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Saturday, May 25, 2013

Is a picture worth 1,000 words in a law school class? My experiment with visual aids

In my year-long visit at Yale Law School this Fall and Spring, I felt free to experiment with new teaching ideas. If they fell flat, I would have skipped town in just a few months, my reputation (such as it is) intact at my home institution. If it succeeded, I could take my new technique back with me. So, using my Yalies as guinea pigs, I used projected diagrams, pictures, and text as a teaching tool for the first time in my career.

My basic goal was to make doctrinal relationships, legal and political history, and legal text more intelligible by representing it visually in different modes -- color, shape, movement, or images generally. My prime directive was to adhere to Edward Tufte's principles: For instance, avoid "chartjunk," and never use bulleted text that you read from a screen. Within this capacious constraints, I tried a wide array of images and diagrams -- decision trees and flow charts, Venn Diagrams, statutory text in multiple colors, photos galore, and some often hokey but hopefully memorable visual representations of causal and doctrinal relationships.

My verdict? In anonymous surveys with a decent response rate, my constitutional law section (70+ members) seemed to like the slides. Many printed them out as guides during the final exam. My own sense: The pictures, if sufficiently simple and memorable, helped clarify ideas or narratives that had previously left some significant portion of the class baffled and frustrated. After the jump, I will provide some samples and invite you to share your comments on whether you think that these sorts of visual aids help and how they might be improved.


Here's an example of a very simple diagram that helped me explain Youngstown. (Download Youngstown Slide). The point of the diagram is to communicate graphically a few ideas that chalk and talk never seemed adequately to convey. First, I use a simple blank white screen and black circle to convey an easy-to-miss distinction: There are two ways, not one, in which the law can limit presidential power. The blank white screen is intended to convey the idea that, if Congress and the Constitution really both say nothing whatsoever about executive power, then normally the executive cannot act, even if neither statute nor Constitution implicitly or expressly prohibits an executive action. This is the sense in which the President is like Congress: Both are institutions with enumerated rather than residual powers, because they both need some grant of power (Constitutional in the case of Congress, Constitutional or statutory in the case of the President) before they can do anything, even if they are not transgressing any constitutional prohibition.

The slide suggests this basic truth with a blank white screen, followed by text in red stating that silence = prohibition. I pause after calling for the red text (just push the right cursor arrow to move the slide's animation along when viewing in "slide show mode") to emphasize that silence -- blankness -- means presidential inability to act. Another press of the right cursor arrow brings forth a green circle (the area of some sort of authorization for presidential action) followed by a black circle (the area where what would otherwise be within the green circle of authorization has been "affirmatively" prohibited). The idea of these three colored shapes (blank screen, green circle, black circle contained in the green) is to suggest the second sort of prohibition on presidential power: Presidential power might be absent (i.e., the action falls outside the green circle in the white screen because there is no grant from Congress or the Constitution), or the presidential action might be preempted (i.e., the act falls in the black circle in that there is some plausible grant that would otherwise confer presidential power, but it has been "affirmatively" taken away by some interpretation of a federal statute that extends the black space to "eat up" the green space).

There is a distinction, in other words, between a blank white screen and a black circle, even though points within both conceptual areas are prohibited forms of presidential policy-making. My example of a point in the black circle of "preemption" is Judge Silberman's use of Machinist preemption to eliminate President Clinton's executive order on replacement of striking workers in Chamber of Commerce v. Reich (1996): The Procurement Act would probably have given Clinton power to ban replacement of striking workers by contractors absent the limits of the NLRA: The EO fell within the part of the green circle blotted out by the black circle. My example of a point within the white screen is the President's unilaterally imposing a hypothetical special assessment on people living on the New Jersey coast to help pay for cleanup after Hurricane Sandy: There is no federal statute that implicitly or expressly prohibits such an assessment -- to my knowledge, Congress has never given the matter any thought -- but the President simply cannot impose taxes or fees on private citizens for the use of private property without an affirmative grant of power to do so. Little spots of red and green, respectively, bounce in to stand for these hypos.

