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Confucius said: "If a student isn't fired up, I don't enlighten him. If a student isn't at a loss, I don't hand him an answer. If I hold up one corner and he doesn't come back with the other three, I don't do it again." [Analects, VII, 8)]
1. I'm unclear what I am supposed to write about. Can you provide any guidance? The first thing you should do is think carefully about the course and the way it has been structured. Before you start writing, review the web pages under the heading Course Fundamentals. Since the course has attempted to engage you in moral discourse you should attempt something of a similar sort in your writing for the course. 2. We talk about so many different things during the course of a single class I get confused about what we are trying to do. Any help on that front? We could, of course, march lock-step through the readings and I could provide a detailed list of important points to be learned from each reading. I really don't think this is the way to teach these materials and I'm not sure you would learn any more if we proceeded in this fashion. I have, however, provided questions and notes for almost all of our readings. These questions provide more specific guidance as to ideas I find worth pursuing in the assigned readings. There are enough questions and suggestions for writing in the commentary to the readings to spend an entire semester of philosophical writing. You, of course, will undoubtedly find others. 3. How can I make use of the discussions we have in class in my writing? If you simply listen and take careful notes, and selected a theme (or two) from each week's discussion and type 5 pages about it (which I assume would be relatively quite easy to do), then at the end of the semester you would have something like 60 pages which you could draw upon for your course writings. 4. When you say draw upon these weekly writings, what do you mean? I am assuming that your weekly writing (if you follow this suggestion and model I'm outlining here), would be exploratory in nature and would not constitute a well-written or finely constructed paper. Most of us, myself included, do not write polished first drafts, when we are trying to get our ideas down on paper. Many writers try to get their ideas down on paper without working about whether it is good writing. They write fast and free and don't bother to edit and censor while they write. They know there will be plenty of time to revise and sharpen the focus of the writing at a later stage. This two stage approach to writing allows you to write freely and without too much thought to the quality of the writing, or how you will later structure or present the ideas. Many writer teachers emphasize the distinction between the creative, getting-it-down-on-paper stage of writing and the later efforts to creature from your writings something that an audience (teacher) might and appreciate. The best teacher of this approach to writing, and himself a celebrated composition teacher is Peter Elbow. I highly recommend two of his writing books: Writing Without Teachers (New York: Oxford University Press, 2nd ed., 1998) and Writing With Power: Techniques for Mastering the Writing Process (New York: Oxford University Press, 2nd ed., 1998). I have copies of Writing With Power and I'd be delighted to loan you a copy. Elbow is a marvelous teacher and you can learn more about how to proceed with your writing for this course by reading Writing With Power. 5. You rather constantly use the term reflection and you've referred to the kind of writing you want us to do as "reflective writing." Exactly what do you mean by reflective writing? First, I should tell you that there is no precise definition for this kind of writing. It would certainly include journals (which are increasingly being used in various academic contexts and courses) and informal and exploratory essays in which you make yourself a part of the writing. We teach all manner of skills in legal education (close reading of important texts, excavation of legal rules, plotting the historical evolution of legal doctrine, developing strategies for a legal argument, formulaic legal writing, speaking and acting as a lawyer), yet, we pay little attention to the skills of reflection and introspection found in the lives of thoughtful, caring, wise lawyers. It is, in my view, reflection and introspection (and the self-knowledge on which they depend) that leads to wise judgment and exemplary character. We expect plumbers to have plumbing skills (of the mechanical and technical sort) and in this lawyers are like plumbers, for much of what we do is a kind of legal plumbing. But the problem with lawyers, in contrast to plumbers, is that we don't limit ourselves to plumbing. Indeed, we end up engaged in a dizzying array of citizen, teacher, and leader tasks, to which legal education has little to say. The practice of law is at once a "technical" activity and an enterprise that relies upon good judgment, and more often than we might suspect, wisdom. 