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April 19, 2008

Self-serving paternalism: reflections on Baze and law school learning bans

Another full read of Baze led me to a couple unexpected insights: (1) the Justices are very comfortable using 21st-century materials, even as some law schools and professors try to preserve 20th-century teaching norms, and (2) the raging debate over banning laptops or the Internet in law school classrooms is somewhat akin to the debate between Justices Stevens and Scalia in Baze concerning a constitutional ban on state use of capital punishment.  Let me explain each insight in turn:

1.  In the Baze lethal injection ruling from SCOTUS, a majority of the Justices' opinions (4 of the 7) cited to websites, and I counted a total of 13 references to website materials.  Among the cites, Justice Stevens' referenced a forthcoming law review article now appearing only on SSRN, and two opinions cited to two distinct transcripts from legal proceedings that have been made widely available through on-line posting.  I am not sure if all these citations officially make Baze the most web-friendly ruling in Supreme Court history, but they clearly reveal that the Justices understand that effective judging in the 21st century — and thus effective lawyering in the 21st century — requires an Internet connection.

And yet, on the very same day that the web-friendly Baze decision is released, we get this report that the University of Chicago Law School is now blocking student access to the Internet in classrooms "to help them concentrate on course instruction."  Even though the Justices now clearly appreciate that effective judging and lawyering in the 21st century requires an Internet connection, the super-smarties at the University of Chicago Law School apparently now believe that being an effective law student requires preservation of a 20th-century teaching environment by banning Internet connection in the classroom.

2.  I realize that I am troubled by Internet bans and laptop bans in the law school classroom for some of the same reasons that Justice Scalia is troubled by Justices Stevens' advocacy in Baze for a constitutional ban on the death penalty.  Responding to Justice Stevens' arguments that the death penalty is now unconstitutional, Justice Scalia laments what he sees as misguided (and constitutionally inappropriate) self-serving paternalism: "Purer expression cannot be found of the principle of rule by judicial fiat.  In the face of Justice Stevens’ experience, the experience of all others [such as legislatures, social scientists, and citizens] is, it appears, of little consequence.... It is Justice Stevens’ experience that reigns over all."

I have the same reaction to all the professorial self-congratulation about the positive impact of banning the Internet or laptops in the classroom.  I can fully appreciate why the experience of some law professors — particularly those professors who use only traditional casebooks and have not updated their teaching materials, styles or notes in light of modern technology — might be improved if students cannot access 21st-century technologies in the classroom.  But I have never thought that my experience in the classroom, rather than the experience of my students, is of paramount importance.  Thus, unless and until my students tell me that they prefer a classroom setting without laptops or the Internet (or alumni/practitioners tell me that a web-friendly classroom was not helpful training for their future careers), I will keep trying to create and improve a 21st-century classroom experience for students rather than self-servingly conclude that preserving a 20th-century teaching environment is needed "to help [students] concentrate on course instruction."

Cross-posted at LSI

April 19, 2008 at 11:30 AM | Permalink


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Perhaps because I sat in your classroom before your 21st-century conversion was underway, it's difficult for me to conceive of how Internet access in the classroom would appreciably improve the educational experience of the average law student. I made it through law school as a member of the then-dwindling majority (I assume it is now a minority) of students hand-writing notes and exams, and never felt that I was missing out on anything; indeed, it seemed to me that laptops were more of a distraction and a liability than a benefit for the students who used them. Your concern about the paternalist tendencies of banning access in the classroom may be well founded, but it has been my experience that the pedagogical benefits of new technology are often overestimated, both in the classroom and the courtroom.

Posted by: James Dillon | Apr 21, 2008 10:12:15 AM

By the same token, do you suggest that we wait for drivers using cell phones to tell us that they are a distraction before something is done collectively?

A computer is fundamentally a machine to improve productivity. The question is whether or not in the learning context it does that. An answer can presumably be found or approximated through research, just as studies about driving with cell phones has been doing.

(Tho my parents wished it, I am not in the legal profession, but an occasional reader of your commentaries as a way of keeping current. Thanks.)

Posted by: Roger Matthews | Apr 22, 2008 11:49:13 AM

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