Tuesday, June 30, 2015

Strange Bedfellows #12: Closing Thoughts on The Science of Learning

This post is part of the Strange Bedfellows series.

In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together.  But is it any more than a parlor game? 

For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher.  The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems.  I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach.  This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.

The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.

In Make It Stick: The Science of Successful Learning (2014), authors Peter Brown, Henry Roedinger, and Mark McDaniel describe a study that compared different methods to teach students how to identify works by different painters:

Researchers initially predicted that massed practice in identifying painters’ works (that is, studying many examples of one painter’s works before moving on to study many examples of another’s works) would best help students learn the defining characteristics of each artist’s style. Massed practice of each artist’s works, one artist at a time, would better enable students to match artworks to artists later, compared to interleaved exposure to the works of different artists. The idea was that interleaving would be too hard and confusing; students would never be able to sort out the relevant dimensions. The researchers were wrong. The commonalities among one painter’s works that the students learned through massed practice proved less useful than the differences between the works of multiple painters that the students learned through interleaving. Interleaving enabled better discrimination and produced better scores on a later test that required matching the works with their painters. The interleaving group was also better able to match painters’ names correctly to new examples of their work that the group had never viewed during the learning phase.

Similar results occurred in a study teaching people how to identify different families of birds, how to hit different kinds of pitches, and how to solve different kinds of math problems. These tasks strike me as similar to what we expect law students to do: transfer the knowledge gained through study of past cases to help identify, categorize, and resolve issues when they arise in previously unseen circumstances.

However, the studies showing the power of interleaving also reveal a cognitive illusion: students who learn interleaved material routinely underestimate their progress when compared to the silo method. This is largely because the advantages of interleaving tend to reveal themselves slightly later in time.  From Make It Stick:

The learning from interleaved practice feels slower than learning from massed practice. Teachers and students sense the difference. They can see that their grasp of each element is coming more slowly, and the compensating long-term advantage is not apparent to them. As a result, interleaving is unpopular and seldom used. Teachers dislike it because it feels sluggish. Students find it confusing: they’re just starting to get a handle on new material and don’t feel on top of it yet when they are forced to switch. But the research shows unequivocally that mastery and long-term retention and are much better if you interleave practice than if you mass it.

In my experience, students actually do not dislike the type of interleaving described in these blog posts and in my casebook, so long I am transparent with them about the logic. A few months into the semester they can feel the benefits of better comprehension and retention as they solve problems across silos. By the end of a semester, they know they are further ahead than they would have been, despite the initial feeling of unfamiliarity.

One advantage of interleaving is that it forces some delays and spreads given material over a larger stretch of time.  Instead of studying everything about the Commerce Clause in a one week silo, it is studied a bit at a time over several weeks or months. Repeated work with a topic over time, with enough lapse between exposures for a little forgetting to occur, improves a student’s ability to later retrieve and apply the knowledge.  This passage from Make It Stick describes some of the research:

For a vivid example [of the benefits of spacing out lessons] consider this study of thirty-eight surgical residents. They took a series of four short lessons in microsurgery: how to reattach tiny vessels. Each lesson included some instruction followed by some practice. Half the docs completed all four lessons in a single day. … The others completed the same four lessons but with a week’s interval between them.

In a test given a month after the last lesson, those whose lessons had been spaced a week apart outperformed their colleagues in all areas—elapsed time to complete a surgery, number of hand movements, and success at reattaching the severed, pulsating aortas of live rats. The difference in performance between the two groups was impressive. The residents who had taken all four sessions in a single day not only scored lower on all measures, but 16 percent of them damaged the rats’ vessels beyond repair and were unable complete their surgeries.

Why is spaced practice more effective than massed practice? It appears that embedding new learning in long-term memory requires a process of consolidation, in which memory traces (the brain’s representations of the new learning) are strengthened, given meaning, and connected to prior knowledge—a process that unfolds over hours and may take several days. Rapid-fire practice leans on short-term memory. Durable learning, however, requires time for mental rehearsal and the other processes of consolidation. Hence, spaced practice works better. The increased effort required to retrieve the learning after a little forgetting has the effect of retriggering consolidation, further strengthening memory.

In addition to Make It Stick, interested readers can consult two free online books about the science of learning: 

Posted by Aaron Caplan on June 30, 2015 at 11:38 AM in Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (3)

Monday, June 29, 2015

The Most Dangerous Precedent (or, A Silly Extravagance)

In today’s concurrence to Glossip v. Gross, Justice Scalia identifies a precedent that “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.” 

The villain is Trop v. Dulles, 356 U.S. 86 (1958), which held that it was unconstitutional to strip a native-born American of his 14th-Amendment-provided citizenship as punishment for briefly deserting his military post while serving in Morocco in 1944.  (“He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base.”)  The mischief arises from a passage frequently quoted from Chief Justice Warren’s plurality to the effect that the Cruel and Unusual Punishment Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Let’s leave aside that the Trop language is a tolerable paraphrase of Weems v. United States, 217 U.S. 349 (1910), which rejected an originalist approach to the Eighth Amendment to hold that fifteen years of hard labor for falsifying a public document was unconstitutional.  Has Trop caused more mischief “to our society” than any other case that Justice Scalia can think of?  Even if you disagree with the Trop language, at worst it means that a handful of persons can successfully challenge an extraordinary criminal sentence, and that a larger handful can make colorable but unsuccessful challenges to theirs.  This is worse for society than any other case that the justice has decried?  Than the decisions mandating a right to abortion, to sodomy, to same-sex marriage, or to coeducation at the Virginia Military Institute?  No, society is most harmed by jurisprudence that prevents the government from getting as close as it possibly can to the very edge of cruel and unusual punishment.

In a post from last week, I argued that some fire-breathing dissents can be worth teaching in an introductory Con Law class.  But now that Justice Scalia has declared, in his Obergefell dissent, that one should expect “separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression,” I need to add a note of caution.  A silly extravagance like the overblown attack on Trop v. Dulles can teach students lessons that I would prefer not to impart: that it’s more important to sound good than to be correct (long live truthiness); that consistency is the hobgoblin of small minds; that picking your battles is for suckers; and that once you’ve risen to a prominent place in your profession, nobody can stop you from phoning it in.  These lessons may have bits of truth to them, but I’d rather focus on others.

(Apologies for shooting fish in a barrel, but since we're talking about the quality of legal prose...)

Posted by Aaron Caplan on June 29, 2015 at 06:37 PM in Constitutional thoughts, Teaching Law | Permalink | Comments (0)

Strange Bedfellows #11: Subsequent History Surprises

This post is part of the Strange Bedfellows series.

Most Constitutional Law classes discuss how the system can correct its mistakes.  If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium.  Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution.  To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it).  Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.

It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled.  As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium.  But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised.  The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.

But I confess that I have not had the stomach to tell my students about some of them.  Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?

Cooper v. Aaron

The issue in Cooper was whether the Little Rock School District could postpone further compliance with a court-approved desegregation plan. The tumultuous experience with the Little Rock Nine during the 1957-58 academic year involved so much “chaos, bedlam and turmoil” (in the words of the trial court that granted a postponement in Cooper) to justify a cooling-off period.  SCOTUS unanimously disagreed. Desegregation must proceed as previously scheduled for 1958-59, and Governor Faubus and the segregationist legislature must get nowhere with their noises about not being bound by Brown v. Board of Education.  State obedience to SCOTUS’s interpretations of the US Constitution is “indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us.”  Score one for the federal judiciary.

Except that the desegregation plan did not proceed in the 1958-59 school year.  Instead, the legislature authorized the governor to shut down any school if “an efficient educational system cannot be maintained because of integration of the races.”  Using this power, the governor shuttered the four Little Rock high schools that were scheduled to desegregate, and the Arkansas Supreme Court upheld the order.  Garrett v. Faubus, 230 Ark. 445 (1959).  The postponement that Cooper refused to authorize occurred anyway. 

The end came not through direct enforcement of Cooper, but through the political process.  After a year without high schools, Little Rock began to rethink its commitment to segregation now that white families were personally experiencing the costs of maintaining it. In early 1959, an extreme segregationist who had joined the school board was removed from office through a recall election. The Little Rock Chamber of Commerce issued a statement urging the District to reopen its schools because continuing the controversy would be bad for business. The four closed high schools reopened in fall of 1959, and the desegregation plan slowly resumed. 

This political process was no doubt affected by Cooper, but teaching Cooper as the end of the story paints a misleading picture.  With its surprising subsequent history taught as part of the case, Cooper works better as a demonstration of how complex the constitutional system can be, rather than as a demonstration of the supremacy of judicial interpretation.  As a result, Cooper strikes me as a case worth teaching with its subsequent history, or not at all.  It may well be worth it for the next few years, since a potentially significant story will be whether Obergefell (and perhaps the Obamacare cases) end up generating political backlash comparable to that following Brown.

Palmore v. Sidoti

By contrast, I have not had the heart to use Palmore v. Sidoti to teach a related lesson about the limits of litigation. 

In Palmore, a Florida family court awarded custody of a girl to her father because the mother had entered into an interracial relationship.  The Supreme Court found this to be an invalid consideration: even if community prejudice might make a placement with the mother and her new husband stressful for the girl, the law cannot “directly or indirectly” give effect to private biases.  (That point is similar to the reasoning in Shelley v. Kraemer, as discussed in a previous post.)

SCOTUS reversed the custody ruling and remanded the matter to the Florida state courts to make a ruling untainted by invalid racial considerations, but by that time, the father had remarried within his race and moved to Texas with the daughter (as allowed by the Florida custody award). The state trial court in Tampa relinquished jurisdiction to Texas, and the decision to close out the Florida action was affirmed on appeal. 472 So.2d 843 (Fl. App. 1985).  I have been told that the Texas courts decided in unpublished opinions that it would be in the best interests of the child to remain with the father.

Assume for purposes of discussion that the Texas court considered only questions of family stability and not race. Nonetheless, one may wonder if the same result would have been reached had the Florida courts not originally removed the daughter from the house for constitutionally improper reasons; stability may have favored the mother in that alternate universe.  The subsequent history makes Palmore a story about the limitations of individual rights litigation, and not about its glorious aspirations. This could be a valuable discussion, but I have been loath to tell my students how all of a lawyer’s principled hard work may not ultimately benefit the client, who sometimes becomes a martyr with little to show for her Pyrrhic victory.

Carolene Products

After Carolene Products, the Filled Milk Act has been remembered in the Con Law canon as the paradigm of a law that has a rational basis.  Except that as of today, it officially doesn’t. 

As explained in Geoffrey P. Miller, The True Story of Carolene Products, 1987 Sup. Ct. Rev. 397 (1987), the Act was held to be irrational in Milnot Co. v. Richardson, 350 F.Supp. 221 (S.D. Ill. 1972), a case brought by the Carolene Products Company’s successor corporation. The government did not appeal.  As a result, filled milk is now readily available online. No semester is complete without me drinking a can of filled milk while my students clutch their stomachs and gasp in fear for my nutritional safety.  (Your students will never forget Carolene Products after that bit of show and tell!) 

It’s been a hard choice, but I have chosen to keep the demise of the Filled Milk Act a secret from my students—it would cause too much cognitive dissonance.  Yet it makes a potentially valuable exploration of how constitutional judgments can change—and whether they should.  In Carolene Products (the famous one), Justice Stone said that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” Evidently they did.  The later invalidation of the Filled Milk Act can potentially be an interesting counterpoint to Shelby County v. Holder (2013), which similarly found that changed facts made a statute unconstitutionally irrational.

Others?

I’d be interested to know if you dare to share these subsequent histories with your students.  And if there are other similar stories we should consider teaching.

Posted by Aaron Caplan on June 29, 2015 at 11:38 AM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (1)

Thursday, June 25, 2015

Strange Bedfellows #10: Why So Tense?

This post is part of the Strange Bedfellows series.

A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents.  Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions.  For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.

The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not.  At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others.  The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?”  This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages). 

The advocacy lesson is equally important.  The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing.  Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges.  When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions.  My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting.  Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).

As a casebook author, I faced the question is how much to leave in.  For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish.  To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases.  Think forty days and forty nights, or forty years in the wilderness.  Most casebooks seem to edit down the list; you get the point pretty quickly.  But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty.  The honest ones will admit they skipped it, just as I did the first several times I read the opinion.  The overblown Roberts dissent presents a good opportunity to discuss when less is more. 

As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these:  “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule.  The answer is obvious.” (emphasis added)  Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.

Posted by Aaron Caplan on June 25, 2015 at 03:21 AM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (2)

Wednesday, June 24, 2015

Strange Bedfellows #9: The Frame Game

This post is part of the Strange Bedfellows series.

The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case.  In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence:  “This is a case about ____.” 

My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race.  The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied.  The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply.  Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?

The frame game inevitably reveals itself in many canonical substantive due process cases, but it can also be woven into discussions of cases arising under many different doctrines.

