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Marbury in Introductory Constitutional Law

I am currently completing my syllabus for Constitutional Law I, the first of two required constitutional law courses at Boston College. The first, which we teach in the second semester of the first year, covers structural constitutional law while the second, which students may take in either their second or third year, focuses on civil and political rights.

Inspired in part by the work of Sanford Levinson, who was kind enough to visit my advanced seminar on constitutional politics last week, I have been debating the merits of when, and whether, to assign Marbury v. Madison.

I will keep Marbury in my preliminary syllabus, unlike Levinson, who does not teach Marbury in introductory constitutional law courses because of the "opportunity costs that must be paid in order to teach Marbury well." (Read more from Levinson here and here. A subscription is required for the first link.) 

But I've decided, tentatively at least, to depart from (what was once, still is, may always be???) the norm, which is to begin with Marbury. I will instead start with an historical and theoretical study of Article V, which prescribes the textual rules for amending the constitution. 

This, I think, will be a useful entrée into the larger themes of the course, namely federalism, the separation of powers, representative versus direct democracy, and the locus of sovereignty in the American constitutional order. It will also be an occasion to read some constitutional history, which adds great richness to the study of constitutional law.

I'm curious, though--do any Prawfs readers begin with Marbury? If yes, do you have a particular reason why? If you do not begin with Marbury, where do you begin?

Why I Love My Job

In the critically-acclaimed 1993 documentary The War Room, directors D.A. Pennebaker and Chris Hegedus chronicle Bill Clinton’s successful 1992 presidential campaign. The War Room follows Clinton campaign operatives James Carville, George Stephanopoulos, Paul Begala and others as they engineer one of the most surprising presidential victories in modern American political history, shepherding then-Arkansas Governor Clinton to victory over presidential incumbent George H.W. Bush.

Near the end of the documentary, Pennebaker and Hegedus capture for posterity a moment that is at once moving, powerful and really quite touching: Carville’s thank you speech to the campaign staff. Carville begins, his eyes welling with tears, “There is a simple doctrine. Outside of a person’s love, the most sacred thing that they [sic] can give is their [sic] labor,” adding that “anytime that you can combine labor with love, you’ve made a merger.” (The short speech is available here beginning at around 4:30.)

I hadn’t ever given serious thought to what it means to call something a labor of love until Carville put it in those terms. But even so, at the time, when I first watched the documentary during my law school years, the meaning of the phrase didn’t quite register with me, perhaps because I was a student without a job (I regard summer internships, research assistantships, or teaching assistantships as apprenticeships.) But now that I have a job as a law professor, I understand more clearly what it means to describe something as a labor of love.

It really doesn’t feel like work to do what we do as law professors. At least not to me. Here I am, on a lovely Sunday afternoon, having just returned from church, and I am enjoying the time I'm spending at my desk writing a lecture for my introductory course on constitutional law next semester. 

Granted, as a first-year law professor, I have yet to grade my first set of exams, so perhaps I will feel differently in a couple of weeks when I am inundated in stacks of exams. But I am willing to bet that I will feel the same way as I do now about just how lucky I am to be in this profession.

It’s hard to believe that we can make a living, a pretty good living, discussing and reading and writing about things that interest us. All in a university setting populated by artists, athletes, scientists, just to name a few, all of whom love what they do and whose enthusiasm only deepens our appreciation for the richness of the community in which we live.

What a great job we have, don't you agree?

Greetings Fellow Prawfs!

Thanks to Dan for the invitation to guest-blog at Prawfs for December.  Once the email reminding me that the time for my gig arrived, I had a bit of trepidation about whether I'd have anything to say.  After all, I'm stepping into the shoes of some insightful UGA colleagues and good friends at other schools who post here.  It's a good thing that exams came and inspired a comparison I thought I could share.

Everyone I know hates exams--prawfs hate writing them and reading them and students hate taking them.  I know of people who have experimented with different forms of evaluation to reduce the stress on students, and these usually come at the cost of increased work to the instructor.  I don't know of institutional rewards for law prawfs who evaluate students particularly effectively other than the satisfaction they get from it or the sense that their students will gain additional skills and knowledge from the preparation and exam process beyond just studying for a regular exam.  There are certainly punishments for those who cut corners on this part of the job by turning in grades late or grading so poorly that the administration has to step in.  On the other hand, I've not heard of a school that has an award or prize for, say, the best written exam or the most effectively graded exam.

It occured to me that much regulatory oversight is plagued with the same problem.  I'm most familiar with environmental regulation, but I'm sure this effect occurs in other areas as well.  Most members of the regulatory community comply to avoid negative consequences (fines, prison sentences, etc.), but they react to dealing with their environmental compliance people the same way that professors react to writing and grading exams--work that needs to be done but that is by no means pleasant or rewarding.  Environmental regulation could use more rewards as incentives for compliance, and some have been implemented.  Are there any lessons we can borrow to create positive incentives for writing and grading exams?

Should Law Students Get a “Cross-Platform” Text on Legal Reasoning -- Good for Many Different Substantive Courses?

Here’s a more longer, more elaborate version of the question:  Right now, in most law schools, students have to buy a new, subject-specific casebook for each class.  One for Contracts, one for Torts, another one for Evidence, yet another one for Constitutional Law, and so on.  I’m not suggesting that this will change in the immediate future, although it certainly would be nice for law students to have a single text book -- or eReader -- which, like Harry Potter’s “Room of Requirement,” would appear and morph into whatever casebook they needed on any particular occasion.

But does it also make sense for law students to have an additional text or texts that they keep as they move from one substantive class to another -- a text on the legal reasoning and argumentation skills that transcend substantive boundaries?  After all, not everything a student learns in Torts, Contracts will be specific to those subject areas.  They’ll also (hopefully) learn how to spot issues in a complex fact pattern, how to analogize and distinguish cases, interpret a particular holding broadly or narrowly, or synthesize a legal rule from a line of cases.  In fact, these general skills of legal reasoning and argumentation will often be just as crucial for doing well on a final exam as knowing the blackletter law covered in the course.  So why shouldn’t law school faculty -- in addition to selecting individual subject-a specific casebook for each classes -- also choose one or two legal reasoning texts that students obtain when they start law school, and that professors in different classes can refer to as they help students refine legal reasoning and argumentation skills, and apply them in a new area of law?

Of course, as with any other proposal, there are downsides to this one.  For one thing, it would require a school’s faculty to make a collective choice on a matter (textbook selection) where we are each used to making our own decisions.  It may also require students to spend more money for yet another textbook -- although in law schools where students are already required to take a legal analysis or reasoning class, a book like this is already part of the package students have to buy during their tiem in law school.  (It is also possible for a law school’s faculty to put together such a legal reasoning text on their own instead of asking students to purchase a particular one on the market). 

Still, my sense is that, on the whole, this kind of proposal would be a good thing for students. It would help make the teaching of legal reasoning more systematic and explicit throughout law school (and not just in classes dedicated to legal reasoning and writing).  In short, I think Steven Burton is right that, as things stand now, in substantive classes, law “[s]tudents are left largely to their own devices to extract worthwhile lessons about legal reasoning from examples and discussions.” (This is from his book, An Introduction to Law and Legal Reasoning).

Have schools already experimented with multiclass, one textbook approach described above?  Do those of you who are teachers of substantive courses, like contracts and torts, familiarize yourself with the texts used in legal analysis classes, and refer back to them as you teach torts or contracts?  (I know I asked this question before.  But I’m still seeking answers to it.).

 

Attending Hiring Conference

I am off today to the AALS Hiring Conference, where I am on our appointments committee for the first time. I am anxious to experience things from the other side of the table. And I hope to meet some readers (prawfs and candidates) over the course of the three days.

I have nothing to add to the various advice for candidates that has been floating around the blogs of late, except this: Try to have a little bit of fun with it. After all, you get to spend sessions talking about your scholarship, your teaching interests, and your ideas. Stakes aside, by definition you are getting to talk about something you are interested and enjoy--yourself and your work.

Good luck to all.

Law school on the "Block Plan"

For no particular reason, I was thinking today about the "Block Plan" (or "One-Course-at-a-Time") approach used at liberal arts colleges such as Colorado College and Cornell (IA) College. As the name suggests, students take (and professors teach) one class in an intensive 3 1/2- or 4-week block, take one week off, then move on to another single class. And at least Cornell plays up internship and other outside-the-classroom opportunities.

So: Any thoughts on whether law school could work on this model?

Learning from the P&T Process

This year marks my first time on the other side of the promotion-and-tenure process, which means I have to visit and evaluate my junior colleagues' teaching. This has been educational in several respects.

First, I am learning substantive law. After observing a contracts class, for the first time I understand Kirksey v. Kirksey ("Dear Sister Antillico"). It is fun to get a small taste of other substantive content--especially what I should have learned back in school.

Second, and more important, it is quite helpful to see other teachers and other teaching styles. There is both a comparative component to this--"How do I compare to this?"--as well as a learning component--"What things does she do that I might incorporate?" or "What things simply cannot work for me?". I always have believed that good teaching style is largely personal--you have to be yourself; this means it is going to be varied and not always transferable. But we can adopt things that we see that might jibe with our own style. Or we may have some ideas confirmed--watching a colleague conduct (very well) a seminar while sitting the entire time confirmed that I would not do well in that environment because I cannot talk while sitting.

Third, it is interesting to see how courses are integrated across the curriculum and how important it is that students not consider each subject in the curriculum in isolation, but come into each class with at least a basic familiarity with prior subjects. For example, for a discussion of the relative merits of trials and truth-and-reconciliation commissions, students should come armed with clear conception of the idea of the trial gleaned from, e.g., civ pro, crim law, evidence, and crim pro. I wonder if we do a good-enough job showing and emphasizing those intra-curriculum connections.

Staying Squarely within the Law, Part 2

Earlier today I started blogging about a teaching technique for a Public International Law course:  playing four square.  The problem:  student resistance to the idea that international law is law.  The solution: the game of four square as a classroom exercise.  Here's my summary of the game and how it could be used in class.

The Game

For those who have not played four square recently (which I suspect is most readers), four people play at a time, in a square area divided into equal quadrants. The basic idea is to bounce the ball from player to player. If the ball bounces into your quadrant, you have to hit it (not catch it) so that the ball’s next bounce is in another player’s quadrant. Play continues until someone misses.

When I was a kid we played for points -- first person to miss 10 balls was “out” -- and we played elimination-style until one player was left. My kids, however, play a quite different game. First, the quadrants are numbered #1 through #4. Player #1 is the “Monarch.” (My contribution to the game was to convince my kids to use a gender-neutral term instead of “King” or “Queen.”) The Monarch always starts play, and also can end play by catching the ball. That gives the Monarch a significant advantage, but not an absolute guarantee of staying in power. (Sort of like a powerful nation-state.) Whoever misses gets knocked down to the #4 position, and everyone below them moves up.

On the surface, the game thus played helps to illustrate how power is unequally allocated, just like it is in the world. A more important point, however, is that all players have agreed to abide by the same rules. There are no referees, and no overt enforcement mechanisms. Players only abide by the rules because they have agreed to.

So far, so good -- but things got really interesting when my kids started to elaborate on the basic rules, so that the system evolved as we played. First, someone needed a time out for a bathroom break. Everyone agreed (certainly mutual benefit came into play on that one). Then there were disputed calls, which usually were resolved using the time-honored solution of the “do over.” And then my daughter introduced two new rules: the “Black Magic” rule and the "School Bus" rule.  If the Monarch yelled “Black Magic!,” players were supposed to run to the center of the court ASAP, and the last one there would be demoted to the #4 quadrant. The "School Bus” rule was the same, except players were to run to the outside corner of their quadrants. I suggested that the #4 player be given the Black Magic and School Bus powers as a way to level the playing field somewhat, but that innovation was widely rejected. When I tried to do that anyway (I was player #4 at the time), no one followed suit, and my attempt at effecting a rule change (via violating the rules) ended right there. Eventually the kids grew tired, tempers flared, and the game broke down into fights and tears, so we went inside.

Implications for the Classroom

The game of four square thus offers some rich material for teaching Public International Law to a resistant student audience. It would be interesting, and I think quite useful, to actually have 4 students (or even better, 3 students plus the professor) play it in front of a class, and to introduce new rules and rule changes during play. Feints and cheating could be encouraged, to show how disputes might be resolved among the players. Following the game (which needn't be more than 5 minutes long or so), various questions could be discussed, including:

• Why does the game work on a horizontal basis? Does its horizontal nature mean that there are no rules, only power?
• If there are rules, does that mean power (in the form of threats or violent action) is irrelevant?
• Do rules always prevent cheating? Just because someone cheats and gets away with it does that make the rule not really a rule, but a nonbinding “guideline”?
• Can violating the rules be a way to effect a change in the rules?
• Why would players all agree as to who was Monarch? Why not just refuse to recognize a Monarch?
• Why do some rule innovations get adopted but not others?
• Are “time outs” and “do overs” akin to international law general principles, since they are features common to many playground games (just like notions of due process are common to the major legal systems of the world)?
• Who benefits when there is no cooperation?
• Did players (and spectators) defer to the professor as an “expert” in deciding what the rules were or should be? Why -- and what does that tell us about sources of international law?

All in all, I think this is a useful exercise, and I will consider using it next time I teach the course. If nothing else, it would mix things up in the classroom and keep it interesting -- but I also think it could get the point across rather well.  And if I were to win the game, then all the better.

Staying Squarely within the Law

Although I am not teaching it this year, I have regularly taught Public International Law, which in my opinion is one of the most interesting and important courses in the law school curriculum. (Kudos to those law schools that require students to take at least one international or trans-national course in law school.) One of the challenges of teaching the subject is getting some of the more resistant students to buy into the idea that international law (and particularly customary international law) is “law.”

Every year, some students in class ask this question: “Isn’t this course just all about politics and power? How can this be about law?” Those students (not all, mind you) simply have trouble getting past the horizontality of the system -- in their minds, there cannot be “law” without meaningful top-down enforcement. No judges + no legislature + no police = no law. It does not matter how many times we read Article 38 of the ICJ Statute or the section 102 of the Restatement (Third) of Foreign Relations Law of the United States; they just seem to have a permanent mental block.

