Archive for the ‘Law School (Teaching)’ Category

Picking up where we left off…

posted by Nicole Huberfeld

My heartiest thanks to Dan for letting me stick around for another month.  I would like to renew the request I made here for thoughts on mentoring.  Though I appreciated the responsive post and comments that Paul Horwitz generated over at PrawfsBlawg, it did not create the kind of feedback that would allow me to facilitate more information about mentor/mentee opportunities.  So, please feel free to email me or comment here, and I offer again to aggregate any information I receive.

  January 4, 2012 at 12:46 pm   Posted in: Law School (Scholarship), Law School (Teaching)   Print This Post   One Comment

Adviser? Teacher? Sage? What is a mentor?

posted by Nicole Huberfeld

I think most of us engage in informal mentoring of our junior colleagues as new hires enter the academy, but I recently have taken on more formalized roles that have me pondering what it means to be an effective mentor.  Is it a matter of providing navigational guideposts for advancement toward tenure?  Advice about publishing strategies?  Providing a friendly eye for early drafts?  Teaching aid and advice?  Support for other decision-making, such as child-bearing, and attempting the elusive ‘work-life balance’?  I think mentoring can be all of these things, depending on the mentee’s personal and institutional needs, but I started to question my own assumptions when asked during a panel at SEALS last summer whether anyone really needs a mentor.  My gut reaction was yes, especially for women, minorities, and those who did not attend the usual professor-generating law schools (which are simply better at facilitating connections in the academy).  But, it seems like not many receive the kind of mentoring they desire.  Of course, some formalized inter-school mentoring opportunities exist, such as the annual SEALS conference, which is terrific for matching new scholars with mentors who provide substantive feedback.  Also, the AALS Women in Legal Education Committee has its own website, which is designed to facilitate mentee cold-calling of mentors who look to be a good match (which may be a unique approach).

All of that said, CoOp readers, what do you think makes a good mentor?  What are junior academicians seeking in this context that they can’t find?  And, what other mentoring opportunities are out there?  I would be most grateful for comments either here or by e-mail.  Finally, I would be happy to aggregate information and post it (if enough flows my way before the end of the month).

  December 28, 2011 at 12:29 pm  Tags: academia  Posted in: Law School (Scholarship), Law School (Teaching)   Print This Post   No Comments

Does the Secured Transactions Course Make Sense?

posted by Dave Hoffman

I’ve never taught Secured Transactions, so I’ll start by saying that the following is purely speculative and subject to correction.

We had a job candidate come through at some point this Fall who generally is interested in the field of commercial law.  That person mentioned in passing that although they were more than willing to teach the traditional secured transactions course, in their opinion it wasn’t well structured.  Why? Not, as the navel-gazer might imagine, because the field of commercial law is supposedly intellectually dead.  Rather because the traditional secured transaction course is too narrowly conceived — it usually is limited in coverage to personal property security interests under Article 9.  But many security interests that matter to lawyers aren’t held on movable property.  Since secured is ordinarily the foundational course for the commercial curriculum, students are left starting on too narrow a footing in understanding bankruptcy and bank regulation.  It’s even worse than having a corporations course that excludes LLCs.  Because of its technicality, ST is traditionally so difficult to teach that many students are turned off to the idea of commercial law practice at all.

Again, I don’t know much about this area of law.  I never took ST in law school, I haven’t taught it, and (worse) I haven’t even read a ST syllabus at my current institution.  But it struck me as an interesting thought, at least worth airing.  It’s related to concerns I have about the general corporate curriculum — is “corporations” really a subject that ought to be taught in a single course, or is it really a merger of too many (or too few) legal principles that have glommed together over time.  It’s also related to concerns that one might have about continuing to use the increasingly outdated, purportedly uniform, UCC to teach when States’ adopted versions are moving ever-further-away from that ideal.

  December 2, 2011 at 11:54 pm   Posted in: Bankruptcy, Contract Law & Beyond, Corporate Finance, Corporate Law, Law School (Teaching)   Print This Post   15 Comments

“Mentoring” versus “Scamming”

posted by Dave Hoffman

Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968).  In Vokes, a “widow of 51 years”¹ sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise.  She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement.  She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.

