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Category: Teaching

7

F.M. LaGuardia and Lawyers In the Way

As a law professor and lawyer, I like law and lawyering. But I hate as much as the next guy when lawyers get in the way of people trying to do business. 

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, including American, Eastern, PanAm, and United. 

The  letter’s ultimate paragraph and final words speak volumes to my point, and the letter as a whole is vintage piece of written communication.  Read More

8

Teaching Materials for Practicum Courses

You would have to live under a rock not to know that law schools increasingly feel the pressure to teach practical skills. Law schools can no longer teach doctrine and count on law firms to teach new lawyers the skills they need.  As a result, many schools are starting to incorporate practicum-style courses into the curriculum. These courses allow students to learn litigation or transactional skills in the classroom by working on simulated cases or transactions.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of practical skills, including how to untangle financial statements, read complex statutes, and draft various case materials. It looked so good in my head. Then I actually tried to put together the course. There was no textbook. There were no model exercises. There was no anything… I spent a crazy amount of time putting together a course packet, coming up with weekly drafting assignments, and thinking about how to teach the skills I thought my students would need. I hesitate to say exactly how much time out of fear of scaring away others, but I still have flashbacks of sitting at my kitchen table for days on end trying to come up with creative fact patterns and drafting exercises.

At the end of the day, I was able to put together the materials for a course called Corporate Fraud & Litigation. I have taught the course twice now, and I really love it. But the preparation continues. I still develop new graded exercises every year out of fear that last year’s students will pass on their answers to this year’s students. The end result is that I spend significantly more time preparing for this course than for my other two courses combined.  I am currently contemplating a complete overhaul of my course, but I have to admit that the massive work involved gives me pause.

I wonder whether the reality of having to prepare these materials—and then prepare many of the exercises anew every year—is holding back the development of these courses.  Read More

1

What’s Your Tenure Policy?

Thanks to Dan and Angel for inviting me to post.  This is my first post-tenure post, and also my first guest post.  I am a perma-blogger at The Faculty Lounge, so it will be fun to see how things work around here.

A number of schools are facing the question of how to structure their tenure calendars.  It seems that in many places within the legal academy, tenure and promotion are combined into a 5-7 year, one-time occasion where a professor goes from untenured Assistant (or initial Associate) to Tenured Full Professor.  And in many other places–often those schools following a traditional university model–like my home school of Syracuse University College of Law–the tenure process is much longer.  Promotions: Assistant–>Associate–>Full Professor.  And Untenured to Tenured, with no default attachment of promotion and tenure.  Some schools may be a hybrid of the two: at promotion from Assistant to Associate, tenure is automatically granted. Read More

0

Digital Law Books: II

As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.

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11

Privacy vs. Security vs. Anonymity

When I first began my PhD, I was keen to properly sort and define any new terms and reconcile them with my own education and experience. Three terms that always seemed to be intermingled were: Privacy, Security and Anonymity. Certainly they are related, but I wanted to be a little more specific and understand exactly when and how they overlapped.

First, let’s establish some basic definitions. For the purpose of this blog post, the following definitions will suffice (I’ll address alternative definitions later):
• Privacy: having control over one’s personal information or actions
• Security: freedom from risk or danger
• Anonymity: being unidentifiable in one’s actions

Next, create a Venn diagram with three overlapping circles (each circle representing one term). Then, within each area, try to provide examples that reflecte those properties. That is, imagine some situation where you would have security without privacy, or security without anonymity. When can you have all three? When can you be anonymous but lack privacy?

This may not be as easy as it seems. Certainly it helps once the definitions are set, but if nothing else, I think it’s a useful way to separate and identify the essence of these words (at least, as each of us sees them) and the contexts in which they may or may not exist. Before you continue, take a minute, examine the diagram above, and try to think of examples to fit each area.

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1

Back to School: Research and Teaching

Research and teaching are what I do for a living, and I’m delighted to work at a university whose President, Steve Knapp, knows their value.  In a courteous review in yesterday’s N.Y. Times, Dr. Knapp demolishes the dusty themes in a new book by the curmudgeons, Andrew Hacker and Claudia Dreifus, Higher Education?  The book bears clichés and canards against the modern university, primarily denying the value of research and rehearsing laments about its opposition to teaching.  Dr. Knapp’s polite piece delightfully debunks these specious critiques. 