This is by no means a unique problem, but it has bothered me. How, I have wondered, can I convey the material to those students in a way they can truly grasp? How can I get those students to at least understand the concept of international law, if not agree with it?

The answer came to me the other night while I was playing a game of four square in my driveway with my young kids: why not play four square in class? I am sure others have looked to the playground for examples of horizontality, but at least as far as I can tell (and I have searched) no one has discussed using four square as a means of demonstrating and teaching about the sources of international law, and about international law being more than politics and power. Often a simple example is the best way to drive difficult points home by putting them in a more understandable context. In a post later today or tomorrow I will discuss the game of four square as my kids play it, and then consider how it could be used in a Public International Law course.

An Unusual (and Uncomfortable) Appointments Question

One of the many joys of serving on a hiring committee (which I've been privileged enough to do three of my five years in the academy, including this year) is the chance to see familiar names (and, eventually, faces) among the massive stacks of resumes. It's always a treat to see the interesting work that old comrades have been doing -- only the more so when that work also catches the eye of other members of your committee.

Knowing lots of people in the pool, though, raises a potential problem that I hadn't encountered (or even anticipated) until recently: What should you do when you come across representations in a candidate's FAR form (or resume) that you know for a fact are either incorrect or at the very least seriously misleading? Some are easy enough to check (e.g., whether an article was co-authored; whether it was a student note; etc.). For others, though (e.g., employment information), what's obvious to me (e.g., that the candidate misrepresented the nature of their position, or the reason for termination, etc.) might be very difficult for those unfamiliar with the candidate to check, especially if that employer isn't one of their references.

So what's my responsibility in that instance? If other members of my committee want to consider that candidate, do I have a responsibility to tell them that I think the candidate is misrepresenting something? If the candidate doesn't grab our attention, do I just snicker to myself and move on? Has anyone encountered a similar problem before?

Simple Things

I want to sign off on my guest stint (thanks PrawfsBlawg!) with a simple thing that could make a big difference to the classroom: looseleaf casebooks.  One of the best pieces of advice I got as a beginning professor was to order a looseleaf copy of my casebook.  I could easily take pieces of the book home or read and review on the subway, coffeeshop, doctor's waiting room, etc.  As far as I know, this has long been a perk of professorship, with students either lugging the book or doing a self-help version by undoing the binding, but I just got an e-mail advertising looseleaf casebooks for students.  Why did it take so long?  40% cheaper?  Too easy to copy?  But I wonder if preparation would improve if the weight of the book had no impact on what students carried around....

Dorf welcomes 1Ls

Michael Dorf offers words of welcome for 1Ls. In particular, he has thoughts about why legal education should be thought of as a continuation of undergraduate/liberal education and why students should try to enjoy learning the law and the ideas in the law, as much as they enjoyed learning history, biology, or literature while in college. At the very least, enjoyment means they will pay more attention and do better in school.

More on casebooks

As I indicated in comments to Jessie's post on casebooks versus assigning full or self-edited cases, this has me thinking.

Suppose I taught Civ Pro as follows:

1) Rules pamphlet 2) Complete (unedited) cases in those areas in which there are major cases: Pleading (Iqbal/Twombley); Summary judgment (Trilogy and a good lower-court case); Erie; Personal Jurisdiction; Subject Matter Jurisdiction 3) Student-level treatise (there are a few good ones--two years ago, when I had only a few days to cover preclusion, I assigned treatise pages rather than material from the casebook) 4) Supplemental materials (sample complaints, sample discovery documents, etc.)

Help em out here, folks (especially Civ Pro geeks): Would this work? What's wrong with this approach? What (if any) are the benefits? What are the negatives?

First Assignments

The first assignment I give in Civil Procedure is likely the first regular class assignment ever for the incoming 1Ls (one aspect of teaching an 8:30am Monday morning class!).  Although we spend most of the first class on an problem/discussion that works well, for the last few years I have also assigned Marshall v. Marshall, the Anna Nicole Smith decision in the Supreme Court.  It has become dated and a bit pathetic, given the outcome, so I'm looking for suggestions for a snazzy Civ Pro case to start the course. 

I used Marshall v. Marshall for a couple of reasons:

• It shows the messiness of cases and multiplicity of issues (sometimes missing from heavily excerpted casebook versions).  The suggestion is that the course will provide a chance to unravel the threads one by one. 

• It had a celebrity/good story hook.  This may seem like a sad bid to convince students that Civ Pro is snazzy, fun and probably the most important law school class (all true, by the way), but I want to at least convey that these issues are hotly contested and that stories about, say, elderly billionaire oil man and feuds over money are often resolved on procedural grounds.

Suggestions?

Medical Versus Legal Education

I'm going to sneak in here one last time (before Dan cuts off my access) to record some reactions to the University of Michigan Medical School White Coat Ceremony, which, as a commenter to my earlier post noted, was indeed quite moving.  (If you hadn't guessed, that's Matthew the student-doctor in the middle, and Alene, on his left, is where he gets his good looks.)  I couldn't help but compare legal and medical training, as well as the structure of the two academies.  When I was in business, one of the modern manufacturing methods was "benchmarking," and it wasn't always completely apples to apples, at least on the surface.  For example,  one of our businesses made brake pads, which involved mixing a bunch of powdery stuff with liquid, shaping in a pan, and then heating it until it hardened.  One source of best practices had nothing to do with the automotive business; the setting was commercial bakeries.  Do we benchmark?  I suspect not.

The day involved three parts:  (a) an introduction to students and families together; (b) an overview of the curriculum for families while the students exited to prepare for the white coating hooding ceremony; and (c) the ceremony itself.  For what it's worth, I'll have some legal educator's thoughts about it below the fold.

The overview of the curriculum gave me pause for what we do in law school.  The first two years are mostly hard sciences, but there are additional programs in which students are matched up in small groups and with real and hypothetical patients to begin the process of clinical training, "longitudinal clinics,"  (i.e. where students work through a hypothetical case of breast cancer over the time period such a case would normally evolve), communication skills, and professionalism.  As to the latter two, for example, I was floored by the fact that students go through a unit on delivering bad news in the patient and family setting within the first year. 

The sciences are lectures and labs, and EVERY lecture is available via the internet, and there is simply no penalty for "attending" class on line or by way of a download (the director of the M1 and M2 curriculum, a clinical associate professor, referred to it as attending class "on your couch in your jammies and bunny slippers").  I think the idea is that there is so much pressure on the students anyway that the school does anything it can do to facilitate learning.  The director made a fleeting reference to how the professors feel about the system, and I didn't get a chance to ask about it, but obviously they've adapted.  I decided, sitting there, that I couldn't see any reason not to have all of my classes recorded, at least for our MP3 ITunes capability at Suffolk, and that whether students showed up for class really ought to have to do with how much value I add to the experience.  More on students as professional colleagues in a minute, because I think that has something to do with it.

As most people know, med students take the first of their US Medical Licensing Examinations after the second year, and passage is a condition to moving on to the clinical rotations which make up the bulk of the third and fourth years.  Again, what struck me was the emphasis on the science and art of being a physician.  Is that the medical profession has enough confidence in its scientific bona fides that it can easily focus on the art?  Let's say that the first two years of med school are 80% hard science, and 20% social, clinical, and communications skills, and 100% of the last two years are clinical.  That means that about 40% of the training is "doctrinal," if the analogy between law school and medical school holds, whereas it's fair to say that most legal education now is more like 80-90% doctrinal.  I have a hard time believing that there's so much more hard stuff to be learned in law versus medicine!  And why does the bar exam have to take place at the end of the entire three years?  Why not give the multi-state portions relating to the first year after the first year?  (Note, by the way, that the med boards test on hard sciences that may or may not have much to do with the actual practice of medicine, something that bar exam critics focus on as well.) 

I was curious about the fact that the director of the M1/M2 education program was a clinical associate professor.  Indeed, the faculty structure is similar to most law faculties:  the clinical professors are only obliged to the teaching and service elements of the usual triad - they are not on a tenure track, and do not have to produce research.  I asked one of the deans if there was a pecking order of tenure-track and clinical, or a academy-practice issue as between the tenured research faculty and the practice, and the reply was something like "not as much as there used to be."  So some of those analogies to the legal academy hold as well.

Throughout, including the White Coat Ceremony, there was an emphasis on the fact that they are not just students, but student-doctors, and part of the health care system.  The keynote speaker, a member of the pediatric oncology faculty, talked about her first experience, while a student, scrubbing up (not knowing what to do and having to repeat it nine times), assisting the primary surgeon and surgical team in a quadruple bypass, holding clamps and retractors, helping the surgeon close, and, at one point, holding the heart in her hand so that the surgeon-professor could see it better.  The speaker was choking up a little bit as she talked about how she began visiting the patient and meeting with his family every day until his discharge - "I actually held his heart in my hand; how could I not follow up with him?"  Again, what struck me was the extent to which the student-doctors are professional colleagues of the professor-doctors from the first day.   (Note:  at the end of the program, there was a recitation of the Hippocratic Oath, but by the physicians in the audience, not by the students, who were not eligible.)  Can we say the same thing in law school?  Do we emphasize to entering law students that they are now student-lawyers, not just students?  Why do we trust medical students to learn what they have to learn, even if in jammies and bunny slippers, but, as to law students, we are all hung up on taking attendance and cutting off the Internet access?  Why are students not professional colleagues-in-training?

The hooding ceremony itself involved each of the 170 students walking onto the stage of the Power Center (one of the large performing arts centers at Michigan) with the white coat he or she had received just before the processional, stepping to the microphone to state the student's name, hometown, and undergraduate school, then having the dean of the med school assist in putting on the white coat, then receiving a stethoscope from one of the associate deans, shaking hands across the stage, and getting photographed.  This particular ceremony started at Columbia in 1992, and Michigan adopted it in 1994, and I understand that it has critics who think of it as somehow guild-ish or elitist.  I suppose that would be possible if there were an arrogance about the program, but everything was about caring, compassion, patients, commitment, and other virtues.  So I thought without reservation that it was a moving and visible commitment to being a professional.  Again, in a trivial way, the fact that the student doctors (not lawyers!) spoke to the multitude in the auditorium made me wonder about the patterns into which I've fallen in my classroom.  I collect index cards with exactly the same information, but they come to me.  Even though I'm teaching a second year class, many (most?) of the students don't know each other because they were in different first year sections.   Why not take fifteen minutes and go around the room and hear their voices in addition to their data?

I have no doubt that (a) I've idealized and sentimentalized, and (b) the grass is greener over there, but, as I said, it did give me pause to ask some questions of myself.

Results of laptop ban survey

After banning laptops from the classroom last semester, I surveyed my students about the ban. I got about 65 responses out of approximately 200 students (not a great yield, but still). The questions and results, as well as my thoughts, after the jump:

My apologies for the formatting; I could not get them to line up.

1) What effect has the laptop ban had on your concentration in class?

Strongly positive: 33 Slightly positive: 17 Neutral: 13 Slightly Negative: 1 Strongly Negative: 0

2. What effect has the laptop ban had on whether you have found the course material interesting?

Strongly positive: 17 Slightly positive: 11 Neutral: 29 Slightly Negative: 3 Strongly Negative: 0

3. What effect has the laptop ban had on your ability to learn the material?

Strongly positive: 24 Slightly positive: 11 Neutral: 18 Slightly Negative: 6 Strongly Negative: 2

4. What effect has the laptop ban had on the usefulness of your notes for studying?

Strongly positive: 14 Slightly positive: 8 Neutral: 9 Slightly Negative: 22 Strongly Negative: 7

5. What effect has the laptop ban had on your overall enjoyment of the course?

Strongly positive: 21 Slightly positive: 13 Neutral: 16 Slightly Negative: 8 Strongly Negative: 1

So what do I make of these results? A few thoughts:

1) There were more neutral answers than I expected or, frankly, would have liked.

2) Students overwhelmingly recognize that they concentrate better and pay more attention when they are not allowed to use laptops. In other words, students recognize that the ban achieves one of its primary goals of increasing student attention and involvement. The limitation is that this does not tell us whether the reason for the increased concentration and attention is because the distraction of the internet/IM/e-mail has been removed or because, distractions aside, they are more involved when forced to listen and process the discussion rather than trying to transcribe it.

3) Students seem mostly positive or non-committal as to whether absence of laptops affected their enjoyment of the material or their ability to learn it. Which, of course, seems inconsistent with the overwhelming belief that they concentrated better. Better concentration does not equal great enjoyment or absorption? That seems counter-intuitive--if you pay more attention, don't you learn more (even if you find out you don't particularly like the material or the course)?

4) Students are split almost evenly positive/negative on the effect of the ban on note taking and the usefulness of class notes. My inference is that the negative on this is that students are accustomed to converting their typed class notes into an outline by cutting-and-pasting and reorganizing their class notes, rather than retyping those notes (one student specifically objected to having to retype). But I continue to believe that it is in the act of retyping, while putting all the divergent materials together in one whole, that real learning occurs and everything comes together.

I also asked some open-ended questions, including what students believe would be the best laptop policy. As with student evaluations generally, answers were all over the place. Only a few comments expressed a strong view that I was flat wrong to impose the ban; those who thought they should be allowed at least expressed an ability to see where I (and other banners) was coming from. Interestingly, several students suggested that laptops should be banned simply because enforcing a no-surfing/class-use only rule (which they supported) is impossible and the over-inclusive ban becomes the only way to halt inappropriate use of the internet. At least a couple of students commented that they were initially bothered by the ban, but came to appreciate the benefits of notetaking by hand.

On that last point, though, consider the following: About midway through the semester, I asked students in both of my 65-person Civ Pro classes how many were using laptops in their other classes in which use was permitted; all but 3-5 students in each class indicated they opened the computers back up when they were allowed. Which tells me that if I was expecting this to be an educational revelation--students would realize that laptop-free was the way to go and they would carry the lesson to the rest of law school--that was not happening. On the other hand, that finding is inconsistent with the anecdotal experiences of some prawfs who have banned laptops for the first month of class and given students the option after that and found that a substantial majority, having become accustomed to hand-notes, kept the computers closed.