It’s a good teaching case.  But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.²  But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

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  November 22, 2011 at 11:27 pm   Posted in: Contract Law & Beyond, Law School, Law School (Scholarship), Law School (Teaching), Law Student Discussions   Print This Post   40 Comments

“The first thing we do, let’s [train] all the lawyers.”

posted by Jeffrey Kahn

David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering.  Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians.  (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.)  Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research.  I also reject Segal’s essentially anti-intellectual critique of research.  Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case.  That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law.  The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one.  Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law.  Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism.  Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research.  But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms.  That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.

  November 20, 2011 at 8:55 pm   Posted in: Education, Law Practice, Law School (Scholarship), Law School (Teaching), Uncategorized   Print This Post   7 Comments

Job Talk Alternatives?

posted by Dave Hoffman

The hour-long job talk is the market standard measure of a candidate’s presentation skills.  As Solove explained,  ”[i]t begins with the candidate lecturing for about 20 to 30 minutes and is followed by about 30 minutes of Q&A.”  There are advantages to this format: it permits the candidate to get his or her thesis on the table before being interrupted by faculty, who, being who they are, aren’t accustomed to listening to other people talk and who would otherwise interrupt with the first thought that pops into their heads.  There are disadvantages as well — a shorter 20 minute grace period may be insufficient to make any particularly complex argument; a longer 30-40 minute speech risks boring the room.  Plus, to the very limited extent that the job talk is a good predictor of how well a candidate will teach, longer talks are particularly unrepresentative of a well-functioning and open classroom.

I thought I’d ask the audience whether they know of truly different models.  I know that in 2004, when I was on the market, Lewis and Clark had candidates speak to a full room of students and faculty (75+), with no constraints that I can recall on the Q&A.  (My god did I bombed that talk!)  Conversely, I’ve heard that some schools permit questioning from the first minute, but insist that all comments until the 30 minute mark be merely clarifying.  Whether and how that rule is enforceable is beyond my ken.  Some schools are rumored to entirely ban powerpoint.  Others, I hear, ask the candidates to teach as if they were talking to a classroom of law students.

But these are largely rumors.  Does anyone know of different models and have thoughts about what works particularly well?

I’ll add that I’d prefer that the thread not devolve into a criticism of the idea of job talks — though I agree with the critique in many respects.

  October 18, 2011 at 10:27 pm   Posted in: Law School (Hiring & Laterals), Law School (Scholarship), Law School (Teaching)   Print This Post   9 Comments

No More Fire, the Water Next Time

posted by Dave Hoffman

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters.  As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:

“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”

Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse.  Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.  As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial.  But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.

I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it.  But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.

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  August 29, 2011 at 3:52 pm   Posted in: Articles and Books, Law School, Law School (Teaching), Philosophy of Social Science, Sociology of Law, Supreme Court   Print This Post   11 Comments

Our Bar . . . is . . . an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are still coming.

posted by Dave Hoffman

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – just look at the continuing number of lemmings pounding at the gate!”, or “of course our scholarship is consequential, let’s count the citations”; or, “no one ever promised that a JD was a job guarantee!”; or, “what’s their BATLS?” [The last is a truly obscure negotiation joke if there ever was one.]

For reporters, it feels like the scene in the Wire when they are talking about what to cover in the coming year. Sure, you could talk about complexity and globalization and economic markets and the changing nature of legal practice.  Or you might talk about the relationship between ABA regulation, thoughtless paternalism, and resulting distributional inequalities in education.  But that’s a set of sprawling stories – lacking an obvious villain to muckrake.  Rather, then, the news blames the dickensian aspect of law schools.  Reporters write articles that stir the pot, but aren’t recognizable to insiders, making them less likely to actually motivate change.

Last, not least, the practicing lawyers often articulate resentment toward ivory tower academics who ignore the realities of “trench lawyering”. (This happens even when the “academics” in question are actually practicing lawyers.)  Basically: impractical law professors versus practical lawyers.

