Category: Teaching

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Teaching to our students

It’s that time of the year when we are all involved in our favorite activities: writing and grading exams. For many of us, we’re relieved that exam time only comes at the end of the semester. But does that best serve our students’ learning? Daniel Schwarcz (Minnesota) & Dion Farganis (Minnesota) have posted a draft paper on SSRN ( that has been the subject of discussion on Brian Leiter and Tax Prof Blog, and has been mentioned on Faculty Lounge.   The paper, taking advantage of something of a natural experiment, seeks to test the impact of providing individualized feedback in first year courses and finds that such feedback in fact increases performance in classes other than the one in which the feedback is provided.

Their experiment involved first year students at the University of Minnesota Law School. First year students, who take a common slate of classes, and are randomly assigned to sections, some of which provide individualized feedback. The study treated individualized feedback as “assigning grades to individual students’ work products, providing individualized written comments to students, or providing individualized or small-group oral feedback to students” (p. 12). It did not include providing students with a model answer, grading rubric, or generalized oral comments as individualized feedback.In some cases, students from a section with at least one professor providing individualized feedback were paired in a “double section” with students who did not receive the same type of feedback.  Each of the individual sections has been assigned in ways that controlled for entering credentials, and demographic features such as race, gender, age and state origin. The students in the double section then took the same exam. In these double section classes, those students who had been in the individualized feedback smaller sections consistently outperform students in sections without that feedback.  Schwarcz & Farganis found that the effect was statistically significant, approaching about 1/3 of a grade increment even after controlling for other factors. Moreover, the positive impact of feedback appears to be stronger among lower-performing students.

What we find particularly interesting is that individualized feedback in one class during the first-year of law school can improve law students’ performance in all of their other classes. Does this suggest that all first year courses should move towards more individualized feedback, or is one class enough? Does this have anything to do with instructor quality, as Michael Simkovic asks?

There are drawbacks, of course, beyond requiring us to do even more grading. Many forms of individualized feedback in one class, such as midterms, can distract students from their other classes. This also sets up, early in a semester, a system of winners and losers. As the burgeoning literature on student well-being notes (and in the words of Naomi’s colleague, Todd Peterson), “law school classes tend to disassociate students from their own internal values and weaken their connections with others.”  More feedback tied to a hierarchical ranking system may increase that effect.

If the study is right that even limited feedback is better than none, law schools may want to build time for mid-semester examinations back into schedules. Then, again, many of us find the six-unit classes we used to teach to be far more effective than our current one-semester first year courses in identifying students at risk and delivering individuals messages about how to better succeed in law school.

 

 

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Journal of Legal Education: Volume 65, # 3, Spring 2016

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From the Editors

By Thomas D. Cobb & Kate O’Neill

Articles

           By Adam Chodorow & Philip Hackney

           By Lynn M. LoPucki

           By Justin McCrary, Joy Milligan, & James Phillips

           By Elaine Campbell

          By John C. Kleefeld & Katelyn Rattray

At the Lectern

           By Beth Hirschfelder Wilensky

Interview

           By Ronald K.L. Collins

Book Reviews

           By Duncan Farthing-Nichol

           By Michael Robertson

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AALS diversion – Jackson Pollock

The annual AALS meeting is in New York in 2016. A few folks have asked whether I will be there. I am not able to attend, but in the spirit of it’s good to get out and see more than the law (or take a friend and go for a good long chat about legal scholarship), I see that that MOMA is pulling out its Jackson Pollock collection. The write up in the New Yorker is short and captures his evolution and why you should go.

Pollock was always Pollock, though he was long in agonizing doubt, notably about his ability to draw. Dripping brought a rush of relief, as he found a steadying and dispassionate, heaven-sent collaborator: gravity. Drawing in the air above the canvas freed him from, among other things, himself. “Number 31” is the feat of a fantastic talent no longer striving for expression but set to work and monitored. He watched what it did. We join him in watching. Pollock redefined painting to make it accept the gifts that he had been desperate to give. Any time is the right one to be reminded of that.

Sorry to miss AALS and the exhibit, but there will be other chances to enjoy both.

