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Category: Teaching

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Another Tip That Education Is Changing: Open Stax Textbooks

Costs of education need to come down. Open course materials are growing. Maybe education will indeed undergo a transformation in the next ten years. There are many things that will need to change for true education reform to take place. But better resources matter. Enter Rice University. Its OpenStax College initiative tries to address the problem of source fragmentation. In other words, resources, resources everywhere but no time to synch may be less of a problem than it has been so far. One nice touch is format flexibility: web, e-textbook, or hard copy options are available. “The first five textbooks in the series–Physics, Sociology, Biology, Concepts of Biology, and Anatomy and Physiology–have been completed, and the Physics and Sociology textbooks are up at openstaxcollege.org. The model is curious:

Using philanthropic funding, Baraniuk and the team behind OpenStax contracted professional content developers to write the books, and each book went through the industry-standard review cycle, including peer review and classroom testing. The books are scope- and sequence-compatible with traditional textbooks, and they contain all of the ancillary materials such as PowerPoint slides, test banks, and homework solutions.

So there is professional level seeding of content while also allowing for wiki-like contribution:

Each book has its own dashboard, called StaxDash. Along with displaying institutions that have adopted the book, StaxDash is also a real-time erratum tracker: Faculty who are using the books are encouraged to submit errors or problems they’ve found in the text. “There’s also the issue of pointing out aspects of the text that need to be updated,” notes Baraniuk, “for example, keeping the Sociology book up-to-date as the Arab Spring continues to evolve. People can post these issues, and our pledge is that we are going to fix any issues as close to ‘in real time’ as possible. These books will be up-to-date in a matter of hours or days instead of years.” When accessing a book through its URL on Connexions, students and faculty will always get the most up-to-date version of the book. Faculty can, however, use the “version control” feature on Connexions to lock in a particular version of the book for use throughout a semester.

If you thought that keeping up with authoritative versions of an ebook and citing it (trust me it is odd to cite to a location in a Kindle book) was messy, this new model will throw you. Then again, that is a small issue.

Group contributions for the latest on an issue and the ability to choose versions is a great idea. Law texts that could update the latest cases or a change in legislation as they happen and then be refined overtime would be wonderful. Of course teachers use other ways to reach these goals. But if crowds/commons style approaches to texts work, we may see better and less expensive versions of textbooks. How the system will mangage disputes about content and education boards’ issues with approval remains to be seen. Still, the promise of this approach should make the miasmic aspects of education boards look silly and create a press for improved ways to have quality content available for educators and most important, for students.

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Of Law and Self-Loathing

“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.

Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.

My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.

Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell  put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean “democratic”) road to justice.

So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope  and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.

For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.

I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.

What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.

In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing;  and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.

More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.

What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.

Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.

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After a Year of Teaching

Yesterday began the last week of my first year of teaching. I taught Civil Procedure and Criminal Procedure as a Visiting Assistant Professor, so a colleague dubbed me the “Pro Prof.” There is still so much more to understand about becoming a challenging, inspiring, and effective professor, but I doubt I’ll learn in any other year the amount I learned in these two semesters. So, for the purpose of comparing notes with other professors, here are a few reflections accumulated after a thoroughly enjoyable year of professing.

1. Teaching is about balance. It’s necessary to find the optimal balance of informality (students tend to participate more and have more fun in a relaxed learning environment) with authority. There’s a balance of writing out notes but not wedding yourself to them. I also had to balance making deliberate choices about the kind of professor I wanted to be (modeling humbly after my law school professors) with the inevitable facts about who I am. When you speak for 1.5 hours in front of a classroom, your actual personality inevitably emerges. It turns out, I’ll never be as tough as Professor Kingsfield, but I can force myself to look disapproving if a student’s cell phone accidentally rings during class, and I can challenge students through my fervent, yet compassionate, Socratic questioning.

2. What excites the students will surprise you. It takes a few weeks with a new class to learn which types of questions, and which ways of phrasing/posing questions, will promote the best classroom discussions. Just because I am interested in the theories behind each rule of Civil Procedure doesn’t mean my students wouldn’t rather discuss whether a plaintiff can aggregate the claims of conjoined twins to meet the amount in controversy (this was an actual hypothetical a student posed in my class). That said, don’t give up on trying to get the students to come around to what excites you about the law.

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Why I Don’t Teach the Privacy Torts in My Privacy Law Class

(Partial disclaimer — I do teach the privacy torts for part of one class, just so the students realize how narrow they are.)

I was talking the other day with Chris Hoofnagle, a co-founder of the Privacy Law Scholars Conference and someone I respect very much.  He and I have both recently taught Privacy Law using the text by Dan Solove and Paul Schwartz. After the intro chapter, the text has a humongous chapter 2 about the privacy torts, such as intrusion on seclusion, false light, public revelation of private facts, and so on.  Chris and other profs I have spoken with find that the chapter takes weeks to teach.

I skip that chapter entirely. In talking with Chris, I began to articulate why.  It has to do with my philosophy of what the modern privacy enterprise is about.

For me, the modern project about information privacy is pervasively about IT systems.  There are lots of times we allow personal information to flow.  There are lots of times where it’s a bad idea.  We build our collection and dissemination systems in highly computerized form, trying to gain the advantages while minimizing the risks.  Alan Westin got it right when he called his 1970′s book “Databanks in a Free Society.”  It’s about the data.

Privacy torts aren’t about the data.  They usually are individualized revelations in a one-of-a-kind setting.  Importantly, the reasonableness test in tort is a lousy match for whether an IT system is well designed.  Torts have not done well at building privacy into IT systems, nor have they been of much use in other IT system issues, such as deciding whether an IT system is unreasonably insecure or suing software manufacturers under products liability law.  IT systems are complex and evolve rapidly, and are a terrible match with the common sense of a jury trying to decide if the defendant did some particular thing wrong.

