Tuesday, September 06, 2016
Too politically charged?
The Second Circuit last week decided Sokolow v. PLO, holding that a federal court in the United States lacked personal jurisdiction over the PLO and Palestinian Authority in an action brought by a number of U.S. citizens and their family members, arising from some terrorist attacks in Israel. The case contains good analysis of both the new general-jurisdiction analysis after Daimler and the new effects test after Walden.
This would be the type of case I would use for a subject essay on personal jurisdiction in Civ Pro. But is the underlying subject matter too hot and too controversial? Will people who feel strongly about either (or both) sides of this debate find the subject too painful, hurtful, etc.? Will I be seen as insensitive to one (or both sides)? Is this likely to get a reaction similar to the First Amendment exam question about whether Michael Brown's stepfather could be successfully prosecuted for incitement?
As I think I have written before, I like using real-world cases/problems for exams and essays. And I like questions that force students to look past their political preferences to see and explore the legal issues in a case--one's political views about Israel and the Israel-Palestine conflict should be irrelevant to whether the PLO is "essentially at home" in New York. But in this case, am I asking for trouble?
Posted by: Steve Lubet | Sep 6, 2016 11:13:09 AM
The less cautious part of me thinks you shouldn't ask the question and should just run with the case. On the other hand, it's too bad we live in a world where self-censorship can occur because of the chilling effect of hecklers and their vetoes running to university leadership and filing complaints they were offended. That said, you're tenured, right? Any law school administrator worth his/her salt would surely recognize the validity of discussing a new and interesting PJ case in the context of a civil procedure course. And as for the millenial student audience, some will disagree with the case choice. Haters going to hate. But our job isn't to be loved but to engage and teach.
Posted by: TS | Sep 6, 2016 12:19:52 PM
The question was not whether to discuss the case, but whether to use it on an exam or other assignment. The considerations are quite different.
Of course, the case can be assigned and discussed in class, assuming that the principles are sufficiently important and useful.
Exams, however, should avoid distracting material. The point of an exam is to allow students to demonstrate what they have learned. A question with a heavy political valence could sidetrack some students and undermine their ability to perform. Also, students who do poorly may attribute their grades to political disagreement. Of course, that would not be the case, but why take the risk? There are plenty of good jurisdiction problems without injecting intractable politics.
Posted by: Steve Lubet | Sep 6, 2016 1:22:19 PM
I agree with Steve. In fact, I remember posing a similar question a few years ago here on Prawfs, in the context of a possible Con Law exam question about the constitutionality of the Affordable Care Act. I believed then, and still believe, that such questions distract students and tempt them to try to play to the professor's perceived political leanings, all to the detriment of the assessment function a test is supposed to play. Of course, that's always a risk in a course like Con Law, but having the students write on a major league current political/legal controversy increases the risk a lot--and, as Steve notes in the civ pro context--unnecessarily.
Posted by: Bill Araiza | Sep 6, 2016 2:47:05 PM
I sure hope these aspiring lawyers you're teaching never have to encounter a case involving "politics" or "hot-button issues" in their practices. They will be shocked to learn that the real world practice of law doesn't coddle attorneys and protect them from ideas they find disagreeable or "distracting."
If you can't write objectively about a cornerstone legal issue because your heart is all aflutter with the intricacies of Israeli-Palestinian politics, perhaps you should consider dental school instead.
Posted by: Anon2 | Sep 6, 2016 3:48:49 PM
Why don't you just anonymize (if that's a word) it?
Just leave out the nationality of the tortfeasors and tortees.
Posted by: biff | Sep 6, 2016 10:22:54 PM
I agree with Biff - invent some fake countries and political groups, tweak the facts a bit, and voila. I've seen this technique work firsthand in developing moot court problems based on cases with polarizing facts (including a case involving the Israeli-Palestinian conflict). You could always choose to court the controversy - tenure is a wonderful thing - but if you want to play it safe, and avoid distractions, this is your best bet.
Posted by: Doug | Sep 6, 2016 10:44:38 PM
I think the easy thing to do would be to avoid the question or, as others have suggested, changing the nationalities/parties involved. That said, there is a part of me that feels like we lose something every time we make a concession like this. I have observed that the public in general and lawyers have become too entrenched in their feelings on certain issues and are unwilling to confront them honestly and impartially. I think censoring yourself only allows students to stay entrenched (in a way, it's a sort of heckler's veto). I think the original question you proposed can be appropriate and furthers the purpose of law school. If you want to limit the "shock" that some students may experience, it might be reasonable to let students know ahead of time that the exam may include subject matter about which they have strong feelings, but that the goal for them is to get over this.
Posted by: TJM | Sep 7, 2016 10:33:54 PM
Yes, you will need to 'trigger warn' your exam, and allow students to either to leave and not participate or take it at home.
Posted by: YesterdayIKilledAMammoth | Sep 8, 2016 1:08:01 PM