Category: Law School (Teaching)

7

Teaching Criminal Procedure “Objectively”

The new semester is a little over a month away, and I have begun reflecting on whether I’d like to change certain teaching techniques from last year to this year. One of my main objectives as a professor is to foster a classroom environment where students feel free to disagree respectfully with each other and with me. One of the main ways to achieve this objective, I had believed, was to express my own personal opinions as little as possible.

This proved to be a difficult task, especially when teaching Criminal Procedure. Criminal Procedure is designed around assertions of constitutional rights based in the Fourth, Fifth, and Sixth Amendments. The Court’s most impassioned (and possibly compelling) language usually focuses on fears of an oppressive government and the importance of privacy rights. From Katz to Miranda to Brown v. Mississippi, students are exposed to police abuses and the need to prevent them. Of course, the importance of effective law enforcement is also highlighted, and the goals of law enforcement and the protections of the Constitution are not always in tension, but the course is very individual-rights centric.

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4

Preparing for the Three Ring Circus (But Not Yet)

Many, many thanks to Dan and the other CoOp regulars for having me back this month.  For Court watchers, June can feel like a vigil for the term’s final, big decisions, but this year that tension is heightened in anticipation of all that may occur in Florida v. U.S. Department of Health and Human Services.  To wit, SCOTUSblog has issued what is effectively an emergency preparedness plan.  I am working on a presentation and a workshop paper for two conferences related to the spending and healthcare action this term and will turn to my favorite topics soon.  But, as Gerard noted recently, many are suffering from healthcare reform overload, malaise, exhaustion… .  Accordingly, as I am coming up for air after grading 70 Constitutional Law essay exams (what is that, at least a thousand pages of grading?), I am thinking about the semester’s high and low points and ways in which I can improve my classroom performance. 

There is nothing like the marathon of grading to initiate this kind of reflection, which I think is a useful exercise before diving into the pleasures of summer research and conferences.  I imagine we have all experienced the gratification of seeing that our students have learned something well and rose to the challenge on an exam, and the disappointment of realizing that no one understood a word we said on a particular topic.  It can be hard to self-correct during the semester except to clear up the immediate points of confusion (though I do make notes in my syllabus when topics don’t proceed as planned).  But, the next year’s students can benefit from the prior year’s lessons, some of which can be learned from student evaluations, and some of which can result from ‘exam reflection.’  Taking a moment to reconsider can result in fruitful actions such as better exams, rewriting part of a syllabus, restructuring a class to introduce material better, considering supplemental materials, or revisiting casebook choices.  Sometimes a deliberate choice not to act occurs to see if the issue is a blip or a trend. 

In light of these musings, I have two questions, one general, and one more specific to Con Law:

1.  Do you use exams to reflect on the success of the semester’s teaching?  If so, how?  What kinds of issues do you think warrant attention given the limitations of the law school exam structure?

2.  Do you provide any background materials that are the equivalent of the civics lessons of yore?  Every year I have students come to my office concerned that they will be left behind in Con Law because they know virtually nothing about American history, politics, civics, or the Constitution.  My first assignment is always to read the Constitution, which levels the playing field a bit (funny how many poli sci majors think they know everything but have never actually read the document).  But, I have yet to find a good, concise background reader for my nervous con law newbies.  I don’t think this lack of background affects exam performance, but I would like to find a good resource.  Suggestions?

6

Excuses

At Prawfs, Bill Araiza laments unprofessional students:

“So, let’s say a student contacts you, wanting to meet with you, his prof.  You set the meeting up — Wednesday at 11:00, say.  (By the way, these are not actual facts, Wednesday at 11:00 was not an actual meeting time, nor does this question have anything to do with anything that’s happened to me recently.  So there.)  The student doesn’t show.  The student then contacts you later, apologizing and giving, let’s say, what I would consider a bad reason or no reason at all.  The student asks for a new meeting date, soon (say, the next day).”