I use smaller concentric grey and green circles to illustrate the "twilight zone" and the "core" of indefeasible presidential powers respectively. The color is supposed to suggest an idea: the twilight zone is a grey area (get it?), while the "green-means-go" circle of constitutionally guaranteed Article II powers that Congress cannot take away is bounded by a red line that the black circle cannot cross. I use a white dot labeled Myers to illustrate a point within that inner core, while I use In re Neagle to illustrate a point within the twilight zone that Congress could eliminate (say, with an express statute governing self-defense rights of supreme court bodyguards). Press the right cursor, and the grey twilight corona around Article II powers is swallowed up by the black circle of congressional preemption. Press the arrow again, and the corona fads back in. The idea is to suggest that twilight powers are instances of Presidential action that are a "halo" or penumbra emanating from those core Article II powers that Congress cannot take away -- powers to administer federal property, supervise federal employees, engage in diplomacy, control the armed forces, and so forth. The difference between that inner green circle and the grey twilight zone is that the latter can be swallowed up by sufficiently clear congressional statutes.

I have much simpler slides to illustrate much simpler ideas -- for instance, this slide (Download Trucks and Anvils) depicting a series of trucks carrying anvils to illustrate the idea of evidence (those are the trucks) carrying plaintiffs' and defendants respective shifting burdens of proof (the anvils -- get it?) under the Fair Housing Act's disparate impact theory. (I used bouncing tennis balls to convey the same idea with this slide (Download Tennis balls)). Maps come in handy to show the relationship between regions and county lines in New Jersey's implementation of Mount Laurel (Download NJ COAH regions). I used animated slides to illustrate some simple causal relationships like the downward filtering of affordable housing from the construction of luxury housing (Download Filtering). Slides are most obviously useful for highlighting the text of statutes and rules (Download Federal funds and housing segregation) or for displaying photos of buildings and neighborhoods subject to litigation in a land-use law class (Download Florida neighborhoods in Gulf Coast Recovery).

In any case, I am now hooked on this mode for presenting information. But my own addiction does not suggest that my efforts are effective, and they certainly could be improved: My products are obviously a far cry from Edward Tufte's masterpieces. So I'd be pleased to hear your suggestions and criticism. I'm also happy to trade tips and pool materials, especially in administrative law, constitutional law, land-use regulation, or local government law: Just send me an e-mail offline.

Posted by Rick Hills on May 25, 2013 at 01:16 PM | Permalink

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Note to fellow readers: If you upload a pptx file to google docs, it will convert it into a viewable image file.

Posted by: brad | May 25, 2013 4:22:04 PM

Excellent article. At CALI, we have commissioned hundreds of illustrations to make our lessons less "texty". The images are Creative Commons licensed and can all be viewed on Flickr http://www.flickr.com/photos/caliorg

You should also check out Margaret Hagan's work...
http://www.margarethagan.com/drawings/illustrated-law-flow-charts/

Karl Manheim at Loyola-Los Angeles has created hundreds of con law flow charts... http://classes.lls.edu/fall2006/conlaw2-manheim/charts.html

Faculty are starting to share images and powerpoints and other digital artifacts for teaching at http://elangdell.cali.org/commons

Posted by: John Mayer | May 25, 2013 10:11:17 PM

The problem with image files (I think -- I'm not technically adept) is that you will not see the animation. the animation is, I think, key, because it allows a complex diagram that otherwise would seem unintelligible if presented all at once to be built piece by piece along with a running narrative.

Posted by: Rick Hills | May 26, 2013 8:28:25 AM

Myers as the example of a core executive power that can't be limited by statute? Which executive power would that be? Myers and other cases of congressional aggrandizement (Chadha, Bowsher, etc.) would require a different slide, wouldn't they?

Posted by: Marty Lederman | May 26, 2013 8:29:21 AM

Hi Marty! That's the other risk of simple visualizations of doctrine: You might get the doctrine wrong.

The executive's Article II removal power is the core Article II power that I have in mind when I put Myers in the inner circle. Congress cannot take away the President's power to remove non-inferior purely executive officers where insulation from presidential removal would unduly impede the President's power to execute the laws under Morrison, right? In this sense, Myers falls within the inner-most circle, behind the red line that Congress cannot cross.