Framing can be a battleground in equal protection cases where the court must decide which groups to compare against each other.  Goesaert v. Cleary, 335 U.S. 464 (1948), sometimes taught as an example of the bad old days, involved a frame that strikes most modern students as bizarre.  A Michigan statute would grant bartender’s licenses to two kinds of applicants: (a) a man or (b) a woman who is “the wife or daughter of the male owner” of a tavern.*  For Justice Frankfurter, writing for the majority, the statute distinguished between two classes of women: those who are close relatives of bar owners and those who are not.  The legal question was whether Michigan was “play[ing] favorites among women without rhyme or reasons.” Frankfurter tipped his hand that his choice of frame controlled the outcome, saying: “To ask whether [the state may distinguish] wives and daughters of owners of liquor places and wives and daughters of nonowners, is one of those rare instances where to state the question is in effect to answer it.”  Indeed.  The dissent asked a different question: could the state justify discrimination “between male and female owners of liquor establishments?”  The dissenters answered that question (in the negative) in two quick paragraphs. Other, even crazier, frames are possible on the Goesaert facts.  The statute discriminated against corporations who own taverns, because they are not  "male owners" capable of having a "wife" or a "daughter."  The state is facilitating cheaper labor for certain sole proprietors, but owners who exercise their Citizens United right to assemble in the corporate form must hire from a slightly smaller and hence more expensive all-male labor pool. 

* (As noted in an earlier post, alcohol pops up Con Law teaching more often than one might expect.) 

All disparate impact cases are a variation on the frame game.  Did the law in Geduldig v. Aiello (1974) classify along the lines of male v. female or, as the majority thought, “pregnant women and non-pregnant persons?”  Did the law in Personnel Administrator v. Feeney (1978) classify between veterans and non-veterans, or between men and women? 

The frame game is inescapable in substantive due process cases where the task is to define the relevant unenumerated right.  Did the terminally ill plaintiffs in Washington v. Glucksberg (1997) seek to enforce “a right to commit suicide which itself includes a right to assistance in doing so” or “the right to a humane death” or “freedom from pain and indignity”?  Did the biological father in Michael H. v. Gerald D. (1989) seek “parenthood” or “parental rights [of] the natural father of a child conceived within, and born into, an extant marital union [to which he is not a party]?”  And as we await a result in Obergefell v. Hodges, one can ask whether the couple in Loving v. Virginia (1967) sought the right to enter into “marriage” or into “interracial marriage.”

Finally, one may consider an often explicit choice among legal frames, with the most common nominees in individual rights cases being freedom and equality.  This is likely to arise in Obergefell, which is a case about the freedom to marry and about equality among marriages.  While abortion rights were framed as a matter of freedom of reproductive choice in Roe v. Wade (1973), pro-choice advocates also argue that legal abortion is necessary for women to have the same options as men.  In many such cases, the frames would not necessarily generate opposite answers; this is seen in an earlier post about jury selection cases, where the right of a juror to be seated correlates with the right of the defendant to a representative jury.  In these situations, students can develop the lawyering skill of choosing which frame to emphasize.

Posted by Aaron Caplan on June 24, 2015 at 01:49 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Monday, June 22, 2015

Strange Bedfellows #8: Precedential Floors and Ceilings

This post is part of the Strange Bedfellows series.

The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law.  But as we all know, courses in Constitutional Law are required at most schools only in part for their substance.  Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate.  The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.

A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents.  Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor? 

The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office.  Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal.  Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted.  (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.)  In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding.  For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well.  For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”

In Ingraham v. Wright (1978), the plaintiff secondary school students argued that their public school district’s use of corporal punishment amounted to cruel and unusual punishment.  All of the previous SCOTUS decisions decided under the Cruel and Unusual Punishment Clause involved criminal defendants objecting to their sentences or the methods by which the sentences were carried out.  For the majority, the precedents represented a ceiling, indicating that the Clause would protect no more than the criminal defendant, and hence offer nothing to a public school student.  For the dissenters, the precedents were a floor: they meant that, at least, cruel and unusual punishments could not be inflicted on criminal defendants, but perhaps others were protected against them as well.  (Ingraham is an excellent showcase for a number of other methods of interpretation, including disagreements over the meaning of text, history, consequences, values, and constitutional structure; for this reason I have had good success starting my courses with it, and now my casebook.)

Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989). 

Once you have sensitized students to how different judges can approach precedential ceilings and floors, you can then see a very similar contrast of interpretation with regard to the text of the Constitution itself, particularly with regard to enforcement of unenumerated principles.  If the two precedents from Caperton are a ceiling, limited to their facts, then perhaps Bill of Rights should be read the same way: as precise enumerations of narrow principles without Griswold-style penumbras that form a subterranean rational continuum.  And the same could be said for the various Art. I, §10 limitations on state commerce regulation: they mean only what they say (no duties of tonnage, no non-essential imposts on imports or exports), and do not contribute to a larger rule against state laws that impose burdens on interstate commerce in unenumerated ways. 

Sure enough, one often sees exactly this combination: Justice Scalia opposes broad applications of the dormant commerce clause doctrine and substantive due process, and frequently reads precedents narrowly as well.  The reverse combination is usually true for Justice Breyer. 

Posted by Aaron Caplan on June 22, 2015 at 02:20 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Wednesday, June 17, 2015

Strange Bedfellows #7: Liberty Lists

This post is part of the Strange Bedfellows series.

To enumerate rights or not to enumerate them?  Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected.  The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)  Enumerate away! 

The story’s not quite that simple, as the disagreement between plurality and dissent in this week’s Kerry v. Din shows.  But as a teaching tool, it can be useful to compare and contrast the decision to enumerate rights in the constitution with the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom.  These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.

Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty.  The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).

The most famous early liberty list is Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823), a trial court opinion rendered by Justice Bushrod Washington while riding circuit.  The question was whether New Jersey had violated Art. IV, section 2 by wrongly failing to extend to a citizen of another state a “privilege and immunity” available to New Jersey citizens.

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.

The majority opinion in The Slaughterhouse Cases (1872) applauded Corfield’s list, saying that the rights protected by the Art. IV Privileges And Immunities Clause embrace “nearly every civil right for the establishment and protection of which organized government is instituted.” The punch line is that the right sought in Corfield—to engage in oyster farming in state waters on equal terms with a state resident—was not fundamental, the breadth of the Corfield list notwithstanding. 

Crandall v. Nevada, 73 U.S. 35 (1867), involved a state law imposing a tax on exit from the state, a law found unconstitutional because it interfered with the ability of US citizens to travel to and access federal facilities.  Crandall was decided before the Fourteenth Amendment was ratified; it reached its conclusion based on general principles that Slaughterhouse called “implied guarantees of the Constitution.”  Just by being a US citizen, one automatically enjoyed the Crandall rights:

[The citizen] has the right to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.

Once attention shifted to the Due Process Clause as the textual home for most of the unenumerated rights, two frequently-quoted lists appeared in majority opinions. Allgeyer v. Louisiana, 165 U.S. 578 (1897), generally viewed as the first SCOTUS case to invalidate a state statute for violating an enumerated right under a substantive due process theory, described it this way: 

The “liberty” mentioned in that [Fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

Described this way, the right reached the ability to purchase life insurance from an out-of-state company. A reformulation of the list, this time emphasizing non-economic rights, appeared in Meyer v. Nebraska, 262 U.S. 390 (1923):

While this court has not attempted to define with exactness the liberty thus guaranteed [by the Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The right to send one’s children to a private school to learn the German language fit comfortably in this list.

An interesting contrast to the Allgeyer and Meyer liberty lists is the formula from Bolling v. Sharpe (1954), the companion to Brown v. Board of Education that used reverse incorporation to find that the Fourteenth Amendment Equal Protection Clause should be binding on the federal government.  Here, the Court offered no list (only a principle), and then concluded that the asserted right fit within that principle.  It is not widely remembered today, but Bolling may offer the most expansive (or is it the most circular?) definition of liberty of any SCOTUS opinion.

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

So who might lose under a modern application of the liberty lists?  For one, the untenured college professor in Board of Regents v. Roth. After quoting the Meyer list, and citing Bolling for the proposition that “in a Constitution for a free people” the meaning of liberty “must be broad indeed,” the court proceeded to find that no liberty was implicated when the professor’s one-year contract was not renewed.  For another, the alien children held in immigration detention centers in Reno v. Flores, 507 U.S. 292 (1993).  They might have thought they did not need to rely on a liberty list, given the universal agreement that “freedom from bodily restraint” was protected.  The majority concluded that this right was not implicated by the facts of the case—only “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.”  Turns out that one isn’t on the list. 

And now, in Kerry v. Din, a plurality would hold that a US citizen with a foreign spouse has no liberty interest in that spouse receiving a visa to enter the country (not even enough of a liberty interest to trigger procedural due process).  Justice Scalia’s opinion for a three-justice plurality offers its own liberty list that is limited to what Lord Coke perceived within the Magna Carta.  The opinion goes on to expressly rejects the entire American judicial tradition of liberty lists:

To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: "Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience" Meyer v. Nebraska (1923). But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases.

Posted by Aaron Caplan on June 17, 2015 at 11:08 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Monday, June 15, 2015

Strange Bedfellows #6: Streams of Commerce

This post is part of the Strange Bedfellows series.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.”  Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause. 

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states. 

The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation.  As Justice Holmes opinion said:

When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.

This ruling was only ten years after SCOTUS had ruled in United States v. E.C. Knight Co., 156 U.S. 1 (1895) that federal antitrust laws could not reach the purportedly local activity of operating a sugar refinery.  The tension between the two rulings was fairly obvious.  In both cases, an economic combination (monopolization in E.C. Knight, price fixing in Swift) affected customers in other states with regard to their purchase of a commodity food item, yet only one could be federally regulated.  After decades of back and forth over where the “stream of commerce” began and ended, NRLB v. Jones & Laughlin Steel, 301 U.S. 1 (1937) put the entire framework to rest:

We do not find it necessary to determine whether these features of defendant’s business dispose of the asserted analogy to the “stream of commerce” cases. The instances in which that metaphor has been used are but particular, and not exclusive, illustrations of the protective power which the government invokes in support of the present act. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce.

Now consider the stream of commerce as used in modern personal jurisdiction decisions.  World-Wide Volkwagen v. Woodson, 444 U.S. 286 (1980), said in widely quoted dicta:  “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”  The opinion did not cite to any Commerce Clause decisions, but instead to a well-known Illinois Supreme Court decision—Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961)—that did not use a riparian analogy, but noted that goods had passed from one state to another “in the course of commerce.”  The image of a stream helpfully captured the idea for a jurisdictional context.  If a person poured poison into a river in one state, knowing that it would be carried downstream and cause injury in another state, personal jurisdiction in the second state ought to be proper. So too for pouring injurious items (like malfunctioning automobiles or radiator parts) into the stream of commerce.

Since World-Wide Volkswagen, SCOTUS has not been able to clearly articulate when a manufacturer has a legitimate “expectation” that its goods will be purchased in the forum state, and hence whether it has been properly introduced into a stream of commerce that predictably flows there.  Fractured decisions in Asahi Metal Industries v. Superior Court, 480 U.S. 102 (1987), and J. McIntyre Machinery Ltd v. Nicastro, 131 S.Ct. 2780 (2011), have left confusion about how the concept should be applied. 

The stream of commerce under the Commerce Clause is not regularly taught, since it has been successfully interned.  The stream of commerce remains a live topic in Civil Procedure.  Some useful comparisons can nonetheless be made.

Both lines of “stream of commerce” cases involve a similar problem: when should a person’s local activity, having effects elsewhere, give rise to legal consequences outside the home state? Both also involve line-drawing problems: where should the stream of commerce be declared to begin and end? In both settings, the stream of commerce concept seems to have been introduced as a way to soften an otherwise draconian rule that prevented the government from taking action desired by the political branches.  And in both settings, the concept has been an unreliable guide to deciding concrete cases.  In response to the doctrinal confusion, Justice Kennedy’s plurality opinion in Nicastro sought to inter the stream of commerce metaphor, but unlike Jones & Laughlin, there was no majority willing to take that step.  If Justice Kennedy’s view in Nicastro prevails, the stream of commerce concept would be banished from personal jurisdiction because a conservative court perceived that it allowed governments to do too much—contrasting with Jones & Laughlin, where the stream of commerce was be banished from the Commerce Clause because a newly liberal Court perceived that it forced government to do too little.

 

Posted by Aaron Caplan on June 15, 2015 at 11:42 PM in Civil Procedure, Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Thursday, June 11, 2015

Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)

This post is part of the Strange Bedfellows series.

Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage).  For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed:  Plyler v. Doe (1982).

Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully.  The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect.  Free public education for youth was sort of, but not really, a fundamental right.  The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event).  There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix.  Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.”  The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”

When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny.  But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies.  Yet upon reading Windsor, I felt as if I was reading Plyler 2.0. 

The majority in Windsor portrayed federal DOMA as a statute that sort of, but not really, shifted control over marriage policy from states to the federal government.  Marriage was spoken of in grand terms, but its role as a fundamental right was not really the basis of the opinion.  The opinion implied that discrimination on the basis of sexual orientation was objectionable, but not really suspect.  These various sort-of considerations allowed the majority to conclude that the statute was motivated by animus, obviating the need to undertake the usual examination of legislative means and ends.  The dissenters decried the result and also criticized the majority for offering “rootless and shifting” justifications: for coloring outside the lines.

