Thursday, June 26, 2014
Is there such a thing as "experiential" scholarship? I asked this question to some of my colleagues during a recent lunch. I asked because there has been much debate on experiential learning and what that might look like in a law class, and there has also been much debate on what relevant scholarship looks like. I was curious if others thought there was any correlation.
After a great discussion with my colleagues, the answer (like all good law school answers) is, "it depends." The discussion boiled down to three observations:1. The Target Audience - For legal scholarship to have an impact, legal scholars should keep in mind why they are writing a piece and who should read it (obviously this goes beyond, "I need to publish so I will come up with a sexy title to capture the attention of law review students"). The target audience could be practitioners, judges, policymakers, and/or academics. If scholarship is, or even can be, correlated to making students practice-ready, then it seems like the first three audiences would be the primary targets since they are actively in practice.
2. The Platform Problem - While academic audiences might be inclined to browse through law review articles, the others - judges, practitioners, and policymakers - are less and less likely to do so. If my target audience extends beyond academics, a lot of issues arise. What platform do I use to reach them? For example, if I want my scholarship to be read by practitioners, where do I publish? The ABA sections all have different periodicals that are published throughout the year. But what about the other audiences - what platform does one use to reach judges? And, of course, articles for non-law reviews would be much shorter than traditional articles. Does that mean forego the traditional law review and go straight to these other platforms (if one can be found)? I don't think so. Instead, that question leads to the third observation.
3. Expertise and Marketing - To become an expert in a certain area undoubtedly requires a lot of research and thought. Such in-depth work is reflected in traditional law review articles. Once a legal scholar becomes an expert, then the key is to market it to the target audience. Write a law review article with the target audience in mind. Once you've mastered the area, actively seek out publication opportunities that will actually reach the audience you want - write a short piece in the area for an ABA publication, turn it into an op ed, try to present at conferences where your target audience attends, become involved in drafting legislation, blog on relevant sites ... bottom line, take your expertise and, for lack of a better word, market it so that it has the practical impact desired. Perhaps this is what a lot of legal scholars already do, but I must admit I haven't done it well. Upon reflection, I think my failure to proactively market my scholarship to non-academics (most of my pieces target judges and policymakers) stems from the fact that, until recently, I was on the tenure track and it was unclear to me whether the effort and time it takes to reach out to such audiences would count as scholarship. Should it? And, more on point, would marketing scholarship to non-academic audiences help us think of ways to teach experientially or help make our students more practice-ready?
Saturday, June 14, 2014
CFP Deadline: Seventh Junior Faculty Fed Courts Workshop
Tuesday, June 10, 2014
What teaching issues are you thinking about this summer?
Our faculty is having a lunch discussion this week about teaching. I simply love to teach. And, as a newly tenured professor who recently went through the tenure process, I have been reflecting a lot on my teaching. There are many areas where I could improve. In particular, this summer I have been thinking about the following three issues. While these matters have been previously discussed, I am interested in your current thoughts on each (and any other teaching issues on your mind this summer):
1. Unprepared Students: To this day, every time I call on a student, my heart skips a beat in hopes that the student is prepared. Sometimes I think I am as nervous as the students before I call out a name. I do feel that it is essential students learn that they must be prepared. I have heard of different ways to deal with unprepared students. Some professors wait for the student to read the case during class. Others assign reading panels for the week. Others call on students in alphabetical order. I am old school - I randomly cold call. If I do call on a student who is unprepared, I require them to call on another student to cover for them (like a life line). My hope is that the fear of being forced to put another student in the hot seat is scarier than coming to class unprepared. I have had moderate success with this approach. I have also toyed with counting unprepared students absent for the day. I would be interested to hear what others do.2. Internet Use During Class: I think I may have somewhat given up on this. I try to call on students who are obviously surfing the web during class discussion. But, to be honest, when I was a law student I attempted to multitask in class too - I just didn't have the internet, but I did have crossword puzzles, letters and notes to write, readings for other classes to catch up on, etc. So, sometimes I feel a little hypocritical when I make too big of a deal about surfing the web during class. In one small seminar class, I didn't allow computers, and for that small class it worked very well. I had the most engaging student discussions when laptops were closed. I haven't tried the no computer rule with a big class yet. I am hesitant to do so because I often use the web during class discussion to look up statutes and other materials. Also, students have case briefs and other prepared materials on their computers and need access to them. But, I have toyed with the idea of a "no computer week." Has anyone done this and was it successful?
