Women now make up the majority of law students in the United States. At some schools, including the University of California, Berkeley School of Law, where I teach part-time, women are significantly in the majority. Yet, studies show that women law students volunteer and speak less frequently in class than male students, something that my own experience confirms. I tell my students that participating in class will increase their grade; that it will better train them for being lawyers in the real world; that I value all contributions; and that their participating makes a big difference to the class experience for everyone, including me as the professor. Every semester, I experience the same result: a handful of students (mostly, but not exclusively, men) who regularly volunteer and who seem to enjoy speaking in class, a straggler group of occasional participants, and a number of students whose voice I never hear through the entire semester. In thinking through how to address this issue, a few possibilities emerge.
1. Asking for Volunteers Does Not Work to Generate Widescale Class Participation
I am a practicing lawyer who teaches professional responsibility one semester or sometimes two semesters a year. I am used to working with colleagues and want to treat my students as colleagues. As a consequence, I don’t want to cold-call in class. I don’t want to create an atmosphere of fear and dread, and an incentive to skip class if a student is not completely prepared. I therefore prefer to throw out questions and call on students who raise their hands. There are always students who will respond, and I work to make my questions more interesting and dynamic to try to generate a larger response from students (and get their attention away from their laptop screens).
On the other hand, asking for volunteers does not generate a wide cross section of class participants. At least not in the large classes I teach (where I usually have between 65 and 80 students). Why is that? It takes a certain amount of confidence to volunteer in a large class and a willingness to be seen as someone who wants to stand out and who believes he or she has something to say. There are plenty of students who have those qualities, but many students do not. Often for valid reasons: They are shy; they are less confident in English than in their native language; they are focused on trying to understand the material; or they just did not have enough time to prep for class in a particular week.
2. The Socratic Method, While Effective to Get Students Talking, Does Not Reflect Real-Life Experience as a Lawyer
Recognizing that asking for volunteers will not generate across-the-board class participation, many professors continue to use some form of the Socratic method, the much-vaunted (and, more recently, criticized) technique where the professor cold-calls a student and leads him or her through a series of questions, creating a dialectic exchange. This is a great technique to get students talking—they have no choice. In the hands of a gifted professor, the Socratic method can provide a means to get students to rethink their assumptions and engage with legal concepts on a deeper level than they may have done on their own, based on the reading alone. But is it necessary as a means to help students develop the skills they will need as lawyers?
Most lawyers will never face situations in which they will be forced to respond to the kind of guided questioning that the Socratic method is based on, where a dominant teacher leads the student toward an (often hidden) end goal. The closest analogy is an appellate court argument, where a person in a dominant role (the judge or a member of a panel of justices) may pose questions to the lawyer, often forcing the lawyer to examine the facts or the law from an alternative perspective, and the lawyer must respond. While that scenario is superficially similar to the Socratic method classroom dynamic, there are important differences. In an appellate argument, a lawyer has much better control over the material than a student does in class: Rather than simply reading a textbook excerpt from a reported appellate decision, the lawyer has steeped herself in the case law and in the factual record. The lawyer has written one or more briefs or at least read the briefs of both parties (and possibly amici), and the lawyer has a particular task: to advance the client’s cause. The power dynamic between the judge and the lawyer is obviously still one of imbalance, but that scenario is closer to a “fair fight” than the classroom context.
Why does that matter? Because even the shyest, least confident law student will feel much better about public speaking and engagement when he or she is more prepared, where he or she has had the opportunity to master the material, and where the objective is understood. Is it really important to train students to respond spontaneously to questions about material they have had only a brief exposure to and where the end game is often not at all clear except to the professor? That kind of exchange may continue to be important for certain of the substantive subject areas of the law school curriculum, but probably not for all subjects or all students.
Of course, many professors do not use a pure Socratic method and will integrate various types of questioning in the classroom. Most people will agree that there is a value to developing the confidence to be able to speak in class and to learn to advocate a position, no matter what area of law practice a student will pursue.
3. Student Engagement of Various Kinds Is Valuable: Not Just Speaking in Class
Given that not everyone is going to volunteer to speak in class, it is necessary to find other possibilities for student participation that will create opportunities to engage with the material, their classmates, and the professor. Experts point to the diversity of learning styles to support providing a range of classroom experiences. My goal is to get more students actively involved in the class, and understanding, critiquing, and exploring the substantive issues we address.
Small group discussion or problem-solving exercises, online discussions focused on particular issues, role plays, and advance “on-call” assignments have all worked in my classes. Not every student will value every one of these techniques or fully benefit from them. That’s fine. I continue to learn from my colleagues, especially those who study pedagogy and learning in a way that I, as a full-time lawyer and part-time professor, cannot. One of my favorite opportunities for class participation was this semester, where I asked students to send me articles or blog posts about legal ethics in the news and to tell me what they thought about that matter. I got a lot of response (this was a particularly fruitful period for legal ethics issues), and it made for some lively classroom discussion. Even from some of the shy students, which was at least one of the goals.
It is beyond obvious that all students matter and that our job as professors is to help train a diverse population of new lawyers, using whatever productive means we can find.
Merri A. Baldwin is a shareholder at Rogers Joseph O’Donnell in San Francisco, California.
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