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Category: Law School (Teaching)

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How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

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The Law Talking Guy

I just finished grading my exams from last semester, and I thought I’d make one fresh observation that adds to this post from a few years ago. Perhaps the most frequent mistake that I see on student exams and papers (not to mention some scholarship) is an undue focus on describing the law rather than analyzing it.

It is easy to see why this happens.  Description is safer and easier.  When you are doing analysis, you are on your own.  You might make a mistake.  The result is that on fact pattern questions I often get answers that spend 75% of their time stating what the law is and only 25% applying that law.  If anything, the ratio should be reversed (though not if the exam is asking a pure question of law).

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Sally can’t argue that (on law school exams)

PrintAt most law schools, first year students get back their fall semester grades this week.  This can be a difficult time for students who – often for the first time – are on the bottom half of steep curves.  If you are in that situation, I thought I’d offer one tip that might help you diagnosis a correctable problem with exam-taking technique.  When you get back your exam, and before you look at the model answer, I’d urge you to scan your exam for the following phrases:

  • could argue that; or
  • might argue that; or
  • has an argument…

Every time you see this phrase, highlight it in red ink.  It’s almost certainly leading you down a dark path.

Why is this phrase pernicious?  Because, very often, it signals that you are about to fail to actually evaluate the noted argument. Rather, you will simply list the possibility (in contracts, for example, “A could argue that the correspondence of May 1 was an offer”) and not tell the reader whether or not that claim is a plausible or winning one in court.  Though sometimes professors truly want to see a kitchen sink answer listing every possible claim, most, instead, are testing judgment. Judgment requires one to actually evaluate legal claims, not to list them.  The problem with “argue that” is that it leads you to think that you are actually saying something — implicitly, that the argument raised is plausible? — without articulating the predicate rationale and limiting conditions. I can’t tell you how many times I’ve sat with students in exam reviews, pointed out this phrase, only to have the student tell me that they knew that the argument was a good or bad one, but they failed to put that judgment on the page.  “Argue that” blinds you to your own failure to exercise your situation sense.

The great thing about this tic is that it’s a useful, concrete, red flag for conclusory exam writing, which typically distinguishes average exams from great ones.  If you are working on your computer, you can simply use the find function before handing in the exam to make sure that you haven’t fallen into the trap.  Other tics, like “obviously,” “clearly,” and “certainly,” are similar but aren’t as prevalent on law school exam answers. Eliminating “could argue that” also helps to omit needless words: instead of introducing issues before disposing of them, you can simply fold the analysis into the introductory sentence. Thus: “While the May 1 letter has some of the markings of an offer (it identifies price & amount), it fails to state the timing of delivery and most courts will follow Nebraska Seed in denying formation.”

Now, you could argue that this is all needlessly pedantic mutterings over style points, when the real skills that ought to separate good from bad exams concern doctrine.  But, if you did make that argument, you’d be wrong. Being conclusory – that is, assuming the conclusion in question and failing to analyze why the answer follows from the facts – is the key sin on most issue-spotter exams.  You can learn to be less conclusory over time by training yourself to see it in your writing.  And, if you got bad news this week, spotting conclusory writing before it’s graded will go a long way toward better news in May.

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An Experiment in Paced Learning

As law professors, we have multiple teaching goals. Traditionally, the major goal has been to teach black-letter law as well as the legal reasoning process (how to “think like a lawyer”). On top of that, some observers have suggested that law classes should teach other practice skills. As a professor, I recognize that I don’t have time to do everything. I’ve experimented with some different approaches in the past. For instance, as I’ve written, I’ve tried introducing practice-like exercises in courses. But of course, there’s some balancing required. Our ability to experiment depends on our teaching goals and the time available to dedicate to different projects.

This past semester, I tried something new. After some of my students had less than ideal results in some prior bar administrations, I wanted to prepare students for testing on the material — both the black-letter law, and the testing process. With that focus, I tried implementing a paced learning system. Here’s what I did, and here’s how it worked out. Read More

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Contracts Casebook Survey Results

The frightful stress gripping legal education is one reason why all law professors may be interested in the newly-released results of the Washington Law Review survey of law teachers of Contracts conducted in mid-2013.

Available here, the results from 138 respondents consist of numerical summaries of multiple choice questions and synthesis of their written comments that I culled.  A sampling from the latter appears below.

The results are of inherent interest to those teaching Contracts and speak to broader questions of legal pedagogy of value to others, including the allocation of time in the first year, the utility of the case method of instruction, and desire for change versus the tug of tradition.

(The survey was done in connection with a symposium inspired by my recent book, Contracts in the Real World, which has also just been published, here, featuring contributions from Aditi Bagchi, Brian Bix, Larry DiMatteo, Erik Gerding, Charles Knapp, Jake Linford, and Jennifer Taub.)

Read More

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Cruel and Unusual Puns

Alright, fellow professors, do you have any favorite awful jokes that you inflict on your longsuffering students use to liven up lectures?