Time will tell if Windsor heralds a revival of Plyler’s approach to equal protection.  If it is not, then Plyler remains one of the one-offs among the canonical Con Law cases—good teaching decisions whose results are in no real danger of being overruled, but whose reasoning never shaped the mainstream.  The most prominent of the one-off decisions is Shelley v. Kraemer, which held that judicial enforcement of racially restrictive real estate covenants violates equal protection.  Almost all instruction on Shelley includes discussion of why its approach to state action didn’t ultimately carry the day; not every instance of contract enforcement is treated as state action subject to the Equal Protection Clause.

For what it’s worth, Shelley makes more sense to me if viewed less as a state action decision but as a precursor to Brown v. Board of Education (if formally neutral law like “courts should enforce contracts” may violate the Equal Protection Clause, then so may a formally neutral segregation law) and Palmore v. Sidoti (1984) (the child custody case most often quoted for the notion that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”).  Viewed in that frame, Shelley is not the one-off that its reputation suggests.

I’d be interested to hear other nominees for one-off decisions, whose reasoning we are unlikely to see again, but that are nonetheless part of the current Con Law canon.  My other suggestion is the Spending Clause holding from NFIB v. Sebelius.

Posted by Aaron Caplan on June 11, 2015 at 11:11 AM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (1)

Tuesday, June 09, 2015

Strange Bedfellows #4: Jury Selection All Over The Place

This post is part of the Strange Bedfellows series.

Jury selection appears often in the Con Law canon.  The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool.  Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool.  Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses.  Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine.  More recently, the first US Court of Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications.  SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).

These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course.  Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.

Trial by jury is one of the few individual rights enumerated in the original constitution (in Art III, §2), and then reiterated and expanded in the 6th and 7th Amendments. Strauder considered jury service so important that it described ineligibility in terms usually associated with the badges and incidents of slavery: statutory exclusion from the jury pool “is practically a brand on them, affixed by the law, an assertion of their inferiority, and a stimulant to racial prejudice.”

Conversely, jury service can be seen as a badge or incident of citizenship. The jury allows ordinary citizens to control the workings of the judiciary in a way not possible for the legislative or executive branches.  Although Art. III judges are not selected through popular election, the jury makes the courtroom a site of self-government in action. This deep connection between jury service and voting explains why in most jurisdictions, one is eligible for jury service only if one is eligible to be an elector (voter).  Indeed, in 1887 the women in the state of Washington lost their statutory right to vote as a result of a criminal defendant’s challenge to the practice of seating women on the jury.  See The History of Women’s Jury Service in Washington (2005).

Cases involving jury selection can be a useful opportunity to consider the role of chance in the law.  I like to begin my Civil Procedure courses by identifying four main ways one might resolve private disputes: (a) negotiated agreement, (b) binding decision by third parties; (c) violence; and (d) chance.  Our system privileges voluntary agreement; it provides a judicial system as a backstop if agreement does not emerge, in hopes of avoiding reliance on violence and chance.  But just as the system cannot entirely eliminate violence (those judgments are ultimately executed through the threat of incarceration), it does not entirely eliminate chance, either.  Among the main ways the luck of the draw affects litigation is in the assignment of a judge, the summoning of a jury pool, and the selection of a petit jury.  In these settings, chance is tolerated, even if it might predictably result in deviations from the mean in any given case.  Chance has constitutional implications as well, as seen in the majority’s reasoning in Washington v. Davis (1976). Because we allow the occasional all-white jury as a natural consequence of a jury system that involves random selection, there must obviously be no constitutional bar to facially neutral government policies with racially disparate impact.

Finally, viewing jury selection as an independent constitutional topic can help show how any one case might involve more than one individual right—and indeed, how multiple constitutional guarantees can interact with each other to create an entire ecosystem of rights. As the Batson cases recognize, jurors have a right (as well as an obligation) to serve, while litigants have a right to trial by a representative jury.  The combination of these two principles were ultimately needed to overrule the holding in Hoyt, which rejected an Equal Protection Clause challenge to a statute that excused all women from jury service.  Hoyt’s reversal involved two steps. The first nail in Hoyt’s coffin was Taylor v. Louisiana, 419 U.S. 522 (1975), which held that a similar law violated the Sixth Amendment right to trial by a fair cross-section of the community; this defendant-centered case effectively overruled the result in Hoyt without addressing its equal protection reasoning. The right of women to serve as jurors as a matter of equal protection was finally announced in J.E.B. v. Alabama, 511 U.S. 127 (1994), which held that an attorney’s use of peremptory strikes to eliminate women violated Batson.

Posted by Aaron Caplan on June 9, 2015 at 12:02 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (4)

Monday, June 08, 2015

Strange Bedfellows #3: Alcohol All Over The Place

This post is part of the Strange Bedfellows series.

For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus. 

The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females).  Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales). 

Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching.  One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam.  As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia.  Did you know that the 18th Amendment is the only amendment to be repealed in full?  Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures?  Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals?  (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)

One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins. 

Section 1 of the Amendment repealed the 18th Amendment, returning the Constitution to its pre-prohibition state, but Section 2 seeks (somewhat inartfully) to guarantee the power of a state to stay dry if it wishes: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”  Does this represent no more than a federal ban on individuals violating state liquor bans (essentially constitutionalizing the similar federal statute upheld in Clark Distilling Co. v. Western Maryland Railway (1917))?  Or does it mean, as Justices Brennan and O’Connor argued in their Dole dissents, that Section 2 is designed to give states broader control over alcohol policy?  Under this reading, the textual references to transportation and importation connote a broader control.  One can ask similar questions about the 19th Amendment: perhaps it should have been read to guarantee a wide range of equal rights for women—as argued by the majority in Adkins v. Children’s Hospital (1923) and the dissenters in West Coast Hotel v. Parrish (1937)—instead of limited to its text, as occurred in practice. 

Students would readily see the pattern of the modern alcohol cases:  a state relying on a 21st Amendment argument will always lose.  To harmonize two arguably competing provisions of the Constitution, the Court routinely gives the 21st Amendment a narrow reading, where it essentially means that states may regulate alcohol so long as they do not violate any other provision of the constitution, be it enumerated rights (like equal protection, due process, religion, speech) or unenumerated structural concepts (like the dormant commerce clause), and subject to override by federal laws enacted under the commerce power that have preemptive effect.  But must the harmonizing always come at the cost of the 21st Amendment?  Take Craig v. Boren, which privileged the Equal Protection Clause over the 21st Amendment.  Given that Section 2 of the 21st Amendment was enacted decades after the Equal Protection Clause—and given the canon of construction that a later, narrower enactment should control over an earlier, more general one—perhaps the harmonization should operate in the other direction, so that a state may not discriminate on the basis of sex unless it is in the course of exercising its reserved power over alcohol.  That approach is legally possible, but unpalatable to our heirarchy of values.  Sex equality is simply more important than alcohol regulation, and so is freedom of speech, religion, and so on. But how is the importance of a constitutional value recognized, and should that be the business of the courts?

In a unit focusing on the 21st Amendment, the 5-4 decision in Granholm v. Heald would have special pride of place, since it explains how the language of Section 2 was designed specifically to interact with the Supreme Court’s then-existing dormant commerce clause doctrine.  If Granholm is taught as an example of the dormant commerce clause in a unit without a focus on alcohol, it would likely be drastically edited down to size.  But the case’s clash of values—and of interpretive methodologies—breathes more freely when one thinks about Granholm as an alcohol case as well as an interstate commerce case. 

Posted by Aaron Caplan on June 8, 2015 at 01:25 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Thursday, June 04, 2015

Strange Bedfellows #2: Eugenics All Over The Place

This post is part of the Strange Bedfellows series.

It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws.  But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985). 

To best see the connections, it helps to know some of the history of intelligence testing.  Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low.  The two original terms were idiot and imbecile.  An idiot was pre-verbal, with no more intelligence than an infant.  An imbecile could use language, but had the intelligence only of a pre-pubescent child.  Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid.  They might be good for factory labor, but they tended to be "immoral" and prone to "criminality."  These were the morons.  When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons.  And she wasn’t one of those either.  See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985).  The blanket category for idiots, imbeciles, and morons was feeble-minded.

The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today.  Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test.  Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command.  The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings.  Their alarming conclusion:  the United States was “a nation of morons.” 

Their conclusions were based on draftees’ responses to questions like these:

The Orpington is a kind of:
A. fowl
B. horse
C. granite
D. cattle

An air-cooled engine is used in the:
A. Buick
B. Packard
C. Franklin
D. Ford

Why is beef better food than cabbage? Because
A. it tastes better
B. it is more nourishing
C. it is harder to obtain

Researchers at the time did not recognize that their questions tested culture, not native intelligence.  An extremely bright draftee raised in poverty on a farm in the 1910s might be forgiven for not poring over the advertising copy for cars he could never afford and committing their features and brand names to memory.  Yet many were convinced that the nation would be better off if we could extirpate from future generations the morons who failed this and similar tests.

The nation’s flirtation with eugenics appears fleetingly on the surface of Cleburne and Loving.  In Cleburne, a city denied a zoning variance to a group home that fit within the city code’s definition of a “hospital for the insane or feeble-minded.”  As Justice Marshall’s carefully-researched dissent explained, this term was drawn from a Dallas zoning ordinance from 1929, during the thick of the eugenics movement.  473 U.S. at 467 n. 19.  The opinion in Loving indicates that Virginia’s then-existing statutory ban on interracial marriage was found in the Racial Integrity Act of 1924, a law “passed during the period of extreme nativism which followed the end of the First World War.”  The eugenic sterilization law upheld in Buck was passed by the Virginia legislature during the same legislative session, and for the same purpose: to ensure that future generations of Virginians would fit the current generation’s vision of genetic adequacy.

The connection to eugenics appears nowhere on the surface of Washington v. Davis, but to my mind it is equally strong.  That case challenged the Washington DC police force’s reliance on Civil Service Test 21 as part of its application process, even though the test was not validated to measure competence as a police officer and had disparate impact on the basis of race.  The opinion does not describe Test 21 in any detail.  My casebook includes some of the questions, which bear an obvious similarity to the WWI intelligence tests:

Of the following reasons, the one that best explains the continued sale of records in spite of the popularity of the radio is that the:
A) records make available the particular selections desired when they are desired
B) appreciation of records is more widespread than appreciation of radio
C) collection of records provides an interesting hobby
D) newest records are almost unbreakable
E) sound effect of records is superior to that of the radio.

Laws restricting hunting to certain regions and to a specific time of the year were passed chiefly to:
A) prevent people from endangering their lives by hunting
B) keep our forests more beautiful
C) raise funds from the sale of hunting licenses
D) prevent complete destruction of certain kinds of animals
E) preserve certain game for eating purposes

PROMONTORY means most nearly:
A) Marsh
B) Monument
C) Headland
D) Boundary
E) Plateau

Such questions are about as well-suited for the task of selecting police officers as the question about the Orpington (it’s a kind of chicken) was suited for selecting military officers.  Next time you get pulled over by the highway patrol, be sure to use “promontory” in a sentence; the officer will sense a kinship and let you off with a warning.  Although Test 21 was never used as a tool for shaping genetics, the DC Police Department shared a eugenicist’s assumption that a unitary form of intelligence can be detected and precisely ranked as a basis for making important life decisions. 

Scores on employment tests also appear in the facts of Griggs v. Duke Power (1971), Personnel Administrator v. Feeney (1979) and Ricci v. DeStefano (2009), but the opinions do not describe the questions asked.  If anyone knows the contents of those tests, please share them! 

Posted by Aaron Caplan on June 4, 2015 at 02:41 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Wednesday, June 03, 2015

Strange Bedfellows #1: Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette

This post is part of the Strange Bedfellows series.

For those accustomed to the silo method, this collection of cases will seem really weird.  “Barnette is a First Amendment case! Skinner is a fundamental rights case!  Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny.  Do some types of cases deserve more intense judicial review than others?

In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine).  Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases.  Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.

Reading Skinner (1942), the Internment Cases (1943 and 1944), and Barnette (1943) as part of this same question helps make sense of the choices made in those decisions.  Barnette, in particular, loses much of its power if it is saved purely for a First Amendment discussion.  The bulk of Justice Jackson’s opinion is devoted not to First Amendment reasoning, but to the propriety of the Court ever enforcing individual rights.  In stirring language, the majority concluded that judges were required to enforce the bill of rights vigorously.  Justice Frankfurter’s dissent is premised on the notion that the Constitution does not award the Supreme Court “greater veto power when dealing with one phase of ‘liberty’ than with another.” It's a case about judicial review that only happens to involve freedom of speech and religion.

Skinner (a eugenic sterilization case) is the first appearance of the term “strict scrutiny” and hence is a natural for any exploration of the rise of different levels of scrutiny.  The debate between the majority’s choice of an equal protection framework and the concurrence’s preference for a due process framework can be explained in part because the majority wanted to apply a stricter scrutiny, and felt that the Equal Protection Clause, rather than the Due Process Clause, made it possible.

My casebook also includes the Japanese Internment cases as part of this debate.  In Hirabayashi (upholding a curfew applicable to persons of Japanese ancestry), the Court expressly looked only for a rational basis behind the law.  Korematsu, a year later, expressly said that racial classifications are “immediately suspect” and subject to “most rigid scrutiny.”  That decision is widely viewed as a misapplication of strict scrutiny, but its choice of that frame was momentous.