Dr. Knapp notes the book’s strengths: it is “lucid, passionate and wide-ranging,” “well-structured and strongly argued,” and poses “searching and sometimes troubling questions” about today’s university operations and purposes.   Questions involve topics, some within university control some not, like the narrowness of academic specialization, the greediness of some faculty, and the frivolity of some student/parent demands for extras.   The book usefullly identifies well-known laudable goals, like reducing student debt, “engaging students,” “mak[ing] students use their minds,” and “end[ing] the exploitation of adjuncts.”

Dr. Knapp notes that the book’s primary target, though, is research.  The book makes the suggestion that, once upon a time, universities saw their role solely as education, and today they see it as all about publishing research.  The authors heap heavy scorn on the notion that research actually helps teaching or is necessary to good teaching.   Their most extreme proposals are that universities “spin off” medical schools and research centers, end paid sabbaticals, and abolish tenure.  Dr. Knapp notes that the authors, who should know what they’re talking about, Hacker being a noted academic and Dreifus a long-time adjunct professor, rely on “sometimes sweeping generalizations.” 

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1

Hypotheticals, the Classroom, and Moral Biology

Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

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0

Traditional v. Economic Analysis and Cardozo v. Posner

Scholars continue to debate the merits of traditional legal analysis compared to contemporary economic analysis of law. Each has virtues and both pose trade-offs. Adding to the extensive discourse, now available on SSRN is my new article probing the comparative appeal of these two approaches.

I offer a novel approach to the longstanding debate. I focus on judicial opinions of Benjamin Cardozo and Richard Posner. I use the context of tort law, where economic analysis has enjoyed most impressive success. I chose these two judges because their opinions appear more often than any other judge’s in current torts casebooks and they epitomize the competing methods.

My analysis led me to conclude that Cardozo’s traditional approach has the better of Posner’s economic approach. I would be delighted to hear criticism of the paper and its conclusions.

2

Can We Teach?

Reading Alfred’s posts on choosing a law school, I got to thinking about the quality of teaching at any given school, as a factor in that choice, and of an article I read in last Sunday’s New York Times Magazine, on Building a Better Teacher.

The piece describes, in essence, the effort to improve the quality of primary and secondary education in the United States, by more carefully/fully training teachers in how to teach.  By contrast, it counsels, merely incentivizing teachers (whether with the carrot of merit pay, or the stick of dismissal/school closure) fails to get at the root of the problem.  Teachers, thus, need to be taught how to teach.

The teacher trainer profiled, for example, suggests that the generally derided and dismissed issue of “classroom management” is actually foundational to whatever learning does (or does not) occur in the class.  As the article puts it, “students can’t learn unless the teacher succeeds in capturing their attention and getting them to follow instructions.”  (By way of empirics, I might note, the article cites data to certain that the students of the best teachers get 18 months of material, for each year in class, while those of the worse teachers get only 6 months!)

What about those of us in law school teaching, though?  Can we teach?  Is there any reason to believe that the skills that get us our teaching appointments are well correlated with teaching skills?

I’m doubtful there is, though I might perhaps be convinced otherwise.  Even if there is some such correlation, however, wouldn’t it still be useful to think about relevant training in classroom instruction, for law students thinking about going into teaching – or perhaps at least for those who actually end up there?  Isn’t that especially appropriate if, as the research reported in the article suggests, evidence of natural teaching “ability” aren’t highly correlated with student success?

One need not abandon a commitment to scholarship as the most critical metric in appointments, in promotion, and even in evaluating the overall “success” of a law professor, thus, to recognize that there are relevant skills to teaching – and perhaps to law teaching in particular – that we ought to know.

If so, how might we go about accomplishing as much?  By having a teaching “track” in law school, which would include some training in teaching?  Perhaps with some sort of intensive summer program, in which newly hired teachers would enroll for a time before embarking on their teaching careers?