So where am I on this? I definitely saw and felt the benefits in my classes and so did many of the students. The ban was neither wildly popular nor wildly unpopular; which means I am neither doing them a great favor nor flying in the face of overwhelming opinion. For now, students see this as just another "thing" you deal with in different prawf's classes--like lecture style, evaluation style, etc.

I will continue to exclude laptops this year (while still recording classes for them--just like at trial or deposition). And whether they take classes with him and the evaluations I receive in those classes, for now, seem unaffected by the ban.

Concluding Thoughts on Teaching in a Summer LL.M. Program

For the first time in two weeks, I've actually relaxed a little before class, in part because I know what I'm going to do today - the last of ten consecutive weekdays in which I've taught a two-hour long class in federal securities regulation to non-U.S. lawyers (except for the three U.S. lawyers that we admitted to the program this year).  It's not as abbreviated as you think at first.  My 3-credit hour securities regulation class in Boston has 35 class hours; this is 20, and it's stuffed into two weeks.  Add a little heat and humidity, plus the hard work of scaling a class back by 15 hours of material and having it still make sense, and it explains why you get back to your hotel, take a shower and pretty much collapse every night.

So here I am sitting outside with an eszpreszo dupla at the Cafe Alibi on the Egyetem Ter (University Square), reflecting on the experience.

1.  Don't complain.  While it is indeed hard work, like most things about being a law professor, it's a nice gig.

2.  It's very much an online exercise.  The problem with assigning American casebooks is not just the cost but the difficulty of schlepping the books around, particularly when the students have three classes (i.e. six hours of class) a day.  We use TWEN, with publishers' permission to copy some material out of the casebooks.  In my case, I set up links on TWEN to the University of Cincinnati Securities Law Deskbook, posted my syllabus and class outlines, provided PDF files with exercises taken from Choi and Pritchard (with permission), and posted copies of the key cases.  I also recommended the "Securities Law in a Nutshell" as a source for an overview.

3.  The pedagogical challenge in a course like securities regulation is finding a balance between overview and detail.  If you skate over the top, the students might as well just read the Nutshell.  When you dig into the regulations (for example, teaching Regulation D small and private offerings, Regulation S overseas offerings, or the Rule 144 resale safe harbor), just the logistics alone, not to mention the specificity and complexity in the face of the language barriers, can be a frustrating challenge. You need constantly to dig into the trees, and then return for the big forest picture.

4.  By and large, the "students" are delightful.  Most of them are already experienced lawyers.  They come from Malaysia, Lebanon, Iran, Hungary, Sweden, Germany, Austria, Czech Republic, Nigeria, Northern Ireland, Mexico, Honduras, Ukraine, and a few more I can't recall offhand.  The program involves three summers of the two-week program in Budapest, plus online courses, plus a research project and paper.  We had the closing ceremony last night, in which the third-year students had the "last word."  For all that we have the MacCrate and Carnegie issues in the U.S., the students here, I think, perceive of their American professors as pragmatic, energetic, and accessible, at least in comparison to traditional (continental) European legal academics.

5.  Don't underestimate the work it takes to organize this.  I come away with much respect and admiration for Bridgett Halay, the director of the program.  She is combined lawyer, meeting planner, counselor, confidante, mediator, diplomat, and curriculum planner.  (My colleague Steve Hicks is also here, and works hard, but he's a full professor, so his ego doesn't need any more boosting.) Imagine a two-week long conference with 70 or so participants and ten or so faculty members.

6.  To my chagrin, as a person who thinks Power Point should be used as seasoning - sparingly, and as an accompaniment to teaching, not an outline or crutch - the students here love Power Point as much as in the U.S.  Moreover, the classroom (see right), in addition to being rectilinear, acoustically challenged, and not ampitheatrical, has the usual problem of having the screen for Power Point cover the chalkboard (which I'm sure, by the way was installed somewhere around 1872).  And I, of course, love the smell of  the chalk dust and the roar of the crowd (not to mention those nostalgic screeches of chalk against slate).  I also put on my stern face the first day when most of the class came sauntering in anywhere from five to twenty-five minutes late.  Now my philosophy of teaching runs something like this - I can lead you to water but I can't make you drink.  And while I care deeply about leading you to water, particularly if you want to drink, I really don't care if you make the decision not to drink - it's your life, not mine.  Hence, I don't care if you surf the Internet or do Twitter during class, but I really don't like it when people coming in late disrupt everybody else.  As a result, my gift from the class in the closing ceremony yesterday was a small chalkboard, signed on the frame by all the third-year students, on which was inscribed (in chalk) "Class begins PROMPTLY at 2:30 p.m.  POWER POINT SUCKS."

7.  Budapest is an interesting place.  Physically, it's beautiful.  The view down the Danube is breathtaking, particularly in the evening.  It's seedier than Vienna, and more exotic, I think, because of the strangeness of the Hungarian language, but it's a city that had kings and nobles in the tradition of Vienna, Munich, and Berlin.  There's more here that survived the war than in the former East Berlin, so the old world aspect lives on much more.  And there's a kind of post-Communist edginess, even now, despite the fine restaurants and nice hotels.  You don't want to hail a cab on the street, get scammed in by the hustlers on the Vaci Utca (the main tourist pedestrian zone), spend much time in the Keleti vasutallomas (railway station), or try to find an office supply store to buy a roller ball pen.

Trying Terrorism Suspects in Article III Courts

In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere.

One of the fruits of that workshop -- the workshop report -- was released today, and is available here. [The ABA release is here.] As the report notes,

While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention.

As Larry Solum would say, highly recommended!

Welcome to the World, Military Commission Reporter

Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction).

In the interim, though, I'm very pleased to note the publication of a new (unofficial) reporter of every military commission decision rendered under the MCA, put together by the folks at the National Institute for Military Justice.  For more on the reporter (including a PDF of Volume 1 in its entirety), see here. This is a fantastic resource for those who write about these decisions, none of which have been previously compiled in such a readily accessible form (indeed, many of the decisions in the Reporter were not previously available in any electronic forum).

I leave it to y'all, though, to figure out its proper Bluebook citation form. :-)

To Erie or Not To Erie?

I'm teaching two courses this fall: a seminar on the Constitution and Military Jurisdiction, and my absolute favorite course to teach -- Federal Courts -- for the fifth time in my five years of teaching.

As much fun as I have with Federal Courts, I find myself confronting the same syllabus question each time I teach it: In my unit on federal common law, just how much Erie doctrine should I include?

The reasons for including Erie and its progeny are pretty obvious: Insofar as the relationship between state and federal courts, there are few more significant cases, and Justice Brandeis's opinion is as important for why it might be wrong on the constitutional issues as it is for the result it produces.  And on a deeper level (and what's Federal Courts but for a whole bunch of deeper levels), Erie raises a series of interrelated and fascinating questions about the lawmaking powers of both state and federal courts (and Congress's role vis-a-vis the latter). Lastly, Erie is a great segue into federal common law in general, and the units on implied statutory and constitutional causes of action in particular.  Without Erie, those units often seem a strange and sharp break from what we've been doing up to that point in the semester.

But for as interesting as Erie is, there are at least as many reasons to leave it out: First, virtually all of my students will have encountered it in their Civil Procedure coursework as a 1L (where it arguably belongs, since it also profoundly affects tactical choices parties make in civil litigation).  Second, to do Erie "right" means also doing its successor cases (especially Hanna v. Plumer), and may also require discussion of its forerunners, especially Swift v. Tyson and Black and White Taxicab... And third, my syllabus is already quite crowded, and so the more I add about Erie, the more I have to cut from elsewhere.

I know this is a Federal Courts-specific question, but I'd love to hear what y'all think... In general, does it make sense to go back over cases like Erie in upper-level courses? Specifically, should Erie be part of the Federal Courts canon at a school where it's covered in Civil Procedure?

The First Day of an Upper-Level Elective

It's getting to be that time of the year again -- when we all turn to our syllabi for the upcoming fall semester and figure out what, exactly, we're going to do for 28 class sessions.  I thought I'd take this opportunity to ask a question about how we deal with shopping period, and how we ought to.

My approach to my upper-level electives has always been to make the first class meeting its own standalone class, and not part of the overall flow of the semester. So, I may assign an interesting recent case that raises a host of issues central to the overall topic for the semester, or a particularly thorny problem that might introduce a theme we'll encounter at various points -- but never the foundational beginnings of the doctrine; I save that for class meeting #2.

I do this for two reasons: First, as a way of giving the students a feel for the entire course before they commit to it, and second (and more importantly), to accommodate both those students who aren't sure if they want to stay in the course (who, as such, don't have to purchase the materials), and those who might come to the course after the first day, having made a similar decision about another class.

What do others do with that elusive first day? Do you dive right in? Do you assign more thematic material? Do you try your best to scare people away?

Notes on Teaching in a Overseas Summer LL.M. Program

I realize, given my usual posting patterns, some may think that I have fallen into the Danube.  Some may hope that I've fallen into the Danube.  A bit of background.  Suffolk offers a LL.M. in U.S. and Global Business Law that is obtainable in three years, with intensive two-week stints each summer in Budapest at the Eotvos Lorand University Faculty of Law, and intervening online courses.  The program is designed for experienced non-U.S. lawyers, although we have three U.S. lawyers in the program this year.   It is a delightful polyglot of lawyers from all over the world, including Hungary, Northern Ireland, Switzerland, Austria, Honduras, Nigeria, Saudi Arabia, Czech Republic, Sweden, and Iran.

It has affected my blogging in that my course in U.S. securities law goes for two hours a day in ten sessions over two weeks.  We are into the third day today, and it is exhausting. 

Some notes on the experience follow the break.

1.  The physical setting is old, old world.  I am not positive the picture at right is actually a picture of the building, but if it's not, it nevertheless conveys the feeling.  The lecture hall is a large, long rectilinear room.  Thank God the class is small enough that it fits in the first six or seven rows, because I think the curvature of the earth actually affects one's ability to see the back end of the room.  There is a computer and a screen in the room, but it's the old-fashioned multi-stage crumbling chalkboard, complete with squeaking chalk, that makes me want to sing "Gaudeamus Igitur" every time I step in the class.  (Aside:  law school building designers, do not design the room so that one's ability to use the chalkboard or whiteboard is limited every time the projection system (for PowerPoint) is in use.  This applies to ALL law schools.)

2.  The students are far more engaged and eager than in the typical U.S. class.  It's fair to say they really are here for the content.  They are NOT here for the air conditioner.  It is a constant fight between the professor and the students - given that it is about 90 degrees outside, but the students claim to be "cold."

3.  I think my class is the fairly standard mix of theory and doctrine (for an upper level and narrowly focused course), but one of the Hungarian students told me yesterday that, by and large, the U.S. professors are far more practical than the European law professors.

4.  Speak slowly and be careful about the use of idiomatic English.  Although there are funny bits of learning.  The word for pub in Hungarian is sörhaz (literally "beer house"), but I learned, sitting at the Cafe Alibi last evening with several of the students (two Honduran, one German, one Hungarian, one Slovenian practicing in Vienna), that the word also refers to the stomach of one who drinks too much of the beer - your sörhaz hangs over your belt.  I said "oh, beer belly" or "pot belly" and for some reason, this was just hilarious sounding to the non-English natives.

5.  The exchange rate is 195 Hungarian forints to the dollar.  Last night I went out to the patisserie nearby - loading up on sugar, butter, and chocolate is unbelievable cheap.  I bought this ungodly large and rich chocolate thing for 150 forints.  

6.  Expectations on the language abilities of Americans are so low that my merely being able to say "thank you" in Hungarian (köszönöm) got a rave review.  I noticed this in Greece when we were there in May.  Amazing.  Please and thank you in the language of your hosts and you are well on the way to being cosmopolitan. 

Full Professor, Without Tenure

At the beginning of the upcoming school-year, I become a bit of a strange creature within our profession (if I wasn't already) -- a full professor without tenure.  The reason is simple enough to explain -- American University has a rigid and inflexible (six) years-of-academic-service requirement before one becomes eligible for tenure, but the only time requirement for promotion to full professor is (two) years of service at the associate professor level.  Because I was already an associate professor when I moved laterally to American two years ago (and wasn't demoted), I satisfied the latter requirement earlier than is typical for folks who start at AU, who usually don't get promoted to associate professor until after their fourth year of teaching.

I raise this, though, because it leads me to wonder about the professional etiquette of being a full professor without tenure. For instance, do I need to note on my cv (and elsewhere) that I don't yet have tenure, since most will naturally assume, based upon the title, that I do?  Does that, in turn, send perhaps the opposite message -- that I was denied tenure, and am now effectively "of counsel" at my law school? (A fate which may yet await me...)

More generally, isn't it usually the other way around -- that folks get tenure based upon their professional accomplishments before they are promoted to full professor?  That's certainly true in other academic disciplines, isn't it?  If so, does that suggest that tenure based on a rigid years-of-service requirement causes more problems than it solves?

I'm torn on the tenure question, because I totally get the egalitarianism of not allowing folks to come up for tenure early, since that would create very strange and informal pressures on both the rank and tenure committee and on the junior deciding whether or not to go up early.  But it seems equally strange to have promotions and tenure so thoroughly unrelated to each other.  What's the magic bullet, here?

Barros on Advanced Placement for Law School

Just to throw a little more spicy paprika into the "how should we re-engineer law school?" mix, Ben Barros from Widener (otherwise known as PropertyProf) has a post suggesting that basic doctrinal law courses be taught at the undergraduate level, and that students be offered the chance to place out of them when entering law school (akin to the Advanced Placement program that exists between colleges and high schools). 

Teaching undergrads sounds like fun; at the law school level, this cure may be worse than the disease.  But it's out of the box!

Budapest

Starting next week, I'll be reporting from Budapest, where I will be teaching U.S. Securities Law in 20 hours over two weeks at Eötvös Loránd Tudományegyetem (the Faculty of Law at Eötvös Loránd University), where Suffolk University Law School offers an LL.M. in U.S. and Global Business Law.