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Writing as a career and passion

As a young scholar the desire to be read, invited to conferences, and cited is strong; but how to obtain these glories is unclear. Should one write and have faith that good work will be found? Or is there more to do? The New Republic’s recent review by Sam Sacks of two short story collections offers two benefits; it suggests two collections and looks at the ongoing tension between professional versus artistic creation. Exploring this tension should help answer what to do as a scholar.

The first collection, The Unprofessionals, edited by Lorin Stein comes from the Paris Review, and according to Sacks “defines itself against the emergence of a hyper-professionalized breed of fiction writer.” Sacks points to the editor’s preface which criticizes the trend of young authors’ using social media to self-promote and as the editor put it “to think of themselves as professionals: to write long and network hard.” Stein’s work is “a kind of elite artist’s colony whose sole mandate is the refinement of craft.” In contrast, Sacks offers New American Stories. Sacks calls its editor Ben Marcus “an emissary for a wide range of writers on the margins of the mainstream.” Thus according to Sacks, “Stein is an editor charged with elevating the few from the many, Marcus has emerged as an emissary for a wide range of writers on the margins of the mainstream.” As Sacks says, “If The Unprofessionals is like a beautifully unified concept album, New American Stories is, to use Marcus’s analogy, a mixtape.” Sacks hits notes that matter to academics as professionals, when he talks of politics.

As Sacks offers:

Two anthologies, two visions of American fiction: one exclusive, one eclectic; one that seals its ears to the clamor of the industry, one that takes inspiration from the chorus of voices being published. The second vision has the stronger sense of political purpose. Many new writers want to be read and discussed by a large audience, to be noticed by prize committees, to take an active part in the cultural conversation—all activities of the so-called professional—not because, contrary to Stein’s opinion, they’re out for money, but because this kind of recognition is central to the politics of their writing.

Much the same could be said of scholarship. There can be the current in-crowd orthodoxy that has a certain style and approach. It can be exclusive and seem to anoint stars. There can also be the out-crowd with its orthodoxy and anointed but that seek to challenge the status quo just as Sacks says, “The stories in Marcus’s anthology reflect the interest many new writers have in rearranging social hierarchies and redefining terms of normalcy.” Sacks further helps understand the politics when he discusses an essay by Parul Sehgal. Seghal looked at a novel that used a new form and said the project and style was “less a performance of alienation than a passionate effort at reconciliation.” Thus according to Sacks, the goal of writers such as those in the Unprofessionals, “writers traditionally left outside of the conversation” is “to be recognized as professionals.” If professional means one’s ideas have been taken mainstream (and in Portlandia parlance “you are so over”), I think Sacks sums up where scholars hope to be too. Challenging current ideas and scopes of concerns can be lonely. As one finds a community to work with and the work gains traction, the work may go mainstream. At that point, enjoy the ride. The newbies will come to show you what you missed. But there is more to it than being professional. As Sacks goes through the authors in the collection, you get a sense of what might matter depending on what you like to read or how you want to be challenged. At the very least you get a list of names to ponder and pursue. But his key point applies to scholars too.

Sacks saves his highest praise for Denis Johnson, “Johnson could be in Stein’s anthology as well as Marcus’s (he’s appeared in The Paris Review repeatedly over the years).” And here is the key:

But that just means that he’s achieved the aim of all writers: He’s transcended categorization. It no longer makes any difference how you label him—professional or unprofessional—since he’s written fiction good enough to outlive him.

Somethings never change.

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Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

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“Be careful of those that meet you at the train…”

Every now and then, a fortune cookie dispenses with advice that is so spot-on you just have to keep the little sliver of paper tucked away.  Here is my fortune cookie keeper of all time:

“Be careful of those that meet you at the train for they know where they want you to go…”

It was 2007 and I had just accepted my first job teaching.   And the faculty at the time was in a bit of turmoil.  The dean had recently resigned and it was unknown who the future dean would be.  As a visitor setting foot on campus I was a bit blurry eyed and knee deep in figuring out how to teach, be productive and all the things you do to start yourself off right.  Many of the faculty who remain very good friends today reached out to me to be reassuring about the the stability of the faculty etc….  But one person reached out to me to tell me who on the faculty not to trust.  What was particularly interesting was they named names!  This person was actually one of the first people to reach out to me when I arrived.  So when about six months later I read this fortune cookie sliver, I took the waitress’s pen and wrote their name on the back.

