Category: Teaching

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Teaching with Bad Court Opinions

In teaching Criminal Law, I like to use one or two cases a semester where the court opinion seems to fundamentally misunderstand a legal concept that we are discussing. I think doing so accomplishes two ends: 1) it provides a clear illustration of a common mistake students make so that they can better avoid it; and 2) shows that, particularly in criminal law, there is a high need for good lawyers and judges. I was curious if anyone else teaches using opinions that are not just flawed, but almost certainly wrong. As an example, this is an excerpt from a case (Pennsylvania v. Collins, 810 A.2d 698 (Pa. Super. Ct., 2002)) I used in teaching summer starters last month about the voluntary act requirement.

The evidence at the trial established that, on March 17, 2001, Collins agreed to pick up her friend, Megan Neff, and drive to McDonald’s to purchase a milkshake for Collins’s mother. On her way to Neff’s house, Collins stopped at a mini-market, where she encountered several acquaintances. They invited her to a party in a nearby neighborhood and Collins accepted the invitation. While at the party, Collins drank something that “tasted like fruit punch.” Fifteen minutes later, she left the party and went to Neff’s residence. Collins arrived at Neff’s house and complained that she was suffering from a headache. As the two proceeded to McDonald’s, Neff observed that Collins was not engaged in conversation. Without explanation, Collins drove past the McDonald’s and straight through five or six stop signs without stopping. Neff began to yell at Collins telling her to stop the vehicle, but Collins gave no indication that she heard Neff. Collins turned the vehicle and began to swerve into oncoming traffic. Shortly thereafter, Collins applied the brake and Neff steered the car off the road. At that point, Collins appeared to lose consciousness. When the police arrived, Collins was slumped over the steering wheel of the car. As ambulance attendants took Collins out of the vehicle, she regained consciousness and began to scream and lash out at the attendants. At the hospital, Collins’s urine sample tested positive for phencyclidine or PCP.

The Commonwealth charged Collins with Driving Under the Influence of a Controlled Substance (phencyclidine or PCP) and Failure to Comply With Duties at a Stop Sign. At the conclusion of the trial, the jury found Collins guilty of driving under the influence of a controlled substance…. Collins appealed… Collins [] asserts that the trial court should have required the Commonwealth to prove that she voluntarily ingested the controlled substance. We disagree. Section 3731 states, in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
****
(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(2). Therefore, in order to sustain a conviction under Section 3731(a)(2), the Commonwealth had to prove beyond a reasonable doubt that Collins was: (1) driving, operating or physically controlling the movement of a vehicle and (2) that while operating the vehicle, Collins was under the influence of a controlled substance to such a degree as to render her incapable of driving safely.
Collins’s arguments would require this Court to engraft an additional element–namely voluntariness–into the DUI statutory scheme. However, the statute does not make use of the terms “intentionally,” “knowingly” or “willfully.” Therefore, the Commonwealth was not required to prove that Collins’s intoxication was intentional or voluntary…. Collins also contends that the trial court’s jury instructions violated Section 301 of the Pennsylvania Crimes Code. We find this argument to be unpersuasive. Section 301 states, in pertinent part:

§ 301. Requirement of voluntary act
(a). General rule.–A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S. § 301….

Moreover, as discussed above, the statutory language found in 75 Pa.C.S. Section 3731(a)(2) omits any reference to culpability. We interpret this omission to mean that the legislature intended Driving Under the Influence to be a strict or absolute liability offense. Therefore, we conclude that the trial court’s jury instructions did not violate the voluntary act requirement of Section 301.

In my experience, students sometimes conflate mens rea and the voluntary act requirement in cases involving intoxication (rather than separating the analysis of intoxication into actus reus and mens rea). I think the Collins case can show how that conflation happens and why it is a mistake. The Collins court dismisses the universal voluntary act requirement in Pennsylvania because the court believed the statute to be strict liability. That’s a non sequitur. And so a woman who involuntarily ingested PCP was convicted for driving under the influence of the PCP that she didn’t voluntarily consume. The case also provides a nice contrast with State v. Martin which I believe most (?) Criminal Law casebooks include in the voluntary act section. I welcome any thoughts on the using the Collins case and “bad” opinions in general as teaching tools.

