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Paternalism and Compulsory Attendance

Dave Hoffman

Dave Hoffman is a James E. Beasley Professor of Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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23 Responses

  1. I’ve noted my position in similar questions before (e.g.: the laptop question). From where I sit (across the metaphorical quad from the law school) I can’t justify such a rule. What’s important is that a student learn, not that a student go through specific motions, especially when said students are nominally adults and in other ways allowed to make their own choices.

    Sure, the end doesn’t of itself justify the means, but since when are the means raised up to be more important than the ends?

  2. Eric Goldman says:

    I believe participation by students creates positive externalities for other students. I recognize that attendance doesn’t equal participation, but there’s zero chance of those positive externalities occurring if a student isn’t in the class. SO I require attendance as a precondition for students learning from each other. Eric.

  3. Anthony says:

    Reason #1 never made much sense to me. Most law school classes (particularly those with final exams) are graded on forced curves, so if there is a positive relationship between class attendance and grades, compulsory attendance effectively raises the grades of lazy students at the expense of students who care enough to go to class without being threatened by their professor or institution.

    Of course that assumes Professor Pardo’s empirical findings are correct. From his post, I got the impression that he did not take into account factors in his statistical analysis besides grades and class attendance. I suspect that there are other variables in play that need to be included in such an analysis to determine the true impact of that variable. For instance, I suspect that many individuals who don’t go to class are simply not very interested in the subject to begin with, and thus are more likely than the average student to not grasp the material, not put as much effort into preparing for the exam, etc. whether or not they attend class. Similarly, students who frequently do not attend class may be missing class because of family or work commitments, particularly at a school like Seattle U that has a part time program and presumably attracts a non-trivial number of non-traditional students. Such students, even if they attended every class, may still underperform on the exam due to these other commitments in their lives preventing them from having as much time to study. Of course the converse would also be true, with students attending class frequently or having perfect attendance having few or no other commitments besides law school and thus being able to achieve higher grades due to greater study time.

  4. Anthony says:

    “I believe participation by students creates positive externalities for other students. I recognize that attendance doesn’t equal participation, but there’s zero chance of those positive externalities occurring if a student isn’t in the class.”

    What about the potential for negative externalities, such as calling on a student who is completely unprepared, or calling on a student who rambles on and on and on about something completely unrelated or merely tangential in order to avoid the embarrassment of passing? Maybe you ignore these people or efficiently get past them, but that would probably put you in the minority of law professors (at least based on my experiences).

  5. Bruce Boyden says:

    I’m with Eric. I require attendance *and* participation, and the main reason is to ensure a critical mass for discussion. Re: Anthony’s comment, I haven’t found unpreparedness to be a big problem.

    However, the question here is not really whether professors should compel attendance, but whether the ABA should compel professors to compel attendance. I’ve always suspected the purpose of Rule 304 has nothing to do with student welfare, and everything to do with preventing correspondence schools or distance learning. And I have not seen a good explanation for why *those* two things need to be banned.

  6. TJ says:

    It depends on whether you think class attendance is actually a good learning tool. But, assuming that it is, here is an externality: If your fellow students don’t go to class, know nothing about law, and show their ignorance later in their careers, the reputation of the law school goes down. The rest of the school suffers by association. The law school therefore has a basic interest in its students actually not making a fool of themselves.

  7. Anthony says:

    TJ, if students know nothing about the law because they did not attend class and other learning methods are not acceptable substitutes for class attendance, then shouldn’t those students receive very poor grades in class and thus signal their lack of knowledge to everyone?

  8. TJ says:

    Perhaps the ignorant really do get worse grades, but even the people with bad grades drag down everybody else at their law school. Furthermore, that assumes that grades are correlated with actual knowledge, whether that is true, and the strength of the correlation, is somewhat debatable (as is, of course, whether class attendance is correlated with knowledge). It is at least plausible to think that the school benefits from a better reputation if all of its students attend class and learn something.

  9. Anthony says:

    Well, if people with bad grades truly drag everyone else down (an argument I don’t buy), it seems like the better solution would be to kick out those people (or better yet, find ways to keep them from getting admitted in the first place).

    I think it’s silly to argue that there is little or no correlation between grades and knowledge. However, if that actually is the case, well, then we have a much bigger problem on our hands than attendance policies.

  10. TJ says:

    I hate to hijack the conversation, but my point is not that people with bad grades drag others down (every school has people with bad grades). It is that people who are ignorant and bad lawyers drag everyone else down. Suppose that a Harvard grad with a C average is the worst lawyer you have ever met, while the Tier 4 grade with a C average is somewhat more competent. Wouldn’t this at least marginally lower your opinion of Harvard? Thus, Harvard has a strong interest, like every other school, in making sure that even its worst students do relatively better than the worst students of other schools.

  11. Silly argument. Attendance and competence are not mutually exclusive. Demand both. Do you think judges take kindly to lawyers who don’t appear when their case is called? Attendance is merely one of the responsibilities of being a law student, a lawyer and an adult. And not a particularly onerous one.

