I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part [...]]]> I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works.

I view this as an exercise in at least mid-level theory, rather than specifically teaching litigation skills. The only drafting I have my students do is an affidavit where the “in state” students draft an affidavit as the domicile of the “out of state” students. I don’t have or assign mock case files or share complaints, pleadings, motions, deposition transcripts, discovery requests, responses, etc., except when they happen to appear in the book I use (at the moment the Yeazell casebook). However I do recommend Joseph Glannon’s fine book if the students want to see examples of those sort of documents.

If Loyola ever goes back to a two semester format I will increase my coverage of personal jurisdiction and Erie. I certainly see the value in watching a line of cases unfold over time and training students in the close reading of cases from day one. But this is probably the one skill that is well covered in the first year curriculum.

I have several reasons for starting with the litigation process and making it the focus. First, I think it’s just cruel to make a 1L read Pennoyer v. Neff in their first week of law school. Second, if the Supreme Court can’t figure out anything but platitudes and results in the personal jurisdiction field, why should I expect any more from my students? Third, jurisdiction to do what to whom? Starting with the litigation process at least gives the students the chance to understand how a case unfolds before they have to tackle the more abstract questions about what court it is supposed to take place in and why. Fourth, there are plenty of opportunities to pursue personal jurisdiction, subject matter jurisdiction, and Erie in Federal Courts and other litigation courses, including one I teach.

Finally, maybe I am fooling myself, but I also think that I am giving my students a leg up in their other classes. Every case in every course (other than criminal law) is a civil procedure case that just happens to be about a particular area of the law like torts or contracts. If the students can better understand the litigation process early and deeply, I think they will be better equipped for the rest of their first year experience.

But hey, I am a reasonable kind of guy and realize that law professors approach their courses with all kinds of different objectives. Any well thought out plan probably provides the students with a worth while experience. I am sure most would also agree that emphasizing one aspect of the course because its more fun or interesting or easier for the professor probably isn’t the way to go.

By way of conclusion, let me throw out the following challenge. I am happy (or at least willing) to switch approaches, if at least one of the other professors out there reading this is. Next fall I will teach the course 60/40 personal jurisdiction, subject matter jurisdiction, and Erie if you do the reverse. Then we can meet in the following January in cyberland on Concurring Opinions or elsewhere to compare experiences.

1.  The subject matter is so vast that you can only scratch the surface in one semester.  To some extent, that is true for Torts or Contracts, but much less so.  Constructing a syllabus that must omit so much important material is frustrating.

2.  Students often come into con law with strong views about the material that they lack in other subjects. This can makes them less open to discussion or alternative views.  I want people to be passionate about the subject, but I’d like them to form their [...]]]> I’ve been working on my Con Law syllabus for next semester.  I must admit that I find Con Law the most difficult course to teach, even though it’s the subject that I enjoy the most.  Why is that?

1.  The subject matter is so vast that you can only scratch the surface in one semester.  To some extent, that is true for Torts or Contracts, but much less so.  Constructing a syllabus that must omit so much important material is frustrating.

2.  Students often come into con law with strong views about the material that they lack in other subjects. This can makes them less open to discussion or alternative views.  I want people to be passionate about the subject, but I’d like them to form their opinions after reading the cases, not before.  Many folks have a fixed view about abortion or affirmative action, for example, no matter what the cases say.

3.  Con Law cannot be taught well without a lot of historical background.  Many students (I find) don’t know a lot about history.  Since it’s hard to provide the full context for each and every case (e.g, what was the New Deal about?), I often think that people do not get as much from the opinions as they should.  I’m trying a different casebook next time that has more history — we’ll see if that helps.

4.  Con Law is not just about what the Supreme Court says.  Most (though not all) casebooks, though, do not include significant non-judicial texts.  I try to remedy this by handing out things like Lincoln’s First Inaugural or FDR’s Fireside Chat on “Court-packing” as examples of constitutional analysis that are just as useful from a teaching standpoint as Marbury.

We’ll see if a do a better job next time.

I’ve got to say, I find the prospect of a fall with no duties other than those I set for myself more than a little terrifying. Putting aside the absence [...]]]> This semester, I get to take my first sabbatical. As Larry observed, law firm sabbaticals are a thing of the past, and so lawyers might see this opportunity as yet more evidence that academics are insulated, head-in-the-clouds, wastrels. Perhaps, though it might help to see the sabbatical, like tenure, as simply a form of alternative compensation for professors, rather than a serious spur to productivity. And, like tenure, the sabbatical is a relic: while many years ago, a regular sabbatical policy was commonplace, now it’s my sense that it’s somewhat more rare.

