Should a professor deduct points for “wrong” answers?

Let me defend the “yes” argument. First, the ability to issue spot, is the ability to issue spot. If a student takes the “throw everything against the wall to see what sticks” approach, then they don’t really understand the material.

(Now, that said, I won’t deduct points if the student raises a potential issue/line of analysis and ultimately concludes that it is inapplicable.) But the truly irrelevant, I believe, shows a lack of understanding. I also think that profoundly faulty analysis deserves deductions as well. If the student’s analysis shows that he/she doesn’t understand the law, I deduct points for it.

(Now, before my crim 1Ls start to panic, this [...]]]> Here is another sticky exam question:

Should a professor deduct points for “wrong” answers?

Let me defend the “yes” argument. First, the ability to issue spot, is the ability to issue spot. If a student takes the “throw everything against the wall to see what sticks” approach, then they don’t really understand the material.

(Now, that said, I won’t deduct points if the student raises a potential issue/line of analysis and ultimately concludes that it is inapplicable.) But the truly irrelevant, I believe, shows a lack of understanding. I also think that profoundly faulty analysis deserves deductions as well. If the student’s analysis shows that he/she doesn’t understand the law, I deduct points for it.

(Now, before my crim 1Ls start to panic, this doesn’t mean that every single misstep is a deduction, but I do believe that there is a difference between a student who gives a mediocre analysis and a student who gives a mediocre analysis and then throws in irrelevant junk. The first student simply understands the course better.)

I know everyone doesn’t share this view. Counterarguments?

First, there is the standard “panel” conference. Each panel has three or so law profs. Each prof writes a paper prior to the conference and summarizes the paper at the conference. After all three panelists have spoken, audience members ask questions for about an hour. Second, there is the commentator format. Each session is about one or two papers, often the commentator goes first and the panelists respond, (although the order can be reversed). Then, audience questions.

In contrast, there are two “conference” formats that are [...]]]> I thought I might take the opportunity while guesting here at Co-Op to talk about the nature of legal scholarship. One topic that I think is worth discussing is the nature of our conferences.

First, there is the standard “panel” conference. Each panel has three or so law profs. Each prof writes a paper prior to the conference and summarizes the paper at the conference. After all three panelists have spoken, audience members ask questions for about an hour. Second, there is the commentator format. Each session is about one or two papers, often the commentator goes first and the panelists respond, (although the order can be reversed). Then, audience questions.

In contrast, there are two “conference” formats that are less common. One is the “no presentation, no commentator, 100% questions” format. Bottom line: come prepared or don’t come at all. Another format is the innovative “roundtable.” Here no one writes a paper. Rather, a small group 10-20 folks get together to talk about a pre-selected group of materials and hash out the issues.

How to choose? Keep reading…

Of course, to choose among formats, one must answer some questions. Here are three that strike me as preliminary:

First, for whom do we hold conferences? If they are for the audience, then a panel format provides the most information to the general public. But breadth comes at the expense of depth. If conferences are for the panelists (and other participants), then an all question format (very concentrated and high intensity) or a roundtable format (learn a lot by chatting) seem to be the best options.

Second, what is the role of the conference paper? In many disciplines, presenters read their papers. We don’t. This seems to reveal less concern with text than in other disciplines. Is that correct? It does appear that folks often do not give their best work and best efforts to conference papers.

Third, depending upon the value one sees in conferences, we have to ask how much work a conference should be for participants and/or a general audience. Should it be accessible only if one comes prepared? Or, should faculty be devoting more time to other endeavors, such that demanding conferences should be discouraged?

For my money, I’ll take the 100% question format and the roundtable format. I know I work the hardest but learn the most from both of these formats.

Any thoughts? And are other innovations out there?

Here’s the abstract:

There are two competing conceptions of mens rea. The first conception is descriptive. We look to a person’s mental state to determine if the mental state element is satisified. This is a question of fact. Alternatively, there is the normative conception of mens rea. This is the question of whether the defendant is blameworthy. The term, mens rea, or “culpability,” can therefore refer to the descriptive usage (did the defendant have the requisite mental state, i.e, purpose or knowledge?) or to the normative usage (is the defendant blameworthy, wicked, indifferent?).

The tension between descriptive and normative terminology was first identified by [...]]]> I just uploaded onto SSRN my paper, “Holistic Culpability” from Cardozo Law Review’s symposium on George Fletcher’s new book, The Grammar of Criminal Law.

Here’s the abstract:

There are two competing conceptions of mens rea. The first conception is descriptive. We look to a person’s mental state to determine if the mental state element is satisified. This is a question of fact. Alternatively, there is the normative conception of mens rea. This is the question of whether the defendant is blameworthy. The term, mens rea, or “culpability,” can therefore refer to the descriptive usage (did the defendant have the requisite mental state, i.e, purpose or knowledge?) or to the normative usage (is the defendant blameworthy, wicked, indifferent?).

