Archive for the ‘Law School (Teaching)’ Category
posted by Kaimipono D. Wenger
I held another “Wills Lab” (voluntary out-of-class practice-focused exercises) a few weeks ago. This time around, I was Andy Nicole Smith, and I needed someone to write my will for me. I did my best to blunder into the exact issues that caused so much confusion with the real Anna Nicole Smith will. My students set me straight. Nicely done.
How did we get to this point? It’s a long story. Read the rest of this post »
posted by William McGeveran
Thanks so much to the Concurring Opinions gang for having me back for another guest blogging stint. My semester has ended, so let the blogging begin!
Except … even though I have not received my students’ exams from the registrar yet, I am grading. Why? Because I assigned group projects during the semester and have not completed marking the last one. This raises an uncomfortable question for me: have I done the students any good by giving them a graded assignment during the semester if they don’t receive feedback on it until they are on the cusp of taking the final exam?
That really depends on the reasons for requiring “grading events” such as group projects, short papers, quizzes, midterms, or oral presentations during the semester. Like many of my colleagues, I have increasingly moved away from the traditional law school model that based the entire course grade on a high-stakes final examination, perhaps with some small adjustment for class participation. It seems clear to me that this is a good decision — even though it has meant a lot more grading (every professor’s least favorite task) and even though the institutional incentives for law faculty don’t really encourage or assist us to do depart from the tradition of the all-or-nothing final exam.
But I have to confess that my views of the reasons for continuing assessment are unsettled and even a little muddled. Here are the main candidates in my mind:
- Earlier graded events give students feedback about their understanding of the material and performance in the course while there is still time to correct it.
- Basing the course grade on more than one event reduces the “fluke factor” of a student who is ill or overtired or just not in top form the day of the final exam.
- The events themselves — say, a group project — serve valuable pedagogical goals and making them part of the grade ensures that students will take them seriously.
- Educational research shows that students learn more effectively if they synthesize knowledge as they go along rather than just doing a big outline at the end of the course, and graded events spur them to synthesize earlier.
- Basing the grade on different types of exercises rewards varied abilities beyond the particular (and slightly bizarre) skill set that excels at law school issue spotter exams.
Only the first of these requires me to return students’ grades sooner than I’ve managed to do for this group project. Of course, I am saying this partly to assuage my guilt over my own tardiness. But I also wonder how well we articulate the reasons for continuous assessment to our students — or even, frankly, to ourselves. I have now more carefully engaged in the sort of reflection about these goals that I should have gone through before the semester started. Now I know for next time that my answer is: all of the above.
Uh oh. I better get back to grading those group projects right now.
posted by Dave Hoffman
A student’s final law school GPA predicts bar passage better than other independent variables. But the relationship isn’t causal: raising the mean GPA of all students does not promote bar passage. Indeed, some investigators have suggested that the inverse is more likely to be true. When GPA rises for all students, individuals at the bottom of the class aren’t sufficiently signaled that their grades are really and truly bad, and consequently such badly-warned students don’t approach bar study with the requisite degree of seriousness. That is, if a school has a mean of a 3.3 at graduation, the bottom 20% of the class probably has GPA of around a B-. B- students may well say to themselves “sure, I’m at the bottom of the class, but I’m not a C student! I’m not in danger of failing the bar!” But they are. In this perverse way, raising the mean increases the rate at which weaker students fail the bar, even as overall, grades are positively correlated with passing!
The puzzle deepens. Students often argue that employers focus on mean GPA to the exclusion of class rank. Given that students are competing with other schools (nationally and regionally), there are race-to-the-bottom pressures on each law school’s curve generated by employment markets. A school that produces students at the 50th percentile with a 3.5 mean will obtain better employment outcomes than one that produces students at the 50th percentile with a 3.0 mean. All else equal, schools should reduce barriers to employment. (Of course this result depends on employers indeed acting in the irrational manner described – ignoring or downplaying class rank and focusing on absolute GPA. This would be very, very difficult to test empirically, though I imagine someone could give it a shot using nifty studies.)
