Learning about Teaching
With its small class sizes and accessible professors, Duke Law has long been known for the strength of its teaching. But the teaching of law has undergone dramatic changes since the days of “The Paper Chase” and One L, from the introduction of computers in the classroom in the ’80s and ’90s to the more recent emphasis on clinical and experiential learning.
Last year, the Duke Law faculty convened the Teaching Initiative, a series of presentations, discussions, and small-group interactions aimed at evaluating existing teaching methods and exploring new approaches, insights from psychology and neurobiology as to how students learn, and ways in which the classroom experience might be further enhanced. They also formed “teaching triangles,” groups of three professors who visited one another’s classes and then offered feedback on what they saw, and groups of clinical, writing, and recently hired faculty members addressed their particular teaching challenges. In August, Professors Guy-Uriel Charles, Elisabeth de Fontenay, Neil Siegel, and Jane Wettach gathered to talk about the initiative and about how the role of the law teacher is changing.
Clinical Professor Jane Wettach directs the Children’s Law Clinic and teaches courses on education law and policy. She served as a co-chair of the Teaching Initiative.
Jane Wettach: How do you think the teaching of law has changed over time?
Guy-Uriel Charles, the Charles S. Rhyne Professor of Law, teaches courses on constitutional law, campaign and election law, statutory interpretation, and identity politics and law.
Guy-Uriel Charles: I think law schools, many years ago, were thought of as places where people went to survive trial by fire. Clearly, for this generation that is not at all the case. Not only do faculty really care about their students, but they don’t view their classroom interactions as opportunities to humiliate students or to try to make them tougher. It doesn’t mean that we’re not pushing our students intellectually and it doesn’t mean that we’re not challenging them, but I think the mindset has changed as to what is the relationship between the professor, the student, and the classroom, and it is not what the stereotypical assumption of a law school was about 20, 25 years ago.
Associate Professor Elisabeth de Fontenay, a corporate law scholar, teaches Business Associations and Corporate Finance.
Elisabeth de Fontenay: Another change is the introduction and then the ebb and flow of technology. When I went through law school, everyone used a laptop in classes. Then suddenly we realized that’s not actually good for learning in many cases. And there has been sort of a retrenchment as a lot of professors here ban laptops and have found that it’s just dramatically changed the dynamic of the classroom experience.
Neil S. Siegel, the David W. Ichel Professor of Law and Professor of Political Science, teaches courses on constitutional law, constitutional theory, and the federal courts. He co-chaired the Teaching Initiative.
Neil Siegel: The general lesson I have gleaned is that people learn by actively doing as opposed to passively receiving. And so it has made me less inclined than I might otherwise be to simply lecture. I will give students questions to think about, problems to puzzle over outside of class, more ways for them to be actively engaged in learning before, during, and after class. And I think that’s great preparation for them to be learners for the rest of their lives, but also excellent professional preparation for the practice of law. You can read a bunch of briefs and think you know what a case is about, and then you show up for the moot court and get asked questions, and suddenly the case is a lot more difficult than you thought it was. I think we’ve got to try and replicate that experience for our students before it counts.
Wettach: And I might also note the influx of clinical education to the law school experience as a means of operationalizing what we know. Students need to do things to connect what they’ve learned in the classroom to how it actually works in real life, how it works on the ground. The clinics give them that opportunity to say, “Oh yeah, I read a case that said this was the principle,” and then see how it actually works to represent a client by arguing that principle or distinguishing that principle. Here at Duke Law School, we’ve gone from zero clinical opportunities to 11 in 20 years, which represents a huge commitment to clinical education. I think we’ve witnessed the learning process and seen the importance of allowing students to implement what they have learned by having to figure out the problem as it applies in this set of facts and also having to learn that the facts aren’t always handed to you in a nice couple of paragraphs.
de Fontenay: As Guy mentioned, there is no longer an adversarial relationship between the professor and the student. Another big change is we don’t think there is an adversarial relationship among students — it’s not competition. The students really feel like a cohesive cohort, and they work together in class and outside of class. It’s a very different learning model than “we stand each on our own and we answer questions when we’re called on.”