I definitely have a set of puns and bad jokes that I draw on. For instance, I tend to start my Perpetuities lecture by noting that “perpetuities are so annoying, there ought to be a rule against them.” (Rimshot.)

But my all-time favorite pun is one that I use at the end of the class on insider trading. After setting out the rule, talking about misappropriation, discussing tipper/tippee liability, running through cases and exercises, I finally note to the class,

“This can create some further complicated issues. For instance, if former VP Al Gore gave material non-public information to his former wife — then she would be both Tipper and tippee.”

Pause. Wait for them to catch it. (This takes slightly longer each year, as ten-year-old politicians fade from memory.) And then smile.

Yep. Definitely the best of the cruel and unusual puns.

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UCLA Law Review Volume 60 Symposium: Volume 60, Issue 6 (September 2013) and Discourse

UCLA Law Review, Volume 60 Symposium

Twenty-First Century Litigation: Pathologies and Possibilities

A Symposium in Honor of Stephen Yeazell

 

Volume 60, Issue 6 (September 2013)
Articles

Complexity, the Generation of Legal Knowledge, and the Future of Litigation Ronald J. Allen 1384
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability Tom Baker & Rick Swedloff 1412
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants Theodore Eisenberg, Talia Fisher, and Issi Rosen-Zvi 1452
Symmetry and Class Action Litigation Alexandra D. Lahav 1494
Atomism, Holism, and the Judicial Assessment of Evidence Jennifer L. Mnookin 1524
Altering Attention in Adjudication Jeffrey J. Rachlinski, Andrew J. Wistrich, and Chris Guthrie 1586
Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper) D. Michael Risinger 1620
Gateways and Pathways in Civil Procedure Joanna C. Schwartz 1652
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists A. Benjamin Spencer 1710
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark Clyde Spillenger 1740
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation Stephen C. Yeazell 1752

 

 

Volume 61, Discourse

Discourse

Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again Nora Freeman Engstrom 110
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action Deborah R. Hensler 126
Procedure and Society: An Essay for Steve Yeazell William B. Rubenstein 136
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict David Alan Sklansky 150
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law Katherine V. W. Stone 164
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Do Canadian Law Schools Care More About Teaching? The Case of the Teaching Dossier

Blame CanadaOne of the first things that people interested in applying to law faculty positions in both the United States and Canada will notice is that the Canadian application requirements are the more onerous of the two.  In this post, I will focus on one way in which the Canadian approach is superior to the American approach, even if it is a bit more burdensome on applicants.

American law schools are generally content to let the capacities of the AALS’s Faculty Appointments Register website dictate their application requirements.  Consequently, they have two requirements for those seeking to obtain an initial interview: a one-page “FAR form” and a C.V.   Even listing these as separate requirements is somewhat misleading; other than the section for Teaching Preferences —  in which applicants list up to five “preferred” subjects and five “other” subjects — everything on the FAR form is also present in the typical C.V.

Compare this to the Canadian application process.  First, there is no Canadian analogue to the Faculty Appointments Register, so applicants send separate applications directly to each school that interests them.  Moreover, the application requirements for each school are considerably more extensive than those for American schools, at least with respect to getting an initial interview.  In addition to a C.V., a Canadian school typically requires the following: a detailed cover letter (or, in Canadian, a “covering letter”) which identifies the applicant’s areas of interest in research and teaching, a detailed research agenda, copies of all law and graduate transcripts, two sample publications, and a teaching dossier.   While applicants might grumble about having to find their old transcripts, they still have the comfort of knowing that they  will eventually have to provide almost all of those items to the American law schools that decide to interview them anyway.   But not that last item — the teaching dossier. What is a teaching dossier?  What are they all aboot?

It is a mistake is to assume that the teaching dossier is the Canadian equivalent of the FAR form’s Teaching Preferences section.  One does not simply list ten courses and consider it a teaching dossier.  Just a little online digging reveals a host of Canadian websites and workshops designed to walk people through the process of writing one (e.g., Toronto, Victoria, the Association of Universities and Colleges of Canada).   It does not take long to realize that a dossier is not something that can be dashed off; the Queen’s University manual is nearly 50 pages long, and that might be even shorter than the instructions on the University of Toronto’s website.

Though I did not do a comprehensive survey, there is considerable uniformity among these guides.   Generally, they recommend that dossiers have four main components: (1) Approach to Teaching (your teaching philosophy); (2) Summary of Teaching Responsibilities and Contributions (courses you have taught, methods you have used); (3) Evidence of Teaching Successes (course evaluations, analysis of the results of your teaching innovations); and (4) Professional Development (continuing education, mentorship).

The consistency in format might be a byproduct of the fact that a pedigreed source, the Canadian Association of University Teachers (CAUT), was the first to call for them, and its call became a focus of academic attention for several years before widespread action was taken.  In the 1970s, a CAUT committee  headed by Bruce Shore rallied around shared dissatisfaction with the practice of using student course evaluations as the primary metric for evaluating teaching quality.  The committee wanted professors to be evaluated by “a summary of a professor’s major teaching accomplishments and strengths” as evidenced by multiple sources of information.  Thus, the initial appeal of the dossier was that it accorded to professors the opportunity to put their best feet forward even in the face of less-than-stellar student evaluations.  It gave them a chance to supplement those evaluations with justifications of teaching methods and goals, as well as personalized accounts of teaching successes.

