Tuesday, April 25, 2023

Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools

by Neil H. Buchanan

Yesterday was the last day of classes at my law school, which is as good an excuse as any to reflect on some of the timeless issues that educators face in every area of learning.  Here I want to consider two related questions: What do law schools do? and What should law schools do (and not do)?

As I teased in the title of this column, law schools are not -- and do not need to be -- finishing schools, teaching students to be well-behaved young ladies and gentlemen.  We law professors are, however, instilling habits and values that matter both to the legal profession and to society at large.

Who might imagine otherwise?  The answer might surprise you.

Over the last two weeks, I published (on Verdict and on Dorf on Law) an ad hoc series of four columns in which I tried to set the record straight about a recent student protest against a notorious archconservative judge during his appearance at Stanford Law School.  In large part, the first three of those columns are a sustained response to the freakout from rightwingers as well as those who pose as "sensible centrists" to the supposedly deplorable actions of the student protesters, whom the judge called "coddled children" (as well as less printable things).  Short version: the supposed victims of the lefty students -- their conservative classmates and the judge himself -- acted childishly, egged on by a national organization that choreographs controversies like this as stunts to further their anti-intellectual political agenda.

In the fourth installment of that series, however, I addressed a separate issue on which there has been widespread agreement, even among those who do not buy the right's self-victimization pose (a pose that Stanford's administrators inexplicably and egregiously validated).  Specifically, the idea is that law students need to be taught to be respectful and polite, because "universities in general, and law schools in particular, are places where students need (for their training as citizens and professionals) to get used to handling in a disciplined and productive way speech that makes their blood boil," in the words of two genuinely insightful observers (one a law school dean, the other a law professor).  I agree with those authors on everything else that they wrote about the Stanford controversy, but I think that they at best overstated their case on this matter.

Below, I will expand on my core response, which is that there is essentially no danger that law students will misbehave in court or in the workplace, even if we in law schools never tell them not to be loud or undisciplined after they graduate.  Before doing that, however, I will use an aside from my fourth column in the series to illustrate one of the values that law schools and universities more generally instill: intellectual honesty.  I wrote:

I start with an acknowledgement: In my columns thus far, one of my main arguments channels a conversation that I had with a friend at a top law school, who first pointed out to me the terrible power dynamic that played out in the dean's and president's suites at Stanford.  This friend prefers to remain out of the public fray, so I am being a conscientious academic by acknowledging that one of my major arguments was not original to me, but I am also being a good friend by not revealing who first brought it to my attention.

A reasonable reader might well have thought that that was a non sequitur, a self-indulgent digression, or perhaps even a case of virtue signaling on my part.  As I wrote the column, I asked myself whether I should simply cut the paragraph, because it truly was not germane to the rest of the piece.  That seemed to be the reader-friendly course of action as well, as it would have shortened the column by almost one hundred words.

Yet I simply could not hit the Delete key.  Why not?  Because one of the fundamental values that I have learned from college through graduate school through law school is that plagiarism is an unpardonable sin.  As I noted in last week's column, it is in fact very difficult for students to fail classes, even when they directly insult professors.  What does trigger serious disciplinary action?  Presenting another's work as one's own.  That might result in a student not only failing a course but in their being expelled from school.  This is one of the reasons that there was such a strong reaction earlier this year when Artificial Intelligence programs were revealed to be capable of writing decent responses to exam questions and paper topics.  (Note that "capable" does not at all mean "guaranteed.")  Educators insist on academic honesty, full stop.  Appropriately so.  If students submit machine-generated answers, they are in gross violation of academic standards, no less than if they stole the ideas from another person.

I guess I should not be surprised that this explanation did not occur to me until the day after I published the column.  Still wondering in some vague sense why I had not nixed the arguably superfluous text, it suddenly came to me: I simply had to offer full disclosure about the provenance of one of the arguments that appeared under my name.  I believe that I developed and enhanced that argument, but it was something closely resembling muscle memory that forced those words of attribution onto the computer screen and prevented me from deleting them.

The point of the acknowledgement, then, was not to say: "Look at me, I'm so honest!"  It was to obey one of the most important lessons that I had learned from years of higher education -- all of them spent in institutions where plagiarism is understood both to be wrong because it is dishonest and unwise because it is punished severely (and again, appropriately so).  If universities, including all of their individual schools and colleges, did not hammer that home, we truly would be committing educational malpractice.  Law schools in particular educate their students about how important this is -- arguably even overdoing it -- by emphasizing citations, citations, citations.

Unlike the finishing school aspirations that I derided above ("Don't forget that real life is not the same as a classroom, so be polite!"), intellectual honesty needs to be taught in schools.  Students do not matriculate with anything remotely resembling an appreciation of what plagiarism is, how to avoid it, why it is such an important issue, or what will happen to students who commit it.  The very idea of "stealing somebody else's idea" seems like an odd variation on the concept of theft, and it is certainly not intuitively clear why that would be the gravest violation of academic standards.  If we in universities do not teach it, we cannot console ourselves with the idea that students will somehow pick it up on the street or simply have a core intuition about it.