In my experience, students make the connections quite readily. The interleaving of multiple doctrines (speech, due process, equal protection) as a way to explore a larger legal concept (levels of scrutiny) poses no problems.  In particular, it does not harm their later ability to properly cite the right case for the right principle in an exam.  Given that these cases all arose in the same historical time frame, there are huge benefits in combining them into a single unit.

Posted by Aaron Caplan on June 3, 2015 at 04:35 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Guest Blogging: Strange Bedfellows

Thanks to the PrawfsBlawg for welcoming me as a guest for June 2015!

Early summer is a good time to think broadly about how we structure the courses we teach, before the daily and weekly deadlines start to constrain our choices.  In that spirit, I will devote this month’s guest posts to the theme of Strange Bedfellows in the Constitutional Law Curriculum: cases that are not ordinarily taught together, but could be. 

For many courses that rely on the case method, case selection can be a major outlet for a teacher’s creativity.  When teaching, say, the intentional tort of battery or the proper operation of Rule 11, one can find good vehicles from literally thousands of cases from dozens of jurisdictions.  This is less of an option for US Constitutional Law, which by its nature largely devoted to teaching a single text interpreted through a canon of famous (and infamous) cases.  If a Con Law teacher isn’t entirely happy with the facts or reasoning of Brown v. Board of Education as a teaching vehicle, it can’t simply be replaced with another opinion that better matches the teacher’s pedagogical goals.

The major creative choice in this course is to decide which relationships to emphasize among a basically fixed set of cases.  The usual approach structures the course into a series of doctrinal silos—e.g., begin with judicial review, then move to powers of Congress explored one at a time, then individual rights explored one at a time—with the cases assigned to the best-fitting silo.  Among the problems with this approach is that almost all of the important Constitutional Law cases involve more than one silo.  US v. Windsor (the DOMA case) is about Congress’s power over marriage and about fundamental rights and about equality and about the proper role of the judiciary and about methods of constitutional interpretation.  If we reduce our reliance on the silos, a case like Windsor (and virtually any other really important canonical case) contains many opportunities for comparison among cases that aren’t ordinarily conceptualized together.

The inspiration for this blogging project came while working on my new casebook, An Integrated Approach to Constitutional Law (out now!  don’t delay!).  The writing process made me realize that I am by nature a lumper, not a splitter.  I hope you will enjoy reading about some differently-structured lumps.

[To see the various posts that make up the series, click on the "Teaching Law" link below, and then scan the posts from June 2015.]

Posted by Aaron Caplan on June 3, 2015 at 04:23 PM in Blogging, Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Saturday, May 30, 2015

Killing PowerPoint

This essay explains why PowerPoint should be banned and then killed, using PowerPoint slides to illustrate. I especially like the mocking "PowerPoint Karaoke" shows.

My experience at a conference last week leads me to one more thought: If the audience could follow and understand what you are talking about even without the PowerPoint, then you do not need it and should ditch it.

I was the third paper on a three-person panel. I was presenting my empirical study of the infield fly rule, which includes a number of tables, a photograph, and several charts marking the location of batted balls. The talk would be utterly incomprehensible without the slides (it may not be comprehensible with them, but that is another story). I cannot talk about the conclusions to draw from the location of a batted ball unless people can see where the batted ball is; I cannot talk about five seasons worth of data in four different game situations without the audience being able to look at the numbers in a chart.

Unfortunately, the projector was not working initially. The second presenter still managed to get through the talk perfectly clearly, which may prove the point. The moderator whispered that I should "do my best" without the slides, although I cannot imagine what that would have entailed. But the moderator thought it was possible, which shows that most PP is supplemental to the talk at best,  unnecessary at worst, and likely little more than extraneous in the main run of cases.

Fortunately, they managed to get things working right before I was to start, so I only had to deal with the threat of the other great risk of using technology--that likelihood that it will not work.

Posted by Howard Wasserman on May 30, 2015 at 06:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, April 22, 2015

CFP: Eighth Junior Faculty Federal Courts Workshop

The University of California, Irvine School of Law will host the Eighth Annual Junior Faculty Federal Courts Workshop on September 11-12, 2015.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Erwin Chemerinsky (UCI Law), Evan Lee (UC-Hastings), Thomas Lee (Fordham), Carrie Menkel-Meadow (UCI Law), James Pfander (Northwestern), and Joan Steinman (IIT Chicago-Kent College of Law).

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2015 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 19, 2015. Papers will be selected by a committee of past participants, and presenters will be notified by the middle of July. Those planning to attend must register by August 14, 2015. 

Please send abstracts to sdavis@law.uci.edu. Please contact Seth Davis with questions.

Posted by Howard Wasserman on April 22, 2015 at 09:31 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Sunday, April 19, 2015

Lateral hires and PrawfsBlawg

Brian Leiter's updated list of tenured lateral moves features several from the Prawfs community. Steve is going to University of Texas in 2016 (where he and former GuestPrawf Bobby Chesney will have the national security market cornered).  Current guest Brian Galle is moving from BC to Georgetown. And another former GuestPrawf, Aaron Bruhl, is headed from Houston to William & Mary.

Congratulations and good luck to all.

Posted by Howard Wasserman on April 19, 2015 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Monday, March 23, 2015

Talk-show-do-test

A few posts ago, I discussed one of the teaching models that the Army uses: crawl, walk, run.  Within that model, at each level, the Army uses another model: talk-show-do-test.  The basic idea is that you talk to the students about the skill (these can be manual skills or thinking skills); you then show them how to do what it is that you want them to do; you then have them do it; and then you test them on it.

This year, I am teaching a "foundational" course (criminal law) for the first time.  As I thought through how I wanted to evaluate my students using the talk-show-do-test model, I was struck by the disconnect between the skills that we tend to focus on in foundational classes and the skills that we actually test.  

In the foundational courses, many of us use some form of the case method to teach the skill of argument deconstruction.  The students break the appellate argument into its pieces and find the blackletter, and we explore the left and right limits of that blackletter when we modify the facts a little bit.  After students have done this enough, the effect is as Kingsfield put it, "You come into here with a head full of mush and leave thinking like a lawyer."

If we look at Bloom's revised taxonomy, we see that the case method focuses on higher order thinking skills.  We are asking the students to analyze: can they "compare, contrast, criticize, differentiate, discriminate, distinguish, examine, experiment, question, test".  The skill of outlining (or organizing) also falls in here (finding coherence, integrating, outline, parsing, structuring).   And when we question the public policy reasons for the rules, we are asking the students to evaluate: "appraise, argue, defend, judge, select, support, value, evaluate". 

In the foundational courses, we should be working on these skills in class and I think we do a good job with the "talk-show-do" on these skills.  (Notice here that Kingsfield "shows," after first demoralizing the story's hero).  One of the reasons why the 1L year may be so hard is that as undergrads, our students spent most of their time on the lower order thinking skills (remember, understand).  On the first day of law school, we jump them several steps up the pyramid.  

We "talk-show-do," but I'm not sure we "test" these skills very well.  We tend to use cold-call roulette to hold each student accountable for case deconstruction, but that isn't a very accurate way to measure whether the student has mastered the skill.  Nowadays, students can (and do) download case briefs (there is one online for every case in pretty much every major casebook) and they can use those to survive the moments when they lose the roulette game.  We may be measuring their Google skills and not their ability to take a case apart. 

Further, if they don't do well in that in-class moment, the consequences generally aren't that significant (compare the weight of in-class participation to the weight of the final exam). 

Instead, in final exams, we tend to drop back down Bloom's pyramid to see whether the students can "remember" the blackletter rules and "apply" those blackletter rules to new situations. 

For those skills, we "test," but we don't "talk-show-do."  We don't use our class time to teach the students the skills of issue-spotting, rule application, and how to write up that application (itself a skill).  Then we get frustrated when students "remember" blackletter rules that we never covered in class (and so they must have gotten from a commercial outline) or can't write a coherent answer. 

I don't think I can blame the students for going to commercial outlines to get blackletter rules.  They know that "remembering" is heavily-tested and they want to remember as much as possible.  And I don't think I can blame them for not living up to my standards for exam writing if I don't engage in "talk-show-do" on that skill.

If that set of skills (issue spotting, rule application, and write-up) is important, and I think it is, then maybe we should invest some time into the "talk-show-do."  What I have in mind is low-stakes, in-class or out-of-class problem solving where students get feedback on whether they have mastered that skill -- well before an all-or-nothing final exam.

And if those higher order thinking skills are important, (of course they are), then we may need to come up with ways to test those skills. 

I decided to sample those higher order thinking skills by having my students turn in a case brief.  I looked behind the curtain and I was surprised by what I saw.  They still needed significant work on this skill. 

The case brief isn't the actual goal -- the case brief is just one format for memorializing the precise thinking that goes into case deconstruction.  The repetition of that thought process through structured practice is what causes the brain to reformat.  At some point the thought process becomes internalized, but to get there, the students have to repeat that process, correctly, over and over.  My sense is that they were doing it over and over, but not correctly.

I decided that I would have them "do" case briefs, about one per week, for low-stakes.  And I started "showing" them examples of my own case briefs for the cases that we covered in class but which I did not assign.  As they continue to practice, they are getting better. 

So that covers "talk-show-do," but I still don't have a "test."  I'm thinking that next year I may include this skill as a separate, take-home part of the final, where the stakes are higher.  One of my colleagues, Louis Schulze, thought about giving the students a new case, where they would have to deconstruct it to get the relevant rule, and then have them apply that to a new set of facts, all in an exam setting. 

Any thoughts or suggestions?

Posted by Eric Carpenter on March 23, 2015 at 06:33 PM in Teaching Law | Permalink | Comments (1)

Friday, March 13, 2015

More categories: training v. teaching, and profession v. trade

In this post, I gave a quick overview of Linda Edwards' recent article in which she discusses various categorical approaches to the doctrine-skills debate, advancing a "foundational, bridge, and capstone" model.  This discussion is important because we can't start talking about the proper allocation of resources to each category (a controversial question) until we understand the categories themselves.

I thought I would discuss a couple of more categories that she didn't cover but which I often heard discussed in the halls at the Army's law school.

There, the "are we a trade school or a law school" debate regularly came up.  The school offers an LL.M. but also hosts a lot of CLE courses.  Within the LL.M., when "skills" (or things that looked more like CLE) encroached upon the traditional "doctrine" ground, the debate would flare up.  Variations of the debate included, "are we teaching or are we training?"  My general response was, "Well, that depends on what those labels mean." 

The primary category is "adult education."  The definition of this category is planned learning for adults (more formally, "activities intentionally designed for the purpose of bringing about learning among those whose age, social roles, or self-perception define them as adults," from Sharan B. Merriam & Ralph G. Brockett, The Profession and Practice of Adult Education (2007).  This is the source for most of what follows). 

This category excludes what you learn when you read on your own.  And this excludes the teaching of children (the art and science of teaching children is pedagogy; the art and science of teaching adults is andragogy). 

Within this category, we can make subcategories based on the goals of that particular program of adult education.  Generally, the goals of adult education are to meet the needs of individuals, institutions, or society (or a combination of those).  When institutions conduct adult education just to meet the needs of that institution (say, the Army conducts adult education to meet the needs of the Army, or IBM conducts adult education to meet the needs of IBM), then adult education theorists call that "training." 

The education that occurs in most law schools does not fall into this category -- most law schools are educating students to meet the needs of broader society.  The education that occurs at the Army's law school would fall into this category, though.  The goal of that education is to meet the needs of the military institution.  At the Army's law school, they are teaching and they are training.  Training is a subset of teaching.  So asking, "Are we teaching or training," doesn't make much sense.  ("Are we eating fruit or apples?")

When it comes to resource allocation, as in "We are doing too much training and not enough teaching," I'm not sure that this category does much work.  Unless I have the power to change the institution's goals, it doesn't really matter if I call this training or teaching. 

Going back to the larger category of adult education, we can make different subcategories for "profession" and "trade."  Earlier, I provided James Burk's definition of "profession," which is a "high status occupation whose members apply abstract knowledge to solve problems in a particular field of endeavor."  In contrast, according to Webster's, a trade is "an occupation requiring manual or mechanical skill."

Where many people get uncomfortable is when the teaching shifts from the abstract law to the concrete, "mechanical" skills.  Geoffrey Millerson provides a refinement of the definition of "profession" that helps with this discomfort: "A profession is higher-grade, non-manual occupation.  Non-manual, in this context, implies that the intellectual, or practical, technique involved depends on a substantial theoretical foundation."  That is what we find in law (cross-examination or negotiation techniques, for example) and medicine (incision or bedside manners techniques, for example).  These "mechanical" skills are still professional skills, not trade skills.

Based on that, the Army's law school -- no matter how many resources are devoted to skills -- is still a professional school.  By definition, it can't be a trade school.

Like the "training" category, when it comes to resource allocation, as in "We need to avoid stuff that looks like "trade craft" and focus on the "law," this categorization scheme doesn't do much work.   Just about everything we do is professional, not trade.  (Maybe law office management is trade?)