In my experience, the people on a faculty who you should be most leery of are those that will tell you either the people or the kinds of people you should be careful of.  What sounds as if it comes from experience and insight most often comes from places of fear, mistrust, manipulation, and insecurity.  What it can tell you, if you did not already know it, is that there are fault lines on the faculty for which a subterranean battle for the institution’s soul may be playing out.  As a young faculty member, don’t choose sides without carefully understanding what is at stake.

When you are new to a faculty, there are some traits to be “eyes wide open” on.  One is the “do not trust” this person or group of people conversation.  Most of time, when people offer this advice it is rarely for your own well-being, but rather because of their own motives.  Likewise, advice about faculty members that reduces them down to one quality or another or suggests that they are one dimensional in their views of the world (i.e., this person only cares about scholarship, so you should talk to them about your work often; or this person is only a teaching faculty member and doesn’t really care about scholarship) is rarely accurate and should be taken with equal caution.  I recall, being told at one stop “this professor doesn’t do scholarship so you shouldn’t waste your time talking to them about yours.”  As I found out, that was some of the worst advice I had received.  That person did not write, true, but they were very interested in the scholarship I was working on.   Had I not been willing to talk about my passions to this faculty member, I would have missed the chance to build a great relationship with this person — who frankly was glad that people like me were interested in writing our voice into scholarship and wanted to be supportive of that for the good of the college.

Anyone that suggests that faculty members are one dimensional and will only care about X, whether X is how you teach or what you write, means that the person dispensing with the advice doesn’t know the faculty member they are dispensing advice about well at all.  If we know anything about people — whether they are faculty members, scholars or administrators — it is that they are rarely one dimensional and regularly surprise us with the way they see the world if we open our eyes to see from time to time.

The people that make the best mentors on faculties are those that do not spend as much time worrying about who else you are taking advice from or attempting to characterize others, as they do about what you are up to and how your year or writing is shaping up.  In other words, when you find someone that is spending far more time offering comments about others on the faculty (particularly when you are new) understand that you are not their primary interest.  Their interest is to shape you to be aligned in their view of what the law school should be doing.  And most often, after you have served your purpose, they will dispense with you as well.

A final anecdote on this line — at one of my many stops (I have had four)  a colleague had the “do not trust this colleague,” conversation with me.  Fortunately I had experience in these matters and took the advice with a heavy dose of caution (of the advise dispensing colleague) and with eyes wide open. As it turned out, the person I was told not to trust was also told not to trust me by the same colleague.  Had I listened, I would have been deprived of a person who has become one of my greatest friends in the academy, but also a really great mentor.

So now, my little Chinese fortune cookie sliver, has two names written on the back, and still sits in my office today..

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The Role Law and Literature Should Play in a Law School

Some may ask what role should liberal arts style courses play in law school where we are increasingly focused on bar exams and practice ready skills.   It may take me a while to unravel that answer with the gusto and the framing it deserves.  I think anyone that regularly teaches Law and Literature has been asked some variant of this question.  The course doesn’t have the safe luxury of “well its on the bar exam,” or even the more sardonic return of “well, but of course it underlies much of legal thought and practice.”  See, e.g., Law and Econ, Law and Social Theory, and Legal History.

Let me make a bold proclamation.  The law and literature course, perhaps more than any other, asks students to wrestle with their subjective views of the law.  It’s interesting, in a course that deals with Constitutional Law, for example, there is the finality of how the court approached the problem (whether we agree with the outcome or not).   In Law and Literature on the other hand, the course encompasses the views of the professor, the authors, and their fellow students as they encounter these views.  Sometimes worlds are created in which those concrete legal frameworks are disembodied (See, e.g., Margaret Atwood’s The Handmaid’s Tale).  Sometimes, the fictional worlds embrace the world as we know it, and offer stunning critique to its foundation (See, e.g., Harriet Beecher Stowe, Uncle Tom’s Cabin). That’s not to say that other courses, (take a UCC course), is not rife with highly charged emotional queries (notwithstanding my critique, my explanation for whether the disposition of collateral equates to proceeds is a highly charged event!).  It is saying that in a time where the ABA is prompting law schools to create standards that push the law school experience towards so-called objective standards of evaluation (see revision of section 302 in the ABA standards), the role of encountering, critiquing, explaining, and understanding different subjective understandings of the law is critical.   We should not be afraid to encounter nor express our subjective views in the context of critical dialogue.

