portrays this intense venture as Chinese.

You're left on your own in deciding whether to hate her for being so cruel or to worry that you should be (or should have been) a whole lot tougher on your own kids. In the process of making that decision, you've got to face up to or struggle to deny the way you are influenced by the extremely high level of accomplishment the 2 daughters reach. There has to be some degree of admiration or envy pushing you around.

See? She's a lawprof, and, I, a lawprof, see the book as setting up a Socratic inquiry. The lawprof keeps her distance as she gives you something complex to try to pull apart and examine. I can see why I marked the passage I marked and then left the pen capped.  There's a very basic goal that is easy to accept in itself: We don't want to raise soft, entitled children. But how do you do that? Here's one example of someone trying to achieve that goal. Now, what have we learned about the goal and how to achieve it?

There's something skeletal about the story Chua tells. The accomplishments of the daughters are documented objectively. There are specific honors that can't be denied. But we can only imagine the cost. Chua presents herself as a cartoon character, and she all but excludes her husband from the picture. I have no idea why these 2 people are married or what their relationship is like. That's one way to write a memoir. I've read other memoirs that deal with ongoing marriages that way. (One is "Dreams From My Father.")

A novelist could find rich material for a brilliant rewrite in "Battle Hymn of the Tiger Mother" (or "Dreams From My Father"). There is so much missing from these stories. Create the flesh that could hang on those bones.

Erwin Chemerinsky says those other law schools are "remarkably resistant to change."

It's the Dean of the new UC-Irvine Law School, speaking at a "Future of Legal Education" symposium:

One reason schools are sticking with a familiar playbook: "It's a cost-effective method of education," Mr. Chemerinsky said. "Putting one professor in front of a large group of students is very efficient." Clinical classes and simulations, which require low student-to-faculty ratios, cost more, he said.

Because his own law school wasn't bound by decades of tradition, Mr. Chemerinsky said, he and the founding faculty members were able to do some things differently, like stressing hands-on, interdisciplinary study across all three years.

Asked by an audience member how the school could afford to do that, he answered, "It starts with having to charge ridiculous levels of tuition."

Chemerinsky made a funny. No report of the volume of the laughter in the room.

Nothing like using other people's money to play out your expansive, innovative ideas. Except clinics and simulations are very old ideas. Cf. "high-speed" rail.

God forbid we should do what's "cost-effective."

By the way, what is "hands-on, interdisciplinary study"? Do we get to fondle a sociologist? 

You know what I would love in a new school — one that "wasn't bound by decades of tradition"? A deliberate decision to embrace tradition. Let's get a bunch of tough Socratic lawprofs in front of a classroom of students. And that's it. Perfectly cost-effective. You can save money on admissions too by going old-school. Make it an old-fashioned GPA/LSAT meritocracy (and flunk them out if they don't perform).

If you're a prospective law student, do you want to go to my new traditionalist school or to Chemerinsky's place? Is that because the tuition will be way lower or because you think that would be a better education? If you're an employer of law grads, do you want New Traditionalist grads or Chemerinsky grads?

If I had to go to a law school, I'd pick:
	Chemerinsky's Old Visionary Law School
	Althouse's New Traditionalist Law School
	Something more moderately in the middle
pollcode.com free polls

"You have a steady diet of borderline cases. Is this bending up your mind?"

"Is this having the effect of dulling your sensitivity to the 7 major values of certainty in law? If you’re getting accustomed to life on the borderlines — that's what you're in, life on the borderlines — could that have a prejudicial effect on the general standards that you have with regard to what the law is like? And you just take for granted that the law will be open-ended, spongey, discretion-ridden? Some of you do think there’s value to predictability, determinativeness. There are probably not just 3 ways in which it’s valuable, but probably about 15."

Said the eminent, venerable law professor Robert Summers, according to the verbatim notes of a student in his Contracts class at Cornell Law School. Summers recommended that students try to write everything down, and the student, my son John, followed the recommendation. At the link, you'll find much more about Summers — the ideal of the Socratic law professor, who taught his last class on December 1st.

Professor Summers taught law for 50 years. That's about twice as long as I've taught law, and I see myself as well past the middle of my teaching days. I encountered Professor Summers when I interviewed at Cornell — it was my first law school interview — in the fall of 1983. He went on an oddly long rant about how awful it was to have to grade exams.

If I had a transcript of that now, I'm sure I would see that it was hilarious, but at the time, I was terrified, and I furiously racked my brain to think of some interview-appropriate response. Perhaps if I'd been less tightly wound that day and laughed instead of looking however I looked — mystified? blank? clock-watch-y? — I'd have ended up at Cornell.

But I ended up at Wisconsin. And I'm pleased that my son John grew up in Wisconsin and that he ended up at Cornell — with the presence of mind and the sense of humor to appreciate the great Professor Summers.

John says:

... Summers took the Socratic method to the extreme. He rarely made any direct statement about anything, almost always preferring to ask questions instead.

He mockingly voiced the way he thought students would react:

Isn’t it a pity that you need to analyze cases? You can’t just go around with your mouth open waiting for a spoon that will feed it to you in one big, luscious bite! Students should sue. The teachers should just give you the law.

For me, that is a luscious bite of incentive to keep trying to find the wit and the nerve to go for the Socratic ideal. What if I took a secret vow to teach speaking only in questions? How long would it take the students to notice? And by notice, I mean, notice that I'm using the technique of only asking question, not notice that I am really, really annoying.

Summers talking about another lawprof:

MacNeil was a whale of a law professor! Never uttered a declarative sentence! Never uttered a declarative sentence! Not in 35 years! Best law professor we've ever had! Now he's retired. What a mistake that was. What a mistake that was.

The "Should I Skip Class Today?" Calculator.

When you not only don't want to go to class, you don't even want to make a decision for yourself.

(Via Inside Higher Ed.)

As a teacher, I need to reverse-engineer my classroom policies. I can see students using this calculator would be encouraged to skip!

Hmm... I just tried to do that. It seems the only way I can change something to get a different result is to give pop quizzes. That would be bizarre in law school. But the equivalent — which is  not accounted for in the calculator — is to call on students randomly and have class participation be part of the grade.

Should we say "single-gender education"?

Mark Liberman -- who saw that term in a headline -- wonders why someone would want to avoid the standard phrase "same-sex education." [ADDED: I meant to write "single-sex education," and I can see that my slip shows a problem with the term.] Is it a matter of embracing the word "gender" to express the belief that differences between male and female are produced by culture, not biology? Or is it prudery about about the word "sex"?

Liberman informs us that the word "sex" goes back to 1382 -- "Of alle thingis hauynge sowle of ony flehs, two thow shalt brynge into the ark, that maal sex and femaal lyuen with thee" -- but the first use of it to refer to "genital pleasure" is in this D.H. Lawrence poem, "Pansies":

If you want to have sex, you've got to trust
At the core of your heart, the other creature.

I think it's mostly prudery, unless they're going to let the kids decide on their own gender identification, which I think would be a good idea. You have one school that teaches in a way they think works best with most boys and the other that -- like most schools these days -- does things that tend to work with girls. Then, each child, with a parent's help, looks carefully at the different teaching styles and picks the one that suits him or her best.

This reminds me of my old proposal for a law school dedicated to the traditional Socratic method in all the classes. Presumably, that's a male style of education -- not to say that all male law students would like it or thrive in it or that no female students would want to attend. But wouldn't it be good to have that option? Would you take it?