In contrast, the "foundation, bridge, and capstone" model does seem useful when it comes to resource allocation.  Linda Edwards does not tells us what she thinks the proper allocation should be -- she is just trying to get us to reframe the problem -- and resource allocation is where the controversy resides.  (Maybe Bloom's taxonomy pyramid is close.  Anything that pretty must be right.)

Posted by Eric Carpenter on March 13, 2015 at 03:10 PM in Teaching Law | Permalink | Comments (0)

SEALS: Prospective Law Professors Workshop

The Southeastern Association of Law Schools (SEALS) is pleased to once again offer its Prospective Law Professors Workshop as part of its annual meeting. This two-day workshop is for those seeking law teaching jobs in Fall 2015.  The Prospective Law Professors Workshop will run on Tuesday, July 28, and Wednesday, July 29, at the Boca Raton Resort & Club.  The workshop will include practice interviews, practice jobtalks, guidance on drafting CVs and FAR forms, and several panel discussions geared toward prospective law professors.  There is no supplemental fee to participate.  Participants in the workshop need only pay the standard SEALS registration fee.  The number of participants will be limited.

For more information on the program, including how to apply, please visit our website at http://sealslawschools.org/seals-prospective-law-professors-workshop/

Posted by Howard Wasserman on March 13, 2015 at 10:41 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, March 12, 2015

Crawl, walk, run

I recently read Linda Edwards' article, "The Trouble with Categories: What Theory Can Teach Us about the Doctrine-Skills Divide", 64 J. Legal Educ. 181 (2014).  There, she argues that the label "doctrine" (and related labels like casebook, normal, podium, traditional, Socratic, theoretical, substantive) and the label "skills" (also, experiential, lawyering, practice) do not reflect characteristics that are useful for defining category memberships. 

She offers a different set of labels: foundation, bridge, and capstone.  The distinction between the categories "is not the particular doctrine to be taught but rather the teaching methods and goals to be used."  Foundation courses include those we traditionally think of as first-year courses (to include legal writing) but could also include other "foundational" upper-division courses.  Bridge courses build on the foundational courses, or are on more complex areas of law, or introduce new legal skills (trial advocacy, negotiations, etc.).  These courses also prepare students for capstone courses, like seminars, clinics, field placements, or specialty classes.

I agree with her, but my readiness to agree may come from my Army background.   In the Army, this is called, "crawl, walk, run," and most teaching is organized based on this model.  This model is also consistent with Bloom's taxonomy.

Interestingly, the old ABA Standard 302 did a better job reflecting that model than the new ABA Standard 303 does.  In the old Standard 302, courses that focused on bridging skills, like trial and appellate advocacy, ADR, interviewing, negotiating, etc., fell under 302(a), along with other foundational courses.  Real-client work and seminars (i.e., capstones) fell under 302(b).  With a little clean-up in aisle 302(a), the crawl/walk/run model would have been pretty clear.

In the new Standard 303, the ABA mixes simulation courses with real-client courses (and gives them -- oh no! -- a new label, "experiential") and otherwise obscures the model.  I guess Edwards got there too late!  Realistically, the simplicity of the model could not override the fiscal need to expand the category of courses that would fall under the new six-unit "experiential" requirement.

Anyhow, this is a "foundational" post.  I have a couple of more thoughts related to this model that I'll get up in the next couple of days.

Posted by Eric Carpenter on March 12, 2015 at 10:19 AM in Teaching Law | Permalink | Comments (0)

Wednesday, March 11, 2015

Teaching the importance of independent problem solving

A few days ago, I wrote about my starting point for teaching professionalism, which is to cover the definition of "profession."  Having decided to teach some aspect of professionalism in my courses, the next issue was what to cover and how to do it without being preachy or coming off as Rita Delvecchio-esque, "I'm keeping this ball now!  Have your mother come get it!"

As these Prawfs posts by Robin Effron, Kerri Stone, and Bill Araiza show, there is a lot to cover.  I decided to focus on the one aspect of professional behavior that I looked for most in the attorneys (and other officers) that worked for me.  That aspect?

Independent problem solving.  The definition of "profession" includes "applying abstract knowledge to solve problems."  I would add independently to that phrase.  Bosses want to give tasks to their subordinates and then move on to something else.  Bosses don't want for subordinates to keep coming back to them asking them how to do the task.  Subordinates who take the task, work it, and return a good product are promoted.  Subordinates who keep coming back for guidance are marginalized.

We see this problem with students who ask for additional instructions on how to complete a task, when the instructions are at the top of the page, or in the syllabus, or you have already gone over them in class.  

In defense of Millennials, I don't think this is a Millennial problem.  The pieces that I have my students read are from 1895, 1899, and 1974.  Those authors were either complaining about the lack of this ability or showcasing the value of it, and the generations they were talking about didn't have helicopter parents or get trophies just for showing up.  I think it is a rare trait in whatever generation is in the modern curmudgeon's cross-hairs.

About a third of the way through the semester, I have my students read Message to Garcia by Elbert Hubbard (three pages long).  The basic story is that President McKinley needed to get a letter to Garcia, who was a rebel leader holed up in the mountains in Southeastern Cuba, not far from where GTMO is now.  Lieutenant Rowan got the letter, didn't ask any question, and accomplished the task. 

There is a great line in this story (forgive the pronouns -- this is from 1899): "Civilization is one long anxious search for just such individuals.  Anything he asks will be granted; his kind is so rare that no employer can afford to let him go."  I think that statement (in gender-neutral terms) is still true.  The students and I then discuss the best ways to find out the information they need to solve the problem (Rowan certainly asked people questions -- he just asked the right people).

I ask them to model that behavior for the rest of the semester.  Before they ask their supervising attorney (me) a question, they should see if they can Carry a Message to Garcia.  Look in the syllabus, look in the book, ask their friends, try to solve the problem, and then come to me when they are stuck.  I'm always available, but do that first. 

Another third of the way through the semester, I assign a short article, Who's Got the Monkey by William Oncken and Donald Wass.  This article talks about how problems (as in, monkeys) transfer from bosses to subordinates and back.  The article teaches bosses how not to accept monkeys from their subordinates, and teaches subordinates how not to give monkeys to their bosses, but when they have to, the best way to do so.  The article talks about five levels of initiative, and the students and I talk about when to use which type of initiative.   

I end the semester with If by Rudyard Kipling (again, forgive the pronouns).  Independent problem solving involves risk.  Risk avoidance is why subordinates ask a ton of questions -- the questions put the risk back on the boss.  The first stanza is pretty much on point.

I was pretty much brain-washed with this stuff during my time in the Army so I may give this facet of professional behavior more value than it is worth.  And, this certainly isn't an attribute that is limited to the law profession, or maybe even professions in general, but I think it is an attribute that is key to success in our profession.  Any thoughts?

Posted by Eric Carpenter on March 11, 2015 at 11:34 AM in Teaching Law | Permalink | Comments (5)

Friday, March 06, 2015

Erwin Chemerinsky at FIU

I am delighted that Dean Erwin Chemerinsky of UC-Irvine was at FIU this week for the Second Decanal Lecture on Legal Education. After the jump is the video of his talk to the students (it begins around the 1:30 mark), titled The Future of Legal Education.

 

 

Posted by Howard Wasserman on March 6, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (2)

Thursday, March 05, 2015

Teaching professionalism -- my starting point

First, thank you to the PrawsBlawg team for calling me up from Triple-A this month.  Before I joined the academy, I spent a lot of time in the Army, to include several years as a student in various Army schools and three years as a professor at the Army's law school.  (The Army's law school is a member of the AALS and grants LL.M. degrees to military students that already have J.D. degrees.)

When I was on the market, every hiring committee that interviewed me asked whether my Army experiences would be useful when teaching pre-graduate, civilian students.  I had a few stock answers prepared.  As I finish my second year at FIU, though, I have a new appreciation for some of the ways that the Army approaches teaching.  I hope to share some of those insights over this month. 

Looking first at professionalism, the Army teaches professionalism in comprehensive, fully-integrated way.  I decided to adopt that approach and to integrate some lessons on professionalism into all of my classes.   For me, the starting point was the definition of "profession."  To understand what it means to be a professional or how to behave professionally, you have to know what a profession is.  So, I asked the students in my current classes (1Ls in their second semester or upper-division students, all of whom have been told over and over to act "professionally") what the definition of "profession" is, and none of them knew.  I suspect that most law students don't know. 

I then figured that I would give them the ABA definition, but after a cursory search, I couldn't find one.  (Do any PR teachers out there have it?)  So, I decided to use the definition that we used in the Army, which is, "A profession is a high-status occupation whose members apply abstract knowledge to solve problems in a particular field of endeavor."  (James Burk, Expertise, Jurisdiction, and Legitimacy of the Military Profession, in The Future of the Army Profession 19, 21 (Don M. Snider & Gayle L. Watkins, eds., 2002)). 

With the students, I also use the classical features of a profession, which are: it "involves a skill based on theoretical knowledge; the skill requires training and education; the profession must demonstrate competence by passing a test; integrity is maintained by adherence to a code of conduct; the service is for the public good; and the profession is organized." (Geoffrey Millerson, The Qualifying Associations 4 (1964)).  These features fit nicely within the Burk definition.

The first component of the definition, "high status" or "legitimacy," is the legitimacy given to the occupation because the occupation meets an important social need.  If you look at the Preamble of the ABA's Model Rules of Professional Conduct, you see that this is central to the ABA and the ABA tells us what types of behavior are "professional" with respect to that component.  When teaching my students, I discuss the difference between law as a business and law as a profession, whether parts of the legal industry may not be "classically" professional, and explain what critical legal theorists think about all this.   My main point is that if the students choose a practice area that does not seem to have much to do with the ABA Preamble, for them to model "classical" professional behavior, they need to seek ways to serve the public good.

The second component, "apply abstract knowledge to solve problems" or "expertise," applies directly to the students.  My basic point is that acting professionally means mastering the material.  If they do not master the material, they are not behaving professionally.

The third component, "a particular field of endeavor" or "jurisdiction," represents the profession's privilege to exclude members along with the responsibility to self-regulate.  All of the students are familiar with the entry requirement, and those who have taken PR are familiar with the things that you can do that may get you kicked out.  My point to them is that, while in school, they need to model professional conduct by following the school's student code of conduct.  I trust my students with several out-of-class, big-ticket items, and I circle back to this point when I give those assignments.

All of that takes me about a half hour, and I do it on day one.  The definition isn't unanticipated or surprising, but it does have some rigor and it gives me a common place to come back to when I need it. 

In the various Army schools that I have participated in, that intro would usually be followed by a one or two-unit course that focuses just on professional behavior -- not the behavior that gets you kicked out, but the behavior that helps you to succeed.  I don't have time in a criminal law or evidence course to cover all of that, so I have chosen one thing to focus on during the semester.  In my next post, I'll talk about that. 

 

Posted by Eric Carpenter on March 5, 2015 at 03:47 PM in Teaching Law | Permalink | Comments (1)

Wednesday, March 04, 2015

Experiencing practical education

The following guest post is by Michael Chasalow (USC Gould School of Law) and is sponsored by West Academic.

Given the new ABA guidelines (and the push by many State Bars) for experiential learning, I wanted to share my experiences using practical exercises as part of a doctrinal course.  For many years I have included practical exercises in my Business Organizations course.  I have found that students learn the material better and that they appreciate a connection to the real world.  I typically divide the class into “firms” of four or five students, and give them the types of assignments they might receive as associates working on a corporate matter in a law firm.  I try to limit the responses to 2-3 pages, which I find is sufficient to make the exercise meaningful, but not excessively burdensome.  The assignments are intended to incorporate the most recent substantive material we cover in the course, while building some practical and strategic lawyering skills.  There are a few students who balk at the extra work, but, by and large, most of my students find the exercises beneficial and appreciate experiencing how the issues we are covering in class might arise in practice.  These exercises provide great opportunities for feedback both on the written assignment itself and in class when we review the exercises and give students an opportunity to present.    In a large class, I use the team approach, but the exercises also work well individually.  This approach has been incorporated into the Experiencing Series - a new casebook series by West Academic Publishing that includes practical exercises with substantive material.  (In the interest of disclosure, I have written Experiencing Business Organizations.)  I believe that a good course should include both theoretical and practical instruction.  The Experiencing Series provides the opportunity to maintain the fundamentals of a traditional course while enhancing the learning experience with simulations.  Regardless of how you feel about the mandate to include such exercises in the curriculum, I have found the exercises in Experiencing Business Organizations  extremely useful and worthwhile, and students seem to feel that they are getting a good mix of practical experience skills along with the substantive subject matter. 

Posted by Howard Wasserman on March 4, 2015 at 09:31 AM in Howard Wasserman, Sponsored Announcements, Teaching Law | Permalink | Comments (1)

Friday, February 13, 2015

Mitchell/Hamline

People have been wondering when law schools would close in the new reality. Here comes a sort-of closure: William Mitchell College of Law and Hamline University School of Law are merging, forming Mitchell/Hamline School of Law as stand-alone not-for-profit with a "strong and long-lasting affiliation to Hamline University." The joint announcement from the associate deans at both schools is reprinted after the jump.