You see the tension, right? A higher mean simultaneously could boost employment in the middle and higher end of the class while also depressing bar passage at the lower end of the class. These contrasting outcome effects turn on psychological biases resulting from overemphasizing raw grades over percentile rank, but simply providing class rank instead of grades would cause employers to balk. The tension may lead administrators and faculty to an uncomfortable question: when the two conflict, should we privilege bar passage over employment? What is the appropriate calculus? Could we live with one additional student failing the bar if two got a job?
My own view is that the price for bar failure is so high that the number of jobs won in this calculus would have to be unrealistically high. Consequently lower means are to be preferred to higher ones at some schools. What do you think?
posted by admin
Contracts teachers are asked to complete a brief online survey to help the planning and execution of a symposium Washington Law Review is preparing to host on the exciting new book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012).
This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks. In addition to an article by Prof. Cunningham, the WLR will publish in its December 2013 issue a half dozen pieces by many luminaries and notables, including:
Charles Knapp (NYU/Hastings)
Brian Bix (Minnesota)
Erik Gerding (Colorado)
Jake Linford (Florida State)
Jennifer Taub (Vermont)
To help these scholars and WLR editors with this effort, please fill out the online survey today!
posted by Aaron Saiger
The proximate cause of Danielle’s inviting me to guest-blog at Concurring Opinions was a celebration we had at Fordham of my colleague Robert Kaczorowski‘s publication of “Fordham University School of Law: A History,” the publication of which she had blogged here. The first half the book analyzes decanal administrations prior to those of Dean John Feerick, who remains an illustrious and beloved member of the Fordham faculty. This section of the book is remarkable for being the very opposite of “law porn“: it tells the story of several decades of a law school’s decline. This decline, Kaczorowski convincingly argues, was driven largely by the insatiable voraciousness with which the central university plundered the law school’s revenues (read student tuition) for its own, non-law purposes. Today, we call that plundering the “central services charge.” At many universities, not just my own, central charges are a major driver of law school costs.
The central services charge is related to the explosive growth of the administrative sector within universities. Read the rest of this post »
posted by Aaron Saiger
Last week both Frank and I blogged about the MOOC, the “massive open online course.” Also last week a substantial and prominent group of academics posted an open letter to the ABA that urged legal educators to consider, among other reforms, “building on the burgeoning promises of internet-distance education.” (The letter garnered positive press in diverse fora.) Might the MOOC platform be part of that “promise”?
posted by Bruce Boyden
Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.
But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”
I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.
Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:
To Christopher Columbus Langdell
December 30, 1889 Boston, Mass.
My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read the rest of this post »
posted by Lawrence Cunningham
Thanks to all participants for their wonderful contributions to the on-line symposium about Contracts in the Real World: Stories of Popular Contracts and Why They Matter. (To see all posts together, click the subject matter link below this or other posts for Symposium (Contracts Real World) or select that topic from the Categories menu on the sidebar at left.)
As the reviews suggest about readers finding the stories fun and the lessons enjoyable, you may be able to guess that I found researching and writing them fun and enjoyable too. Many of the stories were originally written, in a slightly different form, for this blog. Many of those stories generated productive comments.
I therefore must thank not only my fellow perma-bloggers here at Concurring Opinions for the opportunity to develop these ideas on this site, but also to many readers of the site for their thoughtful contributions. Double that gratitude for having allowed so much space to be devoted to the book these past several days.
Beyond contracts, several publishers and I believe that there is a series in this approach to the content and presentation of many law school subjects. That would certainly seem apt for other traditional 1L courses such as Torts, Property, Criminal Law and Civil Procedure. Read the rest of this post »
posted by Miriam Cherry
Aside from the deeper theoretical questions that Prof. Cunningham raises about contract theory in Contracts in the Real World, the heart of the book is in its fun, rollicking, and thoroughly modern examples.