The tension between descriptive and normative terminology was first identified by Professor George Fletcher more than thirty years ago. In this essay, I aim to dissolve it. Descriptive terms are culpability’s grammar; normative terms are culpability’s meaning. I begin with Professor Fletcher’s discussion of the conflict between descriptive and normative mens rea in his new work, The Grammar of Criminal Law, and his clear preference for normative terminology. I then turn to analyze the subject of the debate – an agent’s culpable choice, and argue that there are several different aspects of that choice. Next, I argue that in assessing culpability, we do not focus upon one aspect; rather, the grammar gives meaning to the whole. Although I contend that descriptive and normative culpability can be reconciled, I claim there is a more unified conception of culpability, which simplifies, but does not distort, how the parts give meaning to the whole. In the final part of this essay, I discuss negligence, which admittedly cannot be explained by my theory. I argue, however, that liability for negligence presents problems within the grammar of criminal law as Professor Fletcher finds it.

Comments welcome!

So, it seems that hiring season is coming to a close. Larry Solum is tracking entry-level successes here and Dan Filler has the scoop on laterals here.

But for all those happy folks out there, there are plenty of candidates who did not get jobs. And the question for them is whether they should “try, try again.”

My thoughts on “if” and “how” below the fold:

The short answer is a qualified “yes.” Let me say this — many, many, many talented law profs did not get a job the first time they went on the market. So, just because you didn’t [...]]]> First of all, let me thank Dan and the rest of the Co-Op gang for inviting me to participate in this terrific blog.

So, it seems that hiring season is coming to a close. Larry Solum is tracking entry-level successes here and Dan Filler has the scoop on laterals here.

But for all those happy folks out there, there are plenty of candidates who did not get jobs. And the question for them is whether they should “try, try again.”

My thoughts on “if” and “how” below the fold:

The short answer is a qualified “yes.” Let me say this — many, many, many talented law profs did not get a job the first time they went on the market. So, just because you didn’t get a job, doesn’t mean you won’t get a job.

The reason why the answer is a “qualified” yes, is because you must first diagnose why you didn’t get a job. As a frequent attendee of the FRC on the hiring side, let me offer a few thoughts:

First of all, you need to recognize that some people are the “full package.” While there have been gripes on the internet re: whether journal placement matters, the bottom line is you can’t get caught in those minor details. Some folks have it all — top law school, on journal, with great grades, with 2-3 well placed articles, with a fancy clerkship, with great job experience, and terrific references. Now, even these people, who look so good on paper that they tend to make apptmts committee members wonder whether they’d get a job in today’s market, will fail to get jobs IF (1) they don’t exhibit intellectual playfulness, (2) they can’t communicate their ideas clearly, and (3) they don’t have some overall vision about their research (not a detailed agenda, just a direction…)

Now, if you didn’t get a job, you need to figure out what you are lacking and whether you can compensate for it.

If you don’t have two or three articles already written then stop reading this and get writing. Otherwise, ask yourself these questions:

1) Did I make stupid mistakes with my FAR form? That is, did I offend people by excluding areas of the US in a pejorative way? Did I put anything other than additional references or addl publications in the comments section? (Under no conditions should you be making comments in the comments section.) Did I pick boutique courses and refuse to list even one bread and butter course? Does my package cohere in a way that someone would understand who I am as a scholar by the kinds of subjects I am willing to teach?

2) Do I have good references? Law profs want to see other law profs (and an occasional very distinguished judge) listed as your references. At least two of your references should be law professors. And the profs you pick will reflect on who you are.

3) Do I have job experience that ties to my research? Some very top schools will take a peek at top grads from law schools when they are fresh out of law school or a clerkship — these schools are looking to see if you are a rising star. But if you aren’t one of the handful of folks that meets that requirement, then you need to show the rest of the law faculties that you actually know something about the practice of law. Some work experience is a good thing.

4) Did I get lots of initial interviews, but few or no callbacks? Then your problem is in your interviewing. Talk to your law school about arranging for mock interviews (and a mock job talk) and have folks give you feedback. Of course, even an interview that goes well may not result in a callback simply because the school has a number of priorities it is trying to balance or because in your field, frankly, there was just someone better than you are. BUT if you are getting lots of initial interviews and no callbacks, you’ve got an interviewing problem.

But to be brutally honest, I would give up if:

-You graduated from a third or fourth tier school AND you were not in the tip top of your class AND you haven’t written a meaningful law review article. This may seem like a no-brainer to some folks, but I can’t believe the number of candidates without any distinguishing features who feel compelled to throw their hats in the ring. Please, please, please stop killing trees.