Siegel: Imagining the practice of law as a cooperative, collaborative exercise as opposed to an individualistic, antagonistic exercise, makes for a happier learning environment and a happier lawyer. It’s a more realistic assessment of what lawyers do, whether they’re clerking in a chambers or whether they’re working as part of a litigation team in a law firm, or putting a deal together.
Wettach: There is a lot of technology available to us as professors that we didn’t have when we were students. Does it enhance the classroom experience and students’ learning to be able to Google the answers to questions, show a PowerPoint or a video, or listen to a clip from NPR?
Charles: It is fascinating to be in a classroom where information can be either verified in real time, figured out in real time, de-confirmed in real time.
Siegel: I think it’s a tricky balance because I’ve had the experience Guy is talking about: “Well, I just can’t remember the exact date of a decision,” or, “Has the Oklahoma Supreme Court decided yet?” And a student can look it up in seconds and we know the answer in the very class in which the question arises. At the same time, I’ve gone back and forth with electronic devices in the classroom because I’ve decided that good people simply cannot help themselves when they have access to them. Part of what we need to be teaching our students is the need to stay focused and disciplined. You can’t be in court or in a meeting with a client staring at your phone or looking things up on the Internet or checking the latest email.
de Fontenay: I think, if used properly, technology can definitely keep things exciting for the students and keep them engaged, but it can also be a crutch. As Neil said, it’s a delicate balance, even for the professor. And I tell my students, it’s a very asymmetric position that we’re in where I can use all the technology that I want, and I am one of those folks who bans laptops in my classroom.
Wettach: When I teach the cases about free speech in school, I put up pictures of things that the students in these cases had on their t-shirts. I think for the law students, seeing the t-shirt in front of them enhances their ability to reflect on it, and imagine it, and think about, “Okay, if I’m the principal in that school, what is the impact of that on the other students and is that going to cause a disruption in the classroom?”
Siegel: I have as well. If you think, for example, about a discussion of police brutality, if it’s on video it’s a completely different ballgame in terms of the impact on people.
Wettach: Is there still value to the traditional Socratic method?
Siegel: I think there is great value in it. It is, to a large extent, part of what is distinctive about legal education and various settings in which lawyers practice. If students know that they’re going to get asked a series of easy, to moderate, to difficult questions based upon what they’ve read, they’re going to prepare more vigorously than if they’re just going to be on the receiving end of a lecture that is very likely to bore them. If you do it well, it’s a way of conveying what’s relevant and what’s not relevant: What does a case or an issue actually turn on? What’s the difference between the easy cases and the hard cases? It calls upon students to utilize a variety of different skills that lawyers require. It’s not just reading and understanding, it’s engaging verbally and overcoming anxiety about speaking in public settings. It’s requiring students to think on their feet. They’re not always going to have a lot of time to answer a difficult question, and you learn that the more you think about it ahead of time and anticipate questions ahead of time, the better you’re likely to do when it counts.
I don’t think that’s all there is to law practice, and it’s not all there is to teaching. It’s important to do it in a way that Guy was describing, which is to maintain the rigor of past generations of legal education but combine it with the kindness that was often absent — to make it clear that it’s not personal, it’s not about dominance and hierarchy. It can be done in a very humane way as opposed to a humiliating way. And I think you’re also teaching students how to exercise power responsibly — that after they graduate, they’re going to be in positions of authority over people, and it will matter how they speak to them, and the questions they ask them, and whether they help when someone is struggling with an answer or whether they slam them down and then move on to the next victim.
Charles: I’m very Socratic, specifically in the first year. I once experimented teaching two classes, using Socratic in one and not in the other. The students in the non-Socratic class learned less and their exams were less sharp. And it’s for a lot of the reasons that Neil is articulating, starting with if you know that you are going to be asked questions and that you have to learn to think critically about the material, you will approach it differently. They will be lost for a bit, and I tell them that at the very beginning of the semester — it’s okay. And every once in a while there has to be a reorientation because the purpose is not to make the students feel lost. There has to be a pedagogical purpose, and it has to be done in a humane way. But I think it is okay for students to recognize that there are times in which you are going to have to muddle your way through and figure out how do I do that with confidence knowing that I’ll find my way and that this is part of a process.
Wettach: We’ve been reading about whether professors should give “trigger warnings” when they’re about to talk about something that might impact an individual student emotionally, and that we should be careful about approaching topics that are sensitive or might just make students upset. What do you think?
