I always found such an exchange great fun if the student was receptive to the conversation. But if he/she was scared or unprepared or whatever, and did not participate with any enthusiasm, I would first make an effort to solve the problem (“Ms. Smith, you are thinking about how I just called on you, and what your classmates will think about your answers, but forget all that. I want to know what you as a thinking human being can make of the issue at hand. For example, if you were on a jury and the verdict depended on whether to believe the used car dealer or the consumer, which would you favor? And why?”) If that didn’t work, I would ask the class, “Ms. Smith needs co-counsel. What do you all think?” and move on.
It would be easy to be cruel and persecute a student who is uncomfortable with the interlocutory instruction, so, with the two exceptions mentioned below, I have never pressed a student who was in Socratic trouble. That doesn’t mean that I took it easy on the students if they could handle the pressure (which most could—you don’t go to law school if you are terminally shy), and this led to some very interesting exchanges through the years. I got better at such dialogues too. In the beginning I made the mistake of focusing too much on myself: was this the right question, how will I respond to what the student says, am I looking confident, etc.? Eventually I learned to stop that and experience the whole dialogue from the point of view of the student. What is going through his/her head? Why did he/she say that wrong remark? Is he/she aware of the underlying policies at work here?
I became very impatient with students who, because they were confused, just gave up and quit thinking about the matter. When this happened I would say things like, “Mr. Brown, you are paying me to teach you this subject, and I want to make sure you are getting your money’s worth. Now I’ve managed to confuse you, so let’s go back to the point where there was last a clear understanding. Is it moral to take the witness stand and lie?” The teacher evaluations that the class members routinely filled out revealed that some students didn’t like being pushed this hard, but I didn’t change my tactics as long as the students were learning the material and becoming better lawyers (and it was reassuring that teaching awards were also piling up). Since the subjects I taught were heavily tested on the bar exam, at the “After the Exam Party” the law school routinely hosts for the recently graduated students just exiting, exhausted, from the bar exam, I would be fawned upon and stroked like the “2001: A Space Odyssey” apes with their monolith.
My two exceptions to not pressing the uncomfortable student:
When I had been at Ohio State just a year or so (around 1977 therefore), I learned from a student at a party that some of the students in my Commercial Paper course (the law of checks and promissory notes) liked getting high on marijuana and coming to class! That made the steam start pouring from my ears, and even though the students were not named, the next day in class I had no trouble picking them out. I called on their obvious ringleader, Mr. Jones, and he promptly replied that, alas, he was unprepared. “Ah, a virgin mind! Good!” I replied. “Well, Mr. Jones, you’re in luck. I’m going to tell you what the rules of law in section 3-405 of the statute mean, and then you and I are going to work through a series of problems illustrating those rules.” To Jones’s credit he didn’t panic, but, after some hesitation, applied himself to the task. If you are high on marijuana (I know this from personal experience, the subject of a future post) you can concentrate on only one thing at a time. It might be the hairs on the inside of your nostril, or, as in this case, it might be section 3-405 of the Uniform Commercial Code. Jones and I explored it for the entire 50 minute period (at one point he muttered, “Are you sadistic?” and I replied, “In this case, yes, but now let’s consider subsection (1)(b) of the statute.”). The class ended, and the next day I called on Smith’s friends and everyone was fine and paying close attention.
The second occasion occurred during a question and answer session following a speech on “Gay Marriage” that the Ohio State Law School’s Federalist Society asked me to make (a bold move on the part of this very conservative organization, not known for its support of gay rights). When my talk ended and the question period began, one of the students attending raised his hand and said, “Well, Professor, it all sounds good when you say it, but I think a marriage should only be between a man and a woman.”
In my last post I mentioned that Jay Westbrook, with whom I went to law school, had taught me how to boil a disagreement down to its most basic point. When Jay and I argued, he would say things like, “Is this the thing you disagree with?” No. Then put that aside. “How about this?” No. And so on until you reached the fundamental point at the heart to the matter. When that was revealed, one of two things could happen: the participants could agree to disagree, or—more often—someone’s basic position was revealed to be ludicrous (too often mine), and a rethinking was in order.
I started using this process with the student who didn’t think gays should marry. Was marriage important to society? Yes? Was it appropriate when two people were in love? Yes. Does marriage help stabilize that love? Yes? Is that is society’s interest? In this manner we worked to the very real problems that unmarried couples can have (losing the house to inheritance taxes, for example, or no visitation rights in hospitals, or being cut off from attending the partner’s funeral, or not getting health benefits, or legal problems arising from the children such couples often have these days), and I realized that the student was getting closer to having to say what was really his point of disagreement: he didn’t think homosexuals should have the same rights at other people. Why not? Okay, he didn’t like homosexuals, who repulsed him. Normally, as I said above, I wouldn’t push a student to such a statement, but here I did make him, very reluctantly, say it aloud. As he did so he was glowering at me in a way I had not seen before, and perhaps I should be sorry I forced him to paint himself into this uncomfortable corner. Oh, well. At least his admission was now on the table for all to stare at and ponder, and the lecture on gay marriage had reached down to the very core of the dispute. For how many lectures is that true?
To those of you reading this, let me know if you think I was wrong in either of the two cases just described. Post a comment or write me at firstname.lastname@example.org.
“How I Became a Law Professor,” January 27, 2010
“Clickers,” March 17, 2010
“The Summer Bar Review Tours,” June 15, 2010
“The Sexy Promissory Note,”August 17, 2010
"Mortgage Foreclosures: The Disaster of Unintended Consequences," October 27, 2010
"Update: Mortgage Foreclosure and Missing Notes," November 16, 2010
"Women in My Law School Classroom," January 8, 2011
"The Exploding Alarm Clock," February 19, 2011
"One More Story From Law School," February 27, 2011
"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011
"Bob Whaley Goes to Law School," June 3, 2011
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011
"Adventures in the Law School Classroom," September 10, 2011
"What Non-Lawyers Should Know About Warranties," October 11, 2011
"How To Write and Effective Legal Threat Letter," October 19,2011
"Funny Law Professors," January 15, 2012
“How To Take a Law School Exam,” November 30, 2012”
“A Guide to the Best of My Blog,” April 29, 2013