3. Taking Too Many Notes: This point is somewhat tied to #2 above. Recently, there was an interesting study that determined that students do better when they handwrite lecture notes rather than typing them. Basically, the study pointed out that people tend to type faster than write, so they are less judicious in what they type than what they write. Until I read this study, I hadn't given this matter a lot of thought. Perhaps I should be encouraging students to handwrite class notes.
Thursday, May 29, 2014
On class supplements
I have written a supplement (available at your local supermarket checkout line). I assign supplements in every course I teach, including selecting one casebook that combines the best elements of a treaty treatise and a casebook. But the overuse of supplements and study aides, especially in 1L courses, feels as if it is getting out of control. Two related problems: 1) Students are using supplements and study guides in lieu of the class reading and 2) Students are using too many study guides and it is all getting confusing.
Some examples: 1) On Civ Pro, I gave question (from a recent 5th Circuit case) that basically lined up with Nicastro, yet a significant number of students never mentioned Nicastro, but discussed the competing opinions in Asahi (which is what a supplement written before 2011 would have discussed). 2) Several students meeting with me after grades came out told me how hard they worked in the class, always indicated by how many different supplements and study guides and audio recordings they used, never by how much they focused on the actual assigned cases, rules, and statutes.
Do others notice this problem? And is there a way to get it under control, to make students focus primarily on the primary sources and let the supplements be just that?
Thursday, May 22, 2014
Teaching vs. Scholarship vs. Influence
A lot of discussion has been had about spending time on scholarship vs. teaching. Scholarship is, of course, the activity that makes our Deans and peers happy and drives our promotion and tenure packet; teaching (and teaching well) requires a lot of time, but is something that some (but not all) of us enjoy. One main issue is that too many new faculty spend too much time on teaching prep and not enough of their scholarship, leading to major stress as their promotion deadlines appear.
Now that I've had tenure a few years, I'm looking again at how and where I spend my time. I love to teach -- it's invigorating and I truly enjoy working with students. I love to write (except when I'm in that "pit of despair" stage of writing that happens all too frequently). But lately I've had a few opportunities to work in what I'll call "influence." I was asked to come give a briefing at the Senate building on patent troll legislation -- currently dead or dying, by the way! (N.B. I have no delusion that I am the cause of the bill's demise...) I've written some op eds on a few pending Supreme Court cases. I've been interviewed by reporters on current issues, such as language being used in the net neutrality debates.
Given that there are only so many hours in the day, I need to make choices about where to spend my time. (And I apologize if this is a path that has been well worn - the opportunities to engage in the world outside of teaching and scholarship is relatively new to me.) Many of these influence opportunities arise based on my scholarship, but to participate in these influence activities means that I may write a little slower (or, heaven forbid, spend less time prepping for a class session).
Certainly there is value that can come from all three of these activities, but I get the feeling that influence activities, while exciting and important to me, may not be viewed as important by others, such as students or peers or maybe even the people who adjust my salary every year. It's a lot harder to qualitatively judge the influence activities -- right? My students regularly provide a rating that, in theory, indicates the value and quality of my teaching. My articles are placed in journals that can be rated on any number of ranking metrics. But how can you evaluate how well I influenced? Is this why it may be viewed as less important than the other two?
It's nice to think that something I'm doing may have some influence on the outside world -- and maybe some folks' mainstream scholarship does that...but is the cost of engaging in other influence activities worth the potential costs to teaching and scholarship?