6. You may be right about the need for more reflective skills although I don't see how you are ever going to "grade" that kind of writing. Maybe that's why other teachers don't focus on this skill. I have no assessment tools (and no evaluative methodology) that would allow me to determine, in some quantitative way, whether your reading and class discussion are improving your judgment and character, or whether the course is going to enable you to lead a life of wisdom. What I desire for you (and myself) are exactly the kind of things we cannot measure (a fact that keeps most teachers firmly encamped with the traditionalists). If I cannot measure good judgment (which perhaps my colleagues in the clinic might have a better chance to observe and evaluate) and have even less hope of evaluating your progress toward wisdom, what can I possibly evaluate? In your course writings, you are invited to provide demonstrations in the art of reflective, introspective writing. Introspective writing is based on the proposition that the only real learning is the learning we do for ourselves. Even traditional forms of legal education (and course evaluation) share the premise that the responsibility for learner lies with the learner. This shift in responsibility results in more class discussion and less lecturing, a greater focus on questions and less emphasis on answers, a demand that each student actively participate in the class discussion (even if the demand creates anxiety or embarrassment), and less frequent testing and evaluation by the teacher. Reflective and introspective writing does not discount the important of objectivity but rather allows the writer to also focus on the subjective element of learning and how what one learns shapes how one thinks about law and lawyering. The problem, of course, is that law is presented as an objective field of study. With the focus on legal rules (and the purported objectivity of judges who write the cases in which the rules are embedded), we create the illusion that law itself is an objective phenomena. Interestingly enough, while law students begin with the illusion that law is objective, clients (and lay observers) remind us just how subjective law really is. Reflective writing permits the student/author to determine, what, and how, and when subjectivity finds its way into the study of law and one's future as a lawyer. We tend further to assume that morals and ethics are subjective, awash in the nuance and subtlety of situation and person, in contrast to law which is more rigid, less personal, more objective. Again, law is hard ("there," real, immediate, necessary, objective) and ethics is soft (abstract, ephemeral, discretionary, personal, subjective). I think we get much of this hard/soft, objective/subjective wrong, not only about law, but about morals and ethics as well. In writing the course, and your subjective response to it, it is possible to produce a product that can be assessed and evaluated (using all the objective tools we associate with teacher evaluations). I proceed on the assumption (sometimes challenged) that reflective/introspective writing can be judged, assessed, evaluated, and graded just as one might a traditional term paper or traditional law school essay examination. (And just as with traditional course papers, there are times when I am presented with a writing that makes evaluation difficult. I assume that these "difficult cases" are no more frequent with reflective writings than with more traditional essay examinations.) As with any form of evaluation, the student has the final say--the grade and the evaluation, from this particular teacher, for this particular course--is accepted as meaningful (fair) or it is not. How, some ask, can one receive a poor grade on reflective writing since this kind of writing is by nature personal and subjective? "When I write about myself and my learning, who are you to say that I haven't done it well?" These questions, posed after the fact, express a sense of betrayal. If only they could have been posed as a subject for reflective writing and pursued in a determined way as part of their work for the course! It should be possible for a student to turn questions and anxieties into writing that would look like real reflection. What was a failure could have been a success. 7. You sometimes use the rather cryptic express "write the course" to explain one of the avenues of writing we might explore. I confess to be being totally at a loss as to what this might mean. What do you mean by "write the course"? In Practical Moral Philosophy for Lawyers I select texts, pose a line of inquiry drawing on the course readings, seek out your questions and areas of interest, and generally try to structure classroom conversation, and insure there is an educational pay-off from your reading and classroom work. But to respond to these readings and course conversation, it is ultimately you must "make" your own course. Indeed, one might think of your writing for the course as a position paper (or talking paper) in which you establish a counter-course, that is, the course you have taken in response to the one I had in mind. We can, whatever you write, say you have written the course, for better or for worse. One hopes that the course reflected in your writing will suggest that you have searched (in all you have read and in your pursuit of the course web site material) to say something meaningful, to discover your own philosophy, to "push" and deepen your thinking about a philosophy of lawyering (otherwise why waste your time), and explore new pathways of thinking (even as you confirm what you already know). 