Every contracts professor should take a look at this book to glean ideas for real-world examples and hypotheticals. Even if your textbook is stuck in the world of itinerant homesteaders, ships using astrolabes for navigation, and delayed industrial components (shout out to Kirksey, Raffles, and Hadley v. Baxendale!), your students will appreciate the use of some fun celebrity stories to liven up the classroom discussion.
The last time that I taught Contracts, for example, I did a series of hypotheticals based on Charlie Sheen’s contractual troubles. Based on Prof. Cunningham’s materials, I was able to structure some hypotheticals based on Sheen for my unit on conditions. The students seemed to appreciate it, and in fact, I have asked a student from my class last year to share her impressions with our blog readers. It appears here.
Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.
posted by Miriam Cherry
In my view, modern technology has exacerbated the doctrinal tensions within contract law. Currently, clickwraps and browsewraps stretch the notion of mutual assent to its extreme, perhaps warping it in the process.
The recent literature on form contracting online has been substantial. While some of this literature sees online contracting as a natural inheritance to traditional contract law doctrine, other commentators have argued that contracting online has distorted the doctrine.
In Contracts in the Real World, Prof. Cunningham attempts to reconcile two recent cases, Specht v. Netscape and Pro-CD v. Zeidenberg, as part of his treatment of the theme of contract formation and mutual assent. As much as he tries, to me the cases still seem to be in conflict.
And if that weren’t enough, two well-known additional cases that dealt with late-arriving terms inside a computer box, Hill v. Gateway and Klocek v. Gateway, blatantly contradict each other, with contrary holdings on virtually identical facts.
In my mind, these contradictions reveal a mismatch in the doctrine and the reality on the ground. If there is no way for consumers to read or understand, or perhaps even see these clickwrap agreements, it hardly seems fair to bind consumers to them. As seen above, however, this leads to contradictory rulings.
Inconsistent holdings create the appearance of an arbitrary justice system, and these disputes, which are governed by the Uniform Commercial Code, should turn out in a uniform manner. When they do not, it only intensifies the debate about how to deal with online contracting and adhesion contracts online.
As we all continue to click our way through countless EULAs and are told that we are subject to “terms and conditions” that no reasonable consumer has had the time to read, I do not believe that it is enough to hope that antiquated laws will handle new situations.
Instead, I would suggest that we need to continue to build on the wisdom of contract law. While there is much to celebrate in the received wisdom of ancient doctrines, we must also recognize that it is the common law’s dynamism and adaptability that have led to its genius.
Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.
posted by Ronald K.L. Collins
In a world where contract law, as typically taught, has one foot in the quicksand of the past, Lawrence Cunningham’s Contracts in the Real World is a most welcome and liberating alternative. Just consider the domain of what is commonly offered up:
* sales of “Blackacre” circa the 18th and 19th centuries,
* sailing ships destined for Liverpool circa 1864,
* carloads of Mason green fruit jars circa 1899,
* a promise to pay ₤100 to anyone who contracted the flu after using a “Carbolic Smoke Ball,” circa late 19th century,
* a 12-word “contract of sale” penned on the back of a “counter check,” circa early 1950s,
* a material breach case about a dispute over the brand of pipe (Reading or Cohoes) to be used in the construction of a home (circa early 1920s),
* representations made in 1959 in connection with a grocery “chain” begun in 1922 (by 2010 the “chain” was down to a lone store in Green Bay, Wisc.),
* promises re an option to buy a ranch, circa 1960s, and
* a 1965 contract involving the 78 year-old actress Shirley MacLaine (co-star of the 1960 movie The Apartment).
One need not be wed to Henry Ford’s maxim that “history is bunk” to appreciate that much of what is presented in contracts casebooks is past tense, past perfect, and past its time. While such an approach to teaching contracts may be a boon to slothful professors averse to updating their class notes, it does little to prepare today’s law students for the challenges facing them in the 2012 marketplace of digital deals.