Tuesday, May 20, 2014
State panel denies InfiLaw license
The South Carolina Committee on Academic Affairs and Licensing voted 3-1 to recommended rejection of the sale of Charleston Law School to InfiLaw. Members cited two lawsuits against the company by other law schools. Faculty, students, and alumni all oppose the sale. It now goes to the full Commission on Higher Education for a vote on June 6.
Saturday, May 17, 2014
Jennifer raises a good point: There is too much law to know now. I can think of several subjects I would add to Texas Tech's upper-level requirments. So perhaps the solution is breadth over depth--expose students to a bit less of more areas and subjects. And if that is what we are after, what about a trimester/quarter system? Stanford and Chicago are the most prominent law schools to follow that calendar (Stanford switched about five years ago). And Northeastern uses a year-round quarter system, with students alternating quarters in the classroom and in field co-ops over the course of three calendar years. I did undergrad on a quarter system and really enjoyed the academic experience.
The trade-off in law school is obvious. Students can take 12 courses in an academic year rather than 8-10, so they can be exposed to more subjects and areas. But instead of 13 weeks/52 class hours of a four-hour course, they get 10 weeks/40 class hours; instead of 13 weeks/39 hours of a three-hour course, they get 10 weeks/30 class hours. In Civ Pro, for example, this means so long Erie and discovery.
Thoughts? For those teaching at/attending/attended Stanford or Chicago, how did you like the trimester system? Does the trade-off work and is it worth it? Do we need to trade depth to get additional breadth?
Friday, May 16, 2014
Justice Scalia and the upper-level curriculum
Scalia also criticizes the absence of required upper-level classes, noting the curriculum from his Harvard days. I probably would be all for required upper-level classes, but do not see how it would happen. The problem is that the first-mover would be at too-great a disadvantage. Schools are now actively and competitively recruiting good students and students are playing schools against one another; one thing schools may try to offer is "flexibility" in the final two years and the chance to "create" an upper-level course package. School A thus can sell that flexibility as against School X and its mandatory post-1L classes (however limited they may be). School X is not going to win the battle for that student (all else being equal), even if its approach may produce better Scaliaesque lawyers-as-professionals.
On the other hand, is that move necessary? At least outside the super-elite schools, the pressure of bar passage causes schools to push students hard towards "bar-tested" courses, which likely are the same courses that schools would make mandatory in any event.
Justice Scalia on legal education
Justice Scalia delivered the law school commencement address at William & Mary earlier this week week and had a lot to say about two-year law schools, "carefully-structured skills-based experience," and the difference between law-as-trade and law-as-profession. Will Baude offers his thoughts. Apropos of my post last month about what every lawyer should know, Scalia specifically points to the First Amendment:
Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?
This all reflects a very Tocquevillian view of the law and lawyers as a learned intellectual aristoracy. And much of the resistance to proposals such as two-year law schools and all-experiential education rests on a similar view.
Thursday, May 15, 2014
Is Yours One of the 45 Law Schools to Which it is Worth Going: A Look at the Broken Market for Legal Education
As those of you who have read my earlier posts (and I hope you have) know everything I’m writing on legal education takes as a premise that the entire system of financing higher education is broken and that we, as a society, are borrowing against our future by making college, let alone graduate and professional schools, financially prohibitive to those who otherwise have the interest and ability to pursue it. But as bad as the debt to employment ratio is for many law students right now it is made worse by a misperception of a uniform level of financial stress, a uniform kind of desirable job, and a uniform market for legal services. These misperceptions are making the market for legal education inefficient yet this inefficiency is supported by a social norm that higher must be better (yes, Wikipedia--Prof. Ellickson don't rescind my property grade)--and as a result causing hardship for prospective law students and law schools alike.
On Monday, fearless leader of the Law Professor blogs network, Professor Paul Caron, in our flagship, Taxprof Blog highlighted this working paper by Kelsey Webber who “does the math” and concludes that there are only 45 law schools worth attending at sticker price. That may sound better than the critics who conclude that there are no law schools work attending, but it is based on the same flawed assumptions.