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Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

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On Lust, Dust, and Books

Bow down. Bow down to the queen of books. As a kid, if a foot touched a book, we employed a hand gesture, akin to genuflection, to make up for our disrespect. It’s an Indian thing. Doris Lessing’s Nobel speech captures why that gesture makes sense to me. It makes her my queen of books. We have the luxury of arguing over whether books are findable, searchable. We should pay attention to what Lessing said. In 2007 Lessing spoke of Africa, dust filled and hungry for books:

“Please send us books when you get back to London,” one man says. “They taught us to read but we have no books.” Everybody I met, everyone, begged for books.

And I do mean hungry:

Not long ago a friend who had been in Zimbabwe told me about a village where people had not eaten for three days, but they were still talking about books and how to get them, about education.

Lessing captures the faith that education will raise someone from poverty. Perhaps it is ironic that she attacks the Internet and blogging while wondering from where and the publishing of ideas will emerge in Africa. But her criticism seems to me more about the thin nature and “inanities” of much online than the technology itself. Her real concern is that reading begets reading and writing. She focuses on the simple fact that people want to read and write. Some learn from labels on jars or torn sections of novels left behind by those fortunate to have read the whole novel and who tore it for travel ease. In contrast, “We have a treasure-house of literature, going back to the Egyptians, the Greeks, the Romans. It is all there, this wealth of literature, to be discovered again and again by whoever is lucky enough to come upon it. A treasure. Suppose it did not exist. How impoverished, how empty we would be.”

For all the debate on scanning books and incentives to create, I have to stop and say rot and rubbish. Get the books, the texts to everyone. Now. Don’t tell me someone does not want to read or learn math or engage. Build and reinforce the culture that wanted to feed the body and the mind. As Lessing concluded:

That poor girl trudging through the dust, dreaming of an education for her children, do we think that we are better than she is – we, stuffed full of food, our cupboards full of clothes, stifling in our superfluities? I think it is that girl, and the women who were talking about books and an education when they had not eaten for three days, that may yet define us.

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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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Constructive Feedback for Writing and Maybe Living

Writing well requires attention to style and execution, but it also requires interaction. John Gardner’s works on writing explains his views on temperament and talent. In On Becoming A Novelist he also addresses training and education. What he says about writers workshops applies for classrooms, conferences, and more:

In a bad workshop, the teacher allows or even encourages attack. … In a good workshop, the teacher establishes a general atmosphere of helpfulness rather than competitiveness or viciousness. Classmates of the writer of the writer whose work has been read do not begin, if the workshop is well run, by stating how they would have written the story, or by expressing their blind prejudices on what is or is not seemly; in other words, they do not begin by making up some different story or demanding a different style. They try to understand and appreciate the story as it has been written. They assume, even if they secretly doubt it, that the story was carefully and intelligently constructed and that its oddities have some justification. If they cannot understand why the story is as it is, they ask questions. … It takes confidence and good will to say, “I didn’t understand so-and-so,” rather than belligerently, “So-and-so makes no sense.” It is in the nature of stupid people to hide their perplexity and attack what they cannot grasp. The wise admit their puzzlement (no prizes are given in heaven for fake infallibility)… John Gardner, On Becoming A Novelist, p. 81

This attitude reminds me of my introduction to rhetoric class. We had to re-state what the author said for our first essay. We lost points for doing anything more. Saying “I think…” was not allowed. We were not ready to have an opinion. As Philippe Nonet used to say, “That you think it does not matter. Only what you show matters.” Tough advice. But good. He also said we have to let the idea present itself. We have to let it be.

A good workshop is a place where we let the writing be. Take it at face value and root around to see what is being said. Some will be good, some bad, some confusing. We will not agree with all that is said. But as Garder says, if we admit our puzzlement and share well, the writer may see how to improve or explain what was missed. Then all will have learned and constructed a new way forward. I think this approach applies to much more than writing, but leave that for another time.

