Breaking Assumptions

In my previous post, I discussed how part of the concern we seek to address in this blog relates to how to get students to think critically about the law they learn. From my point of view, teaching to any generation is difficult because the students walk in with assumptions, especially assumptions about power relationships and the nature of society, rooted in their heads. In other words, I have taught many students who assume that because the system does not affect them, nothing is wrong. In other words, it is difficult to deconstruct the relationships of privilege when one benefits from either that privilege or some other privilege that masks the issue. This affects the NetGeners in particular given their tendency to be dependent on technology for information without necessarily inquiring critically about the information they receive.

That is very ephemeral; let me use an example to explain. In teaching first-year Property last year, I found it very difficult to elucidate the subprime mortgage crisis and its attendant class-related concerns. The concern is a straightforward one—because of the economic collapse, housing ownership is now more difficult than ever to obtain. The reasons include the difficulty of accessing credit due to financial institutions being reticent, the lack of creditworthiness among those who have suffered directly because of the crisis, the heightened complexity of even participating in the house-purchasing process, and other factors. This has had enormous local and national impact. A number of the root causes of this stem from the fact that financial speculation lead to ever-increasing patterns or reckless behavior by those who managed the system for their own gain. These arguments have been well-rehearsed.

In lecturing about this, the reactions ranged from from “Huh?!?!” to “That doesn’t really make sense,” to, “Come on, professor; it was their [the poor’s] fault for taking on mortgages that they couldn’t afford.” Admittedly, those who didn’t understand because of the complexity of the situation needed some medium to assist them on their way; similarly, those who don’t intuitively see the dots connecting need a more direct articulating of the situation. Those who merely shift blame seemed to hear a different version of the thesis I articulated above—but in asking further, it became clear they had only heard one side of the debate.

What disturbed me more was that these rejections represented a lack of critical inquiry. What occurred to me was that over 90% of them rented their houses rather than owned them, so it made it difficult to relate to a mortgage crisis. (Notably, the approximate median age of my Property class was somewhere around 25 years old.) The subprime mortgage crisis was a foreign thing to many of them, and they were insulated from it because they lived lives supported by law school loans and they likely saw themselves as immune to the effects (even though the contrary is more likely true).

This left two quite large tasks for me as professor: (1) explaining the subprime mortgage crisis in a way that made sense to those that didn’t get it and (2) encouraging critical facility among my students about what they had heard. I realized that merely lecturing—the form of learning and teaching that worked best for me—would not, by itself, work for the majority of my students. That forced me to the Internet and to my expert colleagues to find a multi-media approach to discussing the issue. Fortunately, I found a short, plain video that explained the crisis straightforwardly. I also asked a friend experienced in dealing with mortgages to explain the process from a practical point of view. These approaches helped foster understanding and relate what they had learned concerning the black-letter law of mortgages to the complexity of the crisis.

Second, it took conversation and effort after the video to force my students to recognize that the video, though produced by a news media outlet, had a point of view. This point was the more difficult one to engage in with my students. The video itself was accepted by some as being correct and some students did not feel the need for further inquiry. And I was anxious to move on to more interesting topics like future interests. And in all honesty, I did not make the most of the discussion that I could have. On reflection, six months later, I am left pondering how to better teach this—or any kind of controversial material that has to do about elucidating power relationships.

My first thought is that attention in our classes has to be given to the idea that there is no such thing as a neutral point of view. Every legal decision and every argument serves some sort of purpose—and having conversations about what those purposes are and who they benefit is an important part of the analysis.

Second, and even more challenging, is the problem of finding ways to encourage students to exercise moral imagination so that they can see the issue from the point of view of those who benefit—or those who suffer—from the particular decision. This seems to be the more difficult hurdle to jump over. It was easy to use illustration to convey the facts, but harder (and some might argue, “inappropriate”) to get students to try to see from the perspective of life experience that they simply have not had. Yet, to “get” power relationship, one must “get” both the motivations for the actions the effects of the actions of the powerful against the powerless. Finally, both the motivations and the moral imagination have to be used to interpret what cases and statutes have to say.

Yet, as I write this, I feel I’m left with more questions than answers. What I’d like to learn is how do you deal with these issues? Or is it even appropriate to raise these issues at all in the law classroom of the twenty-first century? I am open to discussion and suggestions.