We write to share the news that our two law schools have announced plans to combine, to further our shared missions of providing a rigorous, practical, and problem-solving approach to legal education.

The combination will occur following approval by the American Bar Association.  Until then the two schools will continue to operate their current programs, while taking steps to ensure a smooth transition for students when ABA acquiescence is obtained.

Once combined, the law school will offer expanded benefits for its students, including three nationally-ranked programs: alternative dispute resolution, clinical education, and health law; an array of certificate and dual degree programs, and an alumni network of more than 18,000.

The combined school will be named Mitchell|Hamline School of Law and will be located primarily on William Mitchell’s existing campus in Saint Paul. Mitchell|Hamline School of Law will be an autonomous, non-profit institution governed by an independent board of trustees, with a strong and long-lasting affiliation to Hamline University.
 

Posted by Howard Wasserman on February 13, 2015 at 01:56 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, February 12, 2015

LSAC Report on Best Practices

A report recommending to LSAC best practices on accommodating LSAT test-takers with disabilities has issued from a panel convened pursuant to a consent decree between LSAC and DOJ. Here are the Executive Summary and the full report. (H/T: Ruth Colker (Ohio State), the sole lawyer on the panel).

Posted by Howard Wasserman on February 12, 2015 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (11)

Wednesday, February 11, 2015

Introducing Skills Training in the Doctrinal Classroom: An Overview and a New Coursebook

The following post is by Hillel Levin (Georgia) and is sponsored by West Academic.

For several years—decades now!—there have been clarion calls for changes to law school pedagogy. Buzzwords like experiential education, practical learning, skill building, problem solving, and others have been thrown around with increasing frequency. These calls have only grown louder as the market for legal services has experienced both cyclical and structural changes.

Many law school professors want to answer these calls and to include skill-building in the doctrinal classroom. Sessions devoted to this topic at annual law conferences (like SEALS) are typically among the best-attended; the topic comes up repeatedly in chatter on blogs and listservs; and faculty members are constantly sharing notes and ideas. Yes, it is clear: the demand for appropriate teaching materials is high.

Unfortunately, until the past couple of years, professors have not been able to find much, as authors and legal publishers have been unsure of how to meet the demand for this new pedagogy. In the absence of published solutions, some professors developed their own materials, much to the benefit of their students.

However, many professors have expressed frustration with the difficulties inherent in developing such materials for the doctrinal classroom. Which skills should I focus on? What makes for a “good” simulation? How should I review and discuss case documents with students? How can I naturally integrate these novel materials? How do these materials fit alongside the traditional casebook that the course is built around? Do I really have to invent all of this from scratch? How do I give useful feedback? How do students work collaboratively in class while receiving individual grades? Should I ask students to do research? Write memos? How much time will it take? What will I have to sacrifice in terms of substantive course coverage? How do I explain to students the purpose and use of this “extra” material so that they buy in? Will students rebel?

Since I began teaching in the doctrinal classroom six years ago, I have been committed to developing practical lawyering materials for each of my courses (Legislation and Statutory Interpretation, Civil Procedure, Constitutional Law II, Administrative Law, and Education Law and Policy). I took an everything-including-the-kitchen-sink approach, introducing new materials every year, tweaking old assignments, and tossing whatever hadn’t worked the first time around and couldn’t be salvaged.

In introducing these materials, I always (1) explain to students the purpose of each assignment, (2) am transparent about the experimental nature of the material, and (3) request anonymous feedback for everything. I have found students to be remarkably open to the experimentation, appreciative of my effort to help prepare them to be better lawyers, and insightful in their feedback. Even when an experiment fails and/or places unfamiliar and time-consuming demands on students, they unfailingly express gratitude at the attempt. I suspect that some are simply bored with traditional law school teaching by their second or third year; others never liked it in the first place; others simply appreciate a variety of teaching techniques; and others very much want more skills training. In any event, the response from students has been overwhelmingly positive. Most rewarding of all have been the emails I receive from students in summer or post-graduation jobs (sometimes years later) recounting how they impressed a supervisor or were particularly prepared for an assignment thanks to something we did in class.

I discovered early on that some of my courses are more naturally given to this kind of experimentation than others. My Legislation and Statutory Interpretation class, which focuses on statutory interpretation but also covers legislative and regulatory processes, proved to be a natural fit. As I introduced more and more practical lawyering materials, students began to ask me to replace the casebook altogether with my own materials. After five years of teaching the course, I finally felt ready to tackle the challenge. West Academic Publishing, which has been making a concerted effort to publish practical lawyering materials (primarily, but not exclusively, with course supplements), quickly accepted my proposal.

The result is Statutory Interpretation: A Practical Lawyering Course, a new paperback (and thus comparatively affordable) coursebook that serves as a standalone text for any course anchored to statutory interpretation, though it also includes materials suitable for related courses, like Legislation or Leg/Reg. It covers the leading cases and doctrines, but it also offers a variety of experiential and skills-building exercises. The teachers’ manual includes a sample syllabus, case summaries, points for discussion, and perhaps most importantly, detailed suggestions for how to successfully use the exercises. It offers guidance for exercises geared to improving students’ skills in negotiating and drafting legislation, strategizing, organizing arguments, responding to counter-arguments, conducting legal research, writing briefs, and more. My plan is to refresh the book every two years in order to keep the cases and assignments current.

The central innovation of this book (I hope) is that it brings practical lawyering skills into the framework of the doctrinal classroom without casting off the benefits of traditional law school pedagogy. It explains why students are asked to do some things that may be unfamiliar to them, and it makes explicit the connections between the traditional doctrinal and case-based materials, the novel materials and exercises, and the role of the attorney in the real world. In addition, it gives professors substantial freedom to work with these materials as they see fit.

Publishers have finally begun to respond to the demand for these kinds of materials by offering a variety of products. We are in an exciting period of innovation in law school teaching, and I am thrilled to be a part of it.

 

 

Posted by Howard Wasserman on February 11, 2015 at 09:31 AM in Sponsored Announcements, Teaching Law | Permalink | Comments (0)

Monday, February 02, 2015

Measles!

First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this.  It’s wonderful to see how what Dan started continues to grow and thrive.

Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.

 As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland.   My focus will be on legal issues, but lets start with an overview.  As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here.  Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home.  This is a very helpful graphic.  In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States.   But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time.   Globally,  400 (mostly) children die of measles every day, 16 die every hour.   Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.  

Also, over the past 5 years, an increasing number of people (mostly college students) have caught  measles and mumps (and both) without the infectot or the infectee leaving their U.S.  college campus.

 The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated.  It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.

 Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old.  There are also counter-indications (more about them later) about who shouldn’t get the vaccine.  Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before.   Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection.  And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.

 

The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state.    Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation.  Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.

To be continued.

Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)

Friday, January 30, 2015

In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error

This is probably my last non-game theory post, and I haven’t picked any really good fights all month! That clearly won’t do.

Jon Hanson, my beloved former torts professor at HLS, has this big project that he calls “situationism,” which is essentially about highlighting the ways that people’s behavior is less caused by their individual dispositions and more about the circumstances they find themselves in. Many psychologists call the opposite tendency the “fundamental attribution error"---the tendency to make, essentially, self-serving attributions of agency. (My successes are all about how awesome I am and how hard I work, and my failures are all about the environment! Your successes are all about the environment, and your failures are about your personal deficiencies!)

Last month, there was a long discussion on this blog about the way in which students allegedly have “become worse” since the economic collapse, essentially because so few jobs = so few people wanting to go to law school = lowered admissions standards across the board = prawfessors at every level observing dumber or lazier or less well-prepared (the most charitable claim in that thread!) students. I confess, that post and the comment thread that followed really cheeved me off. Even though many of us are skeptical of the worth of standardized testing, can highlight all kinds of biases in things like the LSAT, we still seem to think that lowered LSAT scores equals a meaningful drop in competence, and that we can observe this with classroom results.

I, as you might imagine, am highly skeptical about that that hypothesis. Can we be Hansonian situationists about it? Suppose we look for an alternative hypothesis to explain observed declines in classroom results (both exam performance and in-class discussion) as attributable less to personal qualities of the students and more to the situation our students find themselves in. Well, here’s one idea. Students are less engaged/it takes more work on our part to interest them in our courses, because they see them as less meaningful to their long-term well-being. And they see them as less meaningful to their long-term well-being because the job market has been terrible, and so they have lowered expectations for a fulfilling and successful career in which they are to use the knowledge we provide to them. Moreover, because it’s so much harder for them to get a job than it used to be, they prefer receiving information that is directly relevant to getting jobs (“what’s the rule! how do I get a good grade and pass the bar exam!”), and disprefer having their and effort time taken up by information that is less relevant (“what are the policy considerations here! what’s the deep jurisprudential theory in play!”).

It’s about situational incentives. When you have to hustle your butt off to get a decent job, you don’t have the luxury of thinking about “making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways.” Unfortunately, that’s what we law professors tend to care about most, and what we (rightly) tend to associate with the kind of skill development that will serve lawyers well throughout their whole careers. But in a terrible job market, our students have good, rational, reason to care less about their whole careers and more about getting that first job and paying off the student loans. Not because they’re dumber, lazier, or less well prepared (and even if I'm wrong, shouldn't we pretend that I'm right, because aren't our students more likely to respond well if we have high expectations for them and respect their ability and motivations?). Because the economic environment they find themselves in gives them reason to discount their career futures, and reason to invest more in short-term needs. (This leads to an empirical hypothesis.  Schools with better job placement rates should have better scores on the Law School Survey of Student Engagement, after controlling for LSAT and UGPA. Memo to Indiana folks: run this regression!  Or give me the data, and I'll run it!)

So our job is to find a way to make it rational for them to be willing to invest in the “deeper-level thinking” that they will need to learn in the long term, in a way that will also benefit them for the short term job market. Such a strategy has the potential to improve student engagement, and, thereby, student performance, and thereby, make their lives as well as ours better.

Concrete plans? I don’t have many yet, but it seems to me that we need to at least entertain the idea that we have to do better on the job front to do better on the classroom front; that “deeper-level thinking” cannot be carried out when you’re worried about where the rent money will come from a couple years down the line; and that we have to sell “deeper-level thinking” not just to students but also to the people who employ them. 

Posted by Paul Gowder on January 30, 2015 at 11:09 AM in Life of Law Schools, Teaching Law | Permalink | Comments (7)

Monday, January 26, 2015

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Edit: To get to p.3 of comments, click here. To get to the end of comments, click here.

Posted by Howard Wasserman on January 26, 2015 at 09:31 AM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (1481)

Thursday, January 15, 2015

Fair Grading in a World of Curves? Concepts and an Algorithm...

One of the First World Problems of the prawfessoriat is that law school courses tend have mandatory curves, but, of course, student performance never exactly matches those curves, and so some tweaking is required.  In pursuit of improving my code-writing skills (that is, teaching myself up from barely literate to rudimentary), I've been planning to write a script that can take raw scores in numerical form and spit them back out a form fit to (any) curve in a fair fashion.  But, of course, what counts as "fair" is open to question, so I'd love to solicit your feedback on the algorithm below, and the underlying concepts, before I try to implement it in code form.  Is this fair, do you think? Are there ways to make it more fair? I'm sure there's literature on this subject, but I don't know it---do any readers?  
 
Wonky stuff below the fold: 
 
The following assumes that grades (both raw and scaled) naturally lie on an interval scale, so that we lose information about variance between a pair of students' performances when we change the relative distances between their scores; the primary notion of fairness then becomes minimizing the amount of information that must be lost to fit the curve.  The interval scale assumption also allows linear transformations to be made without loss of information. But please do question it if you don't think it's realistic.  
 
There is also underlying assumption that the "natural" grades given by a professor pre-curving are accurate (or at least have only unbiased error). That assumption may be false: it may be that the discipline of the curve eliminates systematic grading bias, and that the best way to grade is not to give a raw score at all, but to scale it from the start by, e.g., simply ordering work product by quality and then assigning points off the ranking to each exam.  I'm definitely interested to hear if anyone believes this to be true, especially if that belief is backed by research. 
 
A Candidate Algorithm for Fair Curve-Fitting
 
1.  Accept input consisting of an ordered CSV or similar, with grades in raw numerical format, scale of instructor's choice, plus high and low points of raw scale. Something special may have to be done with endpoint scores at this point, especially zeroes; not sure yet.
 
2.  Accept input defining curve by number of buckets, high and low point of each bucket, and percentage (or range thereof) of students in each bucket.
 
3.  Apply linear transformations to reduce raw score to scale defined by curve (i.e., subtract from both as necessary to set origin at zero, divide or multiply as appropriate, then add back in for the scaled score). 
 
4.  Check to see if there are further linear transformations (here, and below, addition or subtraction will be the key) to be applied to the whole scale that make it satisfy the curve. This is a very happy outcome, permitting no loss of information, and is likely to be the case if the instructor grades roughly on the curve, but is systematically either too generous or too stingy. If so, go to #7.  If not, then things get more complicated, move on.
 
5.  Search to see if there is a point such that all scores to one side of that point fit the curve, either on their own or with linear transformations to the whole scale, while the other side fits the curve with only linear transformations to the whole thing. If so, go to #7. If not, move on.
 
