Law in Contemporary Society
I can’t quite figure this out.

I do the readings. I suspect I understand them; at least I understand parts or sentences of them. I make notes in the margins, and some of my notes have question marks at the end. Surely this must indicate that I have thoughts or questions about the subject matter? Even beyond my notes, just by virtue of my combined experiences in my twenty-four years, I must have some kind of perspective to contribute to the discussion. In the obituary of John Stallings, Barry Mazur explained the virtue of Stallings’ proof despite the fact that it was less complete than Smale’s (fewer dimensions are more complete, correct?) by noting, “Different proofs bring out different aspects of a problem.” I suspect it is the same way with different people in a class discussion such as ours.

So why, when that opening song ends and conversation begins, do I sit quietly in my chair for an hour and twenty minutes? It’s certainly not because Willie Nelson’s rendition of Poncho and Lefty answered all of my questions about Transcendental Nonsense.

I have a few ideas. I hope that by beginning to write about them and share them here, I can better understand my own thoughts, and maybe start the process of breaking through the block I feel when class begins.

1. I have been taught not to raise my hand. I spent the first half of first semester of law school repressing the desire to volunteer answers to professors’ questions. Don’t get me wrong, I have never known all the answers. But I knew SOME, I just couldn’t say them. I didn’t want to be a “gunner,” right? That’s always been my understanding of the culture of law school: we don’t volunteer answers in lecture, we don’t wave our hand around - or at least we don’t do it every day.

Now I’m supposed to raise my hand - expected to, in some respect - and I can’t. It feels wrong. It feels like I’m violating some kind of norm I wasn’t even aware of until I tried to move against it.

I don’t think this is it, though. Some of my convictions about justice and the court system violate social norms of retributivism and revenge, and I am just as adamant about expressing my views on these subjects - perhaps moreso. It shouldn’t be all that difficult that difficult to break free of a norm, to whatever extent it exists, that I have only been subject to for one semester.

No, I think the underlying issue might really be...

2. Philosophy makes me uncomfortable. In my more introspective moments, I think this the lion’s share of my problem. However, I don’t think it’s a Sandra-Day-O’Connor kind of discomfort, where the psychic pain of wrestling with the many levels of a problem becomes too much for me to bear. I suspect that it’s less of Holmes’ “longing for certainty,” and more of Stallings-style reluctance; “ inhibition of reasoning by an underlying fear of being wrong.”

I’m not sure why this feeling is more acute for me in the discipline of philosophy than I think it would be in most, if not all, of the other disciplines on the list of organized inquiry. If anything, there is probably less of a wrong answer in philosophy than biology. It actually seems possible, from my layman’s perspective, to disagree with absolutely every premise from some kind of philosophical standpoint. I picture two obtuse philosophers talking to each other: “I am here.” “Are you really?”

Now that I’m reviewing my thoughts on this topic, I wonder if these two types of discomfort are really the same. Perhaps my fear of being wrong stems from a fear of the seemingly near-total uncertainty and lack of objective truth that surround much of what we discuss in class. If that’s true, then Stallings would say that I should begin addressing my problem by cultivating “techniques leading to the abandonment of such inhibitions.”

I guess I should start exploring what those might be.

-- MolissaFarber - 30 Jan 2009

I like the points you raised, Molissa, and I would like to add to your writing. Mainly, I would like to offer a simple explanation to the general question of - why am I reluctant to talk in class? I can answer this answer simply: most people think before speaking (ie, conduct a mental cost-benefit analysis of speaking), and for most people, the cost-benefit analysis of volunteering in class clearly weighs against speaking.

Why is this? The answer becomes evident when we look at the costs and benefits associated with volunteering.

What are the benefits of talking in class? I can think of only three. One, you get your question answered. Two, you are brought to the attention of your professor, and he or she may think you are more intelligent for speaking. Three, you get to feel good if you said something intelligent, and your classmates might think you're smarter. Unfortunately, the benefits of volunteering are slight. A question can get answered through email or after class, your professor probably won't remember you unless you volunteer frequently, and your classmates thinking you're smarter just makes them eye you with suspicion and envy. So we are left with one purely positive benefit, and that is self gratification.

