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Friday, December 12, 2014

Much ado?

[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]

Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:

Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.

And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.

But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*

* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.

Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write  "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?

I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink


I agree with you that the question requires no particular position, and in that it's a fine question. I always hesitate to ask real-world questions on exams (but not, of course, in class for discussion) because, as you say, they may assume a set of knowledge that students may not all share and that wasn't required reading for the class. Two solutions: draft a detailed fact pattern for the final exam, or do something like hold every student, from the start of the semester, responsible for every major article appearing in the N.Y. Times that involves constitutional law. I've toyed with the latter, but haven't done it; it would require ME to be responsible for all of the articles, what a "major" article is is questionable, what an article "involving" constitutional law is is questionable, and some may chafe at having to read the N.Y. Times as opposed to, say, the Wall Street Journal. So I stick with hypotheticals in exams, and plenty of real-world discussion in class to illustrate principles. This seems to work out pretty well.

Posted by: Steven R. Morrison | Dec 12, 2014 10:40:36 AM

Or at least provide a few more facts--where he was when he said it, whether he was on a loudspeaker, who he was talking to, etc. Maybe it's enough for students to identify those as open facts that we need to know more about.

BTW, I doubt a hypothetical fact-pattern would resolve the objections. Everyone would know what it's about.

Posted by: Howard Wasserman | Dec 12, 2014 11:09:34 AM

I didn't ask any Ferguson-related questions in my Crim Pro exam that begins in 55 minutes. But I don't see anything wrong with this question. I think it would be a terrible idea to prosecute Michael Brown's father, and I think that would be a perfectly permissible response to the question. The problem is the potential ambiguity of the word "merits" but it is not ambiguous here.

That being said, so long as there are less loaded murders and robberies to be tested on, I suppose I will stay away from topical questions.

Posted by: Jack Chin | Dec 12, 2014 11:12:09 AM

Fair point, Jack. Although for First Amendment purposes, incitement cases don't come up all that often anymore (despite the centrality of the incitement cases to the First Amendment canon). So it seems to me that when you see an example that might actually qualify, you have to grab it.

Posted by: Howard Wasserman | Dec 12, 2014 11:21:02 AM

The events in Ferguson may not feel personal to you, but there are people in your classes to whom they do. Personal, frightening, enraging. Imagine something that makes you feel like that, and then imagine your professor asks you to cold-heartedly dissect it - days after it happened. And to make matters worse, imagine your professor puts you in the employ of one of the people who caused the trauma, who is threatening and enraging.

That's the problem with this question.

Posted by: Kristen | Dec 12, 2014 11:37:01 AM

Here's a question, Howard (mostly genuine):

Should/could this memo cover practical advice?
For example, grand juries are almost purely an instrument of the prosecutor;
the reliability makes highly reliable people look bad.

The Supreme Court has immunized prosecutors from just about everything.

So it's quite practical to indict him, using the sock puppet of a grand jury.
This would provide the desired intimidation, to teach 'them' not to disrepect 'us'.

Therefore, constitutional issues are 100% irrelevant, given the current legal structure.

Posted by: Barry | Dec 12, 2014 11:42:06 AM

From recent events:

"Hang the lying Kenyan traitor! There's plenty of trees in this [White House] front yard. He wouldn't be the first one hanging from one of these trees. Snap his neck and watch him choke to death."

Stated by demonstrators outside the White House fence.

Could/Should they be charged?

Have you seen questions like that?

Posted by: Barry | Dec 12, 2014 11:44:01 AM

Barry: Well, since the class is called FIRST AMENDMENT, I imagine a student who wrote that would get a pretty bad grade on it. It pretty clearly is calling for students to do the First Amendment analysis of whether his speech was unprotected. And to interpret the word "indict" to allow such an answer would be a pretty blatant example of fighting the question.

Kristen: It seems to me that is what lawyers are (uniquely) supposed to do. And it seems to me it might be somewhat empowering to be able to say to the prosecutor, "No, you can't do this and here's why." As for timing, I fear that is a red herring in these discussions. Wouldn't the response be the same 3 or 5 years from now? We often hear complaints about teaching about things that may trigger traumas in students suffered years ago.

Posted by: Howard Wasserman | Dec 12, 2014 11:52:18 AM

So then we should test in a way that regularly puts the maximum number of students in personal discomfort. We don't. I think the "this is what lawyers do" argument is naive and symptomatic of the "law as puzzle" approach that law school too frequently adopts. I am not accusing anyone of bad faith. But I do think that if we take the law, and our role as lawyers seriously, we have to account for the fact that it impacts real people's lives, and that that impact is not equally spread. That's true in life, and it's true on something as mundane as tests. As to the latter, we should want to create an environment that allows for fair results. Using content that almost certainly puts one group at a disadvantage is poor pedagogy and it perpetuates systemic inequities.

Posted by: Kristen | Dec 12, 2014 12:02:19 PM

I agree with the thoughts of the main post and Howard's comments on this. In my mind, one of the most critical skills law students must learn is how to dispassionately analyze facts and argue for AND against a particular position. The criticism of this question is surprising and disheartening. If these students can't handle questions like this, my advice is that they are in the wrong profession.