Like all “works in progress” there’s lot to pick at—starting with the premise that any law student anywhere is paying “sticker price,” but over the next five days, or so, I’m not going to pick at the paper but rather am going to challenge the generalizations it reflects. I’m going to focus on law’s status as a highly regionalized profession and on the differences that have always existed between schools that historically sent a big chunk of their students to large firms and schools that never did.
And I’m going to address a lurking elephant in the living room that is contributing to the misery—students pursuing legal educations often do so not out of a sense of vocation but rather as a hazy path to a good income. Nothing wrong with that—but it interferes with an efficient, market in which law students would flock to regions not suffering from economic downturn and to law schools offering attractive combinations of low tuition/strong financial aid.
I’m not here to blame students for decisions they make at age 20 with limited available information. I’m just pointing out that this idea of a universal hierarchy of law schools perpetuated by US News rankings has fueled the suffering and distress in the regions where there is little hope of getting a job that would make law school a sound investment. I'm not blaming the messenger, I'm suggesting that they don't work in law the way they work for Clinical Psychology Programs, Engineering Schools or even Medical Schools where higher ranked programs (regardless of location) are closely linked to better job prospects.
I’m also going to address some measurement issues that assume a “big law” view of the world. So, for example, while lack of a big law job 9 months out of law schools is catastrophic because traditionally those were sewn up by the end of the second year summer or certainly by graduation, it means far less outside big law where students are seldom even considered until they have passed the bar-something that won’t happen until five or six months after graduation. And in general, what it means in relation to whether law school was “worth it” depends entirely on the size and shape of the financial hole law school creates. And that varies a lot.
At the other end, I’m going to dispute how safe a bet these 45 schools actually are for every student interested in becoming a lawyer. These are all great schools. The students attending them worked hard to get there, and have every right to enjoy the status they confer, but, again, law is highly regionalized and I plan to vigorously dispute the pernicious paradigm that all higher ranked law schools are better for all law students than all lower ranked law schools.
To be continued.
Wednesday, May 14, 2014
Faculty protest at Charleston Law
In the run-up to hearings and a vote (scheduled for next Monday) by the South Carolina Commission on Higher Education regarding the sale of Charleston Law School to InfiLaw, the tenured faculty and untenured faculty (speaking through counsel and anonymously, for fear of retribution) have sent letters to the Commission urging denial of InfiLaw's request for a license to operate the school. The tenured-faculty letter notes the "culture of intimidation and fear--fear of reprisal for speaking out against the transaction or even voicing concerns" about the proposed sale and a desire not to "see the Charleston School of Law mirror the admissions practices, attrition rates, transfer rates, or educational programs of the InfiLaw consortium schools." (For an alleged picture of alleged life at an InfliLaw school, see this lawsuit by two tenured professors fired by InfiLaw-owned Phoenix School of Law).
The Commission has hearings scheduled for this Friday and next Monday morning, with a vote scheduled for Monday afternoon.
Saturday, May 10, 2014
Hear, hear. (From Feminist Law Professors) (H/T: Kerri Stone):
Thursday, May 08, 2014
Bee by Bee: Facing the Multitude of Legal Educations’ Problems Beyond Cost-1) Making Students Not Just Practice Ready but Work Ready
In an earlier post I analogized the problems facing legal education to being attacked by a swarm of bees coming from a broken hive. The broken hive is the broken higher education financing system--and fixing that is a necessary first step to making the long overdue changes to how legal education in structured and delivered. But that doesn't mean we have to stand by in the meantime and ignore the individual bees.
One of the angriest bees we're facing right now is preparing our students for employment in the face of the disappearance of high paying big law firm jobs that allowed students to repay the large amounts of money they had borrowed to attend law school. (And this isn't just about debtors-every one of our students has given up three years when they could have been advancing in another field or pursuing other graduate training).
But the reality we face is, as Moody warns, that the legal services model has changed forever. And curriculum and teaching methods have to change too. It's not possible anymore to separate legal education from the market for lawyers, but teaching the skills they might need to succeed in a traditional law practice doesn't seem to be moving the dial much.