  12. Holly says:

    The underlying assumption here is that attending class is in fact beneficial. This excludes the situation where the professor is so awful that attending is a less than desirable option. For example, during my law studies from week 5 onwards I randomly attended fed courts becasue the prof was so terrible that I found I could learn more by teaching myself with extra books from home. I “checked in” with the class by attending once every week or so, but that simply reaffirmed by non attendence rationale. Requiring attendance assumes competence on the part of the prof that is not always there – perhaps we should examine our own backyard before criticizing student choices not to attend our classes.

    Oh, for the record, I topped fed courts.

  13. Good for you, Holly. You recognized that of the available learning styles, replacing class attendance with personal studying worked best for you. You acted as a mature and responsible adult.

    The problem here is that many commenters are assuming that law students — many of whom have a bachelor’s deree already — are not mature and responsible adults. They pander to the lowest in their class rather than inspiring the highest.

    Set the bar high and most students will vault over it, making it easy to pick off the stragglers. Set the bar low and everyone will limbo under it. No wonder these commenters have trouble with lackadaisical students. Their pedagogical style says, “you can’t be trusted to make good decisions, so I will force what I think is a good decision onto you.” Who wants to pay attention to a pompous blowhard like that?

  14. Bruce Boyden says:

    John, so far no teachers have reported both (a) problems with lackadaisical students and (b) a compulsory attendance policy. So, the data does not support your theory.

  15. Dave Hoffman says:

    Great comments so far.

    I think it important to distinguish between small classes and large ones. In small classes, having a critical mass of “bodies in the seats” probably is necessary – but why compel attendance when you can simply promote good participation through a grading policy that rewards it?

    In large classes, I don’t think that the critical mass argument stands up. My view is that it is the professor’s responsibility to make the class useful enough so that folks will attend even if not forced to – this puts pressure on the teacher to be engaged and responsive to student needs, a good thing.

    I personally do think that a compulsory attendance policy does result in lackadaisical students, or at least ones that are just going through the motions of preparation. I’d prefer to have the option to jettison the policy.

    Scott writes as though attendance in class and attendance in court are the same thing. This conflates two very distinct missions and aggrandizes academic life in a surprising way.

  16. Scott writes as though attendance in class and attendance in court are the same thing.

    It’s about responsibility, which is very much a part of growing up and being a lawyer.

    This conflates two very distinct missions and aggrandizes academic life in a surprising way.

    Surprising? How would you prefer acadamic life be aggrandized? The mission of a law school is to train lawyers. Has that been forgotten?

  17. Dave Hoffman says:

    But Scott, the responsibility argument stands on nothing: students should come to class because I/my employer/the ABA tells them they should. If the rule has no defensible underlying reason, then it should be questioned and maybe replaced. Complying with rules simply because they exist is a child’s role, not that of adult students. By contrast, lawyers should show up to court to represent clients. That’s a meaty reason.

    I don’t understand what your second point is about. I thought it was surprising that you were treating academics as if they were mini-judges because you have elsewhere written comments that suggested you didn’t think much of law academics generally!

  18. I’ll try again to explain the responsibility point more clearly. Students should attend class to learn how to become a lawyer. Not to please the professor, or even their fellow students, but to do the job for which they entered law school. If there is no causal connection between attending law school and learning how to be a lawyer, then there’s no reason to have law school at all.

    As to your second point, I have great admiration for law school and law professors. To think otherwise would be a mistake. But that doesn’t mean that the former can’t be improved and the latter are alreays right. My comparison between the responsibility of going to class and the responsibility of going to court does not follow by treating law professors as mini-judges. Perhaps a better comparison would be mini-defendants.

  19. Bruce Boyden says:

    “but to do the job for which they entered law school.”

    But that can’t be right — law school isn’t a job; we’re not paying students to attend class. Rather, it’s the other way around — students are paying (a lot) for the privilege. If there’s a reason to compel attendance, I don’t think it can come from professional norms that typically attach when you are *retained* to provide service to *someone else.*

  20. I think you are taking the word “job” too literally. Students pay indeed. They also apply for the privilege. It’s not just the privilege of attending law school, but being trained to be a lawyer.

    But law school isn’t like hiring a plumber. The student has undertaken a responsibility by applying and taking up a seat. Now, the student has to do his or her part to meet the expectations of a law student. That’s the job aspect. This job is paid by an eduation rather than cash, but it’s still a responsibility.

    Once they’ve undertaken the “job” by applying and using a seat that could have been given to some other person, their job is to either make use of it or, if they decide that they no longer want the responsibility, go elsewhere. But as long as they remain in law school, their job is to pursue a legal education by doing what the law school expects of them, including attending classes.

    It is not up to each and every “consumer” of law school services to decide what he or she wants to do from day to day. They can’t decide to have Professor Hoffman teach Torts because they like Professor Hoffman. And they still have to take Torts because it’s required, even if they have to take it with some professor that they don’t like very much. Yet another imposition of the paternalistic pedagogy. And there’s nothing wrong with it. That’s how school works.