Thinking about Professor Kingsfield again.

Writing the previous post, I ran across a couple of bloggers who talked about going back to my Kingsfield column in the NYT a few weeks ago. (TimesSelect link.) I described a talk by John Jay Osborn Jr., the author of "The Paper Chase," and wrote:

... Osborn says [law students] hate law school, and they hate it because the law professors don’t care about what the students think. “You come in here with a skull full of mush, and you leave thinking like a lawyer,” said Osborn’s sadistically Socratic professor, Charles W. Kingsfield Jr. This legal discipline deprives students of “their own narrative,” as Osborn put it, and they need to learn how to struggle, as Osborn’s protagonist Hart did, to “reclaim” it. They need to resist what law school tries to impose....

Here's Greg, a law student who actually has had Osborn as his lawprof:

Because Prof. Osborn didn't cold-call, didn't even assign people to be "up" for a particular class, it was the narrative of a few that we heard most from.

This is the #1 problem with relying on volunteers. I, myself, have used volunteers through most of my 20+ years teaching law. It is more relaxed and does give you the good feeling that you're not intruding on anyone. But of course, you are. You're intruding on the minds of everyone in the room, even if they are passive and silent. They may avoid the fear and pressure of getting put on the spot, but that doesn't mean they're having a fine time listening to the students who enjoy engaging with the professor.

Osborn wants to empower students to "reclaim" their "personal narrative" in class, but you've got to picture that in practice. Just because the opportunity is offered doesn't mean the students will respond in proportion to their need for personal empowerment or the value of their personal narrative to the classroom experience.

Most likely, the students who bring the most empowerment to class will do the most talking. These may be the extroverts or the students who came from families or great schools that got them comfortable with exposing their minds. Having to listen to these already-empowered students may very well disempower the students who are more introverted or whose families did not debate politics at the dinner table or whose high schools were substandard holding pens. It may strengthen some students over others -- perhaps males over females or white students over minorities students.

If we care about diversity, we need to worry about a teaching method that activates some and not others. Even if you rankle at "diversity" talk like that and prefer to think in terms of individuals, you should care about systematically empowering some individuals over others. Well, if you rankle at "diversity," you probably hate "empowering" too, but the point remains! If you're going to have a classroom where students do some of the talking, it's best to get the full range of students talking, especially if the students are going into a field like law, where speaking is going to be part of the work.

Here's another law student blog post, from Aaron of The Stopped Clock:

One of the best student experiences I had in law school was being taught by J.J. White, who was probably the most like Professor Kingsfield of any professor at UM. He knew his material cold, and I had the impression that he spent more time reviewing cases and preparing for each class than did most of his students....

Had every professor at UM been like him, I would have had to work a lot harder and I would have learned a lot more.

Aaron's post is pretty rambling and entails an awful lot of personal narrative. It's hard to tell what he's driving at. And then it ends with a question for me. Hey, Aaron, I'm the lawprof. I'm the one who wants a neo-Socratic revival. That is, I'm the one with the questions. No answers for you!

By the way, I love Prof. Osborn, who sent me a nice note about the NYT column, in which he cleverly pointed out that I used personal narrative and told my own story in the column. He's quite right! Here I am, leading up to a conclusion that rejects the idea of opening up the classroom to students telling their own stories:

When I was applying to law schools in 1977, I really didn't need an anti-authoritarian novel about a young guy who lets a love affair with the professor's daughter eat into his study time. I was married and -- it seemed then -- a little old for that sort of frippery.

I was 26. What I needed was to get serious after years of underemployment inspired by books and movies about defying authority. I had to set aside that obsolescent hippie balkiness and adopt a pragmatic attitude for the task ahead. ''One L'' -- which was new then -- laid out the facts about law school and got you just scared enough to fire you up for the challenge.

And of course, "One L" is a personal narrative too. (And where's my letter from Scott Turow?!)

I'm not against personal narrative. As a blogger, could I be against personal narrative? Actually, I could. A blog could be much more personal than this, and it could also be utterly impersonal. Like a law school class, you've got to choose where you want to pitch it. Unlike a law school class, you've got a full range of choice. I think it would be downright abusive to make my law school class as personal as this blog... and to make this blog as personal as it could be... well, that would be crazy, wouldn't it? Or are you just waiting for the day when I lay my inhibitions aside and tell you what I really think... and what I really do?

I respond to letters about two NYT columns (on abortion and law school).

The NYT today has three letters on my Feb. 24 column, "Rudy & Mitt Hem & Haw on Abortion." And, check it out, the first one is from Floyd Abrams:

Ann Althouse’s apologia for the so obviously politically crafted shifts in position on abortion by Rudolph W. Giuliani and Mitt Romney is undeserved....

Mr. Giuliani and Mr. Romney have a similar problem, one not to their credit. Running as Republicans in liberal Northeastern areas, both sought to reassure pro-choice voters that they had nothing to fear from their election.

Now, both seek to appease pro-life Republicans elsewhere in the country by assuring them that their views are truly conservative, that they will appoint “strict constructionist” (read anti-Roe v. Wade) judges and the like.

Neither candidate deserves what Ms. Althouse refers to as “decent sympathy” for their expression of complex views, since there is nothing complex about waffling.

Who knows, after all, what views either of these politicians ever actually had or has now? All we do know is how far both are prepared to go to be elected.

I certainly concede these political realities. I simply defend their statements in spite of that. Of course, politicians are political. Deal with it! But abortion is a difficult issue and those who craft complex positions deserve some sympathy. Otherwise, you're left with those who stay at the crisp extremes.

Basically, I like the sort of liberal(ish) Republican that can succeed in a blue state, and the point of the column is to show that their convoluted statements are not as ridiculous as they appear on first read.

The second letter is from Nancy N. Northup, president of the Center for Reproductive Rights, and she mainly (and unsurprisingly) stakes out the position in favor of abortion rights (which, remember, I support). But let me focus on the last part:

Unless a woman can make her own decisions about her life, she isn’t in control of her future. Allowing states to take away women’s fundamental human rights is not a “part of our freedom,” as Ann Althouse writes, but rather the tyranny she fears.

This refers to my discussion of Giuliani's garbled sounding comment about "how it’s 'part of our freedom' for the legislatures in the various states to make their own decisions about law." I say:

If Roe were overruled, [state] legislatures would decide how to regulate abortion. And decentralized legislation really is fairly called “part of our freedom” because the Constitution’s framers saw the balance of power between the national government and the states as a safeguard against tyranny.

All I'm doing there is explaining the sense of what Giuliani said. It isn't my preference to return the question of abortion to the states, and I don't think it's Giuliani's. But if Roe were overturned, the question would go back to the states, and there is a question what that would be like. What would happen?

In thinking about this eventuality, it is helpful to remember that the federalism has long been considered a structural safeguard that has something to do with individual liberty. As I have written here before, there is plenty of reason to be suspicious of how well that kind of safeguard could work, but my point remains: It was not incoherent or bizarre for Giuliani to connect federalism and freedom.

The third letter comes from a reader who is pro-life, Richard H. Escobales Jr. He says he "appreciated" my column, but: "I find that the muddled positions of Rudolph W. Giuliani and Mitt Romney on this critically important issue do not inspire confidence." So, he kind of didn't appreciate my column.