I’ve got to say, I find the prospect of a fall with no duties other than those I set for myself more than a little terrifying. Putting aside the absence of structure, and colleagues to talk to, there’s the problem of figuring out which kinds of projects are the right size. If I pick something too big, I’m not going to finish (and thus feel pretty bad about having nothing to show for the immense privilege that the Law School and its stakeholders have extended me). If I pick something too small, well, you get the idea. So I’m looking for the sabbatical goldilocks. As I’ve learned, painfully, promising goldilocks projects in the empirical world are often (forgive me) wolves in sheep’s clothing. You start collecting data, and before you know it it’s two years later and you realize you never fully specified your research question. Yikes!

Some folks use their sabbaticals to do something entirely different, e.g., hiking the Appalachian trail (no, seriously); writing fiction; constructing toasters from scratch. I fear I’m more conformist than that. Apart from some personal business, I’ll probably be spending the fall writing more articles, coding more data, thinking about how to be a better corporations teacher, and blogging a little bit more often than I did over the summer.

I do have two larger intellectual projects that I’m going go try to fold in. The first is to read (again) the works of the Situationalist project. I’ve read several of the project’s papers – in one case, multiple times – but I still don’t think I really understand many of the claims, and, more importantly, the project’s motivation. Since there are tons of brilliant folks affiliated with the group, this obviously is a situation that I’ve got to remedy.  Second, I want to read at least a large sample of the articles that Herb Kritzer identifies here as fruits of pre-1940 empirical legal studies work. One of the few abiding disadvantages to not having a PhD is is a missing sense of the intellectual history of your field. That problem is particularly acute in ELS, where (to read the dates on citations in most recent papers) nothing useful was written before 1995.

I suppose that’s it. I’m not training to climb Everest. I’m not going to reorient my scholarly path. I’m not taking on a court case (though the amici in Jones appear to be having tons of fun). I can’t imagine that I’ll pick up a new hobby. Nevertheless, I’m pretty sure I’ll be spending more hours working than I do when I’ve got classes to teach!

I have not really used a teacher’s manual over the years, in part because it was not an option when I started teaching years ago as I started teaching with a casebook that did not have a teacher’s manual. Later, when I began using books that did have teacher’s manuals, I did not always agree with the manual or the suggestions made therein, so I never really consulted the manuals.

That said, I will be working with a colleague on his teacher’s manual, so I am curious about what [...]]]> Textbooks and casebooks often have accompanying teacher’s manuals. These manuals range from limited, rambling copies of the textbook author’s classroom notes to detailed discussions of the book’s materials and related course structuring issues and classroom questions.

I have not really used a teacher’s manual over the years, in part because it was not an option when I started teaching years ago as I started teaching with a casebook that did not have a teacher’s manual. Later, when I began using books that did have teacher’s manuals, I did not always agree with the manual or the suggestions made therein, so I never really consulted the manuals.

That said, I will be working with a colleague on his teacher’s manual, so I am curious about what other professors find useful in a teacher’s manual. My impression is that a teacher’s manual should be geared toward:
(a) the new teacher who has never taught anything before,
(b) the teacher who is picking up a certain class to fill a curricular need, outside her/his area of primary expertise, or
(c) the teacher who needs help with the basics of a certain limited aspect of his course (such as tax in a mergers & acquisitions class).

Am I correct on the sort of faculty who tend to extensively use a teacher’s manual or are their teachers out there who do not fit the above parameters who find teaching manuals useful?

Perhaps it is best to ask professors who are reading this post: What would the ideal teacher’s manual include, and would an outstanding teacher’s manual sway you in favor of adopting a particular book for your class?

(Does this blog have a “poll” function, and should I know how to use it?)

Volume 56, Issue 4 (April 2009)

Articles

A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)

James G. Dwyer

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)

Linda D. Jellum

Normative Methods for Lawyers (pdf)

Joseph William Singer

Comment

Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)

S. Wesley Gorman

So, here’s my question: if you were planning a series of field trips for 1Ls, where would you take them? I’d start with a tour of a [...]]]> This morning I accompanied a group of kindergarten students on their field trip to a planetarium. The whole experience left me musing about how at some point in one’s education the field trip just disappears. The quintessential field trip, which is undertaken despite the knowledge that some students will simply goof around on the bus, reflects the belief that even the uninterested are enriched by participating. But by high school, not to mention law school, the general enrichment trip is replaced with targeted opportunities for students with particular interests. (Think clinics and externships.)

So, here’s my question: if you were planning a series of field trips for 1Ls, where would you take them? I’d start with a tour of a prison, which would be bound to leave some sort of impression. I’d also like to arrange for each student to spend a full shift in a squad car, although I’m not sure how to pull that off for an entire first year class. (Also, the Estates and Trusts professor in me would like everyone near Philadelphia to visit the Barnes Foundation and see what all the fuss is about. That, however, may be a bit too targeted for my list, which is aimed at general legal enrichment.)

Suggestions, anyone?