When weighed against the cost of talking, it becomes clear that volunteering just isn't worth it! There are two major and very real costs of answering: one, gaining the reputation of a gunner, and two, answering incorrectly or asking a stupid question. I don't think it is necessary for me to delve into why either of these results are bad (though I will, if asked), but in the end, you are damned if you do, and damned if you don't.

Now, of course, people weigh every factor differently in their minds, depending on the class situation and other various external factors. For example, sometimes you really want a question answered right then, and it would be hard to ask in an email, to the point that the benefits of receiving the answer outweighs the costs associated with speaking.

Some people will never talk, because to them, the potential costs associated with talking will always outweigh the potential benefits. And some people could care less about being branded as an outcast gunner, so they will always talk whenever they think they can sound intelligent or have a question.

Hopefully, I didn't come off as negative or offend anyone with my comment. To the contrary, I'm a very positive person, and like Molissa, sometimes I have things that I'd like to say that I don't. I just wanted to present my perspective on why many people are reluctant to volunteer in class.

-- AlexHu - 31 Jan 2009

Chicken or Egg?

When asked (and nobody asks) what my secret power is, I claim the power of invisibility. So you will not have noticed that I, too, sit mute through nearly every class. With that said, it seems to me that your list omits one clear benefit of voluntary participation: engaging in an exchange of ideas for their own sake, or because it's interesting (or was formerly) to communicate with our peers and thereby to investigate our own thoughts about society, justice, etc. What an idea! Speaking (and listening to others speak) in order to communicate! The problem seems to be that law school is not a community of scholars, but one of distilled individualistic striving. A competitive environment makes openness and trusting communication difficult. So one question might be: who has created this environment? And one obvious answer might be: who else, if not we ourselves?

How soon did we begin to learn that law school was a cutthroat, hellish trial? (When did you learn the word “gunner”?) Admitted students day? LSAT exam day? While browsing The study of law is famed for the harsh social, cultural and emotional environment in which it takes place. Anticipating this, we have zealously sought to assimilate as quickly as possible, and in the process I suspect that we ourselves have created the environment that we were told to expect. (Who is the class?)

Somewhere close to the root of the particular tension that characterizes the law classroom is, I suspect, the reason that we are here at all. If the big payoff for our 3 years of toil is position, wealth and prestige – that is, joining the ‘elite’ of the world’s most powerful society – well then, it’s clearly a Me vs. The World proposition (how many elites can there be, after all?).

Bring on the cost-benefit analysis (and another round for the house).

-- LeslieHannay - 01 Feb 2009

That's an interesting way to analyze the situation, Alex. I agree with Leslie that it seems to look at the question from an individualistic perspective, i.e., I need an answer to my question. It doesn't address the potential communal benefits of class participation. For example, something I say may inspire someone else to make a point that wouldn't have occurred to them had I not spoken. Someone might feel more comfortable speaking because I say something so stupid that I've set the bar low for them.

The communal benefit factors might make class participation more rational, and make clamming up during class and asking questions privately the more self-gratifying action. It seems more apt to describe the economic, rational, cost-benefit analysis as symptomatic of the problems we've been talking about in class, namely the need to be certain, the need to quantify, etc.

-- MolissaFarber - 01 Feb 2009

I believe that not only is the cost-benefit analysis symptomatic of the thirst for certainty, but a part of the framework. On the "cost" side, fears of continued abstract exploration weigh down a desire to speak. "Benefits" might include the desire for an answer (as you all have noted). There is list is likely endless.

But to me, it is very interesting to observe how our problems can not only cause certain decision-making processes, but infiltrate them as well. That is particularly worrisome and requires more attention and introspection as to why do we truly have these feelings and what can be done about them. Only then can we begin to use a free form analysis that is also free in its application.