The question isn't even that provocative--it doesn't require a student to argue for a given position, but simply present the arguments/counter-arguments. It also isn't even tied specifically to a racial issue. If this is too personal or divisive for some students, just wait until they have to argue for or against affirmative action in Con Law.

Posted by: TJM | Dec 12, 2014 1:01:18 PM

I don't consider law a puzzle. This question asked them to use law as a tool to tell the government "stop" (assuming none of them believe this is incitement under Brandenburg). Even if fictitious, it's empowering.

But it seems as if these concerns place off-limits a wide range of issues in a wide range of subjects, especially Con Law:
• Can I test on the validity of San Francisco's proposal to ban circumcision because there may be Jewish students in the class?
• Can I test on the validity of affirmative action programs or SSM bans?
• Can I test on the rape shield rule because there may be victims of sexual assault? How about the validity of a university's sexual assault processes in an Education Law class? How about the merits of a § 1983 action by a sexual assault victim trying to stop her rapist from being able to initiate child-support proceedings?

And as for how discomforting the minority, much of this is baked into Con Law itself: The questions arise when the majoritarian branches do something to disadvantage the minority group and the minority group uses Con Law to protect that minority group or to tell the majoritarian branches no.

Posted by: Howard Wasserman | Dec 12, 2014 1:23:56 PM


I cannot disagree more strongly with your claims here, and that is, frankly, impairing my ability to take this discussion seriously.

Perhaps the law school course that outraged me the most was one on Section 1983. Time and again the moral of this course - which not inaccurately captured the law on the ground - was: "Cops always win." Many of these cases left a far stronger impression of unpunished police brutality than the events in Ferguson bestow on me personally. That disagreement aside, however bad Ferguson is, it doesn't come close to reading 50 examples of the same or worse behavior.

Your argument implies that it would be wrong for a professor to give a police brutality hypo with a racial angle on the exam. I can't tell if you think this would always have been wrong (because some students would always be discomfitted) or if it became wrong just a few weeks ago. I am at a loss to understand your view of legal education here. With respect, the students you have in mind need this instruction more than most - if, that is, you want them to be in a position to do some good with their training.

Howard ably marshals a list of topics that would be similarly taboo under your rationale. If law students can't pull it together long enough to answer real-world hypotheticals like these, they aren't going be much good to their clients - whom, I repeat, might be exactly the kinds of people most in need of the protection sound legal advice can provide. The contrary view is not simply wrong, it is dangerous. Ironically, the danger equally threatens the goals of those who espouse it.

Posted by: Adam | Dec 12, 2014 3:19:25 PM

As a Law Professor who knows something about testing, I think Law Professors should be made to take a class on what makes a good test. It is never a good idea to give a question that will put some students in a different position than others, and as for your suggestion that students need to work through emotional issues, an exam is really not the right place for that especially if you know that a certain segment of the class will only be confronted with that issue. Personally, I think your efforts to defend the question are worse than the question, and Professors really need to think hard about what they are trying to accomplish with an exam question, and whether they ever ask white students to work through emotional issues and do so consciously.

Posted by: anon | Dec 12, 2014 3:30:38 PM

We have an entire generation of young students who are generally unable to separate their own political beliefs from principled legal analysis (or even civil, civic discussions). It is a serious problem.

Posted by: Adam Smith | Dec 12, 2014 3:36:30 PM

All I can say is, again, that would cut-off such a huge swath of subjects, as I listed in my earlier comment and as Volokh listed at still-greater length in his post.

Adam: That's a great point. My colleague who teaches Con Law struggles with this early in the course, as he tries to move them off what he calls CNN or USA Today analysis.

Posted by: Howard Wasserman | Dec 12, 2014 3:46:26 PM

Anon: My concern with your argument is that it assumes that non-black students will not be emotionally upset over the Ferguson events, and that it assumes that black students are somehow too fragile to separate their emotions from the legal analysis necessary to write an essay question. Who are you to say which students are impacted differently, and what is the criteria for evaluating this?

It strikes me that the question came up on a First Amendment exam, and there is nothing particularly racial about the question itself; in fact, just reading the question on its face, the race of Mr. Head is never stated and this fact is not critical to answering the question within the First Amendment framework. I've also seen comments on the ATL post from black students who actually took the test and did not feel that the subject matter did not impact their ability to complete the exam. Perhaps it wasn't necessary to use the Ferguson events specifically to write the question, but I assume the professor was trying to use a real-life example about a topic that very rarely comes up in real life.

Posted by: TJM | Dec 12, 2014 4:00:10 PM

The version of the exam displayed at the Volokh site includes the use of scare quotes around the word "News." It appears to say, "Fox 'News.'" If that's the way the exam question was sent to the students, that undercuts the notion that the professor truly wants dispassionate analysis.

Posted by: anon | Dec 12, 2014 4:15:21 PM

Anon: I fail to see how that matters. The call of the question was to "examine the merits", i.e., provide the arguments for and against seeking an indictment. It did not require the students to defend a position they may not agree with (IMO, the professor made this question waaaaay easier for the students by doing this--most of my law school exams required me to write arguments defending positions that I passionately disagreed with).