One of my the things I like most about [...]]]> During the week, one can watch an incredible number of crime-themed television shows. Just on the major networks during prime time, a coach potato with a DVR can view Law & Order, Law & Order: SVU, CSI, CSI: Miami, CSI: NY, Without a Trace, NCIS, The Mentalist, Fringe, Criminal Minds, Life on Mars, Lie to Me, Bones, Numb3rs, Cold Case, Cops, and America’s Most Wanted. There are also highly rated cable shows like The Closer and Monk. Not too long ago, the greatest crime show of them all, The Wire, ended. A decent number of these shows are watched by law students on a regular basis. There are also scores of crime-related movies that students have viewed.

One of my the things I like most about teaching Criminal Law and Criminal Procedure is that students often come into the class filled with opinions and “knowledge” about the two subjects from popular culture. That background makes for very lively discussions and even students who have no interest in criminal law often have strong opinions about the subject. I can also tap into that knowledge base by using television and movie examples, including using movie clips during class. However, the downside of all of that cultural baggage is that I often have to account for all of the bits of misinformation that my students might have.

Lately, I have been wondering if the problems associated with that misinformation have been growing. Once upon a time, the show Law & Order cited real New York cases and discussed legal issues in a way that was at least connected to reality. Perhaps based upon those fond memories, I still have the show on my DVR schedule despite the fact that it has taken a turn for the worse in recent years. The same week that I was teaching the first day of mens rea, I sat down to watch a few Law & Order episodes that I had recorded. In one episode, the defense made a bizarre suppression motion which was granted. After the suppression motion was granted, the defense moved for dismissal on the grounds that there was no remaining evidence of motive. Astoundingly, the motion was granted with prejudice. So, as I am going to teach my class that motive is not an element of the crime and that motive is different than mens rea, television is sending a very different message.

I’m not hoping for something even close to approximating perfection in terms of legal accuracy from television. However, I wonder if these shows are even employing lawyers as consultants anymore. The way criminal law is being portrayed is often so far removed from reality that I cannot even guess at what strange ideas my students are hearing. I’m guessing this phenomenon is unique to criminal law, but I’d be interested to hear if teachers in other areas have similar problems. And I’m curious to see if other professors teaching Criminal Law and Criminal Procedure have observed any increase in legal inaccuracies in popular culture or among their students.

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, [...]]]> What a joy it has been blogging here at Concurring Opinions. I thank Dan Solove and the rest of the crew for the opportunity, and I thank the commenters for the great e-conversations that have followed my posts. For my last post, I want to enter the last installment in the Drop Everything and Emulate series.

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, as such, was a violation of the Equal Protection Clause of the 14th Amendment.

Against all odds, he won, and Shelley v. Kraemer became a guidepost for the civil rights revolution that followed. Less than two years later, he was dead, and today is rarely remembered.

George Vaughn was born in 1885 in Kentucky. Little seems to be known about his early life. He earned an undergraduate degree from Lane College and a law degree from Walden University, both in Tennessee. Walden was founded by white missionaries as a school for African-Americans, but began to fail at about the time Vaughn attended, graduating just one law student in 1911. By 1925, Walden University was no more.

Vaughn served as an officer in the segregated army in World War I, then opened a law practice in St. Louis. In St. Louis, he became active in Democratic politics. He ran for one office – city alderman – and lost.

Vaughn attended a conference hosted by the NAACP regarding litigation strategies against racially restrictive covenants. (Leland B. Ware, Invisible Walls: An Examination of the Legal Strategy of the Restrictive Covenant Cases, 67 Wash. U. L. Q. 737 (1989). Ware’s excellent article is the source for much of the information that follows. If this was a law review article rather than a blog post, it would be full of ‘ids’ from here on out). Charles Houston and Thurgood Marshall urged the attorneys to challenge plaintiffs in such cases to prove that the defendants were Black, to introduce studies showing the sociological and economic effects of restrictive covenants, and to argue that the covenants were invalid under the common law doctrine of changed circumstances. They urged the attorneys not to rely on the enforcement-as-state-action argument, since it had failed repeatedly.

In 1945, an African-American man named J.D. Shelley bought a house on Labadie Avenue in St. Louis. The house was purportedly subject to a racially restrictive covenant that applied to the neighborhood (I say purportedly because, as Carol Rose has pointed out, the covenant was probably invalid as a matter of the common law of real covenants, for reasons unrelated to its racial restrictions). The neighbors sued to evict the Shelleys, and the Shelleys went to George Vaughn for help.

Vaughn used a strategy similar to the one urged by Houston and Marshall, but also raised the enforcement-as-state-action argument. He won at trial court on the ground that the restrictive covenant was defective as a matter of common law, but lost at the Missouri Supreme Court.