Why does this “debate” feel so tired?  I have a partial hypothesis: because we ignore history. I had a great research assistant, Alex Radus, collect quotes about the ferment about legal education in the 1930s-1940s.  (Which is highlighted in Prosser’s famous 1948 speech to Temple’s law faculty, Lighthouse No Good.“)  After the jump, you’ll see some fantastic quotes from that era and before, which remind us that “what has been will be again / what has been done will be done again /there is nothing new under the sun.”

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  August 4, 2011 at 12:01 am   Posted in: Law School, Law School (Rankings), Law School (Scholarship), Law School (Teaching)   Print This Post   7 Comments

Understanding Intermediaries in Payment Systems — Introducing Liquidity to Law Students

posted by Marc Roark

So as I noted a few days ago, one of my annual rites of passage is returning to the University of Missouri each summer to teach Modern Payment Systems.  (Its always interesting to hear different people recall what the course was called when they were in law school — commercial paper, negotiable instruments, Commercial Payments, but I digress). This year, I decided to do something I have not ventured to do — teach the class through an article that I am writing on the role of payment intermediaries in consumer transactions.  (As an aside, I believe the material came across far more dynamic).

Each year, I introduce the course by starting with the central policies of liquidity and certainty as pillars of all payments systems.  Students that have had an economics background know certainty as the legal cornerstone to efficiency — but fewer students understand what liquidity is beyond the pale of converting something to cash; they don’t for example understand that liquidity can mean enabling something with cash-like qualities.  To explain liquidity (one of the central promises of negotiability) I turned the class into a mini-bazaar.  As a condition of staying in the class they must barter something to me in exchange for a cup full of M&M’s.  By exchanging goods, I tell them, we have established economic worth and created new wealth — I know my cup of M&M’s is worth a highlighter, bookmark, Lexis Flash Drive, or Starbucks card as the case may be. But, our economy has a problem — there is no certainty in the transaction.   A cup of M&M’s might be worth a highlighter to one, a flash drive or Starbucks Card to the next person.   The economy is far too personal to be effective as a predictive wealth creation tool.

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  July 8, 2011 at 11:16 am  Tags: Commercial Law, Payments Systems  Posted in: Law School (Teaching), Uncategorized   Print This Post   2 Comments

F.M. LaGuardia and Lawyers In the Way

posted by Lawrence Cunningham

As a law professor and lawyer, I like law and lawyering. But I hate as much as the next guy when lawyers get in the way of people trying to do business. 

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, including American, Eastern, PanAm, and United. 

The  letter’s ultimate paragraph and final words speak volumes to my point, and the letter as a whole is vintage piece of written communication.  Read the rest of this post »

  June 29, 2011 at 5:12 pm   Posted in: Law Practice, Law School (Teaching), Teaching   Print This Post   7 Comments

Age Is More Than a Number: Viewing Our Students Through Generational Research — Book Reviews of Twenge’s Generation Me and Twenge and Campbell’s The Narcissism Epidemic

posted by Heather Garretson

Jean M. Twenge & W. Keith Campbell, The Narcissism Epidemic (Free Press 2010).

Jean M. Twenge, Generation Me Why Today’s Young Americans Are More Confident, Assertive, Entitled – and More Miserable Than Ever Before (Free Press 2006).

As any good lawyer knows, successful communication depends on knowing your audience.  Are today’s law students really more demanding than ever, or are professors becoming part of the old get-off-my-lawn mind set?  Are we sending law firms self-absorbed graduates who refuse to sacrifice a social life for a career, or are law firms hiring graduates who are simply more confident in vocalizing the need for a work-life balance?  Many of the answers to these types of questions may be found by understanding the character of our students. Jean Twenge’s book, Generation Me (Free Press 2006) and the follow-up book with co-author W. Keith Campbell, The Narcissism Epidemic (Free Press 2010) examine the dominate age group of our students – twentysomethings.  While the books are not about the character of law students per se, Generation Me is specifically about the character of those who make up a majority of our classrooms.  As a disclaimer, I note that I too am(barely) a member of the group Twenge researches and names “GenMe.”  As a member, reading Generation Me did more than educate me on my students’ influences and attitudes.  It also revealed much about the forces that were likely influences on my personal and professional decisions.