Given the yester-world of many contracts casebooks, it is refreshing to have a book that brings modernity onto the stage of legal education. While Professor Cunningham pays due deference to the canonical cases (e.g., Lawrence v. Fox, N.Y., 1859), he does so in ways that reveal their contemporary relevance (e.g., as in how that precedent applied to a 2005 Wal-Mart dispute). Moreover, what is so stimulating about his book is that Cunningham highlights the law relevant to current business dealings of everyone from Bernard Madoff and Donald Trump to Lady Gaga and Paris Hilton, and 50 Cent, too. There is even a case involving a dispute over the rights to the HBO TV series The Sopranos.
Likewise, Cunningham both identifies and understands the real-world contexts of modern contract law involving everything from electronic transactions and confidentiality of information, to agreements re season tickets subscriptions for sports events, to entertainment contracts, to Amazon’s provider contracts, to any variety of contemporary non-disclosure agreements, et cetera.
In all of these ways and many others, Contracts in the Real World stands alone as a work that ushers the law of contracts into our times.
At the risk of sounding unduly laudatory, this book was a joy to read. Both stylistically and substantively, it is a work of admirable achievement without a real rival. When one offers such acclaim, there is a corresponding obligation to justify it. Hence, permit me to explain my evaluation, at least in summary fashion. Read the rest of this post »
posted by Miriam Cherry
In this blog post, I would like to examine some of the dichotomies in contract theory and doctrine that are noted in Professor Cunningham’s Contracts in the Real World. Some would claim that contract law is revolutionary; others would argue that it is reactionary. Compared to the status relationships of the Middle Ages, in which economic power was primarily determined through feudal or family relationships, contract and market relations promised a more egalitarian alternative.
In the classic text Ancient Law, Sir Henry Maine described the radical transformation from a feudal society governed by custom and hierarchy to one transformed by the industrial revolution, in which socio-economic mobility was not only possible, but which was expected. On the other hand, many today would argue that contract acts as a reactionary force, for enforcing bargains strictly as written could result in reinforcing the power imbalances that already exist in society.
Contracts in the Real World notes these dichotomies and strikes a middle ground between them. Prof. Cunningham characterizes the schism in contract law as a dispute between formalists and realists. This schism, he posits, applies even to foundational matters, such as the question of whether a contract has been formed. Prof. Cunningham notes that extreme formalists would champion a return to the days of the seal and enforce only those deals that meet the strict definitions of offer, acceptance, and consideration.
Realists, on the other hand, favor scrutinizing the context of every bargain, accepting the most informal of deals and even enforcing promises to make gifts as contracts. Thus the dichotomy between formalists and realists turns into a debate over the extent of government or court involvement in private ordering.
Throughout the book, Prof. Cunningham walks a tightrope between these positions, often making reference to contract law’s “sensible center,” and noting that with many common problems, the rules that have evolved over the years make a good deal of sense. In essence, he makes a case for the status quo, eschewing reform in either the direction of more government interference in contract, or government withdrawal from contract.
Prof. Cunningham suggests that current law strikes the proper balance between two rather extreme positions. The book extols the earthy pragmatism of old precedents and wise judges, and suggests that these doctrines will ultimately win out and reach a balance. In my next blog post, I will question whether this assertion holds true in the context of technological change.
Miriam Cherry is Professor of Law at Saint Louis University School of Law. Some of her scholarship can be found at this link on SSRN.
posted by Tom Lin
Thank you to our hosts at Concurring Opinions for inviting me to participate in this online book symposium. It is a pleasure for me to discuss Larry Cunningham’s engaging new book on contracts.
The title of Larry’s new book is Contracts in the Real World. Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real. The alternate universe that most readily comes to mind is law school. Contracts in the real world exist in partial contrast to contracts in law school.