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Aspirations to Write Better

Yes, more from Hemingway. I am reading others as well and may share from those if so moved. For now I will say that few have what he describes here. I will say it can be developed. And I will say I am most grateful to two people who have read my work, shredded it, but did so with love. Love here was the willingness to take the work on its terms and dig and hack and purge. That is why I think the skill can be learned or rediscovered if lost. I will not name them here. I have told them. Anything else is gossip and name-dropping. That would be unseemly and share a personal moment that is for them and me. Still, I thank them. And now for the quote:

A writer without a sense of justice and of injustice would be better off editing the yearbook of a school for exceptional children than writing novels. Another generalization. You see; they are not so difficult when they are sufficiently obvious. The most essential gift for a good writer is a built-in, shockproof, shit detector. This is the writer’s radar and all great writers have had it. Ernest Hemingway, The Art of Fiction, No. 21, Paris Review

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Continuous Assessment

Thanks so much to the Concurring Opinions gang for having me back for another guest blogging stint. My semester has ended, so let the blogging begin!

Except … even though I have not received my students’ exams from the registrar yet, I am grading. Why?  Because I assigned group projects during the semester and have not completed marking the last one. This raises an uncomfortable question for me: have I done the students any good by giving them a graded assignment during the semester if they don’t receive feedback on it until they are on the cusp of taking the final exam?

That really depends on the reasons for requiring “grading events” such as group projects, short papers, quizzes, midterms, or oral presentations during the semester. Like many of my colleagues, I have increasingly moved away from the traditional law school model that based the entire course grade on a high-stakes final examination, perhaps with some small adjustment for class participation. It seems clear to me that this is a good decision — even though it has meant a lot more grading (every professor’s least favorite task) and even though the institutional incentives for law faculty don’t really encourage or assist us to do depart from the tradition of the all-or-nothing final exam.

But I have to confess that my views of the reasons for continuing assessment are unsettled and even a little muddled. Here are the main candidates in my mind:

  • Earlier graded events give students feedback about their understanding of the material and performance in the course while there is still time to correct it.
  • Basing the course grade on more than one event reduces the “fluke factor” of a student who is ill or overtired or just not in top form the day of the final exam.
  • The events themselves — say, a group project — serve valuable pedagogical goals and making them part of the grade ensures that students will take them seriously.
  • Educational research shows that students learn more effectively if they synthesize knowledge as they go along rather than just doing a big outline at the end of the course, and graded events spur them to synthesize earlier.
  • Basing the grade on different types of exercises rewards varied abilities beyond the particular (and slightly bizarre) skill set that excels at law school issue spotter exams.

 

Only the first of these requires me to return students’ grades sooner than I’ve managed to do for this group project. Of course, I am saying this partly to assuage my guilt over my own tardiness. But I also wonder how well we articulate the reasons for continuous assessment to our students — or even, frankly, to ourselves. I have now more carefully engaged in the sort of reflection about these goals that I should have gone through before the semester started. Now I know for next time that my answer is: all of the above.

Uh oh. I better get back to grading those group projects right now.

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Ed de Grazia, RIP

RIP to Ed de Grazia, my 1L Criminal Law teacher and later colleague at Cardozo for a decade,  who passed away at the age of 86.  As the NYT puts it today, Ed was a “fierce civil libertarian.”

Landmarks of his outstanding career as a lawyer who opposed government censorship include his 1964 SCOTUS victory on behalf of the publisher of Henry Miller’s sexually explicit book Tropic of Cancer.  Ed’s own 1994 book, Girls Lean Back Everywhere, was a stirring defense of artistic freedom against state power.

Ed, who spent most of his career at Cardozo with shorter stints at Catholic, Connecticut, Georgetown and Yale, was an impressive teacher.  He presented material and led students through discussion with total objectivity, with no assumptions  or pre-judgments.

He insisted that we students explain why any given alleged behavior violated a particular criminal law.  That went as much for arson, burglary, and homicide as it did for cannibalism, incest and necrophilia.  Ed’s method was demanding, leading a class that sharpened legal minds.  He also taught a special seminar as part of Cardozo’s prosecutor internship program where his pedagogy and philosophy instilled a deep sense of obligation to think and explain rather than blindly pursue and enforce.

Ed was also a passionate proponent of privacy before the modern era developed such an intense interest in the topic.  For example, as the NYT notes today, Ed argued that newspapers had no business reporting on the romances of political figures, such as Gary Hart’s  affair with Donna Rice that doomed his political career.  Ed preferred not to judge his fellow human beings, leaving that to the inner tribunal of the conscience and above all keeping the state’s role in people’s lives as limited as possible.