6.  Search to find the smallest number G of groups into which the set of students can be divided, such that the curve is fit with either no changes or with a linear transformation to each group. (Steps 4 and 5 are actually just special cases of step 6 with G = 1 and 2, respectively.) 
 
7.  Test all grade distributions produced by wherever the algorithm stopped to insure that for all pairs of students i, j, if i > j in raw, then i >= j in scaled. (Minimum fairness condition.) Throw out all distributions that do not satisfy that criterion. If no such distributions remain, return to step 6, increasing minimum G by 1. 
 
8. If there is a unique set of grades produced by wherever the algorithm stopped, apply it, spit out the grades, and go home happy.  If there are multiple such sets, apply them all and report the entire set to instructor, instructor chooses depending on how generous s/he wants to be.
 
As I am not that skilled a programmer (yet!), the script implementing this algorithm will doubtless be very inefficient when I write it, lots of brute force-ey flinging changes against a vector of scores and then testing.  (Or I may just never write this and leave it as a model for more skilled programmers.) But it seems fair to me, in that its goal is to minimize the loss of information between raw score and scaled score.  
 
One possible point of disagreement is that, as written, steps 5 and 6 fail to take into account the magnitude of transformation applied. It seems to me that for any fixed G, transformations that minimize the differences between the magnitude of addition or subtraction applied to different groups are to be preferred.  (We ought to prefer a situation where the curve causes clusters of students to get small changes to their grades relative to other clusters over situations where the curve causes them to get big changes to their grades relative to other clsters.)  However, while this could be taken into account holding G fixed without loss of information (and perhaps it should be, as a step 7.5), it is hard to know how it should be traded off while letting G float free.  Should, for example, we prefer five groups with relatively small magnitudes of distortion between the groups, or three groups with relatively large magnitudes of distortion between them?  Or is there a way to sum up the total distortion introduced by both adding groups and increasing the magnitude of changes between them?  (Both are bad: the former means that more students no longer occupy the same places on an interval scale with respect to one another as they did before applying the curve; the latter means that the differences between the students who do not occupy those same places are larger.)
 
There's probably some highly math-ey way to do all of this, perhaps imported from psychometricians (who do this sort of stuff with test scores all the time), but (apart from the fact that I don't know much psychometrics) the other constraint, it seems to me, is that any method ought not to be a total black box: a non-mathey law professor ought to be able to understand what's going on with the algorithm s/he uses to calculate grades.  Perhaps that is misguided?
 
Thoughts?

Posted by Paul Gowder on January 15, 2015 at 12:45 PM in Life of Law Schools, Teaching Law | Permalink | Comments (20)

Tuesday, December 30, 2014

Bar None

Bar NoneWith the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law.  There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate.  There are a few articles here and there with advice for those who may wish to opt out, but not many.  Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice.  This figure includes many, if not most, law professors.  Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?

Posted by Kelly Anders on December 30, 2014 at 10:54 AM in Deliberation and voices, Life of Law Schools, Teaching Law | Permalink | Comments (5)

Monday, December 29, 2014

Going to the Dogs

Going to the DogsIt seems that things have become so stressful for some law students that therapy dogs are in order.  Certainly, spending time with a pooch can be a great stress reliever, but to what extent should law schools provide this relief?  Does “dog rental” go too far?

Posted by Kelly Anders on December 29, 2014 at 12:59 PM in Life of Law Schools, Teaching Law | Permalink | Comments (12)

Have Law Students Become Worse Students in Recent Years?

Over at his blog Excess of Democracy, Derek Muller (Pepperdine) has a provacative post titled "NCBE Has Data To Prove Class of 2014 Was Worst in a Decade, And It's Likely Going to Get Worse."  Derek recounts that the overall bar passage rate across the country for the July 2014 sitting was down as compared to previous years, and he posits that the lower results were caused by "student quality and law school decisionmaking."  He believes that the data suggests that lower quality students, and educational decisions of law schools, are producing graduating classes that are less qualified overall, in turn resulting in lower bar passage rates.

In essence, students come into law school having done worse on the LSAT, and they leave law school doing worse on the bar exam.  

Are they doing worse while in school as well?

Reflecting on the past few years, I wonder if Derek is on to something, particularly with respect to law student quality.  If he is correct, then we should expect to see lower student performance while students are in law school.  Is the day-to-day classroom discussion, or their final exam performance, worse now than it was a few years ago? 

My own experience suggests that the answer is...probably yes.  But unlike LSAT scores or bar passage rates, performance while in law school is much harder to measure.

My students continue to be bright, inquisitive, and engaging.  Further, Kentucky's bar passage rate, at over 90% for the past several years, remains high, even though, much like most other law schools, the LSAT scores of our incoming class has dropped.  But there might be something intangible -- something that professors might notice in the classroom or on an exam -- that suggests that law student quality may be lower than even a few years ago.

Without suggesting that any particular student has been weak (I love you all!), upon reflection I have noticed that as a whole it takes longer now than even a few years ago to teach deep legal reasoning.  What I mean is that students from the past few semesters, as compared to several years ago, seem to have a harder time making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways.  I have spent more time recently going over material more than once or walking students through the basics of legal analysis.  Moreover, their writing, at least when they begin law school, seems less advanced than in previous years.  (I have an early semester writing assignment in my Civ. Pro. class so I have a sense of their writing toward the beginning of their 1L year.  Luckily, our excellent LRW professors can, and have, improved their writing dramatically while they are in school.)

Regarding their exam performance, I again find that as a whole the students have not been as strong in deep and complex analysis.  (And I can assure you that it had nothing to do with this year's Civ. Pro. fact pattern involving prisoners.  I'm talking about their analysis on the actual Civ. Pro. issues based on the call of the question, such as personal jurisdiction.)

Of course, the problem could lie with me as a teacher.  Maybe I am not connecting with this crop of students as well as I did previously.  Maybe my exam was harder this year than in previous years.  

I hope, however, that with each year I become a better teacher than I was the previous year.  And I don't think the exam was materially more difficult than previously.

Again, let me emphasize that many, many students performed quite strongly.  Yet I still have the sense that for many of them the analysis was not as deep or nuanced as it could have been, and their raw point scores on their exams showed it.  The students did well spotting issues and giving a surface-level interpretation, but for many, complexity was lacking.

Luckily for us at Kentucky, our excellent faculty can (and has) overcome these kinds of challenges -- as our high bar passage rate reflects.  But I am still left with the question that forms the title of this post: are law students, who potentially have worse credentials coming in than in previous years, and who may be having a harder time with the bar exam, doing worse in the classroom?  And if so, what should we do about it?  Are there innovative teaching techniques we should employ to account for this trend?  Should our overall grades reflect poorer student performance by lowering the curve (if, in fact, that is warranted by lower quality performance)?  Are there systematic changes we should make?

In the end, I am confident that my students, while perhaps coming in with lower numerical credentials, are still excellent students overall and will make fine lawyers, even if their classroom and exam performance has changed somewhat over the years.  But Derek's post makes me wonder whether there is something more we should do in the classroom to account for lower-credentialed incoming students.  If bar passage rate is the measure of success, then across the country our outputs have diminished.  Derek points to the inputs (incoming student credentials) as at least once source of the problem, and my anecdotal evidence backs this up, at least somewhat.  

What can we do for students to improve the outputs given the (potential) new reality of lower inputs?  All law professors have the responsibility to spend significant time and energy contemplating this question.

Posted by Josh Douglas on December 29, 2014 at 09:17 AM in Teaching Law | Permalink | Comments (36)

Saturday, December 27, 2014

Finding what is emotionally charged

Mike Dorf posted his most recent Con Law exam (he writes great exams).  The question touches on mandatory vaccinations and the rights of those who oppose or reject vaccinations, religious accommodations, non-religious accommodations, and the possibility of genetic and biological differences among different ethnic groups. Plus, compulsory broccoli consumption.

Emotionally charged? Likely to offend? Insensitive to some sub-section(s) of students? Otherwise inappropriate as an exam question?

Posted by Howard Wasserman on December 27, 2014 at 09:14 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, December 23, 2014

Teaching emotionally charged subjects, ctd.

The conversation, promptly most prominently by Jeannie Suk's New Yorker piece, is turning to trigger warnings, at least according to this piece from Slate/Inside Higher Ed. Shorter version from most of the people interviewed: "Of course we should teach sexual assault and other sexually related subjects, but let's be sensitive." "Sensitivity," among many of those interviewed, seems to entail some combination of not cold-calling or providing trigger warnings. Note that the conversation is not only about sexual assault; it also is about "discrimination," which means, if taken seriously, a trigger warning for any Con Law, Fourteenth Amendment or Employment Discrimination course.

Posted by Howard Wasserman on December 23, 2014 at 07:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Monday, December 22, 2014

The Dating Game

The Dating GameDating is a personal issue – unless it involves the workplace or the classroom.  In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students.  Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers.  But what about unwanted attention or a perceived inability to say no?  An increasing number of companies and schools are instituting no-dating policies for these reasons.  Should law schools follow suit? 

Posted by Kelly Anders on December 22, 2014 at 12:40 PM in Current Affairs, Life of Law Schools, Teaching Law, Workplace Law | Permalink | Comments (29)

Friday, December 19, 2014

Civ. Pro. is the New Black

And...they're off!  My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black."  Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern.  Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick.  Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers.   Various other prisoners attempt to intervene.  I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.

I always feel nervous while my students are taking their exams.  Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.

In this way, I suppose the exam is also an assessment of me as a teacher.  Here's to hoping I pass!

Posted by Josh Douglas on December 19, 2014 at 01:51 PM in Civil Procedure, Teaching Law | Permalink | Comments (9)

Thursday, December 18, 2014

Unlikely Holiday Films

Trading PlacesOne of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983).  This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best.  It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus.  Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity).  What are some other great films set during the holiday season that have useful clips for the classroom?

Posted by Kelly Anders on December 18, 2014 at 10:00 PM in Film, Teaching Law | Permalink | Comments (4)

The '60s, ctd.

Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.

In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).

* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.

Another Con Law exam that same year, this from Prof. Kaufman (beginning on p. 341 in the link), asked students whether, as clerk to a court of appeals judge, they would recommend joining an opinion affirming rejection of a Fourteenth Amendment challenge to a municipality closing all its swimming pools. It later asked students to evaluate the constitutionality of a federal statute permitting students to transfer out of segregated schools and requiring public payment of transportation expenses for students to attend other schools.

So we have the Black Panthers and incitement during a civil rights protest, state efforts to avoid desegregation in places of public accommodation, and federal efforts to ensure integration, including bussing. Surely these were no less controversial or emotionally charged in May 1970 than Ferguson/police shootings is today. In fact, the pace of legal change (as opposed to just social disruption) was significantly greater then compared with now, so the times were even more unstable and even more likely to draw visceral reactions from students of varying political and identity stripes directly or indirectly affected by these issues.

Were these questions insensitive or inappropriate? One could argue that because there were far fewer students of color at Harvard in 1970 compared with at most schools today, there was less need for sensitivity to possible disparate emotional impact. Or, more precisely, less understanding of the need for sensitivity; Obecause we are more aware and more understanding of these issues and how they affect different students differently, we should be more willing to take that into account in drafting exams. In other words, we should not in 2014 emulate what law schools did int the benighted 1970s.

Posted by Howard Wasserman on December 18, 2014 at 05:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Civil Procedure "Creativity" Extra Credit

Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course.  About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!"  I show all of the projects at the beginning of the review session the day before the exam (earlier today).  In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices.  They often do things well beyond what I expected.  Below the jump I've posted some of my favorites from this year.  Enjoy!

Civil Procedure rap video (warning: there's a swear word at the beginning) (Alex Magara, Pete Rosene, Brandon Wells):

 

Hilter Rant Parody on International Shoe (Myranda Cotant and Emily McClure):

 

Civ. Pro. Cartoon (Ashley Angello):

Angello Cartoon

Twas the Night Before the Civ. Pro. Exam (Catie Coldiron and Mary Tanner, performed wearing tacky Christmas sweaters!)

1. ‘Twas the night before Civ Pro, and all through finals hell,

2. Not a creature was stirring, not even a 1L

3. The outlines were made so no one need cram

4. In hopes that 28 USC §1367 would be on the exam

5. The 1Ls were nestled all snug in their beds

6. While visions of A pluses danced in their heads

7. And everyone still wearing their thinking cap

8. Had just settled their brains for a long winter's nap,

9. When all of a sudden, someone’s brain shuddered

10. The rules of 28 USC §1367 began to be muttered:

11. Where district courts have initial jurisdiction

12. All related state claims in the action

13. Give district courts supplemental jurisdiction

14. United Mine Workers of America v. Gibbs

15. Clarified when a district court does have dibs:

16. A state law claim gets into court when it reacts

17. From a common nucleus of operative fact

18. I knew in a moment there was more to the rule

19. So I asked friends for help so I’d keep my cool

20. And I whistled, and shouted, and called them by name:

21. "Now, Dasher! now, Dancer! now Prancer and Vixen!