Contracts in the real world bind parties and counterparties to one another. Contracts in law school bind students to casebooks and laptops. Contracts in the real world frequently revolve around compensation, obligations, and duties. Contracts in law school frequently revolve around precedents, arguments, and defenses. Contracts in the real world are about contracts. Contracts in law school are about cases about contracts. Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.
Larry’s book serves a bridge across this gulf. Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world. Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.
The conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online. Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.
posted by Danielle Citron
Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws. There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward. Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate. As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school. Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed. Of the book, esteemed legal historian William Nelson (NYU) writes:
One of the best books ever written on American legal education. Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history. First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school. Second, it documents the factors that produce greatness in a law school. Third, it traces a conflict over the funding of law school. No other work has addressed these issues in depth. Kaczorowski has done a remarkable job.
posted by Kyle Graham
Chapter One: A Field Guide to the American Law Professor
Success while “on call” requires, as a threshold matter, an understanding of the different types of American law professors you may encounter in the field. . . . There exist five principal species. Each can be identified by the distinctive manner in which it calls on students, if at all. The first three species fall within the Socratus genus; the last two occupy genera of their own . . .
The Alphabetical-Order Professor (Socratus Abcdelis): As its Latin name connotes, this species of law professor calls on students in alphabetical order. (There also have been unconfirmed sightings of a subspecies of Socratus Abcdelis that calls on students in reverse alphabetical order.) Members of this species are relatively harmless, since their call order is simple to predict. Furthermore, once a member of this species has interacted with a student, it rarely initiates a repeat contact. WARNING: These creatures tend to grow dangerous when they encounter unprepared students. Also, if a member of this species forgets to bring its enrollment roster to class, it may mutate into the far more unpredictable Socratus Chaotis, discussed below.
The Panel Professor (Socratus Panelis): This species of professor prefers to divide its classes into several “panels,” of which only one will be on call at a given time. Like Socratus Abcdelis, there exist few reports of fatal injuries due to contacts with this species, since students can anticipate these encounters and prepare accordingly. As with Socratus Abcdelis, the greatest danger associated with this species involves the efforts of other students to avoid them. Cases have been reported where seemingly “safe” students have been placed on call due to the sudden, unanticipated absences of several peers situated alphabetically ahead of them, or the entire remainder of a large on-call panel. For advice on how to handle an emergency situation of this type, see Chapter Eight, “Threading the Needle: Reconciling ‘Passing’ with Getting a Recommendation,” and Chapter Eleven, “How to Exit a Classroom Silently.”
The Random-Order Professor (Socratus Chaotis): Whereas Socratus Abcdelis and Socratus Panelis tend to seek out and cultivate orderly habitats, Socratus Chaotis thrives on the uncertainty created by a random calling scheme. The unpredictable behavior of this species forces students to choose among three unpalatable options: (1) full preparation for each and every class; (2) skipping all classes until the semester is at an end (a.k.a. “playing dead”); or (3) initiating preemptive contacts with Socratus Chaotis at instances of the student’s choosing, with the hope that the professor will tire of these encounters and move on to other students. Unfortunately, this last strategy fails to recognize that members of Socratus Chaotis often possess poor memories, and have been known to call on the same student at several different junctures across a semester, even as they seem to entirely forget about other students in a class. This last point also represents this species’ saving grace; it is far more likely that a student will not be called on at all in a class taught by a Socratus Chaotis, than in a class taught by either a Socratus Abcdelis or a Socratus Panelis.
The Occasional-Question Professor (Semisocratus Spontaneosis): This species of professor does not fit neatly into either the Socratus genus discussed above, or the Verbosis genus related below. Members of Semisocratus Spontaneosis gravitate toward pure lecturing (the defining characteristic of Verbosis Oxfordis), but, in rare instances, also initiate contact with students. Typically, this interaction takes the form of spontaneous, open-ended questions that invite the careful evaluation of a complex hypothesis that the specimen has painstakingly laid out over the preceding half-hour. While these questions appear daunting, recently, scientists have developed a number of potential responses capable of application to virtually any such inquiry. Among them, “I agree with what you said earlier,” and “I agree with what you wrote on this topic” show special promise for even the most unprepared student.