When privacy torts don’t work, we substitute regulatory systems, such as HIPAA or Gramm-Leach-Bliley.  To make up for the failures of the intrusion tort, we create the Do Not Call list and telemarketing sales rules that precisely define how much intrusion the marketer can make into our time at home with the family.

A second reason for skipping the privacy torts is that the First Amendment has rendered unconstitutional a wide range of the practices that the privacy torts might otherwise have evolved to address.  Lots of intrusive publication about an individual is considered “newsworthy” and thus protected speech.  The Europeans have narrower free speech rights, so they have somewhat more room to give legal effect to intrusion and public revelation claims.

It’s about the data.  Torts has almost nothing to say about what data should flow in IT systems.  So I skip the privacy torts.

Other profs might have other goals.  But I expect to keep skipping chapter 2.

 

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Teaching Sexual Assault

This week, I began teaching the unit on sexual assault to my Criminal Law class. I – untenured, female, and in my second year of teaching – walked into my classroom and wrote “carnal knowledge of a woman forcibly and against her will” on the chalkboard, thus beginning a two week exploration of the law of rape. Am I brave? Am I foolish? Or am I simply doing what I am supposed to do as a Criminal Law professor?

A couple of senior professors from other law schools had advised me not to cover sexual assault as part of my Criminal Law class at all. It was too risky, I was told. And this is generally true. All classes have an element of risk and uncertainty: one can never be quite sure how any given class is going to turn out on any given day. The most beautifully constructed notes containing the most carefully (and charmingly!) written lecture can produce quizzical looks, yawns, and dead silence during the discussion period; meanwhile, those notes that might as well have been written on napkins during the faculty meeting that preceded the class can produce the most brilliant, Socratic unveiling of that hard-to-understand, but oh-so-fundamental concept. So, yeah: there’s uncertainty built into all classes. But, the uncertainty associated with teaching sexual assault is terrifying. Will my question about the mens rea of nonconsent yield a response that indicates that one of my students has been accused of rape? Will another response indicate that another student has been raped? Will a screaming match break out? Will someone break down in tears? Will that person be me?

I have my strategies, though: first, I avoid any attempts at humor during the unit, which is a departure from my approach to the rest of the class. Criminal Law frequently involves people doing horrible things to other people. The fact patterns of the cases are awful much of the time. So, as a professor, one could go into the classroom and lament man’s inhumanity to fellow man for an hour and a half; or, one could treat it like a dark comedy. I typically choose the latter. I prefer the Fargo approach to the There Will Be Blood approach … except during the unit on sexual assault. During those weeks, I am Daniel Day-Lewis as a turn-of-the-century oil prospector. (Interestingly, even dark comedies tend not to make light of sexual assault. People are killed all the time in dark comedies; but they are infrequently raped. If they are (think of Ving Rhames’ character in Pulp Fiction), the rape scenes are not supposed to be funny; they are supposed to be horrifying.)

My second strategy: instead of calling on students at random, I only call on volunteers. But, I am not entirely comfortable with this strategy. Undeniably: rape is terrible, and talking about it can make some people profoundly uncomfortable. But, you know what else is terrible? Murder. Voluntary manslaughter – which involves case after case of men experiencing sometimes adequate/sometimes inadequate provocation and killing their wives – is terrible, too. Yet, I do not hesitate to call on students randomly during the homicide unit. Some Constitutional Law professors tell me that, during their units on abortion (and definitely on the day that they teach Gonzales v. Carhart, if they teach it at all), they only call on volunteers. The exceptions that professors are willing to make to their usual pedagogy might be a bit problematic. Both abortion and sexual assault are gendered subjects. Is there something about topics that disproportionately and distinctly affect women that makes it appropriate to remove them from normal classroom procedure? One cannot argue that professors make these exceptions with respect to abortion and sexual assault because these topics are especially controversial. You know what else is controversial? Same-sex sodomy. Also controversial: affirmative action. But, the professors whom I have come across do not make exceptions to their practice of cold-calling when they teach Lawrence v. Texas or Grutter. (Indeed, I feel for the student who is a racial minority and who is called upon to be Socratically drilled about Grutter. A sufficiently competent performance may exonerate him or her from an implicit accusation that he or she is a beneficiary of the very program upheld in Grutter. And a bad performance? Well, that’s pretty good evidence that Justice Thomas was absolutely correct in that vigorous dissent….) So, why should we, as professors, be especially sensitive about abortion and sexual assault? Does our sensitivity construct women as especially sensitive? Or does it reflect the belief that crimes against women and gendered issues such as reproductive rights are Other?

Nevertheless, I shall adhere to my strategies, and I shall humorlessly and sensitively teach my students the law of sexual assault. And I shall sigh a huge sigh of relief when the unit is over and we can move on to lighter things – like Bernie Goetz shooting four, young, unarmed racial minorities on a New York City subway. [sigh]

Lombardo on Legal Archaeology

Paul A. Lombardo published an essay “Legal Archaeology: Recovering the Stories behind the Cases” in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics.  It reminded me of the wonderful chapters in this volume of “health law stories.”  Here are some excerpts that may be of interest: 

 Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.

Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.

How can a law professor correct this bias?  Here are some of Lombardo’s suggestions: 

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Some Words of Advice for Law Students, from 1811

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

  • The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
  • Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
  • Habits of attention and application, properly directed, produce what is commonly called genius.
  • The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
  • Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
  • The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
  • Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
  • Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
  • An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
  • When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.
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The Phone Booths in Katz v. United States?

I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.