-- KeithEdelman - 02 Feb 2009

Proposition: This fear is the result of the environment created by the large lecture-style class.

I was not nearly as reticent last semester, in my ~30 person Contracts class seated at a large conference table, as I was and am in the 50-90 person lecture halls.

Has the growth of the size of law school classes had a detrimental effect on the per student quality of education?

Is there a stigma against “gunning,” when the setting is more intimate? Were it not for huge classes, one would not have to "gun" for the professor's attention.

Does the fear of error decrease in small classes as well? The cost of public humiliation decreases as you become more familiar with your colleagues.

I also hypothesize that students are more willing to volunteer to assist a classmate who is unclear on a topic that the rest of the class has mastered (read: collaborate) when that deficiency can be admitted without the fear of public scoff, and being inquisitive doesn't mean being pesky.

Unfortunately the economics of law school operations seem to weigh against any solution to this problem in regards to 1L classes, but I look forward to upper level seminars.

-- JonathanFriedman - 03 Feb 2009

Jon, I think you’re very correct that class size has a lot to do with how much people raise their hand in class. One thing about larger classes is that more of your hand-raising time is going to answering rather than asking. In general, the vast majority of times that people speak in class it is to answer a question, but I’ve found that this gets more and more true the larger and larger the class gets. Freshman year of undergrad I had a bunch of 500+ person classes and no-one ever raised their hand then. It’s scarier to answer than to question, although personally I’ve probably been embarrassed more by asking stupid questions then being wrong. The semi-painful silences in classes come when people aren’t answering, not when there’s no questions.

Somewhat related to this, I really like Keith’s phrase “fears of continued abstract exploration weigh down a desire to speak” and feel that it is very relevant to this class in particular. I’m a good deal more intimidated of Prof. Moglen than the other professors I’ve had so far. You can characterize this as my embarrassment cost being high or whatnot. I don’t want to answer when I kinda feel like I know what’s going on because I don’t want to go down some road where my lack of understanding is exposed. I definitely don’t want to ask a question that is quickly and definitively deemed useless for reasons I don’t get. That's probably all just another way of saying I haven't read the material closely enough though. Still, I think it's a factor that hasn't been broached too deeply yet.

Lotta “I” in that last paragraph. Anyways, I don’t believe that completely understanding why you’re afraid to talk in class is necessarily all that useful if your goal is to try to talk more. I can spend a long time figuring out that I hate spiders cause my sister dropped one in my crib but this doesn’t make me less afraid of them (not the best analogy maybe).

Possible things to try if you just really want to speak and to get comfortable with it:

  • If you have a question, write it down and force yourself to ask it in the beginning during question time.
  • Get to know people in the class better so you’re less afraid they’ll think you’re an idiot/douchebag when you talk.
  • Piggy-back on someone else’s answer/question.
  • Read one part really really well and raise your hand when we get to that part.
  • Post on here about how you’re definitely going to say SOMETHING next time and hope that fear of shame will force your hand to go up.
  • Imagine everyone in their underwear.

Dunno if that’s what you’re looking for, and it definitely wasn’t what you asked for, but it was helpful to me to try and think stuff up 

*Edit- That weird symbol at the end was supposed to be a smiley face, btw.

-- JustinChung - 03 Feb 2009

-- JustinChung - 03 Feb 2009

Regarding the cost/benefit analysis, I think you are forgetting the biggest benefit you get from speaking up by far (as far as I'm concerned): Memorization. Once you speak in class, the class becomes alive for you; you may forget what others said, but not your contribution and the discussion you had. We remember only 20-30% of what we hear as see, but about 50-60% of what we say and write (that's a statistic I learned a while ago, the numbers might be wrong, but you get the idea). The class is alive for you, you delve into the material. It's the difference of seeing an event on TV and being there. It also commits you to a point of view; and it is shown that once committed to anything, there is a large psychological force requiring one to stay consistent with the committed view. You may have to review your ideas later, but most importantly, this engages you in debate. Which is where the fun is.