If anything, the use of scare quotes indicates the professor's bias against Fox and calls into question the role of media in the whole affair. That might actually lead an exam-taker to question the validity of the reporting and how the facts were portrayed, which would weigh against seeking an indictment.

Posted by: TJM | Dec 12, 2014 4:50:28 PM

The goal of a well written exam is to test all students equally. If you write an exam that will impact only some students emotionally in a way that pulls them off track, you've skewed the outcome. Given the enormous importance of grades for most students at most schools, it would seem that skewing the outcome on something exogenous to what is meant to be measured is a bad practice.

Good lawyers do have to put emotions aside, but 1) it's not always all that easy to do in practice, and 2) you generally have more time than the space of a law school exam to get your emotions in check. A student who loses fifteen minutes out of a three hour exam in a successful effort to get back on track has done a pretty quick job of it but still is significantly disadvantaged in the context of writing his or her best possible exam answer.

Subject matter that is part of the course - say, affirmative action - gives students time to get detached and approach it appropriately. If you sign up for a course in affirmative action, you do need to be prepared to put your emotions on the topic aside when the time comes to write the exam, and you need to prepare yourself to do that. Hot button issues that are not part of the course coverage can come as a surprise when they suddenly appear on the exam, without the opportunity to prepare, and so are more likely to skew outcomes.

Posted by: Ray Campbell | Dec 12, 2014 7:12:24 PM

Ray's argument seems basically right to me. The defenses of this question are confusing the purposes of the Socratic classroom environment with the purposes of the exam.

Lawyers need to be able to deal with emotional issues effectively, yes. A well-run classroom will develop that skill, along with others. A three hour exam isn't going to add significantly to that pedagogical goal if you haven't done a good job in the class already.

And, as Ray points out, if the idea is that the test is evaluating the ability to disengage (as opposed to teaching people how to do so), then it's bad because it creates a differential among students unrelated to the goals of the course. In the first instance, this question doesn't test "ability to reason about a difficult issue," it tests "are you particularly emotionally affected by this particular set of facts."

I don't think this means that such questions need to be completely banned, as Howard's parade of horribles suggests. Rather, the point is that there are pedagogical and evaluative reasons not to use these sorts of questions. So there need to be sufficiently powerful justifications on the other side to make it worth it. Here, unless the professor is simply too lazy or lacking in imagination to invent his own hypothetical fact pattern, there don't appear to be any such justifications. That's very different from a need to teach and test on, say, affirmative action in Con Law.

Posted by: Andrew M | Dec 12, 2014 8:09:59 PM

In response to the last two comments, I would refer to what Paul asks in his post: What general principles can we draw to guide us in exam questions. If Ferguson is different from rape or affirmative action or SSM or immigration or Hobby Lobby or sexual harassment, what makes it different?

Somewhat tangentially: I want to push back on the suggestion that using real facts/cases reflects laziness or lack of imagination by the professor. I have been using real cases/documents/situations for exams and essays in all my classes for about the past five years and I think they work significantly better as both evaluative and educational devices. Real situations queue up the issues better than any fictional situation and force students into a more realistic approach to the analysis.

Posted by: Howard Wasserman | Dec 13, 2014 2:31:08 PM

For me, the dividing line would be the subject matter of the course. If you teach immigration law or criminal law or affirmative action, there are certain emotionally potent topics you will have to cover on the exam. Students will need to get ready to face that in the exam, but will have forewarning and a chance to get their lawyer mode on with regard to that topic.
Otherwise, I think it's wise to think very carefully before building issues like race or rape into an exam question.
It's hard to write a good exam. I think one of the unfortunate aspects of this debate, at least as it was carried on at ATL, was to go straight to villifying the professor. I don't think that was fair or called for. I suspect he wishes he had written the exam differently, but I think he handled the situation as fairly as he could.

Posted by: Ray Campbell | Dec 13, 2014 5:53:53 PM

As I said in my first comment, the unequal effect of these questions makes them a poor evaluative tool. Sometimes they're still the best evaluative tool available, i.e. if you're trying to evaluate your students on the arguments around affirmative action, it's pretty necessary to ask a question about affirmative action. But in all the discussion of this I haven't seen an argument of why this question, compared to the tons of others the professor could have used, was even arguably the best evaluative tool.

I didn't mean to suggest that using real life scenarios is necessarily lazy or due to a lack of imagination. My comments were limited to the specific scenario, which involved invocation of a particular recent controversy that would pretty obviously have a disparate impact on students, just to raise issues tangentially related to the main event, in a way that wasn't necessary given the subject-matter of the course.

Posted by: Andrew M | Dec 13, 2014 8:05:28 PM

But is it tangentially related? It seems to me this is a genuine part of the main even and a real issue that is worth exploring. And it does fit with the subject matter of the course, since it presents a (relatively rare) real example of Brandenburg in action, this was more than a sport.

Posted by: Howard Wasserman | Dec 14, 2014 8:37:32 PM

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