8. What's the biggest problem you find in the writing that students produce for your course? The biggest trap for beginners lies in the assumption that in reflective writing "anything goes." Unless you are careful, you may well sent the message that: "Not only do I not know anything about reflective writing, I don't really believe it has any value and even if it does it cannot be fairly evaluated." Another problem arises in that so few students have any experience with reflective writing that they tend to flounder around trying to get a handle on what they are supposed to be doing. They rather constantly ask: "What do you want?" "What are you looking for in this writing?" And these are, as it turns out, the worst possible questions that you could be asking. It is indeed ironic that in a course in which you are asked to do your own thinking and explore your own thoughts (on subjects which you are allowed to choose), the first question posed to your teacher is "what do you want me to write?" There is, of course, always the problem with the quality of writing. Students assume that when they are writing informal essays (and drawing on their own thoughts) that the writing doesn't, at some stage, require careful reworking and revision. The writing you do in this course requires every bit as much literary skills and prowess as does the legal writing you do in any carefully constructed legal argument.(e.g., a legal brief). For some reason, the idea that you are writing about yourself and your own ideas seems to suggest that the quality of the writing doesn't count. That turns out to be a bad assumption. In contrast to the anxiety (and procrastination) of those who claim not to know how to engage in reflective writing, there are some who assume quite confidently that they know exactly what to do. On one hand one wants to applaud such self-confidence. It's certainly true that there's no secret to reflective writing and one need not have taken special courses or be schooled in such writing to "know" how to do it. However, I should also be honest and point out that like any other skill, many who put their hand to reflective writing are not first time masters of the task. While you most certainly don't have to be a philosopher to do this kind of writing, you may have to learn some things about your self and your writing to do it reasonably well. Many students are not all that comfortable with the self-exploration required for reflective writing (either not knowing what they might find, or suspecting what they will and not wanting to expose it). The paradox in reflective writing is that many assume they know less than they must surely know, while others assume that reflective writing must be easy because you know more about yourself than anyone else could ever possibly know. If you set out to do something that looks easy, perhaps deceptively easy, you may trick yourself into believing you are doing it well when you are not. (There is really nothing shocking about this phenomenon as it also plagues the student who is trying to figure out how to do well on traditional law school examinations.) Reflective writing requires an element of honesty about ourselves as students, about what we know and don't know, about our fears and our hopes, our successes and failures. Many of us aren't all that confident about ourselves as knowers. (How could it be otherwise given the nature of our education?) Basically, many of us don't want to do any more thinking than our old habits will support. In reflective writing, you may have to admit (or perhaps you will show without meaning to do so) that you know less than you think you know about your self and about your future as a lawyer. (Don't we see something of this sort in one of the very first reading we took up in the course, the excerpt from Seymour Wishman's Confessions of a Criminal Lawyer?) The basic rule of reflective writing is that there is no place to hide: your writing reflects you. Traditionally, it is your understanding (knowledge) of some subject that is being evaluated which offers the illusion that you are not. In reflective writing it is not the knowledge of something, but how to do something, how to demonstrate that you are a caring, thoughtful person, one who can work through ethical concerns in a meaningful and critical way, that is being evaluated. Consequently, for the reflective writer, evaluation "feels" more personal and subjective. Writing reflectively about Practical Moral Philosophy for Lawyers, you can only show what kind of student you have become, and this may be the very thing you do not want anyone to know. 9. It's odd. The more I listen to you explain reflective writing, the bleaker the picture begins to look. I'm really not sure, now, that I can do this kind of writing? The positive spin on what you now see as a bleak forecast for your writing is that you have all kinds of knowledge and abilities (and talents) that you may have underestimated, or simply do not realize you have. Law school is the kind of place where they try to convince you that there is a rather narrowly defined set of skills that constitute the craft of lawyering, but they always leave out a great deal in their little basket of lawyer skills. Reflective writing opens the way for you to make use of something other than legal reasoning--state the facts, legal issue, the applicable legal rules (or principles), apply the rules to the facts, and explain the outcome. Reflective writing should pose a bleak prospect only for those who are firmly convinced that knowing the law and how to make legal arguments are all the skills you've need as a lawyer. Many of us believe that lawyers employ a dramatic range of human skills and sensibilities and that law school would be a far better educational experience if we recognized that. 10. Well, that's encouraging, but I'm still rather shaken by some of the things you've said. Remember, if you determine that you don't want to pursue reflective writing you are always welcome to write a traditional paper for the course. There is no penalty for exercising such an option. Students sometimes take this route, write excellent papers, and receive the highest possible grades. It is your decision to make. No one is forcing