A couple quick preliminary observations.  I have a reasonable facility with languages.  I had a mother who was born in Germany, took Spanish for four years in high school, spent a number of years getting myself around business Paris, and took a year of Russian in college.  None of them help with Hungarian, a strand of the Finno-Ugric line of the Indo-European languages, unrelated to anything else in Europe, and I know no Finnish.  The only cognate that has looked even remotely familiar so far is the word for street "utca," which I can see is related to the Russian word "ulitsa."  "Sz" is pronounced "ess" and "s" is pronounced "esh".  "Gy" is the "j" sound.  Hence the word we say as Magg - Yar appears to be ma - jar.  We were in Santorini in May, and even saying "efxharisto" (thank you) as an American tourist meant you got a a very warm "parakalo" (please and you're welcome) back in response.  I hope it's similar with Hungarian.

Oh, and currency.  Hungary (officially, Magyarország) doesn't qualify for unification with the Euro, so the currency is the forint, which when I checked yesterday was trading at 195 or so to the dollar.  This is going to take me back to the days of walking down the Via Montenapoleone on a business trip to Milan (it's where Gucci, Versacci, etc. are all headquartered) with a 1,000 lira bill burning a hole in my pocket.  One thousand forints should be good for a cup of coffee in the cafe around the block.  (In 1996, a cup of coffee in the lobby of the ANA Hotel in Tokyo ran me about 1,000 yen, which was ten dollars in the pre-Starbucks era.)

Oh, and shtick.  One thing that was clear back in the days when I was an executive in a big company that had European operations was that Europeans (at least Continental Europeans) by and large hated shtick mixed with business.  It was just a more formal business culture.  I'm assuming, despite fifteen years of U.S. cultural imperialism since then, that between a more formal culture and the language issue, shtick is still a no-no.  So I went back through my class notes for a three-credit securities regulation class, which, at 28 classes times 75 minutes a class is 35 hours, took out all the shtick, and came up with exactly 20 hours worth of material.  Hmm.  That's humbling.

Giving students feedback on exams

I am halfway through my grading this term, and, as usual, I feel a certain level of guilt at the inadequacy of the feedback that we typically give to our students on their exams. If the only function of the exams is to help legal employers with their hiring decisions, then, of course, feedback is not terribly important. In my more naive moments, however, I imagine that exam-taking could be more than a painful sorting system. Instead, I imagine that it could be a continuation of the teaching process -- a sort of very intense final class -- in which students and prawfs could think about how the material fits together and have a class discussion about the problem.

For exams to serve that function, however, there has to be a feedback mechanism. Ideally, I'd like to have a "post mortem" class in which the students and I would all meet to go over the exam together. Instead, I write up and distribute a "model answer" with marginalia explaining how the arguments in the answer translate (roughly) into points. I also use old exams as hypothetical problems when teaching the course, so that the gap between preparing for the final and preparing for class can be minimized. I've attached my exam question (Download Hills Spring 2009 ARS Exam (Part 1)) and model answer (Download Model answer (with comments)) from this term's course in Administrative & Regulatory State, a mandatory first-year class here at NYU, to give you an idea of my feedback system. (Feel free to crib from the exam question, by the way, if you like it, keeping in mind that both question and model answer are now in the public domain and accessible by your own students).

It is not a very satisfactory system. Few students come by my office to discuss the exam, and I never know whether my model answer makes much sense or just adds to everyone's confusion. So I am curious whether other prawfs have discovered a better, or at least different, way of integrating the exam/evaluation system into the teaching of the course.

In the Mail: Looseleaf Casebooks!

In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System.

Is it just me, or are looseleaf casebooks the coolest thing since sliced bread?

Classroom Twitter Pages

Many of us already use a variety of electronic resources in the classroom, but what about using Twitter?  Personally, I think it might be useful for some purposes, but I can't imagine it replacing TWEN or basic e-mail. It could create interesting opportunities for faculty and students from a variety of law schools to communicate with each other, and the 140-character limit would make reading go quickly (and encourage tweeters to get to the point). There are certainly pros and cons to consider. If you're already using it, how is it working? If you're not using it, would you consider it?

"Can You Explain the Commerce Clause?"

All profs know the sinking feeling we get when we read exams that make us wonder if the student ever showed up for the class.  As a colleague of mine reminded me yesterday, describing the exam period, "never do so many show so convincingly that they have learned so little."  The sinking feeling we get when we read those exams is due in part to the fact that it's too late: the course has been taught, you've given it your best shot ... and all you get is the satisfaction of making big red X marks over entire paragraphs.

A different challenge is posed by pre-exam office hours (you know, the only office hours where students ever show up -- yeah, those).  Most students do a good job of coming in with focused questions that show they've struggled with the material.  But then you get the students that ask questions like the one in the title of this post.  They look at you earnestly, and ask you to re-teach the entire course.

I tend to be accommodating on most things.  (In discussing the exam earlier in the semester I even remarked that I tend to be a pushover when students try to negotiate things with me.  Note to self: don't say that ever again.)  But the request for a private tutorial during exam prep pushes me to the limits of flexibility.  It's not enough, I think, to give what I take to be the standard advised response here: "What issue within the Commerce Clause is confusing you?"  Frankly, that is my normal response.  But in my experience that usually just elicits a meandering reply that doesn't frame the issue any better.  And you're still left with the question.

Thus, my alternative strategy, which I confess I use only sparingly: answering the question at the level at which it is asked.  If a student says the commerce clause is confusing, then I reply that the commerce clause is the part of the Constitution that gives Congress the power to regulate interstate commerce.  Then I stop.  Because I answered the question.  I'm happy to take follow-ups, but they have to come from the student; I won't anticipate the question.  I don't follow this strategy when a student asks a more probing, detailed question that reveals some level of knowledge and effort; with that kind of question I'm happy to meet the student more than halfway, pointing out exceptions and hazards to the doctrine we're discussing, even if the student doesn't raise them herself.  But if a student asks a question that shows she didn't even show up for class, sometimes I'll give an answer appropriate for someone with that level of knowledge. 

I like to believe that I apply this strategy with no animus toward the student.  But candor compels me to say that during these usually-tense discussions I visualize us playing tennis -- or maybe, given my upbringing, Pong.  The question-cursor floats over to me.  Then the answer -- blip -- and it floats back across the black-and-white screen.  Sounds not nice, I guess.  But come on.  I may not be a great teacher, so if someone comes in confused about a point or two I'm happy to assume that it was my bad.  But if a student comes in with this kind of question then I don't hold myself responsible for what happened, and I don't see my responsibility to re-teach several class meetings. ("So, there was this case called Gibbons ....")

I'd also like to think that this strategy is effective in forcing the student to articulate a better question -- in effect, that it does better at jumpstarting the learning then the standard response noted above.  But I think I'd be kidding myself.  The student usually says something in response, but if she is really asking such a basic question I can't realistically expect a more focused follow-up question.  It's not always the case: sometimes this kind of question is just a throat-clearer and my answer elicits the student's real question. But often it doesn't.  It's a terrible situation: I'm being confronted face-to-face with a student that is utterly unprepared for the exam.  And thus face-to-face with the fact that at least one student learned nothing in my class.  It's the bad exam, but this time as a premonition, with the author looking at me in the face, laptop on lap, waiting for me to save her.

Usually I'll try.  But sometimes I won't.

Ye Olde Exam Archive

I've really enjoyed guest blawging this month. In signing off, allow me to promote my archive of past exams. There are exam materials for torts, various IP classes, and media and entertainment law. Maybe you will find some of them useful as problems. As a warning, my exams tend to be heavy on plot and subpar photoshopping. 

For example, here's what you'll find for torts: A maverick scientist tries to save a posh ski resort from a mountaintop nuclear power plant spinning out of control in Atomic Avalanche. A new surgical intern gets a crush on a neurosurgeon who has dreamy good looks and disconcerting hand tremors in Cray's Oncotomy. A failing New England lumber company tries to turn its dangerously antiquated equipment into a tourist attraction in Ye Olde Sawmill. And you get top-secret security clearance to go along for the ride when torts travel to the far side of the moon in The Sirius Incident. 

In closing, I want to thank the Prawfs, of course, and I also want to thank all the PrawfsBlawg cawmmenters. The best thing about blawging on Prawfs is getting all the feedback – all the deeply thoughtful reactions and all the hilarious heckling. In particular, I wanted to give a shout-out to my law-school classmate Paul Gowder, a frequent Prawfs commenter – and one who falls into both of the aforementioned categories. Once he finishes up his Ph.D., I hope he'll go on the law teaching market. 

And I hope I'll be back on Prawfs in the not too distant future. In the meantime, I'll be on my blogs, Pixelization and the Backbencher. Have a great summer, everyone!

In-Class Exercise: Guess My Politics

A while back I posted about the question of whether law professors ought to disclose their political convictions in class. There was a good discussion in the comments. As I wrote then, my personal preference has been to be plain about my beliefs rather than dance around them. 

It turns out that if disclosure is my goal, I'm doing a lousy job.

Some weeks ago in my Media & Entertainment Law class – in conjunction with a unit on political side-taking by the press – I decided to do a different sort of feedback exercise. I asked students to scratch down on a blank sheet of paper what they figured my politics were, and to hand it back anonymously. When students were done, I wanted to discuss the results right away. But since I didn't want to stop class to read all the papers, and since couldn't ask for a show of hands and preserve anonymity, I asked a volunteer to survey the class opinion while I was out of earshot.

I walked out of class, and then I came back about a minute later. When I opened the door, I had never seen my students having so much fun. They told me to go away – they were still discussing it.

When the verdict came back, I was told that students were all over the map. There was a weak consensus that I am socially liberal but fiscally conservative. A very animated class discussion then ensued.

After class, going through the written responses, I found that a few students thought I was conservative, a few thought I was liberal, many thought I was somewhere in the middle, and one thought I was a narcissist for undertaking the exercise.

I think that last student had a point. In doing something like this, there is a real danger of veering off into self-aggrandizing irrelevance. On the other hand, I think there is something healthy about students being invited to try to deconstruct, criticize, and even pigeon-hole their teacher's viewpoint. Especially since I do roughly that to many of the authors of our assigned reading.

But the real benefit to doing the exercise was what I learned about my own teaching. Like watching yourself on videotape, there's an opportunity through this kind of feedback to learn some surprising things.

The most shocking comment I received was from a student who wrote, "I think [you are] conservative (more or less) on family values in re: marriage and children, i.e. one man, one woman ... I think you're rather neutral on the subject of homosexual/lesbian marriage, i.e., you wouldn't go advocating for or against it, but maybe you rather would prefer it not happen."

I was floored by this. I am a strong advocate of marriage equality. And it concerns me greatly that students might see me as privately squeamish about gay relationships or marriage. It has inspired me to post a GLBT "safe space" sign in my office.

At any rate, I think it was a worthwhile undertaking. Given the imposition on the class and the attenuated relation it has to the subject matter, however, I think I'll hold off on doing it again for at least a few years.

A Law School Oral (Argument) Exam: Should an Oral Component be Added to the Law School Examination Process?

This will be my last post here at PrawfsBlawg, and I again want to thank Dan Markel for having me as a guest blogger for the month of April. I also want to thank the PrawfsBlawg readers for your helpful comments on my posts. 

In the wake of the Carnegie Report, law schools and law professors across the country are funamentally re-evaluating the way that legal education is being conducted. Recently I read a great article, From Grimm to Glory: Simulated Oral Argument as a Component of Legal Education's Signature Pedagogy, 84 Ind. L.J. 589 (2009) by Lisa T. McElroy. In the article, McElory "propos[es] that law professors regularly use simulated oral argument exercises to supplement traditional Socratic dialogue, [thus] meet[ing] head on the concerns expressed by Best Practices and Carnegie that over-reliance on the Langdell method neither mimics law practice nor nurtures student learning."

The article got me thinking that, at least in one way, law school is an enigma wrapped in a paradox. Throughout the semester, law students, more so than maybe any other students, learn material through their oral participation in class, under some version of the Socratic method. At the same time, law students (at least in substantive classes) complete written work for evaluation throughout the semester less so than maybe any other students. And yet, when the end of the semester rolls around, these same law students are tested almost exclusively based upon the quality of their writing and almost never based upon the quality of their oration (besides minor bumps up or down for class participation).

Of course, it wasn't always that way. As Ron M. Aizen notes in Four Ways to Better 1L Assessments, 54 Duke L.J. 765 (2004):

Today, first-year law students typically receive course grades based entirely, or almost entirely, on single end-of-course essay exams. Using a single exam to measure law student performance contrasts markedly with earlier practices at American law schools. From the early- to mid-nineteenth century, students were generally assessed far more frequently than they are today. For example, at the Litchfield Law School, the first professional American law school, students took weekly oral exams. Harvard examined students orally or in writing both weekly and "at the end of each text or topic." Michigan hired recent graduates and young lawyers to oversee daily oral and written examinations. Cornell, Penn, and Columbia combined frequent, often daily, quizzes with more cumulative assessments, such as end-of-term, annual, and graduation exams.

In the late 1800s, however, law schools began to use final exams as the sole measure of student performance. At Harvard in the early 1870s, students were for the first time required to pass annual exams to receive their law degrees. This innovation was introduced by Dean Christopher Langdell, who also popularized the case study method. The case method and the sole final exam allowed law professors to teach and evaluate large classes of students--and high student-faculty ratios were financially advantageous. Dean Langdell's economical model was eagerly embraced by other American universities. By the end of the nineteenth century, the use of single exams to assess student performance had become widespread among American law schools.

In the wake of the Carnegie Report, many have proposed and/or implemented some form of the pre-Langdellian practice of students completing written and oral assignments throughout the semester. I haven't, however, seen anyone proposing some form of oral examination at the end of the semester to match the oral learning that takes place throughout the semester. 

One reason would seem to be that most law professors would have no idea how to give an oral exam because we don't have formal education degrees and we weren't given oral exams in law school. A second reason would seem to be that it is not possible to give oral exams in classes subject to blind grading (i.e., the vast majority of law school classes).