(I treat Bowsher, Buckley, and Chadha as limits on Congress' power, not protections of the President's powers: They DO require -- and receive -- a separate slide).

Posted by: Rick Hills | May 26, 2013 8:35:52 AM

Marty, I infer from your question -- maybe mistakenly -- that you would read Myers as simply covering cases in which the Congress reserves to the Senate the power to veto presidential removals. But I tend to think that this is an under-reading of Myers, for two reasons: (a) Taft did not rest the opinion on this ground and (b) Humphrey's Executor, which otherwise played havoc with stare decisis in reading Myers narrowly, declined to so narrow Myers, instead using the quasi-judicial/purely executive line.

One way to insert doctrinal debates like this one into the diagram is to put question marks by labeled dots, put the question to the students while discussing the diagram, and then animate the dot to fly ignominiously off the diagram when a student offers a good reason to read a precedent narrowly.

Posted by: Rick Hills | May 26, 2013 8:40:58 AM

That's right: Congress cannot take away the President's power to remove non-inferior, purely executive officers *where insulation from presidential removal would unduly impede the President's power to execute the laws under Morrison.*

Indeed, it can't take away his power to remove inferior officers, or non-"purely"-executive officers, "where insulation from presidential removal would unduly impede the President's power to execute the laws."

But Myers no longer stands for that, if it ever did. To the extent part of Taft's rationale (what the Court in Morrison described as dicta) was that Congress cannot limit removal of officers, or even of principal officers, it didn't survive even Humphrey's Executor. As the Court in Morrison explained, Myers is an aggrandizement case:

"As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers."

And in Morrison, the Court specifically abandoned the "purely executive" distinction of H's E, so that's no longer the touchstone, either. The "test," such as it were -- "the real question," in Rehnquist's words -- "is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty." And as long as the President or a principal officer can remove the officer in question "for cause," that test is generally satisfied. Except, perhaps, when it's not -- for example, if Congress were to try to protect the Secretary of State with "for cause" removal protection.

All of which is to say that the complex question of when and as to which officers Congress can restrict the removal power is just about the worst candidate imaginable for a power-point, one-dot example of an indefeasible executive power. It'd require some incredibly complex, probably unilluminating, Venn diagram of its own.

How about the veto power for your white dot? There's no case that stands for it -- but then, there's no real case for your vast white space, either. The veto power is the one constitutional executive power that I assume everyone would agree is virtually indefeasible by statute.

Posted by: Marty Lederman | May 26, 2013 9:04:41 AM

The veto power makes a MUCH better white dot, for two reasons: (a) all of the stuff you wrote above and (b) anything that gets the students thinking about the Constitution itself rather than the cases that happen to arise in SCOTUS is, in my view, to be promoted in constitutional law.

The pardon power would also make a good white dot, I think.

(BTW I might cavil with you about Morrison's clarity in adopting the anti-aggrandizement theory of Myers. Morrison's a quagmire of Rehnquistian mud. But that's really not the point of this particular post: You're absolutely right that visual aids should display, not beg, questions).

Posted by: Rick Hills | May 26, 2013 9:11:27 AM

Actually, it remains an open question whether and how a statute might regulate the pardon power -- so I'd use veto.

But for the love of God, please change your posted-to-the-Internet version of the slide to eliminate Myers, lest students all over the nation begin to absorb -- and worse, parrot back to us on their exams -- a simplistic unitary executive narrative! (I can see it now: "But Prof. Lederman, Hills's power-point slide has Myers as the canonical White Dot!").

(I actually think Morrison was fairly clear as to Myers -- but of course all the deliberate dicta in FEF v. PCAOB resurrects the battle over Myers's legacy (and holding), even while Roberts was affirming Congress' power to give SEC Commissioners for-cause removal protection. All the more reason to jettison Myers from the slide!)

Posted by: Marty Lederman | May 26, 2013 9:22:00 AM

Now that you're hooked on visualization, if you're looking to step up your game, I have three suggestions.