And there was a letter yesterday, by David W. Massey, about my Feb. 20 column -- "'A Skullful of Mush'" -- which recommended a revival of Socratic teaching in law school:

There is an underlying premise in Ann Althouse’s plea for traditional law school instruction (“ ‘A Skull Full of Mush,’ ” column, Feb. 20), and that is that law school graduates, drilled in the case method, will leave knowing “how to think like lawyers.”

My law school experience long ago taught me to challenge pious premises.

If law school teaches students properly, it can only begin to prepare them to confront the unexpected in advising clients, working with other lawyers and arriving at acceptable results.

Last year, while celebrating a college reunion, I wandered back to the law school, and in the same classroom where the Charles W. Kingsfield Jr. of my acquaintance practiced his particular brand of intimidation, I observed a different approach: where the professor respectfully listened to volunteers and didn’t dictate to his class how they should think, because he knew that there wasn’t one way for lawyers to do so.

There's a paradox here. Did he learn from the method or not? He admits he did, even as he admires another method. Yet I'm not so sure he learned how to read all that well, because he's seeing something in my column that was not there: an endorsement of the use of intimidation, disrespect, and dictatorial indoctrination.

I emphasized that I didn't know any law professors who were the Kingsfield type, so that it was rather nonsensical for us to worry about acting like that fictional character, who the "Paper Chase" author, John Jay Osborn Jr. admitted was an exaggeration. I said that we lawprofs ought to have some respect for our own tradition and concluded:

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.

Note that I didn't say we should try to make them unhappy, only that we default in our central responsibility if we structure class around the idea of trying to make them happy.

Actually, I think they are more likely to end up happy if the class teaches them what they need to know. What I was rejecting was a class that is too much about students "telling their stories." I am willing to bet that most students don't want to spend too much of their time listening to the stories other law students have to tell.

As for taking volunteers instead of calling on people, I have to confess that I've usually done that in my 20+ years of teaching. But I think it is self-indulgent -- it's much easier! -- and it invariably leaves too few students doing too much of the talking. When you call on students, you find that they really are all quite capable of speaking and responding well to questions, and it is important to demonstrate this and to provide them all with this experience.

The literature professor with the nerve to lecture about books he's only skimmed...

... is selling a lot of copies of "How to Talk About Books You Haven’t Read."

“I am surprised because I hadn’t imagined how guilty nonreaders feel,” [Pierre] Bayard, 52, said in an interview. “With this book, they can shake off their guilt without psychoanalysis, so it’s much cheaper.”

Mr. Bayard reassures them that there is no obligation to read, and confesses to lecturing students on books that he has either not read or has merely skimmed. And he recalls passionate exchanges with people who also have not read the book under discussion.

He further cites writers like Montaigne, who could not remember what he read, and Paul Valéry, who found ways of praising authors whose books he had never opened. Mr. Bayard finds characters in novels by Graham Greene, David Lodge and others who cheerfully question the need to read at all. And he refuses to be intimidated by Proust or Joyce.

Having demonstrated that non-readers are in good company, Mr. Bayard then offers tips on how to cover up ignorance of a “must-read” book....

... Mr. Bayard’s most daring suggestion is that nonreaders should talk about themselves, using the pretext of the book without dwelling on its contents. In this way, he said, they are forced to tap their imagination and, in effect, invent their own book.

How bloggerly!

Well... hmmm... I haven't read Bayard's book, so let me say that this makes me think about devising a set of tips for teaching law school without reading the cases. (Me, I feel compelled to reread the cases I teach right before each class, so that there are some cases that I've read closely more than 40 times. Did you know that it's emphatically the province and duty of the judicial department to say what the law is?)

I know one lawprof who's proud of the time -- like, the one time -- that he got to the end of the cases he'd prepared and used the Socratic method to teach the next case, which he'd never read. It went quite well, he says.

Theoretically, it could work especially well, because your actual need to figure out what happened in the case and why it's in the book would drive your questions. But the guilt!

"I like to attack Democrats. He likes to present a united front with Democrats."

Mickey Kaus says, referring to Robert Wright, in this New York Sun article about Bloggingheads.tv.

A great virtue of diavlogs, Mr. Kaus said, is that they are an antidote to the cocoons bloggers can get into when linking to friends and pointing out stories they agree with. Having to convince another person in real time, he said, forces bloggers to confront alternative opinions, and prevents them from lapsing into complete disjuncture from reality....

Mr. Kaus said an advantage of video dialogs is they give one an indication of the human mind behind the byline: "You can't hide behind the printed page. It may raise your overall opinion of the speakers as ‘nice guys,'" Mr. Kaus said, but they can lower your sense of their "intellectual worth," because it's harder to maintain the dignity of appearing on a page and weighing in on chosen issues. He said the viewers realize: "These are human beings like everyone else."

So it's your chance to study the bloggers, to get them out from behind the written word, to see them in raw action. I can't help but compare that to the law school class -- the law school class at its Socratic best, anyway.

Speaking of law school, here's something from the article:

A course at Princeton with essayist John McPhee gave Mr. Wright the confidence to be a writer; otherwise, "I was destined for law school," he said.

Does that hurt? There are so many interesting people who almost went to law school... or who went to law school and ventured out onto some path other than law practice. Being a lawprof doesn't really count as venturing out, though, does it? I tend to think that the lawprof is the least venturesome law school graduate.... the one who dared not even venture into the practice of law.

But don't get me wrong! Being a lawprof is a wonderful career -- I say in my role as the chair of the Appointments Committee here -- especially if they don't stop you from blogging... and being on the incredibly cool -- if supremely nerdy -- Bloggingheads.tv.

(And no extra credit for the first commenter to cite "White and Nerdy." I think Bob and Mickey know bloggingheads is "too white and nerdy.")

Stanley Fish takes on the Kevin Barrett controversy.

Stanley Fish takes on the Kevin Barrett controversy in an op-ed in the NYT today:

Mr. Barrett’s critics argue that academic freedom has limits and should not be invoked to justify the dissemination of lies and fantasies. Mr. Barrett’s supporters (most of whom are not partisans of his conspiracy theory) insist that it is the very point of an academic institution to entertain all points of view, however unpopular.....

Both sides get it wrong. The problem is that each assumes that academic freedom is about protecting the content of a professor’s speech; one side thinks that no content should be ruled out in advance; while the other would draw the line at propositions (like the denial of the Holocaust or the flatness of the world) considered by almost everyone to be crazy or dangerous.

But in fact, academic freedom has nothing to do with content. It is not a subset of the general freedom of Americans to say anything they like (so long as it is not an incitement to violence or is treasonous or libelous). Rather, academic freedom is the freedom of academics to study anything they like; the freedom, that is, to subject any body of material, however unpromising it might seem, to academic interrogation and analysis....

In short, whether something is an appropriate object of academic study is a matter not of its content — a crackpot theory may have had a history of influence that well rewards scholarly scrutiny — but of its availability to serious analysis. This point was missed by the author of a comment posted to the blog of a University of Wisconsin law professor, Ann Althouse: “When is the University of Wisconsin hiring a professor of astrology?” The question is obviously sarcastic; its intention is to equate the 9/11-inside-job theory with believing in the predictive power of astrology, and to imply that since the university wouldn’t think of hiring someone to teach the one, it should have known better than to hire someone to teach the other.

Hey! Fact check, people! Can't you tell the difference between the blogger and the commenters? I've written a lot about the Barrett controversy, but I didn't write that. A commenter called "kpom" did. (Note to the NYT: I want a correction printed!) [CORRECTION! I misread that myself. Sorry! He does say a commenter.]