A trend I see with my health law students is greater opportunities to work on compliance issues at hospitals, companies and even government agencies that in the past did not hire lawyers for these jobs. Regulation, especially in healthcare, has become so complex that it just doesn't make sense to try and train non-lawyers to keep up. If you don't know what Red Flag Rules are--and how extensively they are affecting just about every business that takes in money, follow this link.
Legal education's critics and accreditors are deeply suspicious if not scornful of any but a job requiring bar passage—under the theory that only these jobs fulfil the promise made to prospective students that they will be qualified for employment as lawyers. Well, snark if you will, what it means to be employed as a lawyer is changing.
If an employer’s preference is to hire a licensed attorney (or will pay a licensed attorney more than someone without that credential) then that's not the equivalent of a job at Starbucks or even one that involves going to Starbucks and bringing back coffee for other people. It's an example of how integrated legal issues have become in regulated industries like health care, banking, oil & gas, and (thank you Elizabeth Warren) consumer products.
So maybe we need to look at practice ready skills more broadly to include not just traditional advocacy or corporate drafting tasks but rather a broader set of general work skills. For example, here is a great article by Professor Susan Wawrose at the University of Dayton based on her extensive interviews with legal employers about what they want to see in the law students they hire. Yet many of the issues the employers raise are not about the ability to get a document into evidence or draft a non-disclosure agreement, they are about the kind of job skills (like eagerness to do the work assigned) that any employer would want.
We sometimes forget that even though the ratio is shifting, probably at least half of our students have gone straight through school without ever having a full-time office based job. From what I've seen, law students are at a disadvantage in a business setting because they often don't have the work experience of the other employees at their level. A law firm is (or was--that's changing too) a very protected environment where lawyers don't have to worry about "business stuff." In a more general setting, individual managers will have to do things like make budgets, manage people, and read financial statements.
There is a lot we could do--short of a dual degree MBA-to bring our students the kind of financial, communication, management and negotiating skills they need to quickly join the flat teams of today's workplace (as opposed to being at the bottom of the hierarchy of a large law firm). Many law schools have aleady jumped into this with leadership institutes, communications courses, even coding courses. .
Many of us have business schools associated with our institutions who might want to share their expertise with our students--and have us share our expertise with their students. This list is a good example of business skills that are quite different from the advocacy type skills that might first come to mind in training a law student. Here's an interesting list of quant skills that a first year MBA student--and its likely that quite a few of the executives a young lawyer would be dealing with have MBAs or a business major--would be expected to have-do our graduating students even know what these things are, let alone how to do them?
We can't stay still as the world of work changes. Please feel free to share in the comments section any work your law school is doing in this area.
Tuesday, May 06, 2014
Outcomes Based Assessment is Coming
Thanks for all the comments about evaluation of faculty teaching—and thank you to Professor Bainbridge for the transition to the next topic—Outcomes Assessment. The days when we in legal education could say that the bar exam did outcomes assessment for us are rapidly coming to an end. Outcomes assessment (or “output assessment as it is sometimes known) is something we in legal academe will soon likely be required to do in every class, for every student. Why? Because our regional accrediting agencies already demand it and the ABA has already put forward for comments changes to Section 301 here reflecting this report by a 2008 subcommittee.
If I’ve lost anyone here about regional accrediting agencies, now is a good time to lift the veil. So long as we depend on our students using federal student loan programs to pay their tuition, we must meet the Department of Education’s standard that we provide a “quality” education. And while the DOE does not tell us, or anyone else, what “quality” is, it can require that we submit ourselves to an entity it recognizes as being qualified to do so. We all know that the ABA sets standards of quality for legal education, but unless you have a role in developing new programs, you may not be aware of your regional accreditor, but rest assured your Dean and Provost think about them all the time. For example, Texas A & M University would not have been able to acquire Texas Wesleyan Law School without the approval of the Southern Association of Schools ad Colleges. Here’s the TAMU Press Release and here’s the actual SACSCOC announcement.