In last Thursday's column, I only offered one of the two best reasons to reject the idea that law schools should include "being able to listen to hurtful or threatening arguments with equanimity" on our list of must-teach skills.  In shorthand, my argument was a variation on the dependence/use distinction, amounting to this: Won't doesn't mean can't.  That is, the pearl clutchers who look at (carefully edited) viral videos of students heckling and shouting at a speaker are wrong to believe that merely because these students are not demonstrating proper decorum, they are incapable of doing so.  As I put it in that column, when there are different stakes, we see different behavior.

As the same friend whose argument I cited above pointed out in a more recent conversation, Judges (and, I would add, managing partners and every other authority figure) are certainly capable of making the stakes clear (including jail time and fines for contempt of court, being fired or demoted, and so on).  No sentient being living in a modern society is unaware of this.  There is nothing wrong with mentioning it in class, I suppose, but imagining that there is a serious risk that Stanford's law students would act the same way in every context is simply silly.

Another friend, however, reminded me after reading my column that there is a second reason to question the claim that we have to force our students to "face the hard realities of life while they're in school," which in similar shorthand is: Cant can become can.  That is, even if I am wrong that every student is inherently capable of handling disagreeable arguments in different contexts and would automatically adjust to new circumstances and incentives, it is quite possible that allowing them time during school to grow thicker skin will get them to where they need to be as professionals.

This is the actual content of the much-mocked concept of a safe space.  While critics claim that this merely delays (and possibly worsens) the pain of the acid bath of reality, it is possible that some people need time and a bit of latitude while they get there.  To use a different metaphor, throwing someone into the deep end of the pool sometimes works, but when it fails, it fails catastrophically.  And even when it does work, that does not mean that there were no kinder methods to reach the same result.

While that second reason might argue for some instruction during law school about professional behavior, it certainly does not mean that we have to wring our hands every time a student reacts viscerally to personally upsetting arguments.  We teach professional responsibility in law school.  A few minutes in that class devoted to saying that lawyers cannot act like they did as students is more than enough, although I suspect that most professors teaching such courses would think it a waste of time (as would their students).

Above, I argued that law schools (as part of our system of higher education) serve an important role in teaching students the importance of intellectual honesty.  What else do we teach?  In a conversation yesterday, one of my soon-to-graduate research assistants said that the biggest thing she has learned in law school is how much she does not know, and that everyone -- EVERYONE, especially the biggest gunners -- is in the same position.  Some people know more than others on any particular topic, of course, but whereas many students enter law school imagining that they will be given "the answers" to the legal questions that they will study, in fact they will learn that "it depends."  Otherwise, why would there need to be courts of appeal?  If everything can be learned and regurgitated, and there is no ambiguity, then life would be simple.  But it is not.

Law school, then, is best understood as simply another venue within higher education in which we do best by our students when we emphasize critical thinking skills and help to develop those skills.  I had a classmate in my first-year section in law school who complained after class one day: "Instead of calling it 'Criminal Law,' this course should just be called 'Why the Professor is Smarter than the Supreme Court.'"  When pressed, he declared that law school should give him the right answers, not delude him into thinking that he can challenge those answers.  Now that is a student who needed to be educated!

That there are no true-in-all-contexts right answers, of course, does not mean that there are no wrong answers.  The lawyers who argued, for example, that a Vice President can unilaterally refuse to count certified electoral votes were wrong -- so wrong that professional and other sanctions were and are appropriate.  Being a critical thinker does not mean saying that anything goes or that every answer is as good as any other.  It does require being willing to imagine that new facts or legal arguments could change what seemed like the best answer.

Do I care whether my Income Taxation students remember that, say, the Supreme Court has instructed us that a "gift" for income tax purposes flows from "detached and disinterested generosity" and arises from "affection, respect, admiration, charity or like impulses"?  Of course not.  I do want them to understand that those words are almost infinitely manipulable, which means that it is surprisingly easy to characterize many non-gifts as gifts.  More broadly, I want them to approach every question with an appropriate degree of skepticism and to understand that simply accepting arguments from authority is wrong -- while also seeing that rejecting arguments merely because they are from authorities is just as misguided.

What I am not worried about is whether we are sending into the world a bunch of graduates who are too thin-skinned to understand reality or to adjust their behavior accordingly.  I wrote last week that "we [law professors] need to get over ourselves just a bit," but that is not quite right.  We need to remember that our core mission is truly important, but we must stop imagining that teaching proper comportment is our job.  We are instilling habits of mind that last a lifetime, not lessons from Miss Manners.

The argument that universities' most important purpose is to teach critical thinking, by the way, is hardly original to me, yet it can be published without citation.  How do I know that?  Because I have been to law school.