I have said this:

It's conceivable that [Barrett] could still, as a teacher, present [the 9/11 conspiracy theory] neutrally, just as a university teacher on religion could teach the religion he believes in. My problem is that the teacher believes a crackpot, ridiculous theory and he's using a class on Islam to teach his theory. It's like being hired to teach astronomy and covering astrology and actually being someone who believes in astrology. I feel sorry for the students who think it's worth their time to engage with this material and to subject themselves to the power of someone who would believe something so nutty.

So my problem is that belief in this conspiracy theory reveals such a defective mind that the teacher cannot be trusted, and that the factual truth of the conspiracy theory isn't properly taught in a course about Islam. That many Muslims believe the theory could be part of the course, but the inquiry should be into why they would be drawn into such beliefs, and a teacher who thinks the beliefs are true would not seem to have much grasp of the topic.

And I've said this, as a comment in the thread with the quote that isn't mine:

[A] test for the university will come when we see how it treats others in similar positions. What if we found someone hired to teach here was a white supremacist, planning to devote a week of his course to his theory? Would he be treated with as much respect as Barrett? What if we found someone hired to teach evolution was a young earth creationist planning to devote a week of his course to his theory? These people now must be treated the same. Pretty horrible. I hate to even type that out. But this underscores why the hiring phase matters so much.

Back to Fish:

[T]he truth is that it would not be at all outlandish for a university to hire someone to teach astrology — not to profess astrology and recommend it as the basis of decision-making (shades of Nancy Reagan), but to teach the history of its very long career. There is, after all, a good argument for saying that Shakespeare, Chaucer and Dante, among others, cannot be fully understood unless one understands astrology.

The distinction I am making — between studying astrology and proselytizing for it — is crucial and can be generalized; it shows us where the line between the responsible and irresponsible practice of academic freedom should always be drawn. Any idea can be brought into the classroom if the point is to inquire into its structure, history, influence and so forth. But no idea belongs in the classroom if the point of introducing it is to recruit your students for the political agenda it may be thought to imply.

And this is where we come back to Mr. Barrett, who, in addition to being a college lecturer, is a member of a group calling itself Scholars for 9/11 Truth, an organization with the decidedly political agenda of persuading Americans that the Bush administration “not only permitted 9/11 to happen but may even have orchestrated these events.”

Is the fact of this group’s growing presence on the Internet a reason for studying it in a course on 9/11? Sure. Is the instructor who discusses the group’s arguments thereby endorsing them? Not at all. It is perfectly possible to teach a viewpoint without embracing it and urging it. But the moment a professor does embrace and urge it, academic study has ceased and been replaced by partisan advocacy. And that is a moment no college administration should allow to occur.

I agree heartily right up to the last sentence. It is the responsibility of the teacher not to cross this line. But how is the administration to police it? Students may think a teacher is really pushing a viewpoint when he isn't, and a good teacher can sell his viewpoint without it showing. I could use the Socratic method in the law school classroom and only ask questions but have a position I'm hoping to ingrain. I could run a discussion in which I constantly take the opposite side from the one I want the students to adopt and do it in a way that I think will cause students to internalize the side I'm forcing them to defend. How could the administration find out? What would you want them to do about it? And what percentage of university professors do you think cross this line? You'd need a witch hunt if administrators got serious about Fish's line: "that is a moment no college administration should allow to occur."

More Fish:

Provost Farrell ... is too hung up on questions of content and balance. He thinks that the important thing is to assure a diversity of views in the classroom, and so he is reassured when Mr. Barrett promises to surround his “unconventional” ideas and “personal opinions” with readings “representing a variety of viewpoints."...

Rather, the question should be: “Do you separate yourself from your partisan identity when you are in the employ of the citizens of Wisconsin and teach subject matter — whatever it is — rather than urge political action?” If the answer is yes, allowing Mr. Barrett to remain in the classroom is warranted. If the answer is no, (or if a yes answer is followed by classroom behavior that contradicts it) he should be shown the door. Not because he would be teaching the “wrong” things, but because he would have abandoned teaching for indoctrination.

[A]cademic freedom is just that: the freedom to do an academic job without external interference. It is not the freedom to do other jobs, jobs you are neither trained for nor paid to perform. While there should be no restrictions on what can be taught — no list of interdicted ideas or topics — there should be an absolute restriction on appropriating the scene of teaching for partisan political ideals. Teachers who use the classroom to indoctrinate make the enterprise of higher education vulnerable to its critics and shortchange students in the guise of showing them the true way.

What Farrell did was to rely on the fact that Barrett "assured me that students will be free -- and encouraged -- to challenge his viewpoint," that "Barrett appreciates his responsibility as an instructor," and that "he will attempt to provide students with a classroom experience that respects and welcomes open dialogue on all topics." That is, Farrell accepts Barrett as a strong advocate for one side as long as he maintains an open debate in which the students can speak and argue with him.

Both Fish and Farrell stress process over substance. It's not a question of what subjects come into the classroom. (They ignore the process point I've made, which is that I doubt that administrators could stick to substance neutrality. Again: picture a teacher of white supremacy.) Farrell emphasizes the process of multiple viewpoints and debate. Fish emphasizes the process of academic inquiry and avoiding proselytizing. He would ask the teacher whether he could set aside "your partisan identity" and not "urge political action."

I wonder how far Fish means to take that. I've heard many law professors over the years say that since everyone is really partisan in some way, it's more honest to come right out and say what your positions are. They would portray Fish's ideal professor as a big sneak, posturing as neutral, but really slipping opinion in everywhere. Is Fish saying that professors who take the open approach are wrongly allowing their "partisan identity" to appear in the classroom? It would be terribly repressive for administrators to forbid that. Maybe Fish only means for the professor to refrain from "urg[ing] political action." If so, he's not saying very much. But Fish thinks he's identified a clear line:

The distinction I am making — between studying astrology and proselytizing for it — is crucial and can be generalized; it shows us where the line between the responsible and irresponsible practice of academic freedom should always be drawn. Any idea can be brought into the classroom if the point is to inquire into its structure, history, influence and so forth. But no idea belongs in the classroom if the point of introducing it is to recruit your students for the political agenda it may be thought to imply.

Is that a clear line? The more I look at it, the less clear it seems. It's quite subjective. Each of the last two sentences of his essay contains the phrase if the point is. How are we to tell what the teacher's point really is? A smart person with an agenda knows how to hide it.

UPDATE: From ACTA:

The Times' publication of this piece, written by one of the great old lions of the academic culture wars (recall that Fish chaired the English department at Duke during the years when it was making a serious bid to become the most politically and theoretically avant-garde department in the country), is highly significant. Perhaps the time has finally come for a national discussion about what academic freedom is, why it matters, what it protects, and, crucially, where its privileges end.

Polonius writes:

[W]hat on earth is wrong with professors urging activism? Professors are the canaries in the coal mine; they're often the first ones to see what's gone wrong. If they don't urge activism, there's often no one who will.

Similarly, in the comments here, Ben Wallace writes (and I've added links):

Fish argues that advocacy of ideas is the dividing line between legitimate and illegitimate speech in a university. This is an acceptable normative position but the position is inconsistent with academic freedom as practiced at the UW since the 1890s. Under Fish's standard, Richard T. Ely would have been fired, not defended, for advocating socialism and encouraging activism. Fish's position, if implemented, would undermine a long-settled standard of academic freedom by attempting to eliminate partisan advocacy of ideas.