So back to Outcomes Assessment— it makes sense to evaluate law schools and faculties on their results rather than their efforts (we don’t raise the grades of students because they “tried hard”) but like all assessment it can’t happen without first identifying what outcomes to measure and how to do it. Is it mastery of material in individual courses? Bar Passage? Employment in a J.D. required job? Competency in practice? Client satisfaction? Personal satisfaction? All of these are desirable outcomes for our law students, but the question legal education shares now with all higher education is which of them can be directly linked to what happens in law schools.
Luckily for us as we make the transition to outcomes assessment, there is a wealth of reference material. This piece from Prof. Gregory Munro reviews the topic of outcomes assessment at the level of the individual law school class. Since we are relatively late to the outcomes assessment party there are a lot of models out there. Here is a very interesting article by Profs. Deborah Maranville, Kate O’Neill, and Carolyn Plumb drawing lessons for legal education from Engineering’s experiences in assessing not just content outcomes but also ethical ones. Here is an article by Carolyn Grose about her experiences integrating outcome measures into her Trusts and Estate class.
At a practical level, our friends at UCHastings have put together a very helpful compilation of resources, including sample syllabi, for law professors who want to create and then assess learning objectives in their classes. The Institute for Law Teaching and Learning is a rich and frequently updated source of helpful material on all aspects of law teaching, very much including issues of outcomes assessment.
This will be a big change for us both on the level of setting individual output/outcome goals for each of our classes and then on a larger scale for our schools as a whole. But it’s a change that’s coming and for which we need to prepare ourselves. I know that these links only scratch the surface of the work being done within legal academe to address the need for outcomes measures and I invite everyone to include material they either created or know about that will be helpful to the community at large.
Monday, May 05, 2014
Opening Up the Discussion on Student Evaluation of Teaching
Yesterday I gave you links to sources pointing out some reasons why teaching evaluations--as currently done at many schools--do not always provide accurate or useful data. Thanks for the comments!
Today, I'd like to open a problem solving conversation by relating some information I picked up on my way to getting a Ph.D. in higher education: A) Measurement (assessment) is far harder than it looks; B) It's impossible to measure something unless you first identify what it is and C) There's no point measuring something without an understanding of why you want the information.
There is a vast literature available with ideas about evaluating faculty. Have a look here, here and at these thoughts from AAUP. Our problems in legal academe with misusing student evaluations is that we aren't necessarily asking the right questions of the right people in the right way. Evaluating curriculum is very different from evaluating teaching. I think it's more than reasonable, it's important to involve all stakeholders (students, faculty, administrators, alumni, and the general population of future clients) in decisions about what to teach and how to teach it. I will be writing more later about how medical schools have been doing this over the past 30 years. But its not fair (or even helpful) to confuse assessing how well an individual professor is doing her job with what that job should be.
I think it would be very helpful if every school considered its own individual goals and objectives for classroom instruction. And I'm going to put forward some suggestions below about how that might happen.
But first, in the words of noted legal practice guru Prof. Laurie Zimet of Hastings, lets all remember "we aren't going to solve this problem today."
So what does it mean to decide first what we should be measuring?
Well, lets say a faculty decides that every class teaching a subject on the bar exam be organized according to how it will be tested. In Torts, that would mean a professor who spent more time on intentional torts than negligence wouldn't meet this standard. How could that be measured? What about syllabus review?
Or, maybe a faculty decides that each of our students deserves to have their outside of class questions answered within two business days. Of course we ask the students themselves--but why just by anonymous survey? What about interviewing a small group of students and ask them for examples of times they've asked for help and how the professor responded.
I'm not recommending punitive inspections. What about having a peer visit the class a few times during a semester and then immediately meeting with the professor to discuss what they saw? Maybe not for every class, but what about first year professors, professors up for promotion, or where there has been a problem reported?
Is all of this more work than glancing at a scantron sheet--yes. But deciding what needs to be going on in our classrooms and then finding out if that's happening is very important.