The Lecturing Professor (Verbosis Oxfordis): Members of this genus fall outside of the scope of this Guide. For those of you who nevertheless wish to contribute to lectures given by this species of professor, we suggest that you check out our companion volumes, The Law Student’s Guide To Brownnosing and The Law Student’s Guide To Unpopularity.
Next: Excerpts from Chapter Four, “Stalling.”
posted by Michael Kang
While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics. First, something about Paul’s post. Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.” He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship. Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.
I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field. In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase. According to Zaller, “Every professional group wishes, if possible to have as much business as possible. Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”
As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand. Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition. Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.” In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.
You can see how Zaller’s ideas generalize to academic scholarship. Read the rest of this post »
posted by Lawrence Cunningham
Welcome all first-year law students to the wonderful world of law! I teach Contracts at George Washington University (though I’m visiting at Fordham University this fall). My students find it useful to begin our journey into that subject–which many find can be difficult–with a step back to look at the shape of the first-year law school curriculum.
It has not changed much in a century and does not vary widely among law schools today, from Cooley to Columbia. I also try to be sure to connect the topics and examples appearing in today’s casesbooks (which have also not changed much over time and do not vary from school to school) to current topics in the news. Students at other schools can share in these stories by obtaining a copy of my book, a fun supplement to the Contracts course, Contracts in the Real World: Stories of Popular Contracts and Why They Matter.
Some thoughts about the shape of today’s 1L curriculum appear in the beginning of the book, including the following excerpt. I summarize this for my students on our first day of class to give a sense of why today’s curriculum looks as it does and where contract law fits within it.
The curriculum dates to a legendary figure of nearly a century and a half ago. In the 1870s, C. C. Langdell, as Dean of Harvard Law School, designed a simple way to organize the vast field of law still used to this day. He thought that underlying law’s complexity were a handful of basic ideas. Examining leading cases organized around these ideas would reveal law’s elements and rhythms.
Common law actions, meaning those courts resolve one by one, were of greatest interest to Langdell and dominate many 1L courses, including Contracts. In the United States, following English traditions, common law is developed by state courts as disputes arise. Originally referring to law “common” to all citizens, today this system yields some variation among states, but general principles tend to prevail. Though the common law evolves as society and the economy change, judges draw on precedents when evaluating new cases—under the principle of stare decisis.
Langdell organized the welter of cases on numerous topics according to basic questions: how, what, and why. The question of how isolates the procedures private parties follow when resolving disputes using civil litigation. This is the practice of the lawsuit, arranged into the sub-field of study called civil procedure. Read the rest of this post »
posted by Erica Goldberg
The new semester is a little over a month away, and I have begun reflecting on whether I’d like to change certain teaching techniques from last year to this year. One of my main objectives as a professor is to foster a classroom environment where students feel free to disagree respectfully with each other and with me. One of the main ways to achieve this objective, I had believed, was to express my own personal opinions as little as possible.
This proved to be a difficult task, especially when teaching Criminal Procedure. Criminal Procedure is designed around assertions of constitutional rights based in the Fourth, Fifth, and Sixth Amendments. The Court’s most impassioned (and possibly compelling) language usually focuses on fears of an oppressive government and the importance of privacy rights. From Katz to Miranda to Brown v. Mississippi, students are exposed to police abuses and the need to prevent them. Of course, the importance of effective law enforcement is also highlighted, and the goals of law enforcement and the protections of the Constitution are not always in tension, but the course is very individual-rights centric.