Generation Me is a thoroughly researched book, full of statistical information that tells us what we already know about our students and so much more.  It gives insight into the beliefs, biases, and behavior of its subjects and is therefore worth reading for anyone who deals with members of GenMe.  One of the observations Twenge highlights is that informality in school and the workplace is the new norm.  This finding is backed by studies and illustrated through anecdotes – like the Northwestern University women’s lacrosse team wearing flip-flops to the White House (p. 17-18).  This is not to say that you have to allow baseball caps in your classroom, but it does give a reference point to professors who encounter students who are surprised when baseball caps are not allowed.  Many more findings provide relevant context for our student population.  Cheating in school is on the rise (p. 27), as is the use of shocking language (p. 40), and grade inflation (p. 62).  In decline is the use of titles, calling a boss “Linda,” for instance, rather than “Mrs. Smith” (p. 29) and the belief that there is one right way to do things (p. 26).  This last finding may explain why there is resistance when teaching students to “think like a lawyer.”

Generation Me makes wide brush strokes about its members but backs its findings with research.  Much of the book’s allure comes from these detailed statistical findings.  It does not provide a light cultural observation – there is no “kids these days” aspect to it.  Rather, Generation Me outlines specific data that walks the reader through thirty years of cultural changes and how those changes affected people who grew up in this timeframe.  Particularly enlightening to educators is Twenge’s demonstration of the affect of the self-esteem curriculum (p. 53).  Self-esteem, once an “obscure academic term,” has not produced its desired outcome.  Teaching self-esteem, the theory went, would increase student performance.  Actually teaching self-esteem, however, has not produced increased ability, only increased self-esteem.  Data collected from students born in the 1980s shows a sharp uptick in self-esteem.  The average kid in the 90s, smack in the middle of GenMe, had higher self esteem than 73% of kids in 1979 (p. 53).  This increase in self-esteem is attributed to self-esteem curriculum and cultural messages that tell students they are, regardless of their actions, lovable, great, and important (pp.53-60).  The message was inundated into the culture in the 90s and as a result, we have young adults who were raised to find value in themselves rather than in what they provide.  The statistics show that these students tend to find value in their performance simply because they provided it and not because the performance itself has intrinsic worth (pp. 62-65).  GenMe received a message that feeling good about yourself is more important than good performance (pp. 56-57).

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  June 7, 2011 at 1:48 am   Posted in: Book Reviews, Law School, Law School (Teaching)   Print This Post   3 Comments

Grading & Politics

posted by Dave Hoffman

Partisan Grading, a new paper by Talia Bar and Asaf Zussman, reports a striking empirical finding:

“We study grading outcomes associated with professors in an elite university in the United States who were identified using voter registration records from the county where the university is located as either Republicans or Democrats. The evidence suggests that student grades are linked to the political orientation of professors: relative to their Democratic colleagues, Republican professors are associated with a less egalitarian distribution of grades and with lower grades awarded to Black students relative to Whites.”

This kind of observational dataset is subject to many different methodological attacks – including, crucially, claims of self-selection and therefore reverse causation.  (For a sample of other concerns, check out this generally good VC comment thread.)  But let’s assume that there’s some “truth” there: what’s the mechanism?

I doubt very much that partisanship is the right story, since party affiliation is (even now) a blanket masking many ideological views. Rather, partisanship overlaps with other values that do correlate well with preferences for the distribution of social goods like grades — the cultural world-views that Mary Douglas famously described.  It isn’t surprising that professors’ general world-views influence their perceptions of what kind of “curve” is appropriate – and, therefore, how grades ought to be distributed. This leads to to some different communication strategies for those of you who might be working on grading reform.  (I once was on such a committee. Never, never again. But it did produce some blogging.) At a structural level, if grade distribution is more ideologically based than it first appears, a stable system will probably have to be more permissive of deviation than I might otherwise have expected.