Finally--how we evaluate professors is a key component in what kind of teaching we get back (same is true with students). In other words, we are likely to get back what we measure.
So what do you think? What should we be doing in the classroom--and who should be evaluating it? How can we separate evaluation of teaching with evaluation of curriculum? And where in your institution can you find the resources to review how well what you're measuring reflects what you really want to know?
Student Teaching Evaluations
As classes wrap up, many of us are wondering how our teaching evaluations came out. How did we do? Not only are these evaluations deeply personal commentary on us as teachers, they can be important for promotion and tenure. And I’m here to suggest, along with many others including William Arthur Wines and Terence J. Lau, Observations on the Folly of Using Student Evaluations of College Teaching for Faculty Evaluation, Pay, and Retention Decisions and Its Implications for Academic Freedom, that in most colleges, universities, and law schools—they shouldn’t be. Or at least not until we know a lot more about what we want to measure, how to ask the right questions to do that, and how to understand the information we get back.
I think getting information from our students about their experiences in the classroom is important, but at the risk of spoiling what will be a series of posts on this topic, I suggest that few of us as law professors can do this well without considerable assistance from people who do educational assessment for a living.
Here are a few things to get on the table.
First, there is a substantial literature on teaching evaluations. Thanks to Professor Deborah J. Merritt who published a terrific article summarizing the data, we all should be aware that evaluations done based on 30 seconds of teaching the first day of class have been found to correlate closely to evaluations made after an entire semester. In other words, students make up their minds very quickly.
Second, (and thanks to Prof. Merritt for this too—I assume everyone is reading her blog on law school reform, the law school café) women, women of color and men of color, respectively, get lower teaching evaluations than white men. Across the board. In every subject.
Third, teaching evaluations are a classic example of the dangers of not understanding some basics about statistics. I suggest reading this three part blog post by Professor Philip Stark at Berkley “Do teaching evaluations measure teaching effectiveness”—but here are some of my favorite distortions:
1—We use averages—that means adding up all the scores and dividing them by the number of students responding—when we should be using medians (numbers reflecting the middle of the scores) or modes—(the most common score). Lets say on a scale of 1-7, two teachers both come in at a 5. But one gets all 5s and the other a wide range of scores that contained both 1s and 7s. Are these the same?
Also, by not looking at all the scores, we can miss important themes—like consistently low scores for availability or respect for students.
2. We think we know how to compare one faculty member’s scores with another’s—but we really don’t.
That’s because the scores are presented as numbers, but they’re really categories. Unlike a thermometer or a ruler where we know that the numbers all have an equal amount of “space” between them, the teaching scores are an “ordinal categorical” variable. As Prof. Stark explains, “We could replace the numbers with descriptive words and no information would be lost: The ratings might as well be “not at all effective”, “slightly effective,” “somewhat effective,” “moderately effective,” “rather effective,” “very effective,” and “extremely effective.”
As he asks, “does it make sense to take the average of “slightly effective” and “very effective” ratings given by two students?”
Also, without any information about the scores of the faculty as a whole, we can’t assign relative meaning to these numbers. So, if every faculty member teaching first year courses has a score of 4.5 or above, then someone with a 4 is outside of the mainstream. On the other hand, if the numbers cluster very tightly between 3.9 and 4.2—with 4 being the most common score—than it would be fair to say that someone getting a 4 is succeeding about as well as everyone else—in terms of achieving scores.
This problem (not knowing the scores of other faculty members in similar courses) becomes even worse when looking at the teaching evaluations of a faculty member at another institution.
There is a lot of information out there on how we can set goals for ourselves as communities of law teachers and how we can measure the results of those goals. And more on that tomorrow.
Saturday, May 03, 2014
Sen Elizabeth Warren's New Memoir of Special Interest to Law Profs
There are a lot of reasons why law professors should read Senator Elizabeth Warren’s recently published memoir--“A Fighting Chance." The top two are that it's well-written and frequently very funny. (for full effect--I suggest the audio version that the Senator narrates herself).
