Every kindergartener and first-grader should have a teacher like Paula Franzese— a hyper-engaging Pollyanna who fosters social skills and self-confidence in the classroom through her own cheery solicitude, plus sing-alongs, affirmations, and fun games, perhaps games loosely based on the format of her favorite televised game shows and reality shows. A facilitator who inspires ethical behavior via morally uplifting stories with happily-ever-after endings and platitudes about goodness and hope. A role model who expresses such confidence in each child’s profound abilities that they start to believe it, but who scrupulously reminds these nascent superheroes that their powers must be used for good.
However, this pedagogical approach surely has an early use-by date, perhaps at around the age that a child stops believing in Santa Claus and magical ponies and wishing upon a star. When it shows up in a law school classroom, one has to wonder whether the students are receiving competent and effective professional education and training—even if it comes attractively packaged as "empathic teaching" and even if it is touted by its chief proponent in a law review article with 92 footnotes and god-knows-how-many uses of the trendy phrase "emotional intelligence" and close rewordings of same. See e.g. Franzese, Paula (2017) "The Power of Empathy in the Classroom," Seton Hall Law Review: Vol. 47 : Iss. 3, Article 2. (For more on Franzese’s remarkable approach to legal education, see this OTLSS profile of her book on positive thinking for law students. See also this shameless recent editorial by Franzese, in which she encourages readers to defy the "naysayers and outliers" by attending law school and using the precious "aptitudes" provided there to become "justice's emissaries").
In her new law review article, Franzese provides the following examples of how she practices "empathy in the classroom":
- "On the way from my office to my classroom I summon up the reverence that I have for the law and the capacity of its practitioners to be givers of hope. I want my students, as lawyers-to-be, to appreciate the power that their emerging expertise will soon afford them to wrest people from cynicism and despair. I would like them to see that the relentless commitment to the good of others will make their own lives good. As a lawyer, I have had the privilege to watch as hope has sprung from the most desolate places. My life has never been the same. I want my students to know that soon, they too will get to be witnesses to the birth of hope."
- "Once at the classroom door I pause, and before entering the room I summon gratitude for the privilege to teach and for the sacrifices of all who came before me to make this moment possible. I then ask that I be used to do whatever good needs to be done and to say whatever needs to be said. I ask for the guidance to see what needs to be seen. I remember that there is no day but this day and no moment but this moment."
- "I remain mindful that my students’ perceptions of our profession, and of themselves as its fledgling members, will be formed in considerable measure by watching me and listening to my cues and feedback. . . [O]ur students rise (or fall) to our level of expectation for them. I give each of my students the benefit of every doubt and believe that each contains seeds of excellence waiting to be cultivated."
- "Empathic pathways are activated when students re-enact or reimagine cases. For example, to enhance the capacity of the antiquated Pierson v. Post (the venerable Property case on the rule of capture) to resonate with the class, I ask a team of students to place that case into the more contemporary context of the popular television show The Amazing Race. On other occasions, I ask students to put cases into more journalistic settings, where for example one class member is assigned the role of reporter, another the role of producer, and others the roles of various litigants and litigators to elicit and recount what happened in the given dispute and their reactions to its resolution for an imagined CBS 60 Minutes segment. That exercise allows students to become the people behind the story, and the range of emotions typically displayed is vast and genuine, as the opportunity is presented for the "as if" to feel real."
- "Play, through the use of in-class games such as Jeopardy (which readily lends itself to substantive review) and Family Feud (which fosters teamwork), and challenges aimed at helping students solve the puzzle of a given problem or contextual dilemma, brings an immediacy to the need to know the relevant material."
Again: Law school or kindergarten? Well, no, it is not kindergarten. Kindergarteners do not typically commit themselves to hundreds of thousands of dollars in non-dischargeable debt. Kindergarten teachers do not purport to offer technical training at the doctoral level.
Why do consumers of motivational speeches and positive thinking literature fail to see the vicious Social Darwinist downside of all that can-do inspiration—namely, that if positive thinking leads to success and happiness, then their own failures, frustrations, and unhappiness are most readily explained by their own bad attitudes, and not by objective facts tending to prove that they have been exploited, misled, or scammed?
Remember the comical Walrus, in Lewis Carroll’s Alice in Wonderland, who wept with sympathy and understanding for the very oysters whom he had deceptively befriended, entertained, and then systematically devoured? Alice judgmentally calls the Walrus an unpleasant character, but perhaps the Walrus’s main fault was in failing to gift the world of scholarship with a law review article entitled "The Power of Empathy in Devouring Your Prey."