True: law students (like their professors) sometimes behave unprofessionally, and one particularly irritating variant of unprofessionalism is terrible excuses for trivial offenses.  Often, the excuse makes the conduct less forgivable.  So, I empathize with a “recent graduate” on Bill’s thread, who snarked “I thought professors didn’t really want to hear about my diarrhea/family issue/bad day that made me miss one meeting/class/clinic? I guess I should have been sending much longer, groveling emails.”  Indeed, I provide students free participation passes (a limited number in some classes, unlimited in others), but explicitly tell them not to tell me why they are passing.  Nonetheless, every year a student will provide an excuse that is so godawful that it makes me feel angry and resentful.  Such as: “I was unprepared and forgot to pass because I was watching March Madness, and I plan on being unprepared until it’s done.” (This was not an email I received, but it was close.)  I’ve never known what to do with these bad excuses on petty matters.  Not one seems significant enough to engage with:

If you write back, making a lesson out of it, you are a crotchety, tetchy, pompous pill.

If you don’t, and internalize the irritation, you will be a crotchety, tetchy, pompous pill.

Basically, a classic collective action problem.

9

After Law School Deregulation

As our regular readers know, I’m no fan of the ABA accreditation process. It is expensive, it focuses on the wrong questions, executes like a bureaucracy, and it raises the costs to purchase legal services while depressing the supply of lawyers.  That is: the ABA works (not particularly well) to serve current lawyers, while (diffusely) harming current and potential students and lay consumers.  Like Brian Tamanaha, I think the ABA ought to be stripped of its power to regulate law schools.

But what then?  Or, as the late, great, Larry Ribstein wrote, what happens “after the fall of regulation.” There are four (well-known) secular trends to consider:

  1. Consistent with an overall decline in civil life, local, state, and national Bar associations are in severe decline.  Such associations’ capabilities (intellectual, social, economic, political) are at lows not seen since the early part of the 20th century.
  2. Jobs - crucially, including state government jobs – aren’t coming back.
  3. We’ve only begun to see the effects of technological disruption of legal practices.
  4. Educational accreditation is increasingly professionalized (outside of law), requiring the efforts of ever larger numbers of people to manage it.  Accreditors are their own interest group.

When I put this together, what I see looming is the eventual loss of ABA accreditation power, as the association, increasingly hollowed out, surrenders its accreditation power to concentrate on its state-centered monopoly and “fighting offshoring.”  For a while, local  bars will try to hold onto incumbent-protecting Bar Exam credentialing rules, but pressure from other states (Nevada and Delaware!) will undermine that practice.  At that point, I worry, the local university accreditors will sweep in and impose a set of suffocating new and different accrediting requirements, which will be even less tied to the unique situation of professional law schools.  We’ll know that this day has come when HLS comes out with an elaborate webpage mapping its curriculum, and Yale is told it has to do interim assessments instead of one final exam. Pitted against this trend toward regional (non-legal) accreditation  will be distance teaching, which, ultimately, will differentiate law schools back into the regional and national silos they were in in the 1950s.

Sound about right?

2

Injecting Transactional Skills Into the First Year

American legal education is biased toward litigation. In response, and to give our students a taste of the kind of experiential education that Temple is known for, we launched a new first year course last fall: Introduction to Transactional Skills. Now that the dust as settled, and I’ve had a chance to push a few writing projects down the road, I thought I’d blog a bit about ITS, and our experience in bringing a skills course into the first semester of law school.

Some basics.  We launched ITS as an intensive, two-week, “mini-course” smack in the middle of the fall semester.  It was mandatory for all first-year students, and graded pass/fail (with students receiving transcript notations for extraordinary effort). ITS mixed lectures (delivered by course co-leader Ed Ellers), and simulations (largely designed by co-leader Eleanor Myers).  Each simulation was devoted to a skill – interviewing a client, negotiating an agreement, drafting a contract – and taught in a small group of around 20 students. (Faculty members volunteered to lead these small groups, without receiving teaching credit.  More evidence in support of this post.) We paired the students in each small section – they negotiated “against” another team of two from a different small section repeatedly during the simulation.