-- TheodorBruening - 03 Feb 2009

A note on what Professor Moglen just said:

"According to most studies, people's number one fear is public speaking. Number two is death. Death is number two. Does that sound right? This means to the average person, if you go to a funeral, you're better off in the casket than doing the eulogy."
- Jerry Seinfeld

-- TheodorBruening - 03 Feb 2009

As Professor Moglen alluded to, my fears (that I suspect many of us share) involved with speaking in class reflect the greater problems with law school. Since step 1 is acknowledging that fear, I find myself wondering what might step 2 be?

Recognition leads me to an exploration of finding out precisely what is wrong with our law school structure and culture. Only then can we find exactly what needs to be done to produce change. As Jonathon and Justin mentioned, class size seems to play a part. But then I must ask, do schools such as Yale or Vanderbilt have a more nurturing, educational, and desirable experience? Perhaps, but what else stifles exhange? If we hired more bodies to stand in front of a room would all our problems be solved? Additionally, what negative repercussions would this have? A dearth of public-speaking skill comes to mind.

I believe professors' engagement is also vital. Required office hours are not sufficient; genuine feeling and empathy facilitate "opening-up" and enable similar feelings among our classmates. Too often have I felt that my professors did not have our best interests at heart.

Maybe I am (we are) very far off in finding the best law school structure. Maybe an entire overhaul of the methodology and configuration is necessary. Even so, at this stage in the analysis we must determine what is wrong and what needs to be done.

-- KeithEdelman - 05 Feb 2009

Actually this doesn't follow at all. There isn't the slightest reason to believe that in order to figure out how to go to law school you have to figure out how to fix it. Fixing it would surely require among other things having some experience in teaching law students, and you don't even have much experience in being a law student yet, let alone teaching them.

We've established, to your satisfaction anyway, that the problem isn't that law school can't teach you, but rather that you're afraid to do some of the things that will make that teaching more effective for you.

I would be happy to teach a course for prospective teachers about how to fix law school, which I have thought a good deal about, but I would rather teach a course for prospective lawyers about how to find for yourself interesting and socially-valuable ways to practice law. As it happens, that's the course you're enrolled in. How about we do that work together this semester, and later, if you're still interested, we'll do that other work when we've got the prerequisites?

I'd like to respond to Leslie/Molissa's response to my response.

Leslie, quoting you: "it seems to me that your list omits one clear benefit of voluntary participation: engaging in an exchange of ideas for their own sake, or because it's interesting (or was formerly) to communicate with our peers and thereby to investigate our own thoughts about society, justice, etc. What an idea! Speaking (and listening to others speak) in order to communicate! The problem seems to be that law school is not a community of scholars, but one of distilled individualistic striving. A competitive environment makes openness and trusting communication difficult. So one question might be: who has created this environment? And one obvious answer might be: who else, if not we ourselves?"

I did omit this "benefit" from my list, precisely because the environment of law school prevents this "benefit" from being "beneficial." I agree (ideally) that we should all strive to share material and learn as much as possible. But is this possible where we are graded on a strict curve? I don't claim to be an expert on how to run a law school, but it seems to me that a curve incentivizes the restriction of knowledge. You take what the professor says and try to understand it as deeply as you can (and hopefully more than your fellow classmates), while avoiding to provoke insightful discussion. Why? Because if you provoke insightful thought, your classmates might get even deeper and better ideas than you have thought of, and thus, you have potentially shot yourself in the foot. Because if there is some sort of game theory, the fellow classmate who has grasped your insight with deeper clarity than you did will horde the gem of knowledge for him/herself. Thus, it results in the unfortunate effect that the more knowledge that is shared, the larger the amount of work you will have to do to best your neighbor. By no means am I a gunner, nor do I purposely horde knowledge for myself. But you can see why this analysis might apply to some.