At the same time that Vaughn was bringing his case, other racially restrictive covenant cases were also proceeding, including Houston’s own case, Hurd v. Hodge, and one that Marshall would eventually take to the Supreme Court as a companion to Shelley, McGhee. The NAACP was attempting to coordinate the cases, hoping to pair the right case and the right attorney and take it to the Supreme Court. In the opinion of the NAACP, Shelley was not the right case, and Vaughn was not the right attorney. He was considered relatively unsophisticated, and some doubted his ability to persuade the Supreme Court.

Nonetheless, without consulting the NAACP, Vaughn filed a petition for a writ of certorari with the Supreme Court, which was granted. When a none-too-pleased Marshall found out, he quickly filed a petition in the McGhee case, which was paired with Shelley, as was Houston’s Hurd case.

At the Supreme Court, Vaughn argued first for the petitioners. Unlike Marshall and Houston, Vaughn didn’t focus his argument on economic and sociological data about the effects of racially restrictive covenants. He argued that court enforcement of them constituted state action. Racially restrictive covenants were, he told the Court, “the Achilles’ heel” of the American dream. He rapped his knuckles slowly on the table beside him and said, “the Negro knocks at America’s door and cries, ‘Let me come in and sit by the fire. I helped build the house.’” The question, from Vaughn’s viewpoint, was whether courts, as state actors, could hold the door closed.

Marshall is often credited with winning Shelley v. Kramer today, and perhaps justifiably so. His use of economic and sociological data to support Constitutional arguments became a hallmark of the civil rights litigation that followed, most famously in Brown v. Board of Education. But to me, it is Vaughn’s undaunted and courageous insistence that courts, too, were state actors bound by the limits of the 14th Amendment, that is the most powerful (and controversial, to this day) conclusion from the Shelley case.

I like introducing my students to Vaughn for so many reasons. Students at William Mitchell have often taken non-traditional paths to law, and they, like Vaughn, attend a school whose ‘ranking’ does not match its quality. He was a wise counselor for his community, a man to turn to in times of trouble. And his quiet insistence on basic principles helped launch a revolution in American law for which we all owe him a debt of gratitude.

Every once in a while, God inexplicably smiles upon law professors. To wit:

Driver of school bus full of middle school basketball players hits deer. Driver doesn’t stop. Deer gets caught beneath bus. Deer ruptures fuel line. Bus, on fire, pulls into school parking lot, and explodes.

Behold.

Best of all: no one was hurt.

It’s a simple question, but answering it has ripped entire nations into pieces, including the United States. It was U.S. Senator Henry Clay, arguing that abolishing slavery would be a massive taking that would require just compensation to the slave-owners, who said, “that is property which the law declares to be property.”

Once they realize the context of his statement, most students disagree with Clay. But that begs the next question: if the law doesn’t give us the final word on rights, including [...]]]> Here’s a question I pose to my property students when we begin to study takings: is that property which the law declares to be property? Or, are there some things that can never be property, no matter what the law says?

It’s a simple question, but answering it has ripped entire nations into pieces, including the United States. It was U.S. Senator Henry Clay, arguing that abolishing slavery would be a massive taking that would require just compensation to the slave-owners, who said, “that is property which the law declares to be property.”

Once they realize the context of his statement, most students disagree with Clay. But that begs the next question: if the law doesn’t give us the final word on rights, including property rights, then what does?

I then take the opportunity to introduce them to a dapper young attorney who argued that that certain fundamental rights inhere in man – including property rights, and in particular the just allocation of property rights in natural resources.

He was the first attorney of non-European heritage to practice law in South Africa. He later returned to his home country, India, where he became an advocate and leader in a struggle for independence, democracy and the fair allocation of property rights. A critical turning point in the struggle was a protest against the monopolization of an extremely important natural resource in his country: salt.

His famous Salt March to the Sea, which embodied his philosophy of civil disobedience and nonviolence, became the inspiration for Martin Luther King Jr.’s strategy. We study the Fair Housing Act, of which Martin Luther King was an advocate. It was passed one week to the day following Martin Luther King’s assassination, to honor him. In that way, I tell them, Gandhi’s legacy is so profound that it reaches all the way to this course to you.

Gandhi himself had been assassinated 20 years before Martin Luther King. How much of an impact for good did this lawyer have on the world? Consider the words of Prime Minister Nehru, informing the people that Gandhi had been killed: “The light has gone out of our lives and there is darkness everywhere. . . . We will not run to him for advice, or to seek solace from him, and that is a terrible blow.”

It’s far too much, of course, to ask students to be a Gandhi. We can’t all be the light of other people’s lives. But we can , occasionally, work for justice. And an attorney can be someone to whom others run for advice and solace, a wise counselor. That’s part of the tradition of our profession, and Gandhi embodied it.

My kids’ school had a program called “Drop Everything and Read.” The idea was that no matter what else was on the agenda, every once in a while the kids just stopped what they were doing and made time to actually read (I told my kids that in my rough school, I followed a program called Drop Everything and Run). The point was to prevent them from losing sight, amid the constant hustle and bustle of school, of the joy of learning and storytelling.

