Category: Law School (Teaching)

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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.

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Teaching Administrative Law Using Current Events

One of the best parts of teaching a course you’ve already taught is updating course materials. I’m teaching Ad. Law again in the fall, and I’m considering adding a few relatively recent events as introductory discussion problems. The goal is to get students thinking about how process and agency structure shape substantive decisions. I tried to choose topics which do not require students to grasp complicated substantive issues:
1. The TSA seeks comments on across-the-board, whole body imaging for airline passengers. Here students can consider the interplay between notice-and-comment procedure and privacy objections to the imaging. I’ll also explore whether procedures (and concerns with use of imaging) should be different if TSA employees require this enhanced screening only on a case-by-case basis.
2. The IRS has been accused of unfairly targeting conservative groups who claim tax-exempt status. The issue highlights agency structure and raises questions of accountability in a system with multiple bureaucratic decision-makers. It also illuminates the tension between law and politics in agency decision-making, especially where agencies operate under vague rules such as the “social welfare” organization exemption.
I welcome any suggestions you may have.

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More on Writing and Why Clear Writing Matters

Lawyers must write. Academics must also write. Gandhi built a newspaper to get his ideas to the people. Again, writing is important. And good writing is even more important if the writing is about, or flirts with, politics. I have noted my love of Orwell’s Politics and the English Language. A main point is that when one writes in simple, clear sentences, one cannot lie. Lies are quickly revealed. I came across this passage from Hemingway and noticed a similar sentiment. Like Orwell, Hemingway explains why poor writing can work for a time, but is not good writing:

This too to remember. If a man writes clearly enough any one can see if he fakes. If he mystifies to avoid a straight statement, which is very different from breaking so-called rules of syntax or grammar to make an effect which can be obtained in no other way, the writer takes a longer time to be known as a fake and other writers who are afflicted by the same necessity will praise him in their own defense. True mysticism should not be confused with incompetence in writing which seeks to mystify where there is no mystery but is really only the necessity to fake to cover lack of knowledge or the inability to state clearly. Mysticism implies a mystery and there are many mysteries; but incompetence is not one of them; nor is overwritten journalism made literature by the injection of a false epic quality. Remember this too: all bad writers are in love with the epic. Death in the Afternoon, p. 54; (2002-07-25). Ernest Hemingway on Writing (No Series) (Kindle Locations 848-854). Scribner. Kindle Edition.

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Unintended Consequences of Scholarship

unintended.consequencesSteven Davidoff, Barbara Black and Eric Chaffee gave me the honor of delivering the keynote address at the fourth annual National Business Law Scholars Conference at Ohio State University last week.

Now, Gordon Gee, president of Ohio State, had just announced his retirement. This followed several bad jokes he’d made that had become public—about Notre Dame, Catholic priests and relative literacy across the Southeastern Conference.  Besides encouraging his retirement, I understand that the board of trustees have now banned attempts at public joke telling on the OSU campus, including at conferences.  Which was a relief, because I didn’t have any good jokes to start with, I told the audience.

After that obligatory bit of humor, it was on to remarks based on one of my recent books, The AIG Story, which I wrote along with the company’s long-time chairman Hank Greenberg. One of the book’s themes that I wanted to highlight is the dangers of a one-size-fits-all approach to corporate governance.  For the assembled audience of young business law scholars, moreover, I wanted to intersect that with some thoughts on scholarly life, my notes on which follow.

It is wonderful to be able to write law review articles that other scholars respect as well as books for a general audience, I said.  They are connected.  Both require networks. I felt little need to tell those assembled about the value of participating in conferences; they were there. It takes work and is worthwhile.

Frank Partnoy reminds me of my advice to him when he entered teaching: hit on all cylinders. Teach well, help your students, write articles, books, op-eds, essays, white papers; give workshops and lectures; testify and run host conferences; meet the press; today I extol blogging as well—as I do here at Concurring Opinions. Read More

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Welcome to Wills Lab

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 More