Law talk as a second language: Why law school should take cues from Spanish class

-- By MalaikaJabali - 14 May 2012

In a good foreign language class, the teacher uses a variety of teaching methods—generally some combination of reading, writing, and oral lessons—to help students with comprehension. I admit that at the end of the school year, I never quite felt confident enough to engage a person off the street with my high school Spanish abilities. Still, I think law school, at least Columbia, can take a cue from this type of learning immersion.

While no expert in teaching pedagogies, with one year of law school under my belt I feel I can at least speak on my observations. At Columbia, we focus almost entirely on reading. That should be cool, right? We’re merely reading cases written in our native English. We’re smart. We would have read enough, assessed the analysis in legal opinions enough, answered a question or two under the pressure of the Socratic method enough that a law exam should simply be a seamless extension of what we’ve been doing for three months. Reading the comments from one professor’s model answer demonstrates that this is not an entirely successful exercise. Disappointed with the lack of his students’ analysis, he finds substantial gaps between the students that “get it” and manage A level exam answers and the middling majority.

The thing is we are smart, we do read enough, and we read quite enough legal analysis. But even three or four months of this is simply not effective for most of us to demonstrate the kind of analysis that professors want reflected in a 1 hour question. There will be a handful of students with the brilliance to easily apply the language they learned and produce something coherent and intelligent. With a hypothetical set of facts, a great measure of intuition, and a working knowledge of legal rules these students will rise to the top of the class. The problem is that “law talk,” as Professor Moglen calls it, isn’t quite English. We basically have to set up a fortress in the library and spend hours poring over something that pretends to be English. I mean, it reads like English words, kind of sounds like them, even. But it simply doesn’t translate into something meaningful until the better part of a semester. Then the rest of the semester is spent reading the cases a little more easily, extracting rules from them, and haphazardly creating a voluminous outline that pieces together those bits of rules. Certainly, foreign language classes have a lot of reading, but there is nary a foreign language class that relies so heavily on reading without equal time devoted to speaking and writing the language. That’s what we need more of.

Maybe. Legal writing instruction, mandatory 1L moot court, classroom conversation in small-group format, were all established at one time or another over the last several decades to provide that "more."

This is not a matter of teaching to the test, but teaching in a way that prepares us for how we’ll use the law in real life. At the least, if we’re going to have a grading system so reliant on final exam performance, it won’t hurt to prepare us for that too. One of my classes required us to prepare written reflections every few weeks. I think that is helpful. In addition to doing more writing, why not shorten lectures a bit and dedicate some time in class to small group sessions where we may analyze, debate, and work together on particular legal problems from our cases. Most of us won’t be working alone when we graduate. We’ll be in some team figuring out our client’s problems. The method of asking two or three students questions, who are often just as clueless as the rest of us but pretending to talk “law talk” does little to keep a class of 60 or more students engaged, other than to take mental notes of who might comprise the coveted fraction of students who secure As. Maybe that is too elementary for the halls of Columbia. But too often, I’ve felt like I had to teach myself how to really understand a subject I am paying (a lot of money) for esteemed professors to teach. However rudimentary group sessions or regular writing activities may be, I am sure more hands-on learning will lessen professors’ disappointment when they are bored senseless with mindless regurgitations of rules on final exams.

You should not overlook the role that teachers' choice of exam questions (and evaluation practices more broadly) plays in determining their boredom. I don't find teaching boring the way I do it, including the part that involves working with student writing, because I don't arrange to replace student individuality with my own supposed cleverness.

Similarly, you should not get caught up in an approach that designs learning experiences around their evaluation, which is "designing to the test" whether you like it or not. No more should you assume that the best ways to learn at the beginning of law school are through simulation of "us[ing] the law in real life." Simulation experiences have some value for beginning students, but as someone who occasionally employs 1L-summer interns in "law in real life," as well as having taught 1L students for twenty-five years, I've my doubts. When you're completely inexperienced, even simplified simulation, let alone actual situations of law in action, contain too many elements you can't prioritize, so that the chances of basic misallocation of resources and resulting frustration are very high. Moreover, work product expectations have to be extremely low, as one can tell if one reads any substantial number of 1L moot court briefs. I won't say there's no evidence on your side of the discussion, but the better judgment seems to me to lie in the direction of exercises that are chosen for their value in increasing pleasure in learning, which is where the current system's efforts are particularly ineffective.

So far as this essay is concerned, I think the direction of simplest improvement is back up one step. Instead of asking whether courses prepare students well to write exams, why not ask what students aren't learning that they could learn. Focus on considering how you learn, which is the subject on which you are the expert. Let teachers draw inferences from how students learn concerning how to teach. How to evaluate, in turn, flows from that set of decisions.