Some commenters on the thread about no-laptop policies in law schools (and the related thread on libertarianism and actions within institutions) asked: Why not rely on each student's own judgment about whether laptops are too distracting to them? Shouldn't we assume that our adult students generally know best what's best for themselves?

It's an interesting question (a question of ethics and good sense rather than of rights-based constraints on government power) to what extent universities and law schools should be paternalistic to the students who have chosen to attend. A simple example: Many professors require students to hand in a rough draft of a seminar paper at a particular date, rather than just handing in a final draft. (If the student is late with the rough draft, they may get penalized, and in any event the student understandably thinks that the professor's rule is a demand and not just a request.) The main reason for this is to help discipline the student into getting a rough draft in early, so that the student can profit from the professor's comments, and so the student will produce a better paper and learn more about the subject and about writing in the process. Is that improper, because it's unduly paternalistic? Should I stress to students that the rough draft deadlines are optional, and that if they don't want to hand in a rough draft, that's likely to be a mistake but it's entirely up to them? I'm not sure, but I think the right answer isn't obvious.

But in this post I want to focus on something else: The role of class discussion in legal education. I want to argue that students — though they of course pay lots of money to us — are not just customers of legal education, but are also in a sense a sort of employee: Law school classes rely on students' participating in the class, as a means of helping educate the other students. Learning, the theory goes, is a cooperative endeavor, in which students benefit from hearing each other's comments.

This is most obvious in seminars, classes that are usually of twelve or fewer students, in which most of the discussion involves students discussing the materials, or each other's papers. Naturally, the discussion is guided by the professor, but the point is for the students to learn by having a conversation. That's the format for seminars in most subjects, I think, and certainly for law school seminars.

Because of this, both attendance and discussion are required in seminars. If you don't show up, your grade might be reduced; likewise if you don't talk in class. If the professor calls on you, passing is not an option. (In some large classes, professors offer a no-hassle pass option, but if you pass in a seminar, the professor may well publicly reprimand you, and might penalize you more formally if you keep doing this.) The reason isn't paternalistic concern for the particular student. Rather, it's that the student's job is to participate, in order to create the class discussion that is supposed to be the mechanism through which all the students learn.

Likewise, some seminars involve students commenting on each other's rough drafts or on each other's presentations of their works in progress. This means that students must hand in rough drafts on time, or else they won't be available as subjects for discussion, and for the other students to practice their editing skills and their constructive criticism skills. (This is why I don't need to decide whether a mandatory rough draft policy is improperly paternalistic when the students just hand in the rough drafts to me: The seminar I teach is heavily organized around students' commenting on each other's work product, so punctual submission of rough drafts and other stages of a paper is necessary for the benefit of the other students, and not just of the submitting students.)

Most law school classes are between seminars and lectures: The professor talks more than he does in a seminar, and class discussion is less important than in a seminar, but class discussion still takes up a large part of the time, and the professor's conversations with the students — and sometimes students' conservations with each other — are an important pedagogical tool. Some question whether it's an effective tool; perhaps we'd be better off lecturing more and drawing the students in less. But most of our classes do heavily rely (rightly or wrongly) on this tool.

This means that whether students are paying attention in class affects not just themselves, but their classmates. Students who tune out, either because they're distracted by non-class materials, or because they are so focused on taking verbatim notes that they aren't really mentally engaging the information, aren't doing the job they're supposed to do. (Again, I recognize that they're not being directly paid for the job, but rather have to pay us; but part of the educational transaction is that they get an education and a credential in exchange for money and class participation.) When fewer students participate in class, other students get less out of the class discussion. When a student is called on and doesn't give a good answer, other students get less out of the class discussion (especially since time is wasted, and the conversation is interrupted).

In my view, the main impetus for the non-laptop policies has not been paternalism towards students who choose to tune out. That may have been part of some professors' concern, but it wasn't the deciding factor for me, and I suspect it wasn't the deciding factor for most other professors who have experimented with these policies. Rather, the concern is about the impact of laptops on others — both (1) the distraction to other students when someone is surfing the Web or (even if Internet access is turned off) is playing solitaire, and, probably more importantly, (2) the perceived decrease in class discussion stemming from laptop use, and the hoped-for increase in the number of participants and the quality of participation when people stop using the laptops.

Now I'm not sure whether class discussion improves as a result of no-laptop policies. I've heard favorable reports from others, but the reason I'm calling this an experiment is precisely because I don't know for sure whether the results will be positive (though I've heard enough to suggest that the results are unlikely to be highly negative). But I don't think they can be faulted — whether on libertarian reasons or others — simply on the grounds that they are paternalistic towards the students, in the sense of stopping each student from doing something because we think that behavior is bad for that particular student. Rather, we're trying to improve class discussion, a discussion through which each student's participation benefits the other students as well as the participant.

That's a familiar policy, as I've said, for seminars, where attendance and participation rules are commonplace. And I think it's also an ethically permissible policy for larger classes that generally rely at least in part on student discussion, and not just on lecturing.