Ed was also a great colleague for the same reasons: he welcomed all forms and manner of scholarly inquiry and loved learning about why any one of us found our subject so interesting.  Ed was cool, smart and earnest. We will all miss him but always remember his spirit.

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MOOCs, Meet Turing or Is It Socrates?

It dawns on me that Turing tests may have a role for the future of education and MOOCs. In short, can one create a Socratic style system that automates probing what a student knows? A combination of gamification (not a great word) and machine learning might allow a system to press a student to express more than “I memorized X” and move to explaining why in a discussion. If I understand the simple idea of Turing tests, one should not know that the other side is a machine in a conversation. It should be a discussion. That is what a professor does in Socratic method. There would likely be a wall of sorts where the student has no more questions or perhaps the machine determines that some level of mastery is in place. To me, a key reason to press questions is to see whether the student can answer why their claim or understanding is correct. When they can do that they may at last “own” the idea and then do something with it. Insofar as the key is to keep questioning, this approach will hit a different wall where a person may need to engage with the student. In addition, when a student asks something the teacher has not considered, a “does not compute” response will likely be a let down. Assuming one solves that personal dimension, that moment would be a signal to shift to other resources including instructors to go deeper into the issue. Otherwise we are left with test passing equals knowledge. As Erika Christakis put it, we have:

a broken system built on the dangerous misconception that testing is a proxy for actual teaching and learning. Somehow, along the path of good intentions, testing stopped being seen as a diagnostic tool to guide good instruction and became, instead, the instruction itself. It’s as if a patient were given a biopsy, learned she had cancer and was then told that no further medical treatment was necessary. If that didn’t sound quite right, we could just fire the doctor who ordered the test or scratch out the patient’s results and mark “cured” in the file.

Although I am leery of easy solutions, I think that a system that may prod a student to see what they know and then come to a teacher to gain further insight and evaluate what they grasp would be great. It might be a step away from a system that asks students to jump through a hoop and receive a star or treat for performing a trick without knowing why the words or ideas coming from them matter or how to apply the words and ideas to new contexts, which I think would be knowledge rather than inert data.

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Data Streams and E-Textbooks

Today “smart” e-books are in the news.  These books give professors access to a stream of data about how individual students are using their e-books—whether they are skipping pages, highlighting specific passages, or taking notes in the book. The software that makes such monitoring possible even provides an “engagement index” for each student.  The news stories I’ve encountered have mostly focused on how the data enables professors to identify and then reach out to students with poor study habits.

I don’t know how to spell the sound I made when I first heard this particular news angle, but it was something close to the classic UGH.  The company that created the software says its surveys indicate that few students or colleges have privacy concerns.  But I know I would feel like I was spying on the adults I teach.

Which is not to say that I couldn’t put the data stream to some use, at least in an aggregate form.  If a meaningful portion of my class does not appear to be reading the textbook but is nonetheless performing well in class and on exams, then my course is too easy or the textbook is a dud, or some combination of the two.

The data stream may also be of interest to the institutions that employ professors.  Every university, college, or graduate school has at least a couple gut courses—classes in which students can do very little work and still get good grades.   One concern in law schools is that GPA-conscious students will flock to a gut course instead of one that would better prepare them for the bar and eventual practice.   A dean who is trying to convince a professor that her class needs to be harder could put the data from smart e-books to very effective use.   In fact, some professors will be disinclined to embrace smart e-books once they realize that students aren’t the only ones who can be watched.

Last, I am struck by the connection between the emergence of smart e-books and a post Larry wrote a few weeks ago.  Larry’s post laments that as e-books become increasingly dominant, he will no longer be able to peruse the bookshelves of colleagues or friends as a means of sparking a connection or sizing them up.   E-books do not serve the same (often inadvertent) signaling function as a print book.  E-books mean that no-one can get a window into my interests by scanning my shelves or seeing what’s open on my coffee table.  They also mean that I can no longer pick out law students on the subway by looking for a telltale red binding.  But with smart e-books, a select group will know more about these students’ reading habits than most of us would have imagined just a few years ago.