As the snapshot to the right illustrates, we used a custom-designed webpage to organize the course.  Students got their assigments online, read background materials, and submitted their contracts using web forms, making quick feedback (typically, 8 hours to turnaround) possible.

We framed ITS around the legal foundations of a small business: a restaurant.  Students represented either a chef or an entrepenuer.  After interviewing their client (played by an upper-year student) students negotiated and then drafted a term sheet for the partnership, and then an employment contract.  On the last day, lawyers from downtown Philadelphia judged the students in a surprise negotiation exercise.  The video below provides a snapshot of the experience.

Overall, the course worked well at accomplishing its main goal: exposing students to transactional lawyering.  It also (for many students) significantly increased their interest in taking additional transactional courses, built their confidence and skills, and gave them a concrete idea for professional development opportunities during their summers.  The best reviewed day – by far – was the final day’s negotiation in front of lawyers.  Given the added pressure of an outside presence, the students rose to the occasion and shined.  Outside evaluation also helped to combat the fatigue that students felt from the compressed environment, and the demotivating effects of the pass/fail system.

What didn’t work well? The timing. It came too late in the semester (because of the ABA’s re-education re-accreditation site team visit.) Second, we could have provided less time in lecture and more time in skills training (the ratio was about 30:70, but it could have been 20:80).  There were some hiccups with the submission system.  But the biggest problem from my perspective was scale. Because we decided to launch this for the entire first year class (220 day students, and we replicated the whole course this spring for our evening division), the project was unwieldy to organize, and it consumed a ton of time and law school resources. Scale also prevented us from  providing individualized written comments on every submitted contract. But such problems are to be expected if you want to teach to the whole schoolhouse.

Notably, the course would have been plainly impossible to put together on the fly if Temple didn’t already have a well-established second and third year program of transactional education — the Integrated Transactional Program.  ITP was a model for the skills exercises, provided us with the experience in drafting client scripts, and was our recruiting ground to land seasoned students to play the chefs and entrepreneurs.

2

Casebooks and Geographic Bias

Though it’s well-known that casebooks can have ideologies, such criticisms usually ignore regional bias. Indeed, when I started law teaching, it would have difficult for me to have imagined that casebooks in a national survey class would have any geographic tilt at all.  Now I’m wondering if it is a fairly common sin.

My civ pro case book, Babcock/Spaulding/Massaro, provides one such example.  It’s a good book – cleanly laid out, with useful problem sets, and decent notes. True, it often seems to have a pro-personal-jurisdiction bias (and, consequently, a liberal one).  But that’s not surprising given what one hears on the Civ Pro listserv.  Less obvious on a first scan is how much it feels like a west coast book. The hypos are usually set in Arizona, California, or thereabouts; the manual refers often to Stanford students’ experiences; the intertextual notes are weighted toward 9th Circuit case illustrations. By contrast, the Barnett contracts book I continue to use feels rooted in the plains states — there are more cases from Kansas, Iowa, etc., than you’d expect.  (To be fair, it might be because agriculture produces a ton of contract problems.)  The KBR corporations book I use is rooted in Delaware – but that’s related to a vision of the course, not an incident of where the authors teach.

Can others think of examples of “southern” casebooks, or ones that feel “northeastern” in their orientation?

Geographic bias isn’t nearly as pernicious as the other kinds of ideologies than infect casebook authors.  Indeed, maybe it doesn’t matter much at all.  I’m sensitive to it largely because of my recent research into geographic variation in contract law: even in our national economy, there are significant differences in commercial law, and procedural practice, between the states. Casebooks that with a regional flavor should be up front about their tilt.

1

Picking up where we left off…

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.

0

Adviser? Teacher? Sage? What is a mentor?

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).

15

Does the Secured Transactions Course Make Sense?

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.

40

“Mentoring” versus “Scamming”

In law school teaching, as in dance competitions, it's important to know when to spin on a dime.

Today in Contracts, I taught Vokes v. Arthur Murray212 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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