Law students often lose sight, amid the alternating grind and panic, of what they might be able to do with a law degree some day. I like to think we’re training them to be wise counselors, people to whom [...]]]>

My kids’ school had a program called “Drop Everything and Read.” The idea was that no matter what else was on the agenda, every once in a while the kids just stopped what they were doing and made time to actually read (I told my kids that in my rough school, I followed a program called Drop Everything and Run). The point was to prevent them from losing sight, amid the constant hustle and bustle of school, of the joy of learning and storytelling.

Law students often lose sight, amid the alternating grind and panic, of what they might be able to do with a law degree some day. I like to think we’re training them to be wise counselors, people to whom others turn for guidance when the going gets rough. But how do we show them that?

It seems to me that it’s worthwhile, every now and then, to drop everything and talk about some ordinary lawyer who, when history conspired to give them a choice between trying to help people who needed it, and turning away, chose to try. I think of it as “Drop Everything and Emulate.”

The criteria are that the lawyer must be either someone they’ve never heard of who tried like hell to help when needed, or someone who did great things, whom they never realized was a lawyer. And, there must be a tie-in with whatever we are studying at the time.

Last year, I chose the the 75th anniversary of the ‘Reichstag Fire’ Decree of February 28, 1933, to introduce my students to a lawyer named Hans Litten. We were studying zoning and takings at the time. Here’s what I told my students:

Under the February 28th decree, the Nazis declared, among other things, that searches could be made in peoples’ homes without a warrant, and property could be taken without compensation or redress in the courts.

Once property could be taken without compensation, people could be forced to live in particular zones based on their political viewpoint, or race, or religion, or sexual orientation.

Within 3 weeks of the decree, the Nazis opened a new ‘camp’ to hold people arrested and dispossessed of their property. It was in a town called Dachau. Eventually thousands died there. Eventually millions would die elsewhere, in camps and ghettos across Europe. That’s what takings and zoning can be about.

Back to Hans Litten: he was one of the first four people arrested under the decree, on the night of the 28th. Why did they arrest Litten, and why so soon? Because they feared him, this guy who looks like Harry Potter at recess. Why?

He was a lawyer, and before he even turned 30, he had decided to fight Nazism with the law. How? When the brown shirts attacked innocents, he sued them and the people putting them up to it. At the age of 29, he put Adolph Hitler himself on the stand and cross-examined him. Can you imagine the courage?

The Nazis knew, if they were going to triumph over law, they were going to have to get rid of people like Litten. And not sometime down the road. First. Because he had learned how to use the law to seek justice. Like Dick the Butcher in Shakespeare’s Henry VI, when the worst illegally seize power, they know that first, they’d better kill the lawyers.

Litten wasn’t a superman; in fact, his whole sense of justice depended upon the idea that there was not a class of supermen and a class of ordinary men. He wasn’t perfect, he wasn’t a saint.

But he learned the law – he studied this sometimes boring crap to learn things like under what circumstances governments can decide who lives where – in order to learn how to ask for justice.

And, when history conspired to present him with that awful challenge, he found the courage to do it. Personally, I can only barely imagine it.

Litten was never tried, or even charged with a crime. He died in Dachau. But we remember him today.

So now, let’s honor him by taking our turn to learn.

Hillel received a ton of good responses as to where he could place this article. And I think that suggests that the rules for legal writing in the academy are not as confining as Hillel’s post suggests. There actually are a lot of opportunities to write and publish short and fun pieces [...]]]> At Prawfs, Hillel Levin has a post asking for suggestions on where to place a short, somewhat tongue-in-cheek essay that nevertheless explores important legal ideas (I am looking forward to reading the paper). He is looking for suggestions as to where to place the article, noting that the writing game is somewhat “confining.” I added my two cents on possible outlets in the Comments, but I wanted to break out a broader point.

Hillel received a ton of good responses as to where he could place this article. And I think that suggests that the rules for legal writing in the academy are not as confining as Hillel’s post suggests. There actually are a lot of opportunities to write and publish short and fun pieces such as this one that make creative (and often important) legal points. Many journals will jump at them. The expansion of outlets, both in the number of journals as well as the addition of on-line supplements (that really were intended for precisely this sort of thing), means there is a place for this type of work. One of my great frustrations was my inability to place this piece (like Hillel’s, it was short, tongue-in-cheek, but, I think, hit on an interesting idea about the law) in some law journal forum, settling instead for FindLaw.

Of course, something like this does not “count” if you are at a school that counts publications and are just trying to meet the statutory minimum for promotion and tenure. But I think committed and successful scholars just keep writing, doing many different types of projects for many different forums, all of which form an overarching body of legal writing. The short piece that Hillel is describing is a perfect example of the sort of things that should be part of that corpus, in addition to the traditional books and big law review articles. And that is why I do not believe blogging is anathema to legal scholarship–it is another way of exercising the writing muscles.