22. On, Comet! on, Cupid! on, Donner and Blitzen!

23. There is still more to say so my grade does not fall

24. Now lets recite 1367 in all:

25. Unless there’s an exception, as already stated,

26. Supplemental claims are in if sufficiently related;

27. If a claim is based just on diversity

28. There is an exception: we’ll explain so that you see—

29. There’s no jurisdiction for certain defendants

30. Rule 14, 19, 20, 24 get no pendant

31. This rule extends to plaintiffs on occasion–

32. 19 and 24 may have no relation

33. But now there’s another exception afoot:

34. Supplemental claims can still be caput!

35. There are four situations in which to apply;

36. It can make district courts seem very sly

37. If novel or complex, the state law issue at hand,

38. The court may decline, and thus would remand;

39. If the secondary claim is too much to bear

40. The court can decide it need not be heard there;

41. If the district court has dismissed all other claims

42. The secondary cause can go down in flames;

43. The final reason a district court can decline

44. It’s more broad in definition and can seem asinine.

45. In exceptional circumstances a court can refuse,

46. Their supplemental jurisdiction in this case to use

47. It’s really quite simple once all in your head

48. There’s really no reason to feel any dread;

49. So now you can see supplemental jurisdiction is a breeze

50. You are able to ace this exam with great ease,

51. So in the morning when you awake from slumber,

52. To school you will skip, not drag, moan or lumber;

53. Your fingers will fly, your brain quick as a whip

54. And nary a problem which you must skip.

55. At the end of the final you realize with delight—

56. “Happy Christmas to all, and to all a good night!”

 

(The) Personal Jurisdiction (a play on The Raven) (Whitney Grider and Grant Sharp):

Once upon a Civ Pro class, while I pondered, weak and weary,

Over many concepts and cases of forgotten lore—

While I nodded, nearly napping (not true), suddenly there came a “Miss Grider,”

As of some one gently calling, calling my name, heart hitting the floor—

“Tis my day to be called on,” I muttered, “calling my name, heart hitting the floor—

        Hopefully this time and none more.”

Ah, distinctly I remember it was in the Mid-September;

And each classmate sighing that it was not their name called.

Eagerly I wished the morrow;—vainly I sought to borrow

From my casebook, I thought in sorrow—sorrow for the loss of Pennoyer—

For the forgotten about Mitchell and Neff whom because of Pennoyer—

        Nameless here for evermore.

“Pennoyer!” said I, “thing of evil!—still making students learn you!—

Whether by the Professor, or whether tossed at thee from attorneys before,

Desolate the ideas of Pennoyer, deserted lands—

In this jurisdiction—is there minimum contacts? –tell me—tell me, I implore!”

        Quoth the Jurisdiction “Nevermore.”

“Be the minimum contacts needed for personal jurisdiction!” Mr. Sharp shrieked,

“Be continuous and systematic and related to the claim!”

An unrelated and isolated and infrequent contact is unconstitutional!

Leave Pennoyer in the past!—quit referring back to the forgotten lore!

Take the International Shoe doctrine, and take it out the door!

        Quoth the Jurisdiction “Nevermore.”

And Jurisdiction, never flitting, still needed, still needed

In every case or otherwise not constitutional

And first look for minimum contacts,

And look for if they offend traditional notions of fair play and substantial justice;

        Jurisdiction—nevermore!

Posted by Josh Douglas on December 18, 2014 at 03:51 PM in Civil Procedure, Teaching Law | Permalink | Comments (5)

New Law Teachers' Workshop at SEALS

This year, in addition to the terrific New Scholars' Colloquia (early-morning panels of papers from new scholars, with each presenter assigned a mentor/reviewer), the Southeastern Association of Law Schools (SEALS) will be offering a New Law Teachers’ Workshop.  It will include a variety of panels designed to prepare the new (or newer) law professor for his/her new career. This also is in addition to the Prospective Law Teachers' Workshop, which does mock job talks and interviews for people (usually VAPs/Fellows) about to his the market.

Details (courtesy of SEALS macher Russ Weaver) after the jump.

Several things to note about the SEALS workshop.  First, it is relatively inexpensive ($150 registration fee for faculty from member schools and $175 fee for faculty from non-member schools which is a fraction of the cost of other comparable programs).  Second, in addition to being able to attend the New Law Teachers’ Workshop, attendees will have access to the entire SEALS meeting, including a rich variety of programs on pedagogy, research, publishing opportunities, etc., (see below) as well as programs on an array of substantive topics.  Included in the general SEALS programming are specific programs designed specifically for legal writing and clinical faculty.  Finally, and again for the same $150 fee, faculty from institutional member and affiliate schools will have the opportunity to participate in the New Scholars Workshop.  This latter workshop allows young faculty to present a work in progress, to have a mentor, and to receive feedback on their scholarly projects.

Listed below is the rich tapestry of programs available to SEALS attendees.  For this particular workshop, we will include the following panels:

 

Teaching Students Born In the Digital Age
As students get younger, and we professors age, the phrase “mind the gap” becomes increasingly pertinent. The panelists have ideas on how to connect with the newest generation to attend law school, from differing uses of mobile learning, such as pod casts, to using the Internet and multimedia in the classroom, videos, flipping the classroom, new technologies, and much more.

    Speakers: Professor Brannon Denning, Samford University's Cumberland School of Law; Professor Michael Rich, Elon University School of Law; Professor Maggie Thomas, Louisiana State University Paul M. Hebert Law Center; Professor Laurie Zimet, University of California, Hastings, College of the Law

 

Becoming a Productive and Fulfilled Scholar. (Panel and Breakout Groups).
This panel of experienced scholars will discuss a variety of topics, including what a “scholarly agenda” is and how to develop one; alternate routes to tenure and self-fulfillment; using colleagues and research assistants in productive ways; the art or luck of publishing “well;” the importance of presenting at conferences; and how to enjoy, not dread, the scholarly process. The discussion will include the “nuts and bolts” of writing – where, when, what, and why. The panelists will then lead a breakout group to discuss these topics with participants in more depth in a roundtable format.

    Moderator: Professor Colin Marks, St. Mary's University School of Law

    Speakers: Professor Linda D. Jellum, Mercer University Law School; Professor Ronald Krotoszynski, The University of Alabama School of Law; Professor Nancy Levit, University of Missouri-Kansas City School of Law

 

Discussion Group: Advice for Newer Law Professors from Law School Deans
Building on the success of last year, this Discussion Group will bring together a panel of experienced deans to give their perspective on issues common to newer professors. These include things like juggling multiple service requests, navigating faculty meetings, setting reasonable expectations of availability with students, and evaluating advice from all the many people who will want to provide it. The discussion group will have ample opportunity for individual questions and for breaking into smaller groups.

    Moderator: Professor Jennifer Bard, Texas Tech University School of Law

    Discussants: Dean William Adams, Deputy Managing Director, American Bar Association, Section on Legal Education; Dean Luke Bierman, Elon University School of Law; Dean Nora Demleitner, Washington and Lee University School of Law; Dean Daisy Floyd, Mercer University Law School; Dean Jon Garon, Nova Southeastern University, Shepard Broad Law Center; Dean Richard Gershon, The University of Mississippi School of Law; Dean Danielle Holley-Walker, Howard University School of Law; Dean Ian Holloway, Calgary Law School; Dean Alicia Ouellette, Albany Law School; Professor Elizabeth Pendo, Saint Louis University School of Law; Dean Christopher Pietruszkiewicz, Stetson University College of Law

 

Creating Successful Methods of Assessment, Including Essays and Multiple Choice Questions
The panelists for this session will explore formative and summative assessment tools, especially in light of the future implementation of A.B.A. Standard 302, Learning Outcomes. The tools include writing a meaningful exam and creating efficient formative assessments during the semester. Topics will include the basic mechanics of exam-writing, constructing useful formative tools, and related matters such as cultural implications, the relevance of disabilities, and the rationales behind open and closed book exams.

    Moderator: Professor Joel Mintz, Nova Southeastern University, Shepard Broad Law Center

    Speakers: Professor Doug Chapman, Elon University School of Law; Professor Michael Coenen, Louisiana State University Paul M. Hebert Law Center; Professor Eang Ngov, Barry University, Dwayne O. Andreas School of Law; Professor Nancy Soonpaa, Texas Tech University School of Law

 

Designing Effective First Year Courses and Upper Level Elective Courses
The panelists, who have spent many years designing effective courses and seminars,, will discuss syllabus design, how to make decisions about the allocation and amount of coverage, the selection of texts and supplemental reading material, the amount of reading to assign, setting outcomes for the course or seminar, and overall teaching philosophy. Each panelist will then lead a breakout group to discuss these issues in-depth with participants in a roundtable format.

    Moderator: Professor Susan Klein, University of Texas School of Law

    Speakers: Professor Kathy Cerminara, Nova Southeastern University, Shepard Broad Law Center; Professor Howard Katz, Elon University School of Law; Professor Ben Madison, Regent University School of Law

 

Putting Your Teaching Philosophy to Work In the Classroom
The panelists, all dedicated and excellent teachers, will discuss their teaching philosophies and the differing methods they use to implement those philosophies. The panelists also will discuss concrete issues, such as the role of different learning styles, the best methods of controlling the classroom, time management, coverage of material, and teaching respect, professionalism and cultural awareness in the classroom. Each panelist will then lead a breakout group to discuss these issues with participants in depth in a roundtable format. Some of the breakouts will focus on nuts and bolts; other groups will pursue broader issues such as teaching philosophy.

    Speakers: Professor Enrique Armijo, Elon University School of Law; Professor Olympia Duhart, Nova Southeastern University, Shepard Broad Law Center; Professor Susan Kuo, University of South Carolina School of Law; Professor Connie Wagner, Saint Louis University School of Law

Posted by Howard Wasserman on December 18, 2014 at 10:22 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, December 17, 2014

The '60s

Paul rightly links the request by some students to delay exams in light of events in Ferguson, New York, Cleveland, etc., to the '60s, when students were similarly protesting about the war, civil rights, etc.

Let me ask a different question that relates back to the issue of exams and coverage on hot-button subjects and contexts: How did professors handle discussing and testing on the subjects that ruled the day 40-50 years ago and how did students react? After all, just as students then were similarly too busy protesting the war to deal with exams, they were also similarly emotionally invested/triggered by these issues (after all, many of them were a student deferrment away from maybe fighting in the jungle). So did profs feel free to ask questions about protesters and demonstrators getting arrested? What about the constitutionality or wisdom of US conduct in Vietnam or Cambodia? What about the constitutionality of the Voting Rights Act or C/R/A of 1964? And did students object to such questions when they appeared on tests? And if not, what should we make of that difference?

Posted by Howard Wasserman on December 17, 2014 at 07:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

The Price is Right

The Price is RightDecember marks the start of the season for faculty job offers – as few and far between as they may be in this economy.  In the “old” days, salaries and perks were likely much more flexible.  Is there much room for negotiation, or will candidates jump at the chance to accept any offer, just to have a foot in the door?  In our current economy, what can one realistically ask for and receive? 

Posted by Kelly Anders on December 17, 2014 at 09:36 AM in Getting a Job on the Law Teaching Market, Teaching Law | Permalink | Comments (0)

Suk, "The Trouble with Teaching Rape Law"

Adding to the conversation about teaching and testing on controversial or emotionally charged subjects, here is Jeannie Suk (Harvard) this week in The New Yorker. (H/T: My FIU colleague Eric Carpenter). Of course, sexual assault fits into the first category, in that the subject itself is emotionally charged regardless of the context in which it is presented or tested. Obviously, I share Suk's conclusion that it is too bad that we are moving in this direction--and that it is bad not only for law students, but also for law and legal reform.

Posted by Howard Wasserman on December 17, 2014 at 09:24 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, December 16, 2014

Let’s Make a Deal

Let's Make a DealNegotiation is a skill that every attorney needs to have in his or her tool box, but it is not a required course in any law school of which I am aware.  As one who is certified in ADR from one of the best programs in the country, I can honestly say that I use these techniques on a daily basis – on and off the clock.  Although this topic is non-doctrinal and is not tested on any bar exam, it is a skill that every law student should learn before entering practice.  Should it be a required third-year course?  Why or why not?

Posted by Kelly Anders on December 16, 2014 at 10:05 AM in Teaching Law | Permalink | Comments (4)

Sunday, December 14, 2014

Promissory estoppel in emotionally charged contexts

In searching for a line on controversial or emotionally charged exam questions, it may help to think about three distinct ways those contexts can tie into and affect a question:

1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.

2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.

3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.

So where does this framework leave us? Category # 1 presents the easiest case--students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.

Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some  students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his "crime" to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).

Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.

I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only "get their lawyer on" (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.

Posted by Howard Wasserman on December 14, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

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 | Comments (24)

Thursday, December 11, 2014

Selling Law

Selling LawMost large law firms have marketing departments, but the practice of marketing legal services is not always popular among lawyers.  We have attorney advertising guidelines, and there are still plenty of ads in the yellow pages, but the idea of selling one’s services can be uncomfortable.  Traditionally, lawyers thought their work should speak for itself.  It still should, but marketing assists with spreading the word.  As David Packard once said, “Marketing is too important to be left to the marketing department.”  That being said, should marketing techniques be considered a necessary skill in the modern practice of law?  Should they be addressed in law school?

Posted by Kelly Anders on December 11, 2014 at 10:14 AM in Teaching Law | Permalink | Comments (0)