Canadian schools did not warm up to dossiers until the early 1990s, after some American academics (e.g., Peter Seldin) and organizations such as the American Association of Higher Education picked up on CAUT’s idea.  To quote a legendary Canadian troubadour, “Isn’t it ironic?”   Since taking the idea back from the Americans, Canadian schools have run with it, outpacing  CAUT’s original ambitions.  For example, the original CAUT Guide recommended that dossiers be three pages long, but now the typical size is between six and twelve pages.  Appendices can bump that total into the sixteen-page range.  Although it is an outlier, one school saw fit to set a maximum of thirty-five pages, with a maximum total of twenty pages in appendices.

Today, the teaching dossier is not simply a way for professors to insulate themselves from the consequences of unfair student evaluations, it is also a way for faculties to get aspiring academics thinking about how to develop coherent and effective teaching strategies.  When an applicant is forced to put as much effort into a teaching dossier as she put into a research agenda, it can lead her to believe that the employer values those two dimensions more or less equally.

It is fair to wonder whether the fact that American law schools do not require applicants (or even junior faculty in most cases) to draft teaching dossiers is a sign that they do not care as much about teaching as do their Canadian counterparts.  It is possible, of course, that American law schools value teaching just as highly but fear that making teaching dossiers a necessary part of their applications would be too burdensome.  Along similar lines, they might believe that applicants do not yet know enough about teaching to make the completion of a dossier worthwhile for either the applicant or the hiring committee.  And to be fair, some Canadian schools require dossiers from applicants only “where appropriate,” meaning perhaps that those without teaching experience need not provide one.  Whatever the merit of these arguments, there is a growing sense that American law schools must do a better job responding to the demand for excellent teaching.  This sense is potentially at odds with reality; as there are law schools, such as my own, where teaching is of paramount importance in promotion and tenure decisions and where tremendous effort is put into classroom observation and evaluation. Still, making the teaching dossier a part of the application process is a low-cost  measure that could send the signal that law schools are taking teaching seriously.  And it might make better teachers too.

For those interested in learning more about the history of teaching dossiers, consider reading Christopher Knapper’s, The Origins of Teaching Portfolios, 6 Journal on Excellence in College Teaching 45–56 (1995).

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ABA Task Force on Legal Education: Down with Status

aba status merceGood news for law professors now submitting articles seeking offers from high-status journals: the importance of status in American law schools is over-rated and is about to be reduced. At least that is the urging of an American Bar Association Task Force Working Paper released last Friday addressing contemporary challenges in U.S. legal education.

Obsession with status is a culprit in the woes of today’s American law schools and faculty, the Working Paper finds.  It charges law professors with pitching in to redress prevailing woes by working to reduce the role of status as a measure of personal and institutional success.  The group’s only other specific recommendation for law faculty is to become informed about the topics the 34-page Working Paper chronicles so we might help out as needed by our schoools. 

Much of the rest of the Working Paper is admirable, however, making the two specific recommendations to law faculty not only patently absurd but strange in context.   After all, the Working Paper urges reform of ABA/AALS and state regulations with a view toward increasing the variety of law schools. It calls for serious changes in the way legal education is funded, though it admits that the complex system of education finance in the U.S. is deeply and broadly problematic and well beyond the influence of a single professional task force.

The Task Force urges US News to stop counting expenditure levels as a positive factor in its rankings.  It stresses problems arising from a cost-based rather than market-based method of setting tuition. It notes a lack of business mind-sets among many in legal education.  It questions the prevailing structure of professorial tenure; degree of scholarship orientation; professors having institutional leadership roles; and, yes, faculty culture that makes status an important measure of individual and institutional success.

But amid all that, law professors have just two tasks: becoming informed and demoting status.  So there must be some hidden meaning to this idea of status as a culprit and the prescription for prawfs to reduce the importance of status as a measure of success.  I am not sure what it is. The Working Paper does not explain or illustrate the concept of status or how to reduce its importance.

I’ll to try to be concrete about what it might mean.   Given the other problems the Task Force sees with today’s law faculty culture (tenure, scholarship and leadership roles), I guess they are suggesting that faculty stop making it important whether: Read More

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Incorporating Skills Training in Substantive Courses

Historically, skills training was not part of the education students received in law school. Things have changed, of course, and recently many have emphasized the need for practice-ready law grads. Incorporating skills training in substantive courses offers one promising option for improving students’ education. I’m prepping Sales (UCC Article 2) for the fall, and the course seems to lend itself well to a more skills-oriented approach. I plan to use problem-solving exercises and assignments which will not only teach students the law governing sales of goods, but will also enhance their statutory and contractual interpretation, drafting, and client-counseling skills. I have extensive experience litigating contractual disputes, so I know these skills are essential for commercial litigators. And they seem equally important to transactional lawyers.