Do I like it? You betcha!

How much do I like it? Let me count the ways.

I like it to the depth and breadth and height

Of my classroom, when marveling at the sight

Of 1Ls engaged in class discussion.

I like it to the level of my students’ gaze,

With which I now have a direct eye connection.

I like it freely, as the students set discourse ablaze;

I like it purely, as they turn from malaise.

I [...]]]> As luck would have it, I stumbled into a laptop-free section this semester. What started as a decision of one of my section colleagues to stamp out the scourge of laptops in his class had a domino effect. A second colleague signed up and, suddenly, we all were members of the Laptopless Society.

Do I like it? You betcha!

How much do I like it? Let me count the ways.

I like it to the depth and breadth and height

Of my classroom, when marveling at the sight

Of 1Ls engaged in class discussion.

I like it to the level of my students’ gaze,

With which I now have a direct eye connection.

I like it freely, as the students set discourse ablaze;

I like it purely, as they turn from malaise.

I like it with a teaching passion once deflected

By the tops of student heads bent over their PCs.

I like it with a like that I formerly rejected

When looking out over a laptop sea, — I like my shiny

Happy, laptopless students! – and, unless otherwise directed,

I shall but like it better even after course evaluations skewer me.

How is it that so many of us (maybe I should just [...]]]> I’ve been thinking a lot about teaching lately. Specifically, I’ve been wondering about my effectiveness in the classroom. After my 9:00 AM class, my 1L students line up at the podium to ask me questions – obviously a consequence of my uncanny ability to convey information in an unclear and unconcise manner. My upper-level students, however, make a beeline for the door as soon as I quit my yammering. So, either I morph into a paragon of teaching clarity in the hour that I have between these classes or my upper-level students prioritize lunch over knowledge. Or maybe they know that a trip to the podium would be futile.

How is it that so many of us (maybe I should just speak for myself) become teachers without any training on how to teach? Is teaching truly so unimportant that we’ll let most anyone (e.g., me) in the classroom? If it is unimportant, then why do we pass out teaching evaluations to our students? And why is it a factor in the promotion and tenure process?

Maybe the better question is “how can I improve?” I know that there are annual teaching conferences and panels on teaching methods at the January AALS. But do law schools offer training and mentoring on teaching to their faculty members? I’m curious to know what folks are doing at their schools. Continuing to exhort my class to “Love the One You’re With” when they grumble about my (or anyone else’s) teaching may be entertaining, but it doesn’t address their concerns.

“I thought of him much more as a colleague” than a student, said Laurence Tribe, a law professor at Harvard for whom Mr. Obama worked. “I didn’t think of him as someone to send out on mechanical tasks of digging out all the cases.” Other students could do that, Professor Tribe added.

I love Larry Tribe. He is a gifted teacher, and amazing scholar, and, so far as I can tell, a genuinely decent person. (He brought a huge basket of granny smith apples to every conlaw class. When I was at HLS, this [...]]]> At least, not for Larry Tribe:

Both allies and critics sometimes concluded that Mr. Obama was too gifted, or in too much of a hurry, for the tasks that consumed others.

“I thought of him much more as a colleague” than a student, said Laurence Tribe, a law professor at Harvard for whom Mr. Obama worked. “I didn’t think of him as someone to send out on mechanical tasks of digging out all the cases.” Other students could do that, Professor Tribe added.

I love Larry Tribe. He is a gifted teacher, and amazing scholar, and, so far as I can tell, a genuinely decent person. (He brought a huge basket of granny smith apples to every conlaw class. When I was at HLS, this made him the most student-friendly professor at the place.) But this is a bad quote. Bad for Obama. Bad for the other RAs Tribe hired that year. And bad for those of us who think that digging out the cases is an act invested with a dignity and meaning all its own. Without the cases, after all, we’d be nothing more than history or philosophy professors! What did Larry and Barack do? Chat about the how to define “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?

Using meaningless letters adds unnecessary, if slight, cognitive demand to exercises that should be maximally parsimonious. Normative categories in Contracts are especially useful to emphasize the context in which an exchange occurs. The abstract lettering system should be abandoned in future Restatements. A few examples from Illustrations to Section 227 of the Restatement (Second) of Contracts appear below.

Restatement (Second) of Contracts

§ [...]]]> The traditional style of doctrinal illustrations in the American Law Institute’s Restatements of Law identifies parties by meaningless letters such as A, B, C and D. In Contracts, at least, it would be clearer for the illustrations to identify parties by meaningful normative categories they occupy, such as General-Sub, Company-Inventor, Buyer-Seller, Borrower-Lender, Father-Daughter, or even Promisor-Promisee, Obligor-Obligee and so on.