    Moreover, to require students to attend classes is not to treat them like children, but to treat them like students. And if they are adults, they will attend classes. And if they prepare, pay attention and contribute, they may learn something from their classes. And if nothing else, they will learn that even lawyers have responsibilities, including going to court just as law students go to classes. Life is full of responsibilities, as so is law school.

    Finally, as to lawyers responsibility coming from “professional norms,” you went far astray. It has nothing to do with norms, but with an ethical and legal duty. We don’t do it because all the other lawyers do; we do it because we have understaken a higher responsibility to our clients and the courts. Where do we learn about this higher responsibility? That’s right. Law School.

  21. Linus says:

    I think you are taking the word “job” too literally. Students pay indeed. They also apply for the privilege. It’s not just the privilege of attending law school, but being trained to be a lawyer.

    But law school isn’t like hiring a plumber. The student has undertaken a responsibility by applying and taking up a seat.

    To whom is this responsibility owed? To their future as-yet-undiscovered clients? To those poor benighted souls who didn’t get in to law school? To the professors?

    Once they’ve undertaken the “job” by applying and using a seat that could have been given to some other person, their job is to either make use of it or, if they decide that they no longer want the responsibility, go elsewhere. But as long as they remain in law school, their job is to pursue a legal education by doing what the law school expects of them, including attending classes.

    No, clearly their job is to pursue a legal education the best way they can find so that they’ll be the best lawyers they can be. Doing “what the law school expects of them” may or may not aid them in becoming good lawyers. When it does, great. When it doesn’t, they should be free to choose the better path. Nobody in the world, when answering the question of “why are you going to law school?” answers with “in order to fulfill the expectations of the law school faculty.”

    It is not up to each and every “consumer” of law school services to decide what he or she wants to do from day to day. They can’t decide to have Professor Hoffman teach Torts because they like Professor Hoffman. And they still have to take Torts because it’s required, even if they have to take it with some professor that they don’t like very much. Yet another imposition of the paternalistic pedagogy. And there’s nothing wrong with it. That’s how school works.

    Just because law students can’t have every choice that they’d want in a perfect world in no way supports the idea that they should have no choice.

    Moreover, to require students to attend classes is not to treat them like children, but to treat them like students. And if they are adults, they will attend classes. And if they prepare, pay attention and contribute, they may learn something from their classes. And if nothing else, they will learn that even lawyers have responsibilities, including going to court just as law students go to classes. Life is full of responsibilities, as so is law school.

    Again, with the “responsibilities” but with no mention of to whom these responsibilities are owed. What’s more likely is that they’ll just learn the life lesson that sometimes, you have to jump through meaningless, ridiculous, time-wasting hoops, that put form over substance, just because some well-intentioned busybody, who happens to have the power, thinks you should.

    To require attendance is to forever elevate the generalized, one-size-fits-all opinion of the professor (“You will benefit more from coming to my class than anything else you could be doing”) over the individualized, fact-specific, more-likely-to-know-what-is-best-for-ME opinion of the student (“I’d benefit more from hitting myself in the head with the ConLaw book for an hour than I would from sitting through another boring lecture about how evil Breyer/Scalia is”).

  22. BruinChild says:

    I think if you are going to make attendance mandatory in law school, then professors should be forced to actually teach and not just lecture.

    As a former educator (from 2nd grade to junior college level) and a former law student, I think its silly that k-12 teachers are trained in learning styles, trained in different ways to reach students and expected to actually do so but professors are not. Being published and having a stellar CV does not mean that you are an effective educator.

    Anyone with enough personal and book knowledge can teach a lecture. It takes very little ingenuity. However, its a different story to require a professor to make a subject engaging. I knew when I was teaching that if I didn’t convey the information in a way that was useful, interesting and that encompassed different learning styles that a large percentage of my class was not going to grasp that day’s lesson. That was my responsibility. Professors seem to think that it is not their responsibility to make a subject engaging or reach people who don’t learn well from lecture style classes. Learning styles don’t change simply because you get older. You can expect an older, more mature class to sit still and not throw erasers during a lecture, sure, but that doesn’t mean that they’re listening or that they’re actually learning anything.

    Whats the point of forcing someone to sit in a room and listen to a dry lecture if thats not actually the most effective way for them to learn?

    And, honestly, the leap from absentee student to absentee attorney is rather large. Why would there be a correlation? Perhaps if one was just lackadaisical, couldn’t get outta bed before 2, liked to party etc, then maybe that would carry over to their professional experience. But, the absentee student is just as likely to be someone who made a rational choice not to attend because it wasn’t useful for them. That person is not as likely to look at a hearing or a case management conference and say “ehhh, I’d rather not.”

  23. Gideon says:

    I guess the question I have is whether the law school has any responsibility to the students and the legal community around it. If it does, then it should do all it can to ensure attendance.

    Perhaps part of the problem is (and I’m sure this has been covered) that classes just aren’t engaging enough anymore. Maybe every student should be required to take a clinic or serve as an “apprentice” somewhere.

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