posted by Nicole Huberfeld
Many, many thanks to Dan and the other CoOp regulars for having me back this month. For Court watchers, June can feel like a vigil for the term’s final, big decisions, but this year that tension is heightened in anticipation of all that may occur in Florida v. U.S. Department of Health and Human Services. To wit, SCOTUSblog has issued what is effectively an emergency preparedness plan. I am working on a presentation and a workshop paper for two conferences related to the spending and healthcare action this term and will turn to my favorite topics soon. But, as Gerard noted recently, many are suffering from healthcare reform overload, malaise, exhaustion… . Accordingly, as I am coming up for air after grading 70 Constitutional Law essay exams (what is that, at least a thousand pages of grading?), I am thinking about the semester’s high and low points and ways in which I can improve my classroom performance.
There is nothing like the marathon of grading to initiate this kind of reflection, which I think is a useful exercise before diving into the pleasures of summer research and conferences. I imagine we have all experienced the gratification of seeing that our students have learned something well and rose to the challenge on an exam, and the disappointment of realizing that no one understood a word we said on a particular topic. It can be hard to self-correct during the semester except to clear up the immediate points of confusion (though I do make notes in my syllabus when topics don’t proceed as planned). But, the next year’s students can benefit from the prior year’s lessons, some of which can be learned from student evaluations, and some of which can result from ‘exam reflection.’ Taking a moment to reconsider can result in fruitful actions such as better exams, rewriting part of a syllabus, restructuring a class to introduce material better, considering supplemental materials, or revisiting casebook choices. Sometimes a deliberate choice not to act occurs to see if the issue is a blip or a trend.
In light of these musings, I have two questions, one general, and one more specific to Con Law:
1. Do you use exams to reflect on the success of the semester’s teaching? If so, how? What kinds of issues do you think warrant attention given the limitations of the law school exam structure?
2. Do you provide any background materials that are the equivalent of the civics lessons of yore? Every year I have students come to my office concerned that they will be left behind in Con Law because they know virtually nothing about American history, politics, civics, or the Constitution. My first assignment is always to read the Constitution, which levels the playing field a bit (funny how many poli sci majors think they know everything but have never actually read the document). But, I have yet to find a good, concise background reader for my nervous con law newbies. I don’t think this lack of background affects exam performance, but I would like to find a good resource. Suggestions?
posted by Dave Hoffman
At Prawfs, Bill Araiza laments unprofessional students:
“So, let’s say a student contacts you, wanting to meet with you, his prof. You set the meeting up — Wednesday at 11:00, say. (By the way, these are not actual facts, Wednesday at 11:00 was not an actual meeting time, nor does this question have anything to do with anything that’s happened to me recently. So there.) The student doesn’t show. The student then contacts you later, apologizing and giving, let’s say, what I would consider a bad reason or no reason at all. The student asks for a new meeting date, soon (say, the next day).”
True: law students (like their professors) sometimes behave unprofessionally, and one particularly irritating variant of unprofessionalism is terrible excuses for trivial offenses. Often, the excuse makes the conduct less forgivable. So, I empathize with a “recent graduate” on Bill’s thread, who snarked “I thought professors didn’t really want to hear about my diarrhea/family issue/bad day that made me miss one meeting/class/clinic? I guess I should have been sending much longer, groveling emails.” Indeed, I provide students free participation passes (a limited number in some classes, unlimited in others), but explicitly tell them not to tell me why they are passing. Nonetheless, every year a student will provide an excuse that is so godawful that it makes me feel angry and resentful. Such as: “I was unprepared and forgot to pass because I was watching March Madness, and I plan on being unprepared until it’s done.” (This was not an email I received, but it was close.) I’ve never known what to do with these bad excuses on petty matters. Not one seems significant enough to engage with:
If you write back, making a lesson out of it, you are a crotchety, tetchy, pompous pill.
If you don’t, and internalize the irritation, you will be a crotchety, tetchy, pompous pill.
Basically, a classic collective action problem.