Using meaningless letters adds unnecessary, if slight, cognitive demand to exercises that should be maximally parsimonious. Normative categories in Contracts are especially useful to emphasize the context in which an exchange occurs. The abstract lettering system should be abandoned in future Restatements. A few examples from Illustrations to Section 227 of the Restatement (Second) of Contracts appear below.

Restatement (Second) of Contracts

§ 227 STANDARDS OF PREFERENCE WITH REGARD TO CONDITIONS

(1) In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the circumstances indicate that he has assumed the risk.

Illustration 1. A, a general contractor, contracts with B, a sub-contractor, for the plumbing work on a construction project. B is to receive $100,000, “no part of which shall be due until five days after Owner shall have paid Contractor therefor.” B does the plumbing work, but the owner becomes insolvent and fails to pay A. A is under a duty to pay B after a reasonable time.

Better: General contracts with Sub for the plumbing work on a construction project. Sub is to receive $100,000, “no part of which shall be due until five days after Owner shall have paid General therefor.” Sub does the plumbing work, but Owner becomes insolvent and fails to pay General. General is under a duty to pay Sub after a reasonable time.

Illustration 2. A, a mining company, hires B, an engineer, to help reopen one of its mines for “$10,000 to be payable as soon as the mine is in successful operation.” $ 10,000 is a reasonable compensation for B’s service. B performs the required services, but the attempt to reopen the mine is unsuccessful and A abandons it. A is under a duty to pay B $10,000 after the passage of a reasonable time.

Better: Mining Company hires Engineer to help reopen one of its mines for “$10,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for Engineer’s service. Engineer performs the required services, but the attempt to reopen the mine is unsuccessful and Mining Company abandons it. Mining Company is under a duty to pay Engineer $10,000 after the passage of a reasonable time.

Illustration 3. A, a mining company, contracts with B, the owner of an untested experimental patented process, to help reopen one of its mines for $5,000 paid in advance and an additional “$15,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for B’s services. B performs the required services, but because the process proves to be unsuccessful, A abandons the attempt to reopen the mine. A is under no duty to pay B any additional amount.

Better: Mining Company contracts with Inventor of an untested experimental patented process to help reopen one of its mines for $5,000 paid in advance and an additional “$15,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for Inventor’s services. Inventor performs the required services, but because the process proves to be unsuccessful, Mining Company abandons the attempt to reopen the mine. Mining Company is under no duty to pay Inventor any additional amount.

Panda: How do we know that’s true? I’m very sophisticated statistically, not to mention ridiculously cute due to the fact that I am a panda, and I can tell you that that study has a lot of flaws.

Hippo: But there are a lot of other studies like this, so can we just assume for the purposes of our conversation that it’s true?

Panda: Ok, let’s make that assumption. So maybe hippos get worse evaluations because hippos are just lousy teachers—maybe you all need to learn how to teach.

Hippo: But my teaching style is just like yours. And wouldn’t [...]]]> Hippo: Hey, Panda, did you see this study that says that students consistently give lower teaching evaluations to hippos than to pandas?

Panda: How do we know that’s true? I’m very sophisticated statistically, not to mention ridiculously cute due to the fact that I am a panda, and I can tell you that that study has a lot of flaws.

Hippo: But there are a lot of other studies like this, so can we just assume for the purposes of our conversation that it’s true?

Panda: Ok, let’s make that assumption. So maybe hippos get worse evaluations because hippos are just lousy teachers—maybe you all need to learn how to teach.

Hippo: But my teaching style is just like yours. And wouldn’t it be kind of weird if hippos were universally worse teachers than pandas? I think it’s just that students don’t like hippos as much as they like pandas. I mean, I’m not all furry and cute like you.

Panda: True. I am ridiculously cute.

Hippo: Ok, moving right along. Anyway, since students are biased against hippos, I think that my low teaching evaluations shouldn’t count against me in the tenure process, or at least, shouldn’t count against me as much.

Panda: That doesn’t make any sense. Why should it matter whether students aren’t learning from you because you mumble and don’t give good examples, or aren’t learning from you because they don’t like hippos? The fact is, they’re not learning, or at least, they don’t feel like they are. Don’t we want this school to have good teachers?

Hippo: Yes, but why should I bear the burden of their bigotry?

Panda: Bear! Hee hee hee.

Hippo: Could you be serious for a second? I don’t see why I should have to be punished for their bigotry. Shouldn’t they be the ones who carry the burden of having an irrational dislike for hippos?

Panda: Because you’re not as—

Hippo: Yes, fine, because I’m not as ridiculously cute as you.

Panda: That makes me a little uncomfortable, because I thought our purpose was to teach our students. Maybe in day-to-day life you shouldn’t have to carry the burden of other people’s bigotry, but here in school, we take on, or should take on, a lot of things for our students. I mean, it’s a general rule that I don’t clean up other people’s messes, but when my son is sick (and by the way, if you think I’m ridiculously cute, you should see my son! baby panda!), I clean up after him. That’s my role in the parent-baby panda relationship. And our role as teachers is to help our students learn.