  June 2, 2011 at 3:21 pm   Posted in: Law School (Teaching)   Print This Post   One Comment

Insight From San Franciscans

posted by Ari Waldman

Greetings from San Francisco. I am here delivering a paper and chairing a panel at the Law & Society Conference (both are about technology, but more about that in a future post) in a fortuitous bit of travel that makes posting about the circumcision ban apropos. Alas, my amazing colleagues on this site have spoken so well on this topic that I was content to offer my thoughts to my regular Towleroad readers yesterday. The post was mostly about the federal constitutional arguments should the ban pass, but the topic elicited high pitched emotions from the small sampling of the gay community that has the time and inclination to post comments online.

Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and that’s not even including those who simply attacked the motives of their opponents and used the kind of rhetoric that Dave Hoffman advised against here. Circumcision may have special cultural significance in the gay community, but if so, that’s news to me. So, I decided to test the theory.

When the post reached near 100 comments, I took a friend to the Castro district, a historic gay enclave, put on a nice shirt and my best smile and asked random passers-by about their opinions on the ban. In a few hours, I spoke to nearly 85 people, 80 of whom identified as gay, lesbian, bisexual or transgender. My friend spoke to 53 people, all of whom identified as LGBT. (By the way, that shocked me, as well. Does no one else visit the Castro? Or did we subconsciously self-select? Or were gay people drawn to a gay guy?). I asked very simple questions:

1. Do you support the proposed ban on circumcision of males under the age of 18?

2. Why? What’s your reasoning in one or two sentences?

This sample is also small and I could not very well ask Likert questions and do a regression analysis in time, so we must take the results with a healthy dose of salt.

Of the 133 LGBT respondents, only 19 supported the ban. The quantitative and qualitative results conformed to my expectations.

The 19 in support used words and phrases like “male genital mutilation,” “like the horrors of rape,” “Jews need to modernize,” “trauma,” “I will never forgive my parents,” “dehumanizing,” and so on. A few also decided to register their personal sexual preferences.

The 114 opposed to the ban used words and phrases like “parents should decide,” “parents make decisions for their children all the time,” “its not a big deal,” “why do we have to keep banning [bleep],” “live and let live,” “if someone wants to do it, who am I to say no,” “why should I get involved in how you raise your children.” More than a few also registered their personal sexual preferences, but there was little correlation between those who volunteered that they were circumcised, or preferred circumcised partners, and those who opposed the ban.

I expected this libertarian streak, if only because I see it in my students when I teach gay rights. Students who support marriage equality, for example, offer libertarian legal and policy arguments as to why marriage equality is constitutional and why it is a good idea. They decry conservatives’ interest in what they, or their gay friends, do in their bedrooms. They wonder how marriage equality can really affect anyone else. These views and questions make sense, and while I have some sympathy for the perspective, I always push back for pedagogical purposes, to make them offer constitutional and precedential arguments rather than just giving me their policy preferences and because it is hardly the best argument for marriage rights.

Libertarianism is like a Monet: it seems awesome from afar, but the devil is in the details. I find myself fighting against its implications in my scholarship and in conversations with students.

In your teaching experiences in any subject area, do you see increasing libertarianism in your students? For those who teach classes about minority and gender rights, are your students libertarians?

  June 2, 2011 at 12:34 pm   Posted in: Culture, First Amendment, Law School (Teaching)   Print This Post   4 Comments

Teaching Materials for Practicum Courses

posted by Jessica Erickson

You would have to live under a rock not to know that law schools increasingly feel the pressure to teach practical skills. Law schools can no longer teach doctrine and count on law firms to teach new lawyers the skills they need.  As a result, many schools are starting to incorporate practicum-style courses into the curriculum. These courses allow students to learn litigation or transactional skills in the classroom by working on simulated cases or transactions.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of practical skills, including how to untangle financial statements, read complex statutes, and draft various case materials. It looked so good in my head. Then I actually tried to put together the course. There was no textbook. There were no model exercises. There was no anything… I spent a crazy amount of time putting together a course packet, coming up with weekly drafting assignments, and thinking about how to teach the skills I thought my students would need. I hesitate to say exactly how much time out of fear of scaring away others, but I still have flashbacks of sitting at my kitchen table for days on end trying to come up with creative fact patterns and drafting exercises.