Is Fish's idea at odds with "The Wisconsin Idea"? If so and if Fish is right, we have a huge problem here.

ANOTHER UPDATE: Let me first say that by writing "If so and if Fish is right, we have a huge problem here," I mean to suggest the likelihood that Fish is wrong.

Southern Appeal writes:

[T]his is a bit of a strange argument for Fish, who has made his name (outside literature circles) by pressing the view that we can’t separate ourselves from our basic beliefs and that there is no neutral ground....

[T]here’s something to Fish’s distinction between “teaching” and “indoctrination” and in the idea that the classroom isn’t supposed to be a recruiting session for one’s pet projects, however noble they might be. But that doesn’t mean, I think, that teachers need to separate themselves from their views. ...

[T]he detachment model is deficient [because] it subtly teaches students that what smart people do when faced with controversial subjects is to take an air of detached neutrality, cooly surveying the various options, and declining to embrace any of them. My experience as a teacher has been that students don’t really like to get engaged in arguments over controversial subjects -- the detachment model merely reinforces that tendency.

This goes along with something Ben Wallace and I have been writing in the comments here. Ben says:

Under Fish's rule, a faculty member in the South in the 1950s could not embrace and urge the idea that segregation is wrong and that students should act to remedy the situation. The only thing that would be available to a faculty member in that situation [w]ould be dispassionate analysis of the benefits and costs of segregation and a discussion of the different arguments behind segregation. Allowing advocacy and urging students to engage all ideas has demonstrated more effective than efforts to create speech codes, which is essentially what Fish has come up with.

I add:

[I]f the university required teachers to take this dispassionate, neutral stance, it would exclude a certain type of emotive, engaged person who actually is an excellent teacher. The drier, abstract folks would get more jobs in Fish's ideal university... and the students would get more... bored.

YET ANOTHER UPDATE: Jim Lindgren has a post titled "Astrology, Fish, Althouse, and 9/11 Conspiracy Theories." He's into the astrology subject:

I have actually been studying who believes in astrology. Some indices of conservatism use a belief in astrology as a measure of how conservative a respondent is. Yet Democrats are more likely to believe in astrology than Republicans, with the most conservative subgroup -- conservative Republicans -- being among the least likely to believe in astrology.

That makes me want to remind you of this old post of mine from back when were were all talking about Jerome Armstrong (which may well be what prompted Lindgren's study). I have no idea what the politics of believing in astrology are. I don't see it as having anything to do with politics, but it has something to do with being unscientific. I think there are lots of unscientific folks out there, and neither party is completely anti-science or bound to science.

"While Islam promotes free speech, it is important to recognize that anything that is discriminatory does not qualify under this heading."

So reads a flyer from the USC Muslim Students Union, announcing a panel discussion titled "Islam and the Cartoons: the Responsibilities of Free Speech" (PDF), which Eugene Volokh is discussing here:

I take it that the implication is that criticism of Islam, or critical depictions of Mohammed (or is it any depictions of Mohammed at all?), is unprotected because it's "discriminatory." How about Muslim statements that other religions are misguided; are those "discriminatory," too?

Plus of course there's also the old chestnut about the supposed "differences between free speech and hate speech." Fortunately, modern U.S. First Amendment law does not treat the two as antonyms, just as it wouldn't discuss "the differences between free speech and blasphemy" or "the differences between free speech and sedition." It's a shame that the USC Muslim Student Union takes a different view.

Even though the flyer uses the phrase "free speech," it does not mention the U.S. Constitution or say that the discussion is about the constitutional law or the scope of constitutional protections. The cartoons controversy is not, after all, about government censorship, but about private individuals and groups trying to influence other private individuals and groups. No one writes and says and draws everything that constitutional law would permit, and most of us would be hard pressed to come up with things we could express that would be something the government could censor. There are plenty of hateful, ugly, and hurtful things we can easily think of that we would restrain ourselves from saying even though we have a constitutional right to say them. And I don't mean to appear to be lecturing Eugene Volokh about any of this, because it's an obvious given that, as a conlawprof, he knows this.

I just want to defend the Muslim Students Union here. There is nothing in that flyer that condones violence. I would prefer to see the Union openly condemn the threats of violence and distance their religion from the threats of violence that are plainly at issue in the cartoon controversy. But it is perfectly legitimate to have a private conception of "free speech" that is narrower than the legal definition. And it is is likewise perfectly legitimate to have a private conception of "discrimination" that is broader than the legal definition. Religions tend to have far higher standards for behavior and expression than the government would impose (which is one of the strongest reasons for having a separation of religion and state).

A private group that wants to hold a discussion can define the topic and impose some limitations, including demands that participants discuss the issue rationally and without shouting and deliberately provoking each other. Those who want to range into different issues and fling insults about are free to start their own discussion. Here, the Muslim Students Union may mean to say something like: We want to host a discussion, and we are going to try to keep the discussion civil. We want to talk with you, not provide an occasion for you to show up at our place and taunt us.

I'm thinking of a discussion I set up quite a while ago at the Law School. Some of the women students got the idea that the failure to use the Socratic Method discriminates against women. The male students, they had observed, were more likely to volunteer than female students, so a lawprof who relied on voluntary participation would have a classroom with a disproportionate amount of male speakers. I set up a discussion so that students and faculty could exchange ideas on the subject. Now, some of the students were really upset and even thought that there were teachers who deliberately used voluntary participation as a way to suppress women, a charge I thought was beyond the pale and distracting.

I wrote a flyer inviting students and faculty to the discussion and included a sentence framing the issue for discussion. I stated an expectation that we could have an intellectual discussion of the problem of whether the Socratic Method is needed in order to avoid a disparate impact on female students and that we ought to avoid emotional charges that anyone is deliberately discriminating against women.

One faculty member, a constitutional law professor, came to my office to express outrage that I had imposed that limitation on the discussion. The students should be free to vent emotionally and to air whatever accusations they wanted. Did free speech require that? I was setting up a discussion. I defined the ground rules in a way that I thought would be most fruitful and that would encourage more people to show up and contribute (something I do in the classroom constantly). My colleague could set up another discussion where students were allowed to talk about what bigots individual professors are, but I wouldn't even attend a discussion like that. Would you?

By the same token, I think it's fair for the Muslim students to try to set up a helpful discussion by signaling that the atmosphere is not going to be ugly. That can encourage attendance and a willingness to listen and exchange ideas on the topic chosen. If anyone thinks they've left something out, they can set up another discussion.

"American Idol" -- Boston.

I feel like I owe you an "American Idol" post. I know you're dying to talk about the Boston episode. Personally, I'm a little fried. I got home from work today determined to put in my minimum 2 hours on the house, getting the massive thing in shape to put it on the market.

Today's target: outer space! This is a windowless storage room between the studio and the garage that has been accumulating things for more than 20 years, most prominently, a horizontal stack of drawings dating back to 1970. I dreaded looking at this stuff, because it contains the evidence of the folly of a decision to go to art school, made over 35 years ago. You have NO idea how many nudes I stared at and delineated.

Many things I looked at and thought: Why did no one tell me I didn't have enough talent to devote my life to this? There was no Simon Cowell of drawing to tell me to find another line of work. But a few things were fun to see, like the drawings of Woodstock '94, which we watched on pay-per-view. Maybe I'll scan these for you, in the manner of the old "Amsterdam Notebooks."