Hippo: Yeah, that’s true, but I think one of the things we should help them learn is how to accept hippos as teachers and in other positions of authority.

Panda: That makes sense—I guess I’m not here just to teach my subject area, tree-scratching. So how could we help them learn to like hippos?

Hippo: Well, if not all students are biased, and if classes are graded on a curve, people who don’t learn well from hippos will get worse grades than other people when they take classes from hippos. The bad grade will essentially be a correction for the bias, one of the rare settings in which discrimination can be punished without any action on anyone’s part. The student suffers from his bias against hippos, but, if we weight evaluations properly, the hippo does not. But the discriminating student can eliminate his disadvantage in the class by listening better to hippos. In other words, the student can improve his grades by changing his behavior (i.e., his not-listening-to-hippos behavior). So we should let students know that many people are biased against hippos, so that a student who gets a bad grade from a hippo thinks, “Hmm, maybe I can learn better and improve my grade if I get rid of this irrational bias of mine and listen carefully to this hippo.” And perhaps the student can bring this attitude with him out into society at large.

Panda: That seems kind of optimistic. And it still makes me kind of uncomfortable, though I can’t figure out exactly why.

Hippo: Well, let me know. I’m going to go wallow in the mud.

Panda: Yeah, I’ll think about it. See you later. I’m going to go eat some bamboo in a placid manner.

You are quite right.

Certainly not.

To be sure.

That is true.

Precisely.

Clearly.

Certainly.

That is the inference.

Assuredly not.

I think that what you say is quite true.

It cannot be otherwise.

And, my personal favorite–

I agree, as far as I am able to understand you.

I would love to hear people’s thoughts on the answers to these questions, or suggestions for more questions to add to the list. Also, I’m sure there has been a tremendous amount of research on all of these subjects, but unfortunately I’m entirely ignorant of it, so among other comments, I’d be very curious if anyone had particular reading they would recommend on these subjects. It would also be great [...]]]> I have been wondering lately about teaching evaluations: how they are best structured and analyzed, disseminated, and used to make decisions, and, in the larger scheme, how differing interests should be weighed as we address these issues. I have no answers, but I have a lot of questions (they follow after the jump).

I would love to hear people’s thoughts on the answers to these questions, or suggestions for more questions to add to the list. Also, I’m sure there has been a tremendous amount of research on all of these subjects, but unfortunately I’m entirely ignorant of it, so among other comments, I’d be very curious if anyone had particular reading they would recommend on these subjects. It would also be great to hear how other law schools approach these issues now, and how other law schools arrived at their decisions about to address these issues.

Creating and Understanding Evaluations

What questions should be on teaching evaluations, and how should they be framed?

If we ask students to evaluate teachers on a numerical scale, what specific statistical concerns should we take into account when analyzing the raw evaluations numbers? For example, it has long been noted that there are problems with averaging ordinals. That is, on a scale of five (where five is the best), there may be a bigger gap in quality in the minds of students between someone who earns a four and someone who earns a three than between someone who earns a five and someone who earns a four. But if we simply average numerical scores, these differences have the same effect on the average, which is not good. (Side note: It makes me incredibly happy that there is a journal entitled Quality and Quantity. Yes please!) Or, to give another example, is there some particular way we should treat outliers when analyzing evaluations? (The answer might be no.)

Disseminating Evaluations

Should teaching evaluations be released publicly?

If so, which portions? The entire evaluation? Raw numbers? Averages? Written comments?

And if some or all of this information should be released, how should it be released? On a website available to the general public? On a website available only to members of the law school or university community? Or should it not be available electronically at all—for example, should the information be available only in, say, a book that sits in the registrar’s office? Or, on the other extreme, should the information be released in a downloadable spreadsheet, to make analysis easier?

Finally, how long should the public portions remain public? Permanently? Or for some limited amount of time?

Using Evaluations

How should evaluations be used in hiring and tenure and promotion decisions?

How should internal law-school evaluations be compared to external evaluations (e.g., when hiring lateral candidates)?

Do student evaluations show consistent bias against teachers of a particular gender, race, age, attractiveness, ability/disability, or any combination thereof? (I.e., do teachers with particular characteristics that seem not intrinsically related to teaching ability receive consistently lower numerical evaluations or consistently more negative comments?) How, if at all, should the use of evaluations for hiring or tenure and promotion decisions take this bias (if it exists) into account? (And should the answer to the bias question affect any questions in any of the other categories?)

Weighing Interests

Finally, the most important question of all: When making these decisions, how should we compare and weight net utility within and among affected groups, including students, faculty, and the institution of the law school itself?