First, learn from examples. FInd others who have made effective slides and examine what they've done. Larry Lessig, for example, is legendary for his rapid-fire minimalist slides. This is a great way to get ideas and to understand from the other side of the clicker what works and what doesn't. (Think of it as a PowerPoint version of reading cases.)

Second, keep the word count down. (One way of putting pressure on yourself to use fewer words is to turn off AutoFit.) This makes the slides easier to read, and it also forces you to think, hard, about which words matter most.

And third, so far as possible, try to develop a distinctive personal visual style. Working within a consistent set of constraints helps give a structure for your creativity, it helps you use a consistent set of visual metaphors, and it gives your slides an immediately recognizable identity. I highly recommend picking a single theme -- the better-looking the better -- and trying to work exclusively with it, without introducing extraneous elements, for the duration of a course.

As for your Youngstown slide, a few more specific suggestions: Think about breaking the animations up into several slides, so that students have and consult a single, static diagram for each major concept (E.g., "When Congress has attempted to restrict the President's authority") rather than having to watch all the animations again. Think about trimming down the descriptive text, e.g., "Implied or express authorization" would do just as well as "Constitution or statutes' express or implied authorization for Presidents to act" because all of the other words are implicit in the slide itself. If you're using color-coding to indicate authorization and prohibition, make sure to use the same shade of green everywhere -- the bold versus regular-weight text, for example,. And finally, for the sake of your students, please turn off the bouncing.

Posted by: James Grimmelmann | May 26, 2013 9:22:12 AM

Now that you're hooked on visualization, if you're looking to step up your game, I have three suggestions.

First, learn from examples. FInd others who have made effective slides and examine what they've done. Larry Lessig, for example, is legendary for his rapid-fire minimalist slides. This is a great way to get ideas and to understand from the other side of the clicker what works and what doesn't. (Think of it as a PowerPoint version of reading cases.)

Second, keep the word count down. (One way of putting pressure on yourself to use fewer words is to turn off AutoFit.) This makes the slides easier to read, and it also forces you to think, hard, about which words matter most.

And third, so far as possible, try to develop a distinctive personal visual style. Working within a consistent set of constraints helps give a structure for your creativity, it helps you use a consistent set of visual metaphors, and it gives your slides an immediately recognizable identity. I highly recommend picking a single theme -- the better-looking the better -- and trying to work exclusively with it, without introducing extraneous elements, for the duration of a course.

As for your Youngstown slide, a few more specific suggestions: Think about breaking the animations up into several slides, so that students have and consult a single, static diagram for each major concept (E.g., "When Congress has attempted to restrict the President's authority") rather than having to watch all the animations again. Think about trimming down the descriptive text, e.g., "Implied or express authorization" would do just as well as "Constitution or statutes' express or implied authorization for Presidents to act" because all of the other words are implicit in the slide itself. If you're using color-coding to indicate authorization and prohibition, make sure to use the same shade of green everywhere -- the bold versus regular-weight text, for example,. And finally, for the sake of your students, please turn off the bouncing.

Posted by: James Grimmelmann | May 26, 2013 10:50:07 AM

On the YMMV front though, I find Lessig's single-word slides so distracting that I literally cannot watch them -- during one of his talks I had to look down the entire time so I could listen to the presentation. Perhaps I'm in a minority there but it may be a risk with more distinctive approaches that it will be counterproductive for some substantial portion of the audience. In particular, I find that I am briefly distracted when the information on the screen changes, and I've noticed others focusing on a slide rather than the speaker long after the slide has been put up, so there may be aural/visual trade-offs involved in using any slide.

Posted by: Bruce Boyden | May 26, 2013 12:25:58 PM

Our colleague Mr. Lederman is too modest. Sure the veto power would be fine for the white dot, but why not cite his own work and label it 'al-Aulaqi'? It could stand for the President's power to authorize the CIA to murder American citizens abroad notwithstanding specific statutory language to the contrary.

Posted by: Mohamed Khan | May 26, 2013 6:30:05 PM

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