But, anyway, I've cleared out outer space, and I've hired two teenagers to help me tomorrow, dragging all sorts of junk out to the curb for trash day. There's a lot of progress here in the war against accumulated clutter. I got into the fight today. I didn't just put in the 2 hours I set as my goal. I went 3 hours, and I accomplished a lot. Hungry and dusty, I put the left-over stew on the stove to heat up, and I went upstairs to take a shower, stopping just long enough to answer a phone call. Okay, I didn't time it perfectly. I scorched the stew a little, but it was nice to sit down with a plate of beef stew and a big glass of Cabernet and click on the TiVo'd "American Idol." The stew and the wine and the show all made a lovely evening for me after my hard day's work (which wasn't just about conquering outer space, there was plenty that had to do with making the presumption in favor of concurrent state court jurisdiction into a challenging subject for Socratic inquiry).

But let's focus on tonight's "American Idol."

There was the patriotic rapper that they gave some respect to just because he supported the troops. Lame!

There was the beautiful basketballer Ayla Brown, who belted robotically but made it on athletic attitude. Simon said the brilliant words that could stand as a critique of the whole show: "There's something empty about it all."

I loved the beautiful twins, especially the one with the wrecked vocal chords who crouched on the sidelines and mimed the choreography while her sister sang.

I liked the gorgeous Tatiana Ward, who wanted to show up her grandmother, who disowned her mother for marrying a black man. Tatiana sings "My Cherie Amour," following each intonation of the Stevie Wonder original. They tell her it's old fashioned, even though they've held up Stevie Wonder as the pop music ideal throughout the history of the show. She gets through.

Making me cry this week is Holly Corrente, who works as a music therapist. We see her interacting with a disabled man. They say no.

I'm impressed by Kenneth Maccarone who sings "Believe" in a Cher voice and gets the usual crap from Simon ("Be a female impersonator"), but stands up to him: "I won't dress up like a female. I'm a man."

There were a couple guys that played the Clay Aiken card. One was a joker (Michael Sandecki) and one was dead sincere (Kevin Covais -- "I don't know. I bring youth and excitement"). The sincere boy makes it. God bless him. He looks like one of the Munchkins. "I think anyone over the age of 80 would like you" is Simon's putdown.

And we end with a long, cool montage of the auditions, setting us up for tomorrow night's show: Hollywood Hell Week! Now, we'll get to see most of these supposedly good singers fall flat on their face. They were super-prepared for their auditions, but when they're given something to learn and perform quickly, most will shrivel up into nothings, and we'll wrack our brains trying to remember what was ever good about them.

See you tomorrow!

Listening to one person talk.

The playwright David Hare is trying to revive the love of the lecture (via A&L Daily):

The prevailing wisdom is that enlightenment may best be reached through argy-bargy. And yet in practice how infrequent it is, on television or radio, that the Socratic equivalent of men's tennis - massive slams hit back and forth from the baseline - actually illuminates anything at all. Panels are even worse. Taking part frustrates me as much as listening. What's the point? Why attend a forum in which as soon as anyone says anything interesting, somebody else has at once to be encouraged to interrupt, supposedly to generate conflict, but more often to dispel the energy of the previous speaker?

And picture the law school classroom. The conventional wisdom is that properly conducted classes are Socratic or at least "discussion." We think that if we can get everybody arguing with each other, it's just great.

(By the way, I love the word "argy-bargy." I've got to use that more... I mean, for the first time.)

When one person speaks and is encouraged to develop his or her ideas, then it is we, the audience, who provide the challenge.... In each of our hearts and minds, we absorb, judge and come to our own conclusions. The dialectic is, thankfully, not between a group of equally ignorant people thrashing out a series of arbitrary subjects about which they know little and care less. It is between an informed individual who, we hope, has thought long and hard about their own area of specialisation, and an audience which is ready honestly to assess what the speaker has to say.

Hmmm... so, do you want to hear more lectures? Should more of the law school classroom experience be listening to lecturing? Or should we stick with the argy-bargy?

Let's encourage students to IM in the law school classroom.

This is a subject that came up and was batted about at lunch today. My colleague Asifa Quraishi said the students are already using the classroom WiFi to IM each other, and maybe it hasn't been so bad. We got going on the subject of how maybe we should outright encourage the students to IM, including sending tips and cues to a student who is engaged in Socratic dialogue with the lawprof. What's wrong with students pooling their expertise on the fly? The student doing the speaking is not rendered passive. He or she will still have to read the messages quickly and integrate them with existing knowledge. It could be lively and energizing. The students who aren't chosen to speak will have some way to express themselves, which might help them listen to the student who is speaking, and a spirit of community and collaboration might take hold. Am I wrong?

UPDATE: I'm getting a lot of interesting comments on this one, including some saying I'm being naive or foolish, but I see Glenn Reynolds agreed:

I actually do encourage [IM-ing] -- I figure that this way you've got several students thinking about the question seriously, when they might otherwise just be waiting to see if the student I've called on makes a fool of himself. How well it works depends on the class, and how extensively they tend to IM, but I do agree with the point.

Good point. If there is IM-ing and anyone is struggling to answer a question, everyone is implicated. The lawprof could say: "No one is offering you any help? So no one has any ideas?" All would have to take responsibility, instead of idling while the other student tries to speak.

Another thing we talked about at lunch is that all the students would get practice writing apt and pithy answers, as IM-ing trains you to do. I find this notion so appealing that I would like to see a technology that would allow me to ask a question of the whole class, require that every student enter a sentence or two answering, and then randomly display one answer on a screen in front of the class, which we could then discuss. You wouldn't need to know whose answer that was, and everyone would have made a go at typing out an answer, and I think that might put us in a nice position to begin a discussion.

ANOTHER UPDATE: Other technology, from an emailer:

Regarding your recent blogpost, I am a fan and a student at MSOE. IM is nice for class, but nothing beats Microsoft Onenote! After recently discovering the ability to “share” a note-taking page several of my friends joined with me to take down what is going on in class. Not only do we get a full audio recording, but we have triple or better overlap while taking notes that don’t miss any points. Oh, and the audio is linked to the notes, click on a word and have the audio automatically transfer you to that point in the recording.

As you know, MSOE is primarily engineering. Engineering notes are almost never strictly text and often make little sense with hastily drawn in margin notes about every little thing discussed. The only way to capture fully every diagram/handout/equation and still understand what the professor is actually talking about is to break down the responsibilities (often wordlessly) and focus on one aspect of the notes of the class, leaving your friends to take the other half. Often this means someone pastes in Visio diagrams while someone else uses a program like Mathtype.

There are a few difficulties with this approach…. Network access (wired or wireless works fine) must be present in the classroom. Sometimes formatting decisions must be made. Finally, the format is great at MSOE as laptops are standardized and handed out by the school itself. It would also help to have friends you are with between all your various classes. The only remaining problem is the cost of the program itself.

It was really nice to see such subjects as technology in class discussed by professors. I’ve been using this feature throughout this quarter and I almost with I wasn’t graduating this year, given how easy notetaking became.

Sounds great! I guess in the future there will be no excuse for not getting everything down. Once they can't write "Althouse talked too fast" on the evaluations, just think how fast I might talk.

ANOTHER UPDATE: Aspiring Lawyer responds and points out some software that might be just what I'm looking for. I've got a request in to our tech guy about this. I would love to bypass the Socratic agonies and get everyone answering everything!

Students distracting students -- classroom wireless access.