Charles: Part of this is generational. As a society we have become much more tolerant, much more understanding, much more humane. Now, we’re trying to think about what does it mean in the law school classroom that has historically had its challenges with tolerance, diversity, humanity, etc. At the same time, we’re preparing lawyers for engagement in society and they have a distinctive role to play. They have to learn to think about and confront difficult questions. You have to learn how to face up and manage your emotions so you’re representing the client. You can’t fully identify with a client — that will cloud your judgment — and you can’t fully alienate yourself from the client. And part of the task of the law school classroom is to help the students figure those things out. We cannot avoid talking about difficult subject matter and sensitive issues. We have to think about how do we engage in that conversation in a way that’s thoughtful and respectful, but pedagogically effective.
de Fontenay: This does not come up so often in my area, business law. People don’t tend to get physically upset about poison pills and things like that. It comes up for me in a very different way. I have been very sensitive to the research showing that minority students and women come into law school with a confidence problem, so I have taken that as my mission to change the way that I teach such that everyone feels like they have a stake in the class, and everyone feels like they can contribute meaningfully. I do a lot of group work and I get people to volunteer participation from each group — somebody just volunteers and talks. By the end of the class everyone is participating and really showing what they can do.
Siegel: I teach some difficult, controversial subjects, including abortion and affirmative action, and to my surprise, the latter seems more controversial for law students than the former. I wouldn’t call what I do a trigger warning, but I preface the discussion by acknowledging how personal and emotional some of these issues are and stressing the importance of welcoming all voices within a broad range of reasonableness and being mutually respectful and professional.
I agree with Guy that we are training lawyers and they have to be prepared to look at pictures and videos and texts that are going to make them profoundly uncomfortable, if not distraught. We can do it in a kind, respectful way, but we can’t avoid talking about the difficult subjects. I have real concerns about maintaining control over the class as well as maintaining academic values if I’m going to proceed day by day through the syllabus and make a judgment about which topics deserve a trigger warning and which don’t. To me, it’s anti-intellectual, it ends up being highly ideological, and it’s not part of the kind of academic and professional enterprise that I’m trying to pursue with my students.
Charles: For me there are no issues. There are no issues that one cannot talk about. When we talk about affirmative action, I will press students no matter what their race. When we talk about abortion, I will press students no matter their gender, recognizing that for some students in that classroom, that’s a deeply, deeply personal issue. They may have had some experience with it. We cannot take them off of the curriculum and still provide a top-notch educational experience.
In my Civil Procedure class a number of years ago, we took up a case about a gay rights question. And unbeknownst to me, the student that I was calling on and was pressing fairly hard was a gay student. I was pressing in a respectful way, not one that was mocking. I was pressing the student to take a position different from the position that the student would be comfortable with. I’m glad that I didn’t know the student’s sexual orientation. I think it’s extremely important for everybody in the classroom to think about really hard questions and sensitive issues, and to address them.
de Fontenay: In my Corporate Finance class, I have a very large contingent of foreign LLM students who come with very different backgrounds and a different pedagogical background as well. I said, “I would be very grateful if you would each sign up for a five-minute period to present some topic relating to the capital markets in your home country. It’s entirely voluntary, you don’t get graded on this.” They all volunteered to do it and they did the most fantastic job. It was so much fun and we learned so much, and the JD students were delighted. They asked so many good questions, they followed up, they really got excited about it, and it felt like a way of bridging people’s different backgrounds and learning experiences in a way that ultimately was helpful for everyone, including for me.
At some level it’s about treating students all the same way while bearing in mind that they have differing backgrounds, and trying to get them to share some of that, even in something like business law, where it doesn’t seem like it would come up. So when we talk about mergers and acquisitions and business associations, I try to get someone to present the viewpoint of labor, which doesn’t often come up in those courses. And someone will have come from a town in Ohio that was devastated by a company being acquired and folks laid off. We can get a really good, healthy discussion going if I try to get people to volunteer their own experiences.