At the end of the day, I was able to put together the materials for a course called Corporate Fraud & Litigation. I have taught the course twice now, and I really love it. But the preparation continues. I still develop new graded exercises every year out of fear that last year’s students will pass on their answers to this year’s students. The end result is that I spend significantly more time preparing for this course than for my other two courses combined.  I am currently contemplating a complete overhaul of my course, but I have to admit that the massive work involved gives me pause.

I wonder whether the reality of having to prepare these materials—and then prepare many of the exercises anew every year—is holding back the development of these courses.  Read the rest of this post »

  May 5, 2011 at 8:03 pm   Posted in: Corporate Law, Law School (Teaching), Teaching   Print This Post   6 Comments

Transgender Students in a Socratic Classroom

posted by Dave Hoffman

Some colleagues recently gave an interesting presentation about transgender students in the law school environment.  A baseline they advanced seemed sound: address people using the name and pronoun that corresponds to their gender identity. That means if someone identifies as a man though the school records that person as a woman, you ought to address that (trans)man as a male.  Failing to do so is hurtful – and adds unnecessarily to the stress of law school.  And, really, why not?

But here’s a problem, and I wondered if you folks had experience with it and have come up with good solutions.  Some students – I learned – prefer to be referred to by gender neutral pronouns, like zhe and hir.  But there doesn’t seem to be an analogue for the honorifics Mr. and Ms., meaning the formal socratic teacher is quickly forced to make a choice.  So let’s say you didn’t want to insult transgender students on the first day of class, and you walk in prepared to call on folks more-or-less-randomly.   I have considered circulating a class list before beginning to teach. I’ve also thought about just using last names — “Dave Hoffman, are you here?  Good.  Hoffman, please state the facts of Jacobs and Young.”  That approach, though, seems a bit aggressive & impolite.  What would/do you do?

  May 4, 2011 at 11:50 am   Posted in: Law School (Teaching)   Print This Post   16 Comments

Business Basics for Law Students

posted by Jessica Erickson

Thanks to Dave and the other folks at Concurring Opinions for inviting me to blog this month. I plan to write about two topics close to my heart: corporate law and the law school curriculum.

I want to start with a topic that combines both of my passions. Over the last four years, I have taught many students who develop an interest in corporate law after spending their undergraduate years studying philosophy, political science, or other non-business subjects. These students all worry that they do not have the business knowledge to succeed as corporate lawyers. It is easy to tell them that they will learn on the job, and certainly that is true to some extent, but I wonder if law schools should be doing more to introduce students to basic business and finance concepts.

I have often struggled with how to teach my students these concepts. On one hand, our job is to teach law. Teaching students about venture capital funding or accounting rules is arguably beyond this purview, at least unless a case deals directly with these concepts. On the other hand, I want to prepare my students to be lawyers, a task that requires teaching more than just the black letter law. I would hate to send my students out into the world with a strong understanding of Revlon and Unocal, but with no understanding of the business issues underlying basic M&A transactions.

The conventional approaches to teaching these skills have always seemed unsatisfying to me. Read the rest of this post »

  May 2, 2011 at 11:56 am   Posted in: Corporate Law, Law School (Teaching)   Print This Post   12 Comments

More Data on Classroom Laptop Use

posted by Sarah Waldeck

Jeff Sovern of St. John’s University School of Law recently conducted a research study that observed student laptop use in 60 sessions of various law school courses.  Although the study contains some methodological limitations (which Professor Sovern fully acknowledges), it is another window into how laptops affect classroom dynamics.  The full article can be found here and Professor Sovern’s abstract is reproduced below:

This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. Some findings:

 •More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class purposes far less: only 4% used laptops for non-class purposes more than half the time while 44% were never distracted by laptops.