My view is that Law and Literature is a course that offers students not only the opportunity to understand themselves better but to learn to dialogue about the subjective views of law.  A few years ago, Yale Law School offered a course titled “The Book of Job and Suffering.” Unfortunately, at many law schools such a class would never be taught for fear that the subject strayed too far from what law schools are suppose to do — at least not under that title.  However such a course is precisely the kind of law and literature course we should be teaching. Isolating the critical component that suffering may play in the narrative for law students, I imagine, was a powerful experience for those students and the professor.  Powerful because they all have suffered something, I’m sure, though undoubtedly it was uneven.  Students learn to dialogue about themselves and the text in a group where each other’s respective experiences help frame and isolate the way the text moved within the group.   At one and the same time, students in a law and literature class learn about themselves, as members of a group, a class and as an individual.   This is the idea of Law and Literature that James Boyd White framed so well — the engagement of the reader with the text forcing the reader to accept or not accept the writer’s framed world. [Perhaps Boyd’s best framing of this encounter is his book This Book of Starres: Learning to Read George Herbert, in which Boyd wrestles with the text as reader primarily].

This role of teaching students about themselves is critical if not necessary to shaping who they are as counselors and advocates for their clients.  Of course they are things we should care about as shaping lawyers. But should we have to isolate them into an ABA objective or standard.   In a way, it cheapens the process to do so.

I fear that courses like Law and Literature, in which students engage in thoughtful discourse, may find themselves replaced with others that fail to live up to the promise of helping students understand themselves in a legal environment and instead only focus on the particulars of interacting in the legal environment.   There is nothing wrong with a movement in legal education that attempts to focus institutional resources to critically examine whether the law school is best preparing students for the modern legal environment.  But, that doesn’t mean that our students [or our faculty] are better off without having the dialogues and communities that law and literature help promote and shape in the law school environment.

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Teaching with Bad Court Opinions

In teaching Criminal Law, I like to use one or two cases a semester where the court opinion seems to fundamentally misunderstand a legal concept that we are discussing. I think doing so accomplishes two ends: 1) it provides a clear illustration of a common mistake students make so that they can better avoid it; and 2) shows that, particularly in criminal law, there is a high need for good lawyers and judges. I was curious if anyone else teaches using opinions that are not just flawed, but almost certainly wrong. As an example, this is an excerpt from a case (Pennsylvania v. Collins, 810 A.2d 698 (Pa. Super. Ct., 2002)) I used in teaching summer starters last month about the voluntary act requirement.

The evidence at the trial established that, on March 17, 2001, Collins agreed to pick up her friend, Megan Neff, and drive to McDonald’s to purchase a milkshake for Collins’s mother. On her way to Neff’s house, Collins stopped at a mini-market, where she encountered several acquaintances. They invited her to a party in a nearby neighborhood and Collins accepted the invitation. While at the party, Collins drank something that “tasted like fruit punch.” Fifteen minutes later, she left the party and went to Neff’s residence. Collins arrived at Neff’s house and complained that she was suffering from a headache. As the two proceeded to McDonald’s, Neff observed that Collins was not engaged in conversation. Without explanation, Collins drove past the McDonald’s and straight through five or six stop signs without stopping. Neff began to yell at Collins telling her to stop the vehicle, but Collins gave no indication that she heard Neff. Collins turned the vehicle and began to swerve into oncoming traffic. Shortly thereafter, Collins applied the brake and Neff steered the car off the road. At that point, Collins appeared to lose consciousness. When the police arrived, Collins was slumped over the steering wheel of the car. As ambulance attendants took Collins out of the vehicle, she regained consciousness and began to scream and lash out at the attendants. At the hospital, Collins’s urine sample tested positive for phencyclidine or PCP.