Of course, my list is not all inclusive, and there is a lot of stuff I'm sure I missed. But in this instance, I happen to think the nature of law school neutralizes this particular "benefit", when benefit to the class is detrimental to the self.

-- AlexHu - 05 Feb 2009

It seems worth mentioning that the forms of social control we discussed in class today -- the forces we all feel regulating our behavior, depsite the absence of particular agents we can point to as their source -- probably pertain to our discussion here of when we speak and when we keep silent in the classroom. (What can we do with this idea?)

On a different, but (I think) pertinent note: I have to admit that I'm not quite sure what classroom discussions are supposed to achieve. I never have been. (A fact that probably impacted my performance as a teaching assistant a few years back.) The model we follow seems to involve a clash of ideas put forth by a room full of Arnold's "thinking men," out of which a greater truth arises for the benefit of all involved. But I don't really think it works like that; it's not how people actually communicate. (Any communication theorists in the room?) Which isn't to say class discussion isn't valuable; I'm just not sure how best to participate, because I'm not sure how best to add value, because I'm not sure in what ways class discussion is valuable (which I suppose might differ for different people).

-- MichaelHolloway - 05 Feb 2009

Michael, did you notice how many times you said "sure" in that last paragraph? I don't think we need to be "sure" of the mechanisms by which our participation adds value, and I don't think there needs to be a theory to validate it. I know I have had enough times - and I'd imagine many others have had a similar experience - when something has been said in class discussion that either inspired me to look further into a topic, caused my mind to ricochet to something else that was enlightening, or what-have-you. I often feel as though one of my problems is the need to feel "sure" about something before it comes out of my mouth, but I don't think the amount of importance I assign to that actually matches up with its importance in life or in our class.

-- MolissaFarber - 06 Feb 2009

I think you've seized on a quirk in the way I chose to compose my final sentence; I'm not primarily concerned with being sure my thoughts are valid. But I see your point.

-- MichaelHolloway - 06 Feb 2009

I think you've seized on a quirk in the way I chose to compose my final sentence

That might be true, but it jumped out at me nonetheless smile

-- MolissaFarber - 06 Feb 2009

I would like to respond to Professor Moglen (I assume it is him who responded with the red writing). Looking back I see why my post does not "follow" the way that I conclusively stated. I omitted crucial premises that probably require examination. First, I tend to believe that if I recognize a problem, discussion should follow about how to fix that problem. After the recognition of our fears, I jumped to a conclusion that the crucial problem was law school structure (rather than our behavior in this structure). I obviously have little experience in this arena and my examination of the broader issue probably reflects that. However, I still do think that examination should generally follow recognition. Second, I assumed (perhaps even neglected to address) that the problem I identified (structure of law school) could be addressed without proper analysis of the prerequisites. I see more clearly why Professor Moglen informed us in class that we are not yet ready, but that this is not a problem. I hope that I am making these cursory leaps and errors with misguided optimism rather than fundamental misunderstanding.

I look forward to continue to work with Professor Moglen and the class to cement the basics that are necessary for the higher-order analysis I mentioned earlier. And although I honestly do not feel that foundation just yet, as Professor noted in Anja's explanatory topic, I am glad we still have many more weeks to work on this together.

-- KeithEdelman - 06 Feb 2009

I have one question and one point. First, I wonder if people are any more or less reluctant to speak up in class now that we (presumably) have a better handle on the unique tone and focus of the class.

Second, I think the reasons posited by Alex for speaking up in class only hold true where hand-raising is a way to have a limited dialogue with the professor; the list Alex gives (information, affirmation, self-affirmation) is not particularly helpful if we view participation in class as a way to start discussion or bring up a alternative point of inquiry. While positive feelings (external and internal) may result from raising our hands, those feelings need not be ends in and of themselves. In fact, since this class is specifically geared toward generating discussion, viewing contribution to class as a way to draw attention to oneself seems off the mark.

-- KahlilWilliams - 24 Feb 2009



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