But assuming that a professor could get a pass on blind grading in a class or that the professor were teaching a smaller class not subject to blind grading, what might an oral examination look like? My initial thought was to transform Professor McElroy's simulated oral argument technique into an exam. A professor could prepare something like a moot court problem with materials, have students prepare a brief, and have them participate in oral arguments. Such an oral exam would actually be an oral/written exam and allow students to be evaluated based upon both the quality of their writing and oration.

Do any readers have any thoughts about how a law school oral exam might look and whether it makes sense to add an oral component to the law school grading process? In doing research, the only discussion I found on the subject was in Oral Examinations as a Method of Evaluating Law Students, 51 J. Legal Educ. 130 (2001), where John M. Burman describes how he observed oral examinations of law students in Russia (which seem a lot like high school extemporaneous speaking competitions) and then applied a similar technique at the University of Wyoming College of Law:

Russia

Oral exams are scheduled for a time and date....All the students who wish to take the exam arrive at the appointed time, most dressed as for a court appearance. The testing procedure then goes something like this. Five students enter the classroom while the others wait in the hall. Each chooses one question from about fifty; the questions are typed on separate slips of paper and placed face down on the desk. Each student is then allowed time to think about the answer (without books or notes). As soon as one of the five is ready, she meets with the teacher. After she answers the written question, along with any followup questions, the teacher assigns her a grade, which is then entered into the student's grade book and on the official grade sheet that is later given to the administration. The student then leaves the room. As one student leaves, another enters and selects a question, and the process repeats itself, for hours, until each student has met with the teacher. 

Wyoming

I scheduled the oral exams for the second-to-last week of class. Instead of the cattle-call approach used in Russia, I took a more organized approach. I prepared and distributed a set of general instructions for the exams, which we then discussed in class.

I instructed each student to sign up to meet with me for twelve minutes. Thirty minutes before the appointed time, the student could pick up the exam from my secretary. The exam was similar in scope and content to written exams. It contained a fact pattern followed by three questions. The exam was open-book. Students could consult whatever sources they wished to outline or otherwise prepare an answer to the written questions. They were also instructed to expect additional questions from me.

I began each session by telling the student to begin wherever he wished. Most began with the first question, but others elected to start with the second or third. I found that I invariably began asking clarifying questions within a couple of minutes. Such questions are helpful in determining the depth of a student's knowledge. And an Are you sure? question yields interesting results. On the one hand, it may cause a student to reflect, perhaps take another approach, and demonstrate his knowledge. On the other hand, it allows students who are not well informed or prepared to confirm their lack of knowledge. To virtually eliminate the possibility of cheating, I use several different exams. My secretary rotates them randomly so a student does not know which exam she will have until it is time to pick it up.

I took copious notes during each exam so I could review my impressions later, as well as explain to students where they had done well or poorly. At the end of each day's exams, I classified the exams from best to worst and assigned tentative grades. At the conclusion of all exams, I reviewed my notes and the tentative grades before assigning final grades. Students were then able to get their grades from my secretary before finals, and several met with me to discuss where they had gone astray.

Assigning Cases Decided Mid-Semester?

In constitutional law this week I'm teaching a Supreme Court standing case from this Term, Summers v. Earth Island Institute, to supplement the students' casebook. I decided the case was valuable enough to add it, even though we will cover it well out of turn from our other coverage of standing, which our casebook placed at the start of this semester. Was this case covered in many con law courses this semester? What criteria do professors use--or from the student perspective, appear to use--when deciding whether a hot-off-the-press case or other legal authority is worth assigning as a mid- or end-of-semester supplement?

The Professorial Second Opinion: Should Law Professors be Able to Change Student Grades After Exam Conferences?

From the movie Clueless :

Mel: Cher, what's this all about

Cher: My report card?

Mel: The same semester?

Cher: Uh-huh.

Mel: What'd you do? Turn in some extra-credit reports?

Cher: No.

Mel: You take the mid-terms over?

Cher: Uh-uh.

Mel: You mean to tell me that you argued your way from a C+ to an A-?

Cher: Totally based on my powers of persuasion. You proud?

Mel: Honey, I couldn't be happier than if they were based on real grades.  

Many law schools preclude professors from changing student grades based upon "errors" that those professors made during the grading process. At my law school, John Marshall, professors cannot change grades based upon qualitative errors, such as failing to notice that a student addressed a hearsay exception on an Evidence exam, but they can change grades based upon computational errors, such as assigning 5 points to a student's discussion of a hearsay exception but failing to add those points to the student's final score (In this way, my school is like Federal Rules of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon qualitative errors, such as failing to consider the plaintiff's comparative negligence, but allows them to impeach their verdicts based upon transcription errors, such as finding the plaintiff 10% negligent, but reducing his award by 40% based upon bad handwriting).

I suspect that there are two main reasons that many law schools generally preclude professors from changing student grades. First, blind grading rules the roost in law school, and if we routinely allowed professors to change grades, it would re-introduce the possibility of biased grading that it was designed to eradicate. Second, law students like to argue. This is why many of them came to law school in the first place. If law schools readily allowed professors to change grades, the number of exam conferences would greatly increase (which wouldn't necessarily a bad thing) as would the contentiousness of those conferences (which would necessarily be a bad thing).

These are certainly strong reasons to preclude grade changes, but it is no doubt extremely difficult for the professor, and, of course, the student, when the professor has to explain that the student deserved a B but got a C because of a mistake that the professor made. Now, maybe this doesn't happen very often (I've only heard of one such case in 1.5 years of teaching), meaning that the benefits a change would accomplish would not outweigh the burden the change would impose. But if the problem is more prevalent, what might be a way to allow for the correction of obvious grading mistakes without facilitating the problems addressed above?

In The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 Vand. L. Rev. 275 (1986), Monroe H. Freedman hints that there should be "due process in grading" and notes that he uses the following review procedure (which apparently his school does not preclude):

The review procedure works as follows. If the student is not persuaded that the grade I have was a fair one, he or she can elect to have the grade reviewed by a committee of three students from the same class. I pick one of the three committee members, the student picks the second, and those two pick a third. I then explain to the committee how I arrived at the grade I gave. The student then explains to the committee why the grade should be higher. The committee then chooses between my grade and the one the student considers appropriate. The committee must choose one of the two; it is not permitted, for example, to split the difference between the two grades.

The committee uses whatever standards its members consider fair. I impose no criteria. The committees, however, have tended fairly consistently to review the challenged grade in the context of other grades given in the same exam. (I make it clear to them that I cannot lose: either they affirm my grade, or they validate my review procedure.) The process has taken an average of two or three hours of my time a year.

I could see a law school that currently precludes grade changes adopting this procedure because it would (partially) preclude claims of biased grading and, if Professor Freedman's experience is representative, it seems that it wouldn't (really) increase the number or contentiousness of exam conferences. Of course, such a procedure only addresses cases where there is a genuine disagreement between professor and student over grading, not the situation where professor and student agree that there was a grading error.

 

Professor Freedman found that his procedure did not produce the negative result of students always affirming his grades, but I would have to imagine that students would readily agree to a grade change when both professor and student agree that there was a grading error. Thus, such a procedure in such a circumstance would in effect be the professor changing the grade, which reintroduces the possibility (or at least the perception of the possibility) of biased grading (and if the students rejected the grade change, wouldn't they, in effect, be saying that the professor was biased?).

But this seems to me to only be a problem if the student reviewers engage in non-blind grading. In other words, if professor and student agree that there was a grading error, three students could be appointed to review the exam, and they could engage in "blind grading" in that they wouldn't know the student involved, the initial grade, or the proposed new grade. Of course, one might argue that without the input from professor and student that Freedman's procedure provides, the students wouldn't know how to "grade" the exam. I imagine that the solution would be to give the students 3 exams that received scores (1) about the same as the initial score, (2) about the same as the score the exam "should have gotten" without the error(s), and (3) somewhere in between the actual and "deserved" score. Using these guideposts, the students would assign a score to the exam that would or would not change the grade. Of course, this could be done by another professor as well, under what might be called a professorial second opinion. 

So, what do readers think? Should law professors be able to change student grades, and if so, under what circumstances? Or, as Richard Heny Seamon notes in Lightening and Enlightening Exam Conferences, 56 J.Legal Educ. 122 (2006), is it "arguably unfair...to change the grade of a student who requests an exam conference without re-scoring exams of students who do not request conferences but whose exams might contain clear scoring errors?" Of course, the best way to "solve" the issue is to avoid the issue to the greatest extent possible, and I'm sure that many professors follow the same technique as Seaman:

I try to mitigate this arguably unfair situation by automatically re-scoring all exams with scores that fall within two (and, for some courses, within three) points of the next higher grade cut-off. For example, if I have decided to award a grade of “A” to all exams that have scored between 96 and 100 points (where 100 points is the highest score), I will re-score all exams with scores of 94 and 95 points; and, if the point range for “A.” is 90-95 points, I'll re-score all exams with scores of 88 or 89 points, etc.

Multiple-choice exams: Clean copy of the rules?

Colin's terrific series of posts (too many to link to) about exams and grading suggests this is a good forum to raise an issue about exam set-up:

In a multiple-choice and short-answer exam in rules-based classes (in my case Civ Pro and Evidence), should you provide students with a clean copy of the rules and statutes? I have been doing M/C in Evidence for six years now and never have provided copies of the rules; my justification has been that I am trying to simulate trial, where quick response is required and there is no time to flip through a book and read the rule. This year I also am doing M/C in Civ Pro and am less sure that not giving the opportunity to find and read the rule is more difficult and less realistic, since there rarely will be a situation in which you will get asked a question about, say, the discovery rules or the diversity statute, and not have a chance to look it up.

Thoughts? Does it make the exam too easy? Is Civ Pro different from Evidence?

The Flex (or Variable Credit) Course in Law School: A Viable Option or Oil and Water?

Last month, I was talking to a colleague who is on my law school's curriculum committee when he raised a topic that took me back to my days as a law student: the dearth of 2-credit law school classes. He noted that a number of students had raised the concern that they only needed to add a 2-credit course to graduate or complete their dance card for a particular semester, but there were no 2-credit courses that filled the bill. This led me to remember that several fellow students raised a similar objection when I was in law school. Now, two possible responses to this objection are that: (1) it's not that big of a deal for students to take the extra credit hour, so no change needs to be made, and (2) if the proposed solution is to reduce some elective classes from 3 to 2 credit hours, that solution could constitute throwing the baby out with the bathwater because students wanting to take these classes and needing 3 credit courses could lob a similar objection. I thought, however, that a third response, the flex or variable credit course, might be a viable solution, and I wonder whether any readers have taught such a class in law school.

Now, I don't believe that the law school I attended, William & Mary, had flex or variable credit courses, but I know that the College of William & Mary does. The concept is fairly simple: At the start of class, students in a variable credit course can decide whether they want to take the course for 2 or 3 credit hours (at William & Mary, students can also take the course for 1 credit hour). Thus, students in the same class can be taking it for a different number of credit hours and be expcted to complete a different number or quality of assignments. In doing some brief internet research, I found that several colleges allow students to take flex or variable credit classes (some examples include Syracuse, Hawaii, and Oregon).

I wasn't able, however, able to find any inidcation that any law school offered flex or variable credit courses. I would guess that there are two main reasons. First, with the strict law school curve, it would be difficult to place a student taking a class for 3 credit hours on the same curve as a student taking the same class for 2 credit hours. Second, this problem could be further complicated if, as with most law school classes, the class at issue were subject to blind grading.

It seems to me, though, that for the "smaller" classes (such as seminars) that are often not subject to blind grading and the law school curve, there wouldn't be any issues with a flex or variable credit course. For instance, if I were teaching a seminar with a 25-30 page paper requirement for students taking the course for 3 credit hours, I could require a 15-20 page paper for students taking the course for 2 credit hours. Or, if I had a paper and an oral presentation requirement for 3 credit students, I could simply remove the latter requirement for 2 credit students. I could also require slightly less in the way of class participation for the 2 credit students than I require for the 3 credit students.

So, have any readers taught a flex or variable credit class in law school? How did it go? Do readers think that such a class could work in law school, either in a larger or smaller classes, or do you think that the two would go together like oil and water?  

The "Seminar Exception": Is It Defensible To Remove Smaller Law School Classes From The Grading Curve?

Here's something that gets the goat of many law students: uncurved law school classes. At most law schools with grading curves, students taking classes with roughly more than 30 students will be graded according to the grading curve. Students taking classes with about 30 students or less will not be graded according to the grading curve. So, what happens in these smaller classes (usually seminars)? Well, according to Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L. Rev. 667, 678 n.62 (2005):

At my institution, a report showing the average grade in each course is circulated to the faculty at the end of each semester. These show the grade disparity very clearly: in Spring 2003, 14 of 18 upperclass exam-graded courses had a mean grade below 3.3, while only one of 16 paper-graded classes had a mean grade below 3.3....All of the anecdotal evidence from other law schools confirms that higher average grades in Softer courses is a universal (or near universal) phenomenon in American law schools. For example, one U.S. News top-fifty law school provided me with a semester grade report listing two seminars in which all students received A's....While some of this grade disparity is due to schools giving more grading discretion in smaller classes and non-exam-based classes, many schools have actually mandated higher mean grade ranges in "seminars." (emphasis added).

Now, this gets the goat of many law students because some 2Ls and 3Ls load up on these smaller classes, "artificially" inflate their GPAs, and end up with higher class ranks than students who outranked them after 1L year and then took mostly curved classes in their last two years. The question is whether uncurved classes are defensible. My (tentative) answer is that they are not.

It seems to me that, as Barbara Glesner Fines noted in Competition and the Curve, 65 UMKC L. Rev.879, 893-94 (1997) there are three main grounds upon which these "seminar exceptions" might be defended:

These “seminar exceptions” may be based on two rather divergent rationales:one relies on the randomness of ability, the other relies on the educational effectiveness of these classes. The first rationale exempts small classes from a curve because these classes do not provide a statistically significant sample--there is less likely to be a random distribution of ability in these classes, so we cannot expect a curve to result. Even if there is a random distribution of ability, many seminar classes allow such a degree of flexibility in the products by which students are measured (e.g. seminar papers) that we do not trust our ability to adequately differentiate student ability in these settings. The operative assumption here is that the purpose of law school is to test the ability of students to perform rather than to teach the students to perform ably.