Siegel: Particularly when I teach difficult material, I try to discipline myself to imagine that there are people on all sides of the issue in the classroom. For example, if I teach the Virginia Military Institute case, in which the Supreme Court held that VMI’s male-only admissions policy violated the Equal Protection Clause, I try to imagine that there are people who went to VMI in the classroom and that there are women who wanted to go but were ineligible to apply. The way we talk about issues sometimes can be affected by who is in the room — and who we imagine is in the room.
Wettach: Let’s talk about assessment and exams. We’ve made a lot of progress in how we teach law, but I don’t think we’ve made as much progress in how we assess what we teach, and whether we actually are assessing in a way that reflects whether students learned it. No matter how well students have learned the material, if they’re not good writers, they’re not going to get a good grade on the exam. And it’s not because they don’t know the material, it’s because they aren’t the best at expressing what they know. Or they don’t respond well in a timed situation.
Now those are skills they need to learn to be lawyers — they need to be able to express themselves very clearly in writing, and they need to be able to do it under some time pressure because lawyers have time pressure all the time. Nevertheless, I’m not sure that those are the metrics we should be using to judge how well students have learned in our classroom. I don’t use an exam in my clinic class. I’m able to observe what students do, I’m able to get drafts, give feedback, let them try again. In our conversations there is a lot of back and forth where they can express to me how they’re thinking about a problem, how they’re expecting to solve the problem, and I can assess much better whether they’re really incorporating the skills that I’m trying to teach them in that clinical setting. It works much better. I think it offers a much truer measure of what they’ve learned, but is not practical for a large law school classroom.
Siegel: Assessment is changing. I don’t give in-class exams; I give what I view as a three- or four-hour exam in the context of an eight-hour take home. I agree that students, like lawyers, need to work under time pressure, but I’ve found that the kind of time pressure that a two- or three-hour in-class exam imposes on students does not make for a realistic assessment. When I was dealing with last-minute stay applications in death-penalty cases as a law clerk, and I had a pile of papers to go through, and the execution was at two in the morning, I still felt like I had substantially more time than I did on those crazy, three-hour, in-class law school exams in which no notes were permitted, and in which it was like a glorified food fight to spot all the issues and make as many non-frivolous arguments on both sides that one could in the time allowed. I fear that is testing in substantial part who can deal with the kind of anxiety and immediacy of the situation. So what I’ve done over time is give a practice mid-term to my first-year students regarding which I give the class in-depth feedback, and then a final take-home exam, which is all of their grade except for participation.
I think there is wisdom in something Coach K said in the last NCAA tournament with his young team in mind. He said that if he were a teacher, he would want to know how his students were doing at the end of the semester more than how they were doing throughout the course. Because a lot of times, teams and students don’t get it initially, and particularly with beginning law students it’s hard enough to get it at the end, let alone during the first two weeks, or three weeks, or six weeks.
Wettach: Law schools have not spent much time developing an infrastructure for professors to learn how to teach. What did you take away from the Teaching Initiative?
de Fontenay: I took away several things. The first was how deeply committed the Duke Law faculty is to teaching. I was genuinely overwhelmed by the level of participation across the board and people’s interest in becoming better at teaching, which is something really commendable, particularly at a school that is so well-known for its research.
Second, I found the Teaching Triangles program to be a remarkable experience. It was just so much fun to sit in on other classes and to see how things are done differently. I hope that others learned at least something from my class, and I came away with some fantastic ideas about what to do and some comments on my own teaching style — very simple changes that I could make that never would have occurred to me on my own. Having a friendly observer just offer casual tips, was a very, very fortunate experience.
Charles: I’ve had lots of people in my classroom — family members, strangers, parents of students — and I was surprised by the fact that when a senior and a junior colleague came into the classroom, that I was a bit on edge. But it was also great to have the feedback from colleagues, even after almost 15 years of teaching. There is always something that you can do better, and there are lots of ways of improving. And it demonstrated the collegiality of this faculty, with people taking it seriously and providing supportive but critical advice.
Siegel: I think it reflects the extent to which there is a serious collective commitment here to being good teachers — to an extent that is, I think, unusual among elite schools. And it’s infectious. I recently had a colleague who has been here a lot longer than I have tell me that, for the first time in a long time, he was nervous about teaching a first-year class because he felt like he couldn’t let the place down. I think that sentiment is both admirable and typical of the faculty culture here at Duke Law.
— Edited by Andrew Park