The law faculty here is having an email list debate about the perceived problem of students using the wireless internet access during class to check websites, do email, IM, etc. Blogging hasn't been mentioned yet, but presumably, where there is wireless access, there is blogging. Some faculty don't like the idea that students aren't paying full attention. That has always been the case of course -- who pays full attention to a lecture? Personally, I find doing something like playing a simple video game or doodling helps me pay more attention to a lecture. There is nothing that special about wireless access when it comes to this complaint. I consider the inability to lock onto a speech and pay 100% attention to be part of what is, in all, a positive human capacity: we retain our independent thoughts and desires and do not achieve oneness with a person who is talking at us.

But there is a more specific problem: the way computer screens distract other students. How much of a distraction is a computer screen? I know when I was a law student, I chose to sit in the front row because I found the backs of people's heads distracting. There are always distractions. In fact, it's funny how distracting the least interesting things are when you're at a lecture. Suddenly, you want to watch someone take a sip of coffee or sharpen a pencil. This is human nature, part of our connection to the concrete world. We want to see things, feel things. This is good.

Do students really mind the images on the other computers? If you glance around and can see which blog someone else is reading or that the Drudge Report has put up the revolving siren image, can't you deal with that? If you find it especially hard, choose a front row seat.

Now, somebody in the faculty email discussion said that some students have complained that other students look at pornographic images during class. I was surprised to hear that, because what student would be so disrespectful of other students and so unconcerned about being disliked? Is that really happening? That is so out of line with basic social etiquette that I find it hard to believe. But if it is, can't the students apply some peer pressure to these social outliers? IM the clod.
Anyway, send me some email, law students, and tell me if I'm not taking the problem seriously enough. On the faculty email list, I offered a proposal that there should just be a clear rule against displaying any images on screen during class. You can have all the text you want, but no images. But really, I'm inclined to think the whole thing is just not a real problem.

UPDATE: You know, it wasn't that long ago that people thought the students shouldn't be typing on laptops during class, because that was too distracting. In the early days of laptops, some students had laptops that they kept in their backpacks during class. They thought it would be offensive to use them to take notes. Now, no one thinks of that as a distraction.

ANOTHER UPDATE: My colleague Gordon Smith offers his thoughts on the subject. My son John, a first year law student, writes:

I don't think the school should have rules dealing with distracting images (unless, of course, they're offensive images). I sometimes let my screen saver (a slideshow of photos) turn on in class. It's possible that another student could start looking at my photos and stop listening to the prof. But I just don't feel that that would be MY responsibility!

Note that distracting images are nowhere near as bad as distracting noises. You can't just close your ears to certain noise, whereas you can choose not to look right at someone's computer screen. And you NEED to HEAR the prof; you don't need to SEE the prof.

If it's a problem for students to display distracting images on their computer screens, then shouldn't students also be prohibited from wearing flashy clothing?

My property prof is always putting up extraneous images on her PowerPoint slides, e.g. while she's discussing a case about marriage she'll put up a photo of a random married couple that she got off the web. Should SHE be forbidden from showing distracting Internet images?!

Law profs shouldn't deal with the problem of "not paying attention" by coming up with regulations; they should deal with the problem by making their classes more interesting!

But wireless access should be blocked in the classrooms (as it is at Cornell), because it destroys the Socratic method to let students IM and email answers to each other in class.

A Yale undergraduate who is planning to go to law school wrote this:

I personally don't bring my laptop to class -- I like writing down my notes, because I type quickly enough that if I typed notes I would just transcribe the lecture and glean nothing from it, and I think it is a valuable skill to discern on the spot what information is important or not -- but a ton of my friends do. And of course there is rampant IMing, emailing, surfing (not porn sites though...what total creep looks at porn in class?!) but I wanted to mention to you something that professors might not think about, which is students using the internet in to look up additional information on the topic at hand.

I've seen this happen plenty of times. The professor brings up a new topic, or mentions a particularly interesting anecdote, and students start Googling away to find out more. If that isn't a sign of the intellectual curiousity that we as college students are always encouraged to have, I don't know what is.

On a sidenote, I don't find laptops particularly distracting, unless the lecture is poorly delivered enough to warrant my desire to FIND distractions. And if that's the case, I will find distractions anywhere -- typically in the crossword puzzle, which is something that just cries out for collaborative whispering and note passing among students. Oh, the horror!! Ban the crossword!!

A law student writes:

I LOVE it. I am like you, in that I can't really pay 100% attention, and in my undergrad, I'd just doodle. This way, I am doing productive things like reading your blog, catching up on the news, doing assignments for other classes and work, talking to my wife at home on the home computer, etc. Not only that, but when I am really interested in something the teacher says, I'll go to Lexis and pull up the case, or do a quick search on Google and find that his facts are all wrong and therefore, so is his argument. More than a few times, a friend has been called on, and been way off, but with a little helpful IM, he's back on track. Wireless is a beautiful thing, and would only help the students. Like you say, those who won't pay attention, wouldn't pay attention anyway. Moreover, I've found that my attention span is about the same as it was before. If class is interesting, I'll pay attention.

As for being a distraction, the way our classrooms are set up, you can see what website someone is on, but you can't read it (too small font), so it isn't a temptation. I've never seen porn during class, and I sit closer to the back in each class. I have seen at one time, approximately 95% of the laptop users in class (which at any time is between 60 and 90%) playing solitaire during one particular dry lecture.

YET ANOTHER UPDATE: This is very interesting, from a fairly recent graduate of NYU School of Law [ADDED: it's Matt Marcotte of Throwing Things]:

[D]uring my law school time …, Internet misuse during class was rampant -- online gambling, day trading, checking the news, etc.

Honestly, I never found it that distracting, and it's basically unregulable without doing a complete ban on Internet use, which I think is a bad idea--having Internet access allows access to a wide range of information and commentary which (when used well) can open up class discussion dramatically.

But a story on how broadband can be good--I was actually in class on September 11 in New York. At the time, I didn't have a broadband hookup capable laptop and sat near the back of the class. While the professor (who was apparently wholly oblivious -- not out of malice, but out of general obliviousness) prattled on, a student in the front row was constantly refreshing various Internet news sources on his browser and putting up the headlines on his screen so everyone behind him could read. (And yes, we heard the thud as the buildings collapsed in class, as the professor droned on.) So sometimes, "distraction" is a good thing.

The long winter break is over.

Today is the first day of what we call the Spring semester. It's zero degrees outside. So don't go outside! I've already darted out to pick up the paper. Didn't even put on a coat. It's never so cold that you have to put extra clothes on just to go down the front walk and pick up the paper.



No lingering over the NYT this morning. Just a snappy run through the pages, and then I will put on a coat, dash to my car, dash once again from the Business School garage across University Avenue, and into the Law School. The atrium will be full of students again. Yesterday, the atrium door was locked. I had to fish out my key to enter the deserted building. But today, everyone will be back. The end to the break is never a weary, "vacation's over" feeling. It's always high energy and optimistic -- even when it's the Spring semester beginning, and it's dark and cold outside.



The first class, today at 9:30, is Federal Jurisdiction (aka Federal Courts), the law school course most known for mystery and arcana. Why do we have federal courts anyway? Why do you spend a whole semester answering that question? And how can you have answered the question for a whole semester for twenty years and still have an energetic, optimistic attitude about doing it all over again?