However, given that these seminar exceptions usually do not completely eliminate the requirement of a curve, but rather increase the required means or broaden the distribution requirements, another rationale seems equally likely. This rationale accepts the legitimacy of higher grades when instructional effectiveness is higher. The rationale is well supported by educational literature. Students do truly learn better in smaller rather than larger classes. Students do learn better when they have more formative evaluation (such as rough drafts, practice arguments, etc.). Students do learn better when they have the ability to choose their topic of study (as is often the case in seminars).

In other words, smaller classes should not be curved because (1) they might not contain a random distribution of students, (2) it is difficult to distinguish students in such classes given the flexibility of grading measures; and (3) instructional effectiveness is higher.

 

There is some merit to each of these arguments, but I think that there are also some problems. With regard to argument 1, here are my thoughts. First, aren't the current policies at most law schools underinclusive? I have two examples from when I was in law school: (a) I took a moot court class in law school with the other 31 students who had made the Moot Court team, and (b) I took Federal Courts along with many other members of Law Review, Moot Court, and the top 10% of the class. Both of these classes were curved. Neither had anything close to what I would call a random distribution of students, and I doubt that they are the only examples. If law schools are worried about certain classes not having random distributions of students, shouldn't they just review the GPAs/class ranks of students in particular classes and see whether the law school curve needs to be altered or removed from that class?

 

Second, how did most law schools reach (about) 30 as the magic number where there is no longer a statistically significant sample of students? 168 students graduated in my law school class, and classes with fewer than 30 students were uncurved. Here at John Marshall, where I now teach, classes with 30 or less students are also uncurved, but the overall class size is much larger. From what I have heard, most schools cut off their curves at about the same number, regardless of their overall class sizes. How can 30 be the magic number when overall class sizes can vary by hundreds of students?

 

Third, accepting the argument that there might be random distributions of students in smaller classes, wouldn't we expect a non-insignificant number of those classes to result in mean grades below the law school mean? And yet, based upon the data compiled by Lloyd (and my own personal observations), noncurved classes almost always end up with mean grades significantly above the law school mean. It thus seems to me that the remedy of taking smaller classes off of the curve is worse than the ailment it is intended to cure.   

 

With regard to argument 2, here are my thoughts. Initially, doesn't the flexibility of grading measures help (albeit in a different way) to counterbalance the statistical significance problem mentioned above? Most "larger" law school classes contain one point of grading: the final exam. Most "smaller" law classes (at least the ones I took) had at least three points of grading (class participation, some type of presentation/oral argument, and a paper). I always feel a bit uncomfortable giving students grades on a curve based just upon the final exam. Conversely, I would imagine that I would feel much more comfortable distinguishing between students if I had several points of grading (I haven't yet taught a seminar).

 

Also a related argument to argument 2 is the argument raised by Jeffrey Evans Stake in Making the Grade: Some Principle of Comparative Grading, 52 J. Legal Educ. 583, 601 (2002):

For a class of thirty students,...forcing the scores onto a curve will be troublesome because some of the intervals will contain very few students. For classes of the size that are common in law schools and for grading scales with more than a few intervals, forcing a specific percentage of students into each interval is riskier than mandating a standard deviation because each of the intervals involves only a portion of the class, whereas the standard deviation relates to the whole class. With the whole class, small variations will average out in a way that is not likely when an interval includes only a few students.

In other words, if a professor needs to give a certain percentage of Bs (or Bs, B+s and B-s), it can be arbitrary to force the professor to make fine distinctions where intervals might contain only 1, 2, or 3 students. This seems to me to be a valid criticism, but it seems to me that the remedy is removing intervals and not removing the law school mean. In other words, if curved classes at a school require a 3.0 mean and 10% of students getting a B-, a professor in a class with 20 students shouldn't have to adhere to the 10% B- requirement, but it seems that the professor should have to adhere to the 3.0 mean requirement.

 

Finally, with regard to argument 3 here are my thoughts. First, aren't the current policies at most law schools underinclusive? I give an ungraded midterm in each of my classes. On most of my midterms, the mean grade is in the low to mid 60s (out of 100). In my Criminal Procedure I class this semester, my students blew that mean away, beating the previous high mean by over 10 points. But even if these students repeat their performance on the final, they are still stuck on the curve despite one conclusion being that instructional effectiveness was higher than (my) usual in this class (of course, another argument is that I didn't have a random distribution of students;).

 

Second, aren't the current policies at most law schools overinclusive? Sure, many "smaller" classses are popular seminars taught by terrific professors that have less than 30 students based upon an artificial cap. But, let's face it. There are also some smaller classes that have less than 30 students because, well, the professors in those classes just aren't that great. For instance, I took a 12 student criminal law seminar in law school with an AUSA who cancelled class half of the time and based students' entire grades on a 10-12 page paper (on which I believe everyone got an A or an A-).

So, what are your thoughts/experiences? Does your law school remove smaller classes from the curve, and is (about) 30 the magic number? Has your experience been that these uncurved classes typically produce mean GPAs well above the law school mean? Do you think that making these classes uncurved is defensible? Is there a middle ground that can and should be reached?

A Modest Proposal Regarding Blind Grading

Why does blind grading rule the roost in law school? (Even Justice Stevens noted, in McIntyre v Ohio Elections Com'n, 514 U.S. 334, 342 n.5 (1995), that the practice of grading law school examinations "blindly" is "now-pervasive."). The most common rationale that I have heard is that "blind grading is meant to ensure, at least in part, that a student's actual performance on the exam, and not any improper influence, is the exclusive factor in determining her final score." Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and  ACLU of Nevada v. Heller, 50 St. Louis U. L.J. 925, 927 n.13 (2006).

Fair enough, but why is blind grading not nearly so prevalent at colleges and most other graduate schools? Is the implication that blind grading was introduced based upon the proposition that law professors were less able to remain unbiased during the grading process than other teachers? Well, historically, the answer is apparently, "yes," but not in the way that I expected. In One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s. He then notes that "[t]o protect against concerns of favoritism for students specially admitted, most schools adopted some form of blind grading."  

 

So, it seems as if the main reason cited in support of blind grading is not (really) the same reason that it was created. And it seems to me that there are many possible problems with blind grading, with the foremost being (my belief) that it reinforces the one final exam to rule them all mentality. Of course, there are also many benefits to blind grading, not the least of which is the assurance it gives to students that they are being treated fairly (although it seems as if many students believe that blind grading is a myth). Moreover, regardless of the pros and cons of blind grading, it seems that blind grading has become embedded in routine law school practice to the point where it has become part of our law school culture. Well, 1L culture, anyway.

But, what about upper level classes, and especially electives and/or classes taught by more than one professor? Shouldn't professors teaching these classes have the option to chose blind or non-blind grading in the same way that they can decide issues such as whether to give an in-class or take-home-exam or an open book or closed book exam? Sure, many students would not want to take a non-blind graded class, but they could simply decide not to take the class just as students averse to closed book exams can now choose not to take classes with professors who give such exams. Conversely, I imagine that there are many students who would prefer classes where they could be evaluated based upon their performance over the entire semester and not simply their performance on one exam at the end of the semester. Indeed, many of these students already do so by chosing to take many seminars or other "paper" classes where grading is not "blind."

So, what do readers think? Should professors teaching upper level classes have the option of making their classes non-blind graded, or is blind grading different and thus something that should be required in every (non seminar/paper) class? If given the option, would you engage in non-blind grading, or do you prefer the blind grading approach? 

The Take-Home Final Exam

It's that time of year, so I'm working on my final exams. In my 1L structural constitutional law course I'm giving a take-home exam, as I have done for the last two semesters in this course. My sense with this subject had been that I was reading too much of a rushed exam when I tried to test in three hours what I thought the students should take out of the semester, which made me less confident that the better-prepared students could distinguish themselves consistently.

The biggest challenge has been how to schedule a take-home exam in the midst of the 1Ls' very structured final exam schedule. But overall, I have been happy with this exam format for this particular course. In other courses, though, I find the timed in-class exam more effective for assessing my students. I haven't polled my students formally, but they generally seem pretty split on which format they prefer.

What leads professors to give take-home exams in certain courses but not others? The nature of the subject generally? What a professor wants to test in a particular semester? Whether the course is a 1L or upper-class course? What specific testing goals do professors pursue with a take-home exam that differ from an in-class exam, and how are these goals reflected in the exam itself? And, do some professors object to take-home exams in law school?

Not Testing Material From the Last Week of Class or: Do We Need to Make the Reading Period Longer?

I still remember the meltdown of Paper Chase proportions that resulted in another section of my 1L class after they took their Civil Procedure final exam.  You see, that Civ Pro final was their first last school exam, and the last topic they covered in a frantic final class was the class action.  So, along came the final, and the majority of it was an essay question covering, you guessed it, the class action.

So, in the fall of 2007, I was teaching my first law school class, Civil Procedure I, and the last topic that we covered in the last week of class was the ever-popular Erie doctrine (see, e.g., Howard's recent post on the subject). Shortly thereafter, I gave the final exam, and a (much smaller) part of the exam covered the Erie doctrine. And while students did reasonably well on that part, they didn't do nearly as well as they did on topics we covered throughout the semester: personal jurisdiction, subject matter jurisdiction, notice, venue, etc.  Now, part of that may have been that the Erie doctrine is probably the most difficult topic in Civil Procedure I, if not in the entire first year curriculum (okay, you property professors might have me with the rule against perpetuities).

Nonetheless, I thought that a big piece of the puzzle was that I could neither test students on the topic on the midterm nor give them hypotheticals in subsequent classes so that they could sort vertical choice of law from horizontal choice of law.  Moreover, because the Erie doctrine came at the very end of the semester, I am sure that students (understandably) had already shifted their focus somewhat from the final reading material to outlining and final exams.  Therefore, after I finished grading exams, I made a choice:  I would no longer test students on material from the last week of class.

 

In one regard, this change was not that radical for me because I had already decided never to test the last topic of my Evidence class, privileges, on the final exam because the state of privilege law is so uncertain and inconsistent across the country.  Also, when I look at all of the classes I teach, the last week of class for each of them not only introduces discrete topics but also topics that are relatively difficult or at least difficult to test.  As noted, there is the Erie doctrine in Civil Procedure I and privileges in Evidence. In the last week of my Civil Procedure II class, I teach collateral estoppel and res judicata, and I will teach entrapment and eyewitness identification in my last two Criminal Procedure I sessions this spring.

Now, there are some cons to my approach. It decreases the amount of testable material on the exam, and it (likely) means that students pay less attention during the last week of classes and don't learn the new material as well. But, from what I have heard from students, knowing that this new material will not be on the exam reduces their stress levels and allows them to get a good head start on putting the pieces of class together before the reading period, allowing them to spend more time during the reading period re-examining that puzzle and applying it to hypotheticals. 

That was the plan. As Douglas A. Henderson noted in Uncivil Procedure: Ranking Law Students Among Their Peers, 27 U. Mich. L. Ref. 399 (1994):

Learning theory suggests that reflection on the subject matter-and better yet, periodic assessment combined with reflection-provides essential feedback for the learning process....Typically, however, law students ignore thinking throughout the term, substituting instead a last minute cramming process in the last week of the term. Apparently, law professors did this as students, and hence encourage their students to do the same. [FN82] 

[FN82] Evidently this represents the standard view of law professors:

Many law professors believe students learn more during the final week of "cramming" before a final examination than they do in the whole preceding semester. They see the value of final examinations as being an inducement to students to engage in review, in the process of "putting it all together."

Nickles, supra note 4, at 462 n.165. My own law school professors frequently commented, "don't worry if you don't understand it all now, I didn't understand this stuff until the last week of class either."

Now, of course, part of what Henderson is saying is that professors need to give students feedback throughout the semester, which is why I give an ungraded midterm and review hypotheticals at the start of each class. But part of it also seems to be that it it a bad idea for students to not start seeing the big picture until the start of the reading period, which typically is a week or less and "typically [is] scheduled for the convenience of faculty and administrators without, in many cases, any serious consideration of the optimal timing for student assimilation of material in particular courses or any major effort to otherwise structure the best learning environment." R. Lawrence Dessem, Principle 5: Good Practice Emphasizes Time on Task, 49 J. Legal Educ. 430, 434 (1999).

 

So, what do readers think? Do law schools need to make the reading period longer? Should the last week of class not introduce any new testable material? Should the last week simply consist of the review sessions that professors now usually give during the reading peiod? (In my Evidence class, I already start my review session on the last day of class). Or do you think that your school's reading period is sufficient and/or that the cost of cutting (testable) material from classes is not worth the possible benefits? 

Avoiding a Biased Exam: Always Expect Students to Know the Law But Never Expect Them to Know the Facts

I remember being a law student and taking the class Women and the Law with the terrific Susan Grover when a topic came up that would (thankfully) inform the way that I draft my law school exams when I became a professor. The topic: Biased exams. One student brought up a Torts exam she had taken her first year that left her perplexed. The exam was in the fall of 2000, and it involved an XFL fact pattern with, if memory serves me, running back George W. Bush assaulting linebacker Al Gore either as part of a football play or immediately after it had concluded. The reason for the student's confusion was that she didn't follow football and therefore had difficulty answering this torts in sports fact pattern because she couldn't figure out what role the running back plays on the football field, making it tough to analyze how out-of-the-ordinary W's conduct would have been. 

I could sympathize with my fellow student's comment even though I had taken the same Torts exam and not realized the difficulties it could create at the time. I once had a Sri Lankan friend attempt to explain cricket to me (I remember this involving both explanations and diagrams), and I had about as much success in figuring out what she said as the XFL had as a sports league. I imagine that I would have struck out if given the wicked googly of an exam with a cricket fact pattern if I decided to get an LLM in England (except, wait, there is no strike out in cricket). I therefore could easily imagine a football-averse J.D. student, whether male or female, going three-and-out on an exam with a football fact pattern, and I could see the same thing happening to an LLM student from a country not as American football crazy as us Yanks (i.e., every other country in the world). 