The Commonwealth charged Collins with Driving Under the Influence of a Controlled Substance (phencyclidine or PCP) and Failure to Comply With Duties at a Stop Sign. At the conclusion of the trial, the jury found Collins guilty of driving under the influence of a controlled substance…. Collins appealed… Collins [] asserts that the trial court should have required the Commonwealth to prove that she voluntarily ingested the controlled substance. We disagree. Section 3731 states, in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
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(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(2). Therefore, in order to sustain a conviction under Section 3731(a)(2), the Commonwealth had to prove beyond a reasonable doubt that Collins was: (1) driving, operating or physically controlling the movement of a vehicle and (2) that while operating the vehicle, Collins was under the influence of a controlled substance to such a degree as to render her incapable of driving safely.
Collins’s arguments would require this Court to engraft an additional element–namely voluntariness–into the DUI statutory scheme. However, the statute does not make use of the terms “intentionally,” “knowingly” or “willfully.” Therefore, the Commonwealth was not required to prove that Collins’s intoxication was intentional or voluntary…. Collins also contends that the trial court’s jury instructions violated Section 301 of the Pennsylvania Crimes Code. We find this argument to be unpersuasive. Section 301 states, in pertinent part:

§ 301. Requirement of voluntary act
(a). General rule.–A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S. § 301….

Moreover, as discussed above, the statutory language found in 75 Pa.C.S. Section 3731(a)(2) omits any reference to culpability. We interpret this omission to mean that the legislature intended Driving Under the Influence to be a strict or absolute liability offense. Therefore, we conclude that the trial court’s jury instructions did not violate the voluntary act requirement of Section 301.

In my experience, students sometimes conflate mens rea and the voluntary act requirement in cases involving intoxication (rather than separating the analysis of intoxication into actus reus and mens rea). I think the Collins case can show how that conflation happens and why it is a mistake. The Collins court dismisses the universal voluntary act requirement in Pennsylvania because the court believed the statute to be strict liability. That’s a non sequitur. And so a woman who involuntarily ingested PCP was convicted for driving under the influence of the PCP that she didn’t voluntarily consume. The case also provides a nice contrast with State v. Martin which I believe most (?) Criminal Law casebooks include in the voluntary act section. I welcome any thoughts on the using the Collins case and “bad” opinions in general as teaching tools.

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Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

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On Lust, Dust, and Books

Bow down. Bow down to the queen of books. As a kid, if a foot touched a book, we employed a hand gesture, akin to genuflection, to make up for our disrespect. It’s an Indian thing. Doris Lessing’s Nobel speech captures why that gesture makes sense to me. It makes her my queen of books. We have the luxury of arguing over whether books are findable, searchable. We should pay attention to what Lessing said. In 2007 Lessing spoke of Africa, dust filled and hungry for books:

“Please send us books when you get back to London,” one man says. “They taught us to read but we have no books.” Everybody I met, everyone, begged for books.

And I do mean hungry:

Not long ago a friend who had been in Zimbabwe told me about a village where people had not eaten for three days, but they were still talking about books and how to get them, about education.

Lessing captures the faith that education will raise someone from poverty. Perhaps it is ironic that she attacks the Internet and blogging while wondering from where and the publishing of ideas will emerge in Africa. But her criticism seems to me more about the thin nature and “inanities” of much online than the technology itself. Her real concern is that reading begets reading and writing. She focuses on the simple fact that people want to read and write. Some learn from labels on jars or torn sections of novels left behind by those fortunate to have read the whole novel and who tore it for travel ease. In contrast, “We have a treasure-house of literature, going back to the Egyptians, the Greeks, the Romans. It is all there, this wealth of literature, to be discovered again and again by whoever is lucky enough to come upon it. A treasure. Suppose it did not exist. How impoverished, how empty we would be.”

For all the debate on scanning books and incentives to create, I have to stop and say rot and rubbish. Get the books, the texts to everyone. Now. Don’t tell me someone does not want to read or learn math or engage. Build and reinforce the culture that wanted to feed the body and the mind. As Lessing concluded:

That poor girl trudging through the dust, dreaming of an education for her children, do we think that we are better than she is – we, stuffed full of food, our cupboards full of clothes, stifling in our superfluities? I think it is that girl, and the women who were talking about books and an education when they had not eaten for three days, that may yet define us.