No single solution would be perfect, of course.  I’m reminded, though, of my complaints to a colleague, in my first year of teaching, that I wasn’t sure I was doing a particularly good job at teaching.  “I’m sure they love you!” he responded.  Perhaps they do, I remember thinking, but that need not mean I was doing a good job.

5

Thoughts about choosing a law school, pt. 3

Legal writing programs get staffed in 3 meaningfully different ways.  One model relies primarily on part-time instructors (generally adjunct teachers or graduate student fellows) supervised by a director of the program who is sometimes, but not always, a full-time specialist in legal writing.  A second model uses a director (sometimes, but not always, a full-time specialist) who works with faculty teaching doctrinal courses like torts or contracts to integrate writing exercises into those doctrinal courses.  A third model uses full-time faculty who specialize in teaching legal writing.  Each has its pros and cons.

Model 1 is inexpensive for a school to operate.  Adjunct faculty don’t get paid very much, so this saves faculty positions for people who will teach other subjects.  Devoting slots this way arguably benefits students in a couple of different ways.  It might mean lower student-faculty ratios in upper level classes or a wider variety of courses from which to choose.  And, it could mean more faculty publishing and advancing the school’s scholarly reputation.  (Note:  This second point may be hotly contested depending on one’s perspective.  Conventional wisdom holds that tenure-track faculty who teach outside of legal writing publish more than legal writing faculty.  This is partly because many legal writing faculty hold non-tenure track positions for which publication is not a requirement.  This may be changing as legal writing faculty have begun to hold tenure-track positions and publishing more.) All of this comes at a cost, however.  Full-time faculty who specialize in legal writing develop considerable teaching expertise.  Perhaps more than any other type of law school faculty, full-time legal writing teachers think and write about how to train lawyers.  With all due respect to those who teach legal writing as adjuncts or fellows, I think that full-time legal writing faculty will, on the whole, teach better classes than part-time faculty.  An adjunct has another job that is his primary income.  He understandably pays more attention to that than his students.  And, adjuncts frequently teach for only a few years.  Just when they’re starting to figure things out, they move on.

Model 2 has intriguing possibilities for excellence that may not always be realized.  When full-time faculty teach writing as part of a doctrinally focused course, the integration could lead to a deeper understanding of legal problems and how to write about them.  Class discussion can explicitly tie big substantive questions to challenges in writing memos or briefs.  If this works, it probably creates an excellent legal writing class.  Unfortunately, the faculty I know who have taught in these programs report that the promise is not always realized because faculty who teach doctrinal classes do not, as a whole, make legal writing a priority.  They prefer to concentrate on their substantive law specialties and their scholarship.  Only an unusually dedicated non-legal writing specialist professor will spend the time necessary to become a top-flight legal writing teacher.  Some undoubtedly do it, but others I’ve spoken to find the obligation to teach writing a burdensome distraction from teaching and writing about subjects they prefer.

Model 3 uses only full-time faculty who dedicate themselves to teaching legal writing.  The obvious benefit is the development of expertise I mentioned earlier.  Not every law professor will agree with this, but I think that top-flight legal writing teachers bring great value to their students.  Those who don’t agree may say that any of us (meaning non-legal writing law professors) could step right in and do just as good of a job, but I’m not sure it’s as simple as that.  A good legal writing course combines the reading and analysis of cases with instruction on how to write about the law.  It isn’t obvious that “just any” professor would immediately do a good job of it.  If experience matters in teaching torts, it probably matters in teaching legal writing too.  So why don’t all law schools employ a full-time staff of legal writing teachers?  Well, it’s expensive.  Full-time legal writing teachers occupy faculty slots that could be used for teachers in other areas.  A school may not think that legal writing is sufficiently important to warrant the expenditure.

From the standpoint of a prospective law student, it’s worth deciding how important legal writing will be to you.  You will have to candidly assess your writing ability, how easily you will adapt to legal conventions, and your willingness to experience stress if you’re behind fellow summer associates/new lawyers who have had more training.  To be clear, I’m not saying that legal writing should be your primary method for choosing a law school.  But, if schools are fairly close in other ways, the legal writing program is one important and frequently overlooked way to identify the right school for you.