 

Another student could sympathize as well. He mentioned that after his Contracts exam, several students had complained. You see, the fact pattern on the exam involved a vendor breaching a contract by supplying the buyer with off-brand clothes instead of designer duds. These students didn't understand the concept of off-brand clothes and thus the nature of the breach by the vendor. 

The discussion of the topic in class taught me an important lesson that I otherwise wouldn't have learned: Professors should always expect students to know the law on an exam, but they should never expect them to know the facts. In other words, don't throw students the curveball of a baseball fact pattern (unless you teach Sports Law) unless you expect some to fall below the Mendoza Line. Don't give students a fact pattern where you tell them that a movie finished "in the black" unless you want some exams to end up "in the red." And don't give students a fact pattern where they have to understand the difference between Berdorf Goodman and TJ Maxx and expect the Maxx for the Minimum. 

Of course, any of these fact patterns would be problematic, but they wouldn't be offensive. In doing research for this post, however, I came across the following passage from Angela I. Onwuachi-Willig, Note, Moving Ground, Breaking Traditions: Tasha's Chronicle, 3 Mich. J. Race & L. 255, 274 n.33 (1977):

See generally Patricia J. Williams, The Alchemy of Race and Rights (1991). In her book, Williams describes a number of race- and gender-biased exams created by White male professors. Some included:

--a tax exam that asks students to calculate the tax implications for Kunta Kinte's master when the slavecatchers cut off his foot.

--a securities-regulation exam in which the professor muses about whether white-collar defendants should go to jail, since “unlike ghetto kids” they are not equipped to fare in that environment.

--a constitutional-law exam in which students are given the lengthy text of a hate-filled polemic entitled “How To Be a Jew-N*****” and then told to use the first amendment to defend it.

--a description of the “typical criminal” as a "a young Black male with an I.Q. of 87 who is one of eight children and has always lived on welfare and who spends his time hanging out in pool halls with his best friend Slick."

--numerous criminal-law exams whose questions feature exclusively Black or Hispanic or Asian criminals and exclusively white victims.

--many questions depicting gay men as the exclusive spreaders of AIDS, asking students to find the elements of murder.

--many, many questions in which women are beaten, raped, and killed in descriptions pornographically detailed (in contrast to streamlined questions, by the same professors, that do not involve female victims) ***

The problem with such questions, as Williams argues, is that they: require Blacks, women who have been raped, gays and lesbians, to not just re-experience their oppression, but to write against their personal knowledge. They actually require the assumption of an "impersonal" (but racist/sexist/homophobic) mentality in order to do well in the grading process....[I]t requires students to suppress any sense of social conscience. It requires them to devalue their own and others' humanity for the sake of a grade....In essence, such questions disproportionately require that women and minorities move outside of their experience to perform well on exams. 

This is pretty disturbing and part of the reason I chose not to test Federal Rules of Evidence 412-415 on my Evidence exams. But these are the obvious examples. Have you come across an exam as a professor or a student with facts that seemed innocuous but which ended up being unfair to a number of students?

"Hard" Word Limit, "Soft" Word Limit, or No Word Limit: What Type of Tester Are You?

Back in 2006, Steve Vladeck did a post about what type of "punishment" there should be for a student exceeding the word limit on an exam. He noted that his "[t]enative course of action [w]as to grade the answer it its entirety, and then reduce it in proportion to the percentage of excess words." The post prompted vigorous commenting, with different commenters suggesting proposed punishments ranging from not reading a single word beyond the word limit to giving the student no credit. Other commenters speculated that professors rarely, if ever, enforce word limits, leading to students who played by the rules being treated unfairly.

The discussion made me gun-shy about imposing word limits when I became a professor, and the decision I made was to test the waters by giving exams without word limits my first few years to see how often a word limit would even apply. So far, the answer for me has been "not very often." For instance, last semester, I had 182 students, and of those, 164 wrote exams that contained fewer words than the hypothetical word limit I had in my head (4,000 words for a 4 hour exam, 3,000 words for a 3 hour exam), i.e., slightly less than 10%. 

Of the remaining 18, 5 students wrote A exams that went into more depth on the main issues than most exams and/or identified legitimate issues that most exams did not address. 7 students simply used a very deliberate IRAC method on each issue and sub-issue. And 6 students threw in everything but the kitchen sink, bringing up issues that really weren't raised under any reasonable reading of the exam(s). My conclusions: (1) a word limit would have no (direct) effect on the vast majority of my students, be "unfair" to some of my best and brightest students, and have the consequence I intended for, at most, slightly more than a handful of students; and (2) if I were to impose a word limit, it would be a "soft" word limit, not a "hard" word limit.

Of course, there are several purposes served by word limits. When students become lawyers, they will be subject to official word limits while writing for the courts. They will also be subject to unofficial word limits while writing for their superiors, who often want them to get to the heart of the issue and not its extremities. Word limited exams lead to more concise exams for professors to grade and probably incentivize careful discussion of the main issues on the exam instead of the classic brain dump. All of these pros might have led me to consider word limits if I had many students exceeding my hypothetical word limit(s), but, as I noted above, that has not been the case. This has led me to decide not to impose "hard" word limits on future exams without even taking account the cons. And there are a few cons:

-What do you do with students who handwrite their exams? In law school, I remember that "word limit" professors imposed a limit on the number of bluebooks that these students (including myself) could use, but this neither correlated perfectly with the word limit nor took into account the differences in handwriting size among students;

-While students will have to learn to write efficiently when they become lawyers, the product that they turn over to their superiors or the court is (usually) not their first draft, but something that they have edited over at least a couple of drafts. When someone goes over the word limit in a time constrained exam, they (often) won't have the time to be able to edit out the surplusage before the clock strikes 0 (The problem is heightened for students handwriting their exams but ameliorated when professors give 8 or 24 hour take home exams with word limits);

-Word limits seem to me to constitute unfair Tiger-proofing (or, I guess it would be the opposite of Tiger-proofing) for the best and brightest students I identified above; and

 

-While, according to my calculations, imposing a word limit would have a direct effect on only a few students, my law school experience was that word limits cause unnecessaryfagita for many more. I knew many law students (including myself) who never came close to the word limit on any exam but still stressed about the limit before and during each such exam.

While I have thus abandoned the idea of using a "hard" word limit, I have considered adopting a "soft" word limit. Under a "soft" word limit, I would simply tell students throughout the semester that while there is no specific word limit on the final exam, efficiency is a virtue. In other words, students who give me a tangential history of rules/exceptions, address rules/exceptions not raised by the fact pattern, etc. can expect to not do as well as students who give me just the facts (and the law) ma'am.

It seems to me that a "soft" word limit would serve each of the pros I mentioned above while avoiding the cons. Students would still learn the value of efficient writing, and their exams would be more concise and in depth and less of a brain dump. There would be no need to worry about the differences between typed and written exams, the best and brightest wouldn't suffer, students wouldn't need to hastily edit to get under a "hard" word limit, and, well, students would still stress, but it would seem to me to be a more constructive stress.

Of course, this is all conjecture on my part because I have yet to use either a "hard" or a "soft" word limit. So, do you impose a word limit, and if so, what type? Why did you choose the method you use, and how has it turned out?

Forgetting Erie

When I was in law school in the early/mid-1990s, there were two civ pro professors teaching sections of a one-semester, four-hour course. And it was legend that one of them always taught Erie and the other did not. In fact, the failure of the latter to do so was a frequent topic for the annual student revue. A typical skit:

Student: Professor, I would like to meet with you before I go home for break. "Professor": Oh, where is home? Student: Erie, Pennsylvania. "Professor": Erie? Never heard of it!

I am becoming that professor (fortunately, we have no student revue that could lampoon me for it--or for anything else). For the second straight time teaching a one-semester, four-hour civ pro class at FIU (not counting my year at SLU, where civ pro is a five-hour course), I will not get to Erie. And this is disappointing, both because I consider it important and it is probably my favorite subject (along with subject matter jurisdiction) in the class. As it stands, I have roughly 10 hours of class time left in which to do a quick subject-matter jurisdiction review, then cover personal jurisdiction and venue.

I honestly have no idea how to remedy this. I am fairly sure that I have cut everything as far down as possible, in terms of time and coverage. We spent only three classes/four hours on Discovery and one class on Rule 11. We spent a lot of time on pleading standards (about 4 classes/5 hours); but that much time is unavoidable as we try to figure out what to do about Twombly and the looming Iqbal and as I have tried to respond to demands for more practical discussions by incorporating sample problems into class discussions. Subject matter jurisdiction probably has taken longer than it should, but again, we need to spend time making heads or tails out of an incomprehensible recent supplemental jurisdiction decision.

Perhaps I am making the wrong choices in the depth v. breadth debate. But it seems to me that coverage of one topic must be sufficient to make it coherent and to give students a sufficient base of knowledge. You can't simply refer to joinder in explaining pleading--you also have to spend some time with the basic joinder rules; you can't teach supplemental jurisdiction without teaching the exception in § 1367(b), which is confusing. Actually, the one time I tried to gloss over joinder, I kept getting questions from students who, armed with Glannon's or some other study guide, wanted to know more than I had planned to cover.

My conclusion is I need five hours (or at least 4 1/2 hours) of civ pro. That pretty clearly is not going to happen, both because of the legal-academic trends and because prawfs in every other 1L subject could tick-off a list similar to mine. So I continue searching for some other solution.

Are You A Backwards, Forwards, or Sideways Grader, and How Does Your Grading Style Correlate With Your Writing Style?

Last fall, Gordon Smith did a post over at The Conglomerate about writing backwards vs. writing forwards. In other words, some professors do all of their research before writing a law review article and dutifully fill in footnotes as they write the body of the article. Other professors write first and ask questions later, i.e., write the body of the article first based upon what they know and then fill in the footnotes after most or all of their writing is done. And, of course, many professors fall somewhere in between these two extremes (these could be called "sideways writers," I suppose). Smith's post was followed by subsequent posts over at Volokh Conspiracy and here, and it prompted a question for me: Is there a correlation between the way that professors write and the way that they grade?

I fall squarely in the writing forwards camp, doing all of my research before finger hits keyboard and filling in Bluebooked footnotes with parentheticals as I write my articles. The same goes when I grade exams, under what I will call "forwards grading." When I draft my exams, I try to anticipate the possible answers that could be given for every question and create a preliminary answer key that assigns a maximum number of points for each issue and sub-issue. After students complete their exams, I skim through several of them to determine whether there are any additional issues that I need to add to the answer key.

Then, I begin the official grading process. When I finish reading the discussion of a particular issue on a given exam, I immediately go to my answer key and assign that discussion partial or complete credit (if the student adds a later discussion of the issue, I go back and change the point allocation). By the end of the exam, I have assigned all of the points, giving the student his or her final score. If the student mentions some good issue(s) I did not include in the answer key, I will add some points to the exam. If I think that an exam was exceptionally well written overall, I might add some points as well, and I might take away a few points for poorly written exams.

In talking with other professors, I know that many engage in "backwards grading" on exams.  That is, they read an entire exam and then assign a score to the exam (other professors assign a score after reading each answer to each essay question on an exam). And, of course, as with the writing process, it seems that many professors fall somewhere in between the two extremes. For me, the classic "sideways grader" is the professor who doesn't go into the grading process with an answer key but puts numbers in the margins of the exam as good points are made and then adds all of them up at the end of the exam to reach the final score.

Of course, there are pros and cons to each approach. Some pros to my approach are that:

-When students do a midterm or final exam review with me, I can show them the answer key, and they can see exactly where they got and lost points;

-I can ensure pretty good consistency between exam 1 and exam 100 (graded weeks later) by having the answer key to tell me how to assign points; and

-If I see something in a later exam which makes me realize that I did something wrong on an issue in prior exams, I can pretty quickly go back to those prior exams, see how many points prior exams got on the issue, and make changes accordingly.

There are also some cons to my approach:

-My guess is that my grading process takes a lot longer than backwards or sideways grading;

-Forwards grading might be too restrictive and unfairly work against students who "think outside the box"; and

-Forwards grading might overvalue content and undervalue style/organization.

So, what type of grader are you? Forwards? Backwards? Sideways? Why did you pick your grading style? And how closely does your grading style correlate to your writing style?     

The "Open Everything" Exam: Why (or Why Not) to Choose it Over the Closed Book, Open Book, or Partial Open Book Exam

Before teaching my first class, I knew that the first question I had to answer before even choosing the casebook or deciding which topics to cover was what type of exam I should give.  And central to that question was whether that exam would be closed book, open book, or partial open book (students can only use materials that they had a hand in preparing, students can use rule books but not supplements, etc.).

The choices were many and complicated, but I felt that my answer was simple: I would give an open book exam in every sense of the word (open book, open note, open commercial outline), i.e., an "open everything" exam. The reason? Cheating. Now, I have no idea what percentage of law students cheat. (According to recent research, "seventy percent of high school and college students admit to having engaged in some form of cheating, and...forty-five percent of law students admit to having cheated."). What I do know is that at every level of school I attended starting with junior high, students were worried that other students were cheating and that they would be graded unfairly as a result.  Of course, in the curve-happy world of law school where so much depends on grades, these concerns were heightened.

An "open everything" exam doesn't eliminate these concerns, but it does greatly reduce them.  With an "open everything" exam, students can still cheat off of each other, but they can't cheat out of the casebook, an outline, a rule book, or a hornbook because everyone has access to these. Based upon feedback, this approach greatly reduces student stress about other students cheating.  It also has other things to recommend it.