I once was on a panel of fedcourts lawprofs where innovations in teaching the course were being explored, and a famous old fedcourts prof took the anti-innovation position. He said "The topics are exhausted ... but not for the students." It was all new to them he said, and an important exercise in learning the ways of the legal process. We shouldn't teach the course to find interesting new things for ourselves, but to take the students down the well-worn paths for the first time. He said he was old enough to have had Hart and Weschsler as his teachers. He said he used a 19-year-old edition of the Hart and Weschsler casebook at one point, "and it didn't matter -- the questions were the same!"



Hey, the old lawprof sounds pretty cool. So who was he? If you're going to be quoting him like that, you should name him.



He was Henry Monaghan. Here are two other things he said that day in 1994:

I teach Constitutional Law as a process course -- and there's only one correct answer: the Supreme Court shouldn't decide it.



I once put a question to Herbert Wechsler and he said, "Well, it's rather obvious," and I said, "I agree. Which way is it obvious?"

If I had the time, I'd scan and display the two ink drawings I made of Monaghan as he was saying these things that I wrote down in speech balloons ten years ago. But I don't have the time. I've got to teach Federal Jurisdiction soon, and I consider myself terribly fortunate to have that obligation.



UPDATE: Matt Barr, Chicago-Kent College of Law, class of 1994, writes:

The law school course most known for mystery and arcana? Federal jurisdiction? Aren't they teaching property law anymore? Kids today.



I went into property development after law school and over the years never once came upon a real-life situation where I had to apply The Rule in Shelley's Case or the Rule Against Perpetuities or anything like Fee Simple Conditional to A with Life Estate to B, Remainder to B's children. I bet if I'd ever set foot in a federal court after law school, though, I'd've drawn on many useful things I learned in Federal Jurisdiction.



P.S., my Con Law professor taught Con Law as a "procedure" course as well, even to the extent where he pointed out that "substantive due process" is an oxymoron. I was fortunate enough to take the course from visiting professor John Hart Ely. (No non-giant in his field could have gotten away with such apostasy, I suspect.)

ANOTHER UPDATE: Here's a nice email from John M. O'Connell:

Thanks so much for the wonderful anecdote about Professor Monaghan. I am a Columbia Law School Class of 1993 grad who had the honor of sitting for two of Professor Monaghan's classes: Constitutional Law and Federal Courts. The second was particularly memorable, as Professor Wechsler, for the last time, taught the final third of the course. Professor Monaghan often called Wechsler the greatest legal mind to pass through Columbia (high praise!). Wechsler's diminished hearing made interactions with the class awkward, but his description of the behind the scenes details of New York Times v. Sullivan were riveting (including the story of Justice Brennan's wink to Mrs. Wechsler during oral argument in another matter some time after the Sullivan argument--but before the decision was announced--which Wechsler took to mean that Sullivan would go his way).



As for Professor Monaghan, his curmudgeonly persona and penchant for the provocative turn of phrase kept some students at a distance. (For example, I recall him saying, in substance, that while Roe v. Wade was a poorly reasoned decision, if men and not women bore children, abortion would be a sacrament.) Most students assumed that was "conservative" (or what passes for conservative at a place like Columbia), because he was not young and hip and he had little patience for the climate (the height of "political correctness") and the intellectual/legal fads of the day (e.g., Crits--ugh!). But it never seemed that simple to me and to this day I do not know his political leanings. I think this is a testament to his classroom method, which was questioning (not classically Socratic, because he did not call on unwilling students), rather than declarative.



Persona notwithstanding, those who made the effort found him to be a warm and kind man and a caring teacher. He took a great deal of time and care in commenting on a note I was working on for publication in the Columbia Law Review. Later, as an articles editor on the Review, I had the pleasure of working with him on an article concerning The Protective Power of the Presidency--and he was very generous in giving me far more credit and praise than I deserved. We spent plenty of time in 1992-93 talking about that article, the state of the law, and even my career plans--sometimes while shooting hoops in Riverside Park. (He'd lost a step by then, but still had a killer hook shot!) And one day I even had the surprising good fortune to be in his office (dominated by a bust of his hero, George Washington) when Justice Scalia paid a surprise visit while in town to film one of those old Fred Friendly PBS roundtables.



Years later, when I was looking for some advice about a contemplated career move, Professor Monaghan was warm and exceedingly generous--even though we had been out of touch for years.



Anyway, just thought I'd share. Professor Monaghan was and is an important figure in American legal scholarship in my view . . . but an even better person.

Those religion-oriented law schools.

The NYT reports on the new religion-oriented law schools.

"The prevailing orthodoxy at the elite law schools is an extreme rationalism that draws a strong distinction between faith and reason," said Bruce W. Green, Liberty's dean.



The claim that professors at the leading law schools tilt to the left is supported by statistics. According to a forthcoming study of 21 top law schools from 1991 to 2002 by John McGinnis, a law professor at Northwestern University, approximately 80 percent of the professors at those schools who made campaign contributions primarily supported Democrats, while 15 percent primarily supported Republicans.

Hmmm.... that seems to equate "tilting to the left" with "extreme rationalism." What's needed are law schools that expose law students to the full range of professional debate. It doesn't make much sense to counter one law school with another law school: the poor student has to go one place or another!

But where mainstream law professors tend to ask questions about judges' fidelity to precedent and the Constitution, Liberty professors often analyze decisions in terms of biblical principles.



"If our graduates wind up in the government," Dr. Falwell said, "they'll be social and political conservatives. If they wind up as judges, they'll be presiding under the Bible."

Try saying that at your confirmation hearing!



But that's Jerry Falwell, the school's chancellor. What are the lawprofs really like? The Times makes the civpro teacher's class sound much weirder than perhaps it should:

In Professor [Jeffrey C.] Tuomala's civil procedure class, the topic on Wednesday morning was a law school warhorse: the Supreme Court's 1938 decision in Erie v. Tompkins, a case that has baffled generations of law students. Judging by the halting Socratic dialogue, Professor Tuomala's natural-law critique of the case did not immediately clarify matters.



The Erie decision, which is viewed as uncontroversial in much of the legal academy, represented a disastrous wrong turn, Professor Tuomala said. In ruling that federal courts may not apply general principles in some cases but must follow state laws, he said, the Supreme Court denied the possibility of "a law that's fixed, that's uniform, that applies to everybody, everyplace, for all time."

The "natural-law critique" of Erie is not just some quirky angle Tuomala cooked up! Erie overruled Swift v. Tyson, an 1842 case, written by the great Justice Story, which did in fact rely on principles of natural law. Any lawprof teaching Erie would need to talk about natural law. Erie is the one civpro case where you have to talk about natural law. And nearly any civpro lawprof (myself included) when attempting to teach Erie in the Socratic mode would seem "halting" and unclear much of the time. A good civpro lawprof would not polish Erie off as "uncontroversial," even though it must be seen as well-settled law, but would vividly present the different jurisprudence underlying Swift and the case that overruled it. It is the most interesting question to be found in Civil Procedure!



Tuomala isn't a bad lawprof if he happens to think Swift was right and Erie was "disastrous." That's a perfectly sensible thing to think. What would be wrong would be to teach students that they ought to go out into the world as lawyers and attempt to do legal work without understanding that they have to function in a system that accepts Erie as settled precedent. Lawprofs at all law schools are likely to convey to the students their opinion that key cases were wrongly, even disastrously, decided. There is nothing abnormal about that. What is important is to equip your students to work within the existing legal system (which, of course, includes working to change things).