you to engage in reflective writing if you decide it's not for you or you will not be able to do it well. 11. Are you sure you don't have a prejudice against traditional papers? You don't speak all that enthusiastically about traditional law school examinations and traditional course papers. I can assure you I have no personal bias against traditional law school exams or traditional course papers. I confess that I personally found law school examinations (having attended law school at a time in which multiple-choice and short answer exams were unheard of) to be exhilarating. I found that the old style law school examinations took me up to the edge of my best thinking (and beyond). Preparing for the tests was arduous, both intellectually and psychologically challenging. I look back on those law school tests with some affection and appreciate colleagues who still make this experience available. The traditional law school examination is a valuable evaluation tool but it is simply overused. (And it can be certainly be destructive and it used to produce a hierarchy of achievement which is based on false and pernicious assumptions.) While traditional essay examinations measure a range of reading, writing, and reasoning skills, there are still other talents, skills, and sensibilities one will need as a lawyer that are simply not evaluated by a traditional law school exam. I learned a great deal writing papers as a student (law school and undergraduate) and continue to learn from the academic essays I write as a law teacher. I see no reason why a student can't put this tradition genre of writing to good use in Practical Moral Philosophy for Lawyers. 12. What options do we have in the kind of writing we do for the course? You can accomplish the writing objectives of the course by:
Obviously, I would encourage you to experiment with different kinds of writing.
Notes 1. We give philosophical writing different names (as it takes different forms). I often refer to philosophical writing as reflective, or introspective writing. This way of naming the writing contemplates but does not require writing about oneself. While much philosophical writing disguises the "self" of the writing (a bias found throughout academic and formal philosophy), I have no great love of such writing and consequently do not require you to follow academic protocols in your writing. Other philosopher professors use different labels to describe this kind of writing. E.g., one professor asks his students to write "insight papers." <http://www.hkbu.edu.hk/~ppp/top/topnote>. This teacher contends that "the most important lessons to learn in any study of philosophy is what an insight is and how to develop the ability to have insights for oneself." Insight papers "give you the opportunity to practice doing philosophy by recording the results of your own reflection on a given philosophical question or issue." They provide a "real, personal experience of philosophizing." 2. On the essay as a form of writing:
2. Writing, according to many of today's best composition teachers, is better viewed as a process rather a product. In Practical Moral Philosophy for Lawyers you have to play around with the writing process and see what works. That is, you've got to find your own way, a way discovered during the course of writing as often as it is pre-planned destination. 3. Any writing presented to an audience or a teacher should be thoroughly revised before it sees the light of day. There are few among us who can write well enough to avoid the hard work of re-visiting and re-vising our work. Peter Elbow's Writing With Power: Techniques For Mastering the Writing Process (2nd ed., 1998) is an excellent source for learning more about how to revise your writing. All too much of the writing presented to this teacher reflects the failure to spend adequate time revising the work. 4. In legal writing we have the great luxury (and great annoyance for some writers), of writing both text and a sub-text in the form of footnotes. Footnotes in philosophical writing of the sort you will be doing (or endnotes, if you do not want the reader tempted to interrupt the flow of reading to pursue a footnote) provide an opportunity to do far more than cite to authority for propositions in your writing. You might use footnotes to present alternative views (even arguments you might be having with yourself), conventional and clichéd views you might want to examine or puzzle over but not deal with extensively, suggestions for other readings or avenues of pursuit. [For an imaginative use of footnotes, in an imaginative writing about an everyday experience of law students--interviewing-- written by a former student at the College of Law, West Virginia University, see Brenda Waugh, A Theory of Employment Discrimination, 40 J. Legal Educ. 113 (1990). 5. "Part of the joy of writing philosophy papers is that it provides an opportunity to work at the limits of one's intelligence. Writing philosophy is a way of finding new ideas and exploring the unknown, although at times it can seem a way of attempting to explore the unknowable." [Martin Gunderson, Writing Philosophy Papers][website commentary/website no longer available] Writing Philosophy Papers: A Student Guide (resource for students who want to write a "philosophical" paper) On Writing Yourself (or Use of the Personal) in Writing
Philosophical Writing and Argument Traditional/Academic Prescriptions for Writing Philosophy Papers (many of which run counter to what we are trying to do in Practical Moral Philosophy for Lawyers)
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writing a traditional course paper;