First, it also reduces student stress about getting stuck in a moment during the exam and seeing their grade failing them along with their memory.  Second, I think that it improves exam performance compared to the closed book exam. After closed book exams in law school, I remember post-exam discussions focusing on what was remembered vs. forgotten instead of who best applied fact (pattern) to law.  Also, from my own experience, I remember "wasting" several minutes on closed book exams doing the brain dump (i.e., hastily jotting everything down that I might otherwise forget once the proctor told us to put our materials away). Third, I think that students in open book classes are more proactive in creating their own outlines because they know that they can use them on the exam. And from what I have heard from students, this not only helps them on the exam but also on the bar and in practice. 

Of course, there are some drawbacks to the "open everything" exam.  First, some say that it levels the playing field too much.  In other words, students who lollygag all semester can catch up to the hard workers in a way that can't occur in a closed book class. This is a legitimate concern, but it seems to me that it can be alleviated to a great extent by exam length.  I try to make it so that students who know the material and only check their materials a few times will be able to finish the exam with no time to waste. Indeed, I tell students that their materials should only be used as crutch for a forgotten point, not as a constant point of reference.

Second, some say that it creates an arms race for high priced supplements.  In my classes, however, I make sure to dig much deeper than those surface supplements and even teach opinions that are only a few weeks old. I always tell students that if they rely on supplements, they will not do very well in my classes, and as far as I can tell, that advice has rung true.

Third, some say that it is unfair because certain organizations such as law review have "outline banks," which make the "rich" richer and the "poor" poorer.  I think that this is a valid concern, but my decision was to nip it in the bud by preparing and giving students outlines throughout class and a comprehensive outline at the end of class. On the one hand, I realize that this might discourage students from making their own outlines, nullifying the third benefit listed above. On the other hand, before I gave outlines, I had several students asking me to review their outlines, and many of them were put together in a manner that didn't make (enough) sense.  My conclusion was that giving out outlines was the lesser of two evils, but based upon student feedback, my choice might not be an evil at all.  I have heard from several students that they are intimidated by the prospect of preparing outlines from scratch in other classes but that they were were able to take what I gave them and make it their own in a way that was helpful and not overly time consuming (Indeed, this is what I tell students that they should do).

 

Fourth, some see law school exams as bar preparation, and obviously the bar exam is closed book. I also see law school exams as bar preparation, but I just don't see law school as the time to require closed book knowledge.  I see law school as laying the groundwork for the bar exam and, ultimately, the practice of law.  With a closed book exam, it seems to me that students spend most of their exam preparation time memorizing.  With an "open everything" exam, it seems to me that students spend most of their exam preparation time working on their outlines and applying those outlines and the law to hypotheticals and practice exams (and many students have told me that they later use those outlines for bar prep).

 

But, of course, as I noted before, I am new to this game and still testing the waters.  What type of tester are you? Closed book? Open book? Partial open book? Open everything?  And how did you arrive at that type of test, and what do you see as its pros and cons? 

Hello and a Conference Announcement

Thank you so much to Dan and PrawfsBlawg for inviting me to post here again. I teach at Gonzaga University School of Law in eastern Washington State, where Mother Nature played a bit of an April Fool's Day joke on us this week by fooling us into thinking that winter had ended. Hopefully better weather will greet us for the start of the baseball season this Sunday evening!

I look forward to posting on an assortment of topics this month, but let me begin with a conference announcement that hopefully will interest some readers. Our law school co-directs the Institute for Law Teaching and Learning with Washburn University School of Law, and this June 23-24 we are hosting the Institute's summer conference, Implementing Best Practices and Educating Lawyers: Teaching Skills and Professionalism across the Curriculum. The program looks great, and the Spokane area is quite lovely in the summer, so we hope to see many of you here. Full details on the conference can be found in the most recent edition of The Law Teacher.

The Law School Case Method & How to Assess the Teaching/Learning Process Throughout the Semester

My post yesterday noted that there is a dual feedback problem in law school:  The "one exam to rule them all" format means that both students and professors aren't able to assess how the teaching/learning process is proceeding throughout the semester.  Well, actually, there is the opportunity for such feedback, but it is often in the moment while the professor is teaching a concept to students through the Socratic method.  But after I have completed a class on, say, the search incident to a lawful arrest, how do I know whether students retained that material when we have moved on to the next class and the discussion of the plain view doctrine?  I mentioned in my last post that I use an ungraded midterm, but I give that out in Week 7 or 8 of a class, and that lets misconceptions fester for a while if students misunderstood something in week 2 or 3.  And what about material from after the midterm?  Sure, there is a final review session to clarify that material, but it comes just before the final exam and after most students have made their outlines.

When I started teaching, in order to achieve immediate feedback, at the start of a given class, I would begin with a 5 minute review of the material from last class.  But I soon realized that this was merely me restating what I said the class before in a way that didn't engage students or provide them or me with actual feedback. Meanwhile, updated editions of casebooks do give students some relatively recent opinions (although often not as primary cases), but I also felt like I wasn't giving students enough of the living, breathing law as it is being decided in the trenches.

As a way of killing two birds with one stone, I decided to scrap the 5 minute refresher and replace it with what I call my "law school case method."  Now, at the start of class, I give students condensed (and sometimes slightly modified) portions of recent (and Illinois/7th Circuit) precedent dealing with the topic of the last class to see where we stand.  So, after the search incident to a lawful arrest class, we opened the next class by discussing the following 4 cases:

Hypo 1: State v. Campbell, 185 P.3d 266 (Idaho.App. 2008): Two officers were conducting a traffic stop when a white El Camino went past them. One of the officers recognized the vehicle as matching the description of a vehicle involved in a reported stalking incident earlier that day. The officers left to look for the El Camino and located it in a nearby parking lot. The officers approached Campbell and his passenger. The passenger told one officer that Campbell had driven the vehicle into the parking lot. The other officer “asked [Campbell] who drove the car here, and he said that he did.” Campbell also told the other officer that his driver's license was suspended, which information was confirmed by a dispatcher. Campbell was then arrested for misdemeanor driving without privileges. A search of the vehicle incident to arrest turned up drugs and other evidence. Campbell filed a motion to suppress the seized evidence.  Should his motion succeed?

Hypo 2: United States v. Varner, 481 F.3d 569 (8^th Cir. 2007): Two officers approached Varner's home with an arrest warrant for failure to pay child support. At the door, Varner identified himself, and stepped outside. He was arrested and handcuffed. He asked if he could go inside the house to tell his girlfriend he was leaving. The officers agreed, following him inside.  Entering the living room, the officers saw a glass pipe used for methamphetamine and seized it.  Varner moves to suppress the pipe.  Should the motion succeed?

Hypo 3: United States v. Arnold, 388 F.3d 237 (7^th Cir. 2004): Officer Ford arrested Arnold for driving his four-door Pontiac Bonneville with only a learner’s permit and without anyone else in the car.  Before towing the vehicle, Officer Ford searched it.  Beginning his search in the back seat, Ford observed that the car contained a middle armrest. From experience, the officer knew that the area behind the armrest opened directly into the trunk. Officer Ford pulled the armrest down and discovered a loaded handgun that was visible in the immediate space of the trunk. Arnold was later charged with carrying a handgun without a permit.  Arnold moves to suppress the handgun.  Should the motion succeed?

Hypo 4: Lewis v. Secretary, Department of Corrections, 2009 WL 151097 (M.D. Fla. 2009): Officers had a warrant to arrest Lewis for trafficking in hydrocodone.  From a distance, they observed Lewis park in a parking lot.  Over the next 30 minutes, they observed Lewis repeatedly approach somebody, go in and out of his car (but not turn the car on), and then approach somebody else.  After 30 minutes, they arrested Lewis, searched his car incident to that arrest, and discovered hydrocodone.  Lewis moves to suppress the hydrocodone.  Should the motion succeed?

These cases allowed me to make sure that students had retained information regarding several important aspects of the search incident to a lawful arrest doctrine: (1) when an arrest is lawful, (2) how officers can stay at the arrestee's elbow after a lawful arrest, (3) what constitutes the passenger compartment of an automobile, and (4) what makes someone a recent occupant?

I also take one of these introductory opinions (and sometimes add facts to it) and weave it through the rest of the class so as to tell a story to the class about the doctrine we are learning that day.  For instance, in the plain view class, after we discussed Horton v. California, 496 U.S. 128 (1990), I explained that the officers in Varner also could have seized the pipe under the plain view exception.  But after we discussed Arizona v. Hicks, 480 U.S. 321 (1987), I cautioned that the plain view exception would not have applied if the pipe were upside down and an officer had to flip it over to determine whether it was a crack pipe or a regular pipe used for smoking tobacco.

Of course, my "law school case method" still does not ensure that students will retain material a couple of classes down the road, and that is why I try to use cases that will test not only concepts that we just learned, but also concepts that we learne in earlier class.  To wit, to test the independent source and inevitable discovery doctrines, I used the following case last class:

Hypo 1: United States v. Pruneda, 518 F.3d 597 (8^th Cir. 2008): After the police received information from a cooperating witness that was sufficient to establish probable cause to arrest for drug trafficking and justify a search warrant for Garcia-Delacruz’s house, Drug Task Force officers only obtained an arrest warrant.  After properly executing the warrant and arresting Garcia-Delacruz, an officer conducted a protective sweep of Garcia-Delacruz's basement to ensure that no other individuals were present. While conducting the protective sweep of the basement, the officer observed firearms and drug paraphernalia in plain view.  At the suppression hearing, One of the officers testified that his team, which executes high-risk arrests, is trained to do a protective sweep each time they do an entry.  Will the evidence be suppressed?

This case allowed me to test not only those two doctrines but also the protective sweep and knock-and-announce doctrines from earlier classes.  I have found that this method works well, but I am open to any suggestions on what I think might be the most important teaching topic.  Besides a midterm, what techniques have you used to test how well students are retaining material throughout the semester?

The Ungraded Midterm

I would like to thank Dan Markel for having me as a guest blogger here on one of my favorite blogs, PrawfsBlawg, for the month of April.  I am an Assistant Professor at The John Marshall Law School, where I teach Evidence, Civil Procedure, and Criminal Procedure.  My primary blog is EvidenceProf Blog, where I post on a daily basis, and I also have started posting at Feminist Law Professors on about a bi-monthly basis.  For the most part, my posts on both of those blogs deal with evidentiary issues, and my plan this month at PrawfsBlawg is to expand the scope of my blogging to an area with which all teachers must grapple: the grading and evaluation of students.

While studying as a student and teaching as a professor at law school, the most persistent complaints I have heard regarding classes are that the "one exam to rule them all" format fails to give feedback to students throughout the semester and fails (literally and figuratively) students who had a single bad day.  I wish that I could figure out a way to solve the latter problem.  I know that my colleague, Sam Jones, gives students a few graded multiple choice tests throughout the semester in addition to the final exam and that other professors give students a graded midterm.

Certainly, there is a lot to commend these approaches, but I have two main reservations.  First, I have the feeling that if I gave a graded midterm, students would understandably but detrimentally (for both their other professors and them) shift most of their attention away from other classes in the week(s) before the midterm (giving students multiple points of stress in addition to multiple points of grading). Second, by the time the middle of the semester rolls around, I've set things up in class that won't pay off until later.  I do give an ungraded midterm, and my recent Criminal Procedure midterm contained a knock-and-announce fact pattern after we had discused the knock-and-announce requirement but before we had discussed Hudson v. Michigan, 547 U.S. 586 (2006), and its holding that the exclusionary rule does not apply to evidence seized after officers fail to comply with it.

I do, however, feel that my ungraded midterm at least partially addressed the latter problem (I will explain another way that I try to address this problem in my next post).  Here's what I do.  In a 14 week semester, I hand out an ungraded midterm in week 7 for one class and week 8 for the other.  Students have a week to complete the midterm, and I suggest that they treat it as if it were the final exam and do it under timed conditions.  The class after students turn in their answers, I do a general in-class discussion about the midterm and the answers/analysis I wanted. The following week, I give students answer keys with the points that they got and missed and the grades that they would have received if the midterm were the curved final exam. I then encourage students to meet with me to discuss ways to improve on the final.

It seems that there are pros and cons to my approach:

Pros

(1) It lets students see where they stand near the mid-point of the semester;

(2) It helps students better understand how to tackle the rest of the class and final exam preparation;

(3) It lets me see where I stand and whether I need to go back and further explain some concepts from the first half of class;

(4) (I hope and think) that it improves the overall class performance on the final exam;

(5) (For new(er) professors): It gives you a dry run to see whether your final exam will be too short/long and/or easy/difficult;

(6) (For new(er) professors): It gives students an opportunity to see what they can expect on the final exam;

(7) Compared to the graded midterm, it doesn't take too much time away from other classes;

(8) Compared to the graded midterm, it isn't overly stressful for students; and

(9) (For 1Ls): It provides an introduction to law school test taking.

Cons

(1) It is still somewhat time consuming for students;

(2) It is time consuming for the professor (but this can be reduced by using the same midterm each semester, just doing the general in-class discussion rather than giving individualized feedback, etc.);

(3) Compared to a graded midterm, fewer students will turn in answers (I have gotten about a 75% completion rate; I suppose that I could keep the midterm ungraded but make it mandatory and decrease the grades of students who don't turn in answers);

(4) Midterms in general are difficult to give in some classes, such as Criminal Law, and on certain subjects that are developed over the course of the semester; and

(5) Students who do poorly on the midterm might "check out" during the second half of class (although it might also light a fire under them).

On balance, I think that the pros outweigh the cons, but I'm new to this game and would love to hear what others think.  Do you give a graded or ungraded midterm and why or why not?  Also, is anyone aware of a law school that had mandatory midterms in all classes and blocks off a week for all midterms to be given so as to avoid the "focus shift" problem I raised above? 

Multiple-Choice Law School Exams

I've informally asked around over the last few years about giving multiple-choice (or partially multiple-choice) exams and have noticed: 

• Views (and institutional norms) are strong

• Whether multiple choice is considered acceptable varies among subject areas (civ pro ok?  con law no way?)
• Some of these strong positions are linked to issues about "teaching to the bar"

So, multiple choice - pro or con?

Laptops in the classroom: Now a word from our students

Please Repeat the Question from Amanda Bakale on Vimeo.

(H/T: Donald C. Clarke (GW) on the LawProf ListServ).