•Students in exam courses were more likely to tune out when classmates asked and professors responded to questions and less likely to tune out when a rule was discussed or textual material read in class.

 •For first-semester students, policy discussions generated the highest level of distraction while displaying a PowerPoint slide which was not later posted on the web elicited the lowest level.

 •With some exceptions, what was happening in the class did not affect whether upper-year students tuned out or paid attention.

• The format used to convey information – lecture, calling on students, or class discussion – seemed to make little difference to the level of attention.

 •Student attentiveness to the facts of cases is comparable to their overall attention levels.

The article speculates that student decisions on whether to pay attention are responses to the tension between incentives and temptation. While the temptation to tune out probably remains constant, ebbs and flows in incentives may cause students to resist or yield to that temptation. Because first-semester grades have more of an impact on job prospects, first-semester students have a greater incentive than upper-year students to attend to classes. Similarly, because students probably anticipate that rules are more likely to be tested on exams, students perceive that they have more of an incentive to pay attention when rules are discussed. Conversely, students may suspect that matters asked about by classmates are less likely to be tested on and so their grades are unlikely to be affected if they miss the question and answer, reducing the incentive to pay attention.

Because of methodological limits to the study, the article notes that its conclusions cannot be considered definitive, and so it urges others to conduct similar studies.

  April 18, 2011 at 12:02 pm   Posted in: Law School (Teaching)   Print This Post   5 Comments

Digital Law Books: II

posted by Lawrence Cunningham

As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.

Read the rest of this post »

  April 5, 2011 at 1:17 pm   Posted in: Contract Law & Beyond, Education, Law School (Scholarship), Law School (Teaching), Law Student Discussions, Law Talk, Teaching   Print This Post   No Comments

Technology Musings

posted by Taunya Banks

Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy.  In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.”  The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.

The story struck a nerve, not only with the affected community, but with the Times’ readers as well.  Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties.  But the teen’s nude photo is still floating around.  Information has permanence on the internet.

Few of us appreciate how readily obtainable our personal information is on the internet.   Read the rest of this post »

  April 3, 2011 at 2:43 pm  Tags: academia, Google, Law School  Posted in: Culture, Google & Search Engines, Law School (Teaching), Legal Ethics, Privacy (Gossip & Shaming), Social Network Websites, Uncategorized   Print This Post   No Comments

Randomization Uber Alles?

posted by Dave Hoffman

Jim and Cassandra write:

“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers.  We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings.  We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive.  Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have been successful.”

I meant to cabin my argument to law school clinics.  And I do understand that there may be very rare cases where collecting outcomes will hurt clients (such as deportation).  But what about a clinic that focuses on “systemic change.” Let’s assume that subsidizing such a clinic would be a good thing for a law school to do (or, put it another way, we think it is a good idea for current law students to incur more debt so that society gets the benefit of the clinics’ social agitation).  Obviously, randomization of client outcomes would be a terrible fit for measuring the success of such a clinic.  It would be precisely the kind of lamppost/data problem that Brian Leiter thinks characterizes much empirical work.

But that doesn’t mean that randomization couldn’t be useful in measuring other kinds of clinic outcomes.  What about randomization in the allocation of law student “employees” to the clinic as a way to measure student satisfaction in the “learning outcomes“? Or randomization of intake and utilizing different client contact techniques as a way of measuring client satisfaction with their representation (or feelings about the legitimacy of the system?)  One thing that the commentators in this symposium have tried to emphasize is that winning & losing aren’t the only outputs of the market for indigent legal services.  Controlled study of the actors in the system needn’t be constrained in the way that Jim and Cassandra’s reply to my modest proposal to mandate randomization suggest.

  March 29, 2011 at 1:23 pm   Posted in: Empirical Analysis of Law, Law Rev (Yale), Law School (Scholarship), Law School (Teaching), Symposium (What Difference Representation)   Print This Post   One Comment

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