Beyond that, not only is it a lucid explanation of the banking industry’s efforts to limit the ability of creditors to make a fresh start through declaring bankruptcy, it is an account of her extraordinary academic career--one that she achieved without any of the traditional criteria such as academic pedigree, powerful mentors, family connections, prestigious fellowships or judicial clerkships. For those unfamiliar with her as Bankruptcy Professor-here are some posts she has made on the Credit Slips blog.
She also closely documents her struggles to balance family, both her children and elderly parents (and pets). There is a lot for law professors to unpack here--including how her interest in the people behind the laws has shaped her career.
But more generally, I look forward to discussing how critical it is for the future of legal education that Senator Warren succeed in convincing her colleagues of the need to reform the way higher education is financed. Whether she herself has the best plan for fixing student loans—well different people have different views-including just eliminating them. But unless we can stop the ever increasing cycle of debt that is making our students’ lives so difficult, any of the important changes that need to be made in legal education risk being about as effective as bailing out a sinking boat with a bucket that itself has a hole in it.
As I will elaborate later, I’m very optimistic that we can all create a program about which students can say 5, 10, 15 years later that they are better off for having gone to our law school. But we’re probably not there now. Rather, we are in a situation similar to being attacked by a hive of bees. Every individual bee, lack of job opportunities, bimodal salary distributions, drop in state support for public institutions, lack of transparency about student outcomes, out dated curriculums, disconnect between the classroom and the practice of law, imposition of a value system that drives law students into disproportionate levels of depression that may well follow them throughout their careers, is capable of inflicting painful or even lethal stings. But the breach in the hive comes from a level of student loan debt that cannot be supported by any reasonably obtainable career path. It’s not a perfect metaphor—student loan reform is necessary but not sufficient to developing a legal education that better prepares our students for the important role they will play in society.
On "turning 40"
I just finished (well, almost -- my students are taking their exams) teaching my 40th law-school class: Criminal Law - 9, Constitutional Criminal Procedure -5, Constitutional Law - 7, Freedom of Speech - 5, The First Amendment - 4, Freedom of Religion - 5 (once as a mini-course in Israel), Catholic Social Thought and the Law - 3, The Death Penalty - 1, The American Jury - 1. (Thankfully, this "40" milestone looks to be much less complicated, and a much happier occasion, for me than it was for Paul Rudd's and Leslie Mann's characters in "This is 40.")
It's easy to report that I still love law-teaching and continue to regard the chance to participate in the development and launching of my students' vocations as a huge blessing. My students have been great (and they've been patient as I get slower and slower on the basketball court). The trickier task, "at 40," is to figure out, and honestly assess, whether or not I have improved as a teacher -- or, even if I have, if I have as much as I could and should have.
Sure, I know the material better than I did the first few times around. I'm more comfortable than I was at first with not knowing the answer to a good question, and with being challenged, and with having to correct myself, and with needing to apologize for a mistake. I've changed books and classes often enough that, I think, I've pretty well avoided the danger of the "same old notes, same old script, same old class" problem. I think I've managed to lose the nervousness while retaining the enthusiasm. So far so good.
That said, if I'm honest about it, I wonder if I could or should have done more. My courses proceed pretty much as they always have in the non-seminar classes -- a mix of review, lecture, discussion, "soft-Socratic" questioning, and looking ahead. I draw some things on the board, but have only used PowerPoint (or other digital tools and resources) on a handful of occasions and not, I think, very effectively. I've assigned and used a lot of secondary materials and scholarship to supplement casebooks, but have probably not done enough to bring in current events, relevant material from other disciplines (say, sociological or psychological material in Criminal Law). I evaluate students -- that is, I write and grade exams -- in pretty much the same way I did in 1999. For the most part, I have not incorporated experiential-learning or clinical assignments and exercises into my courses.
I'm not inclined to think that "change" is an imperative, or that it's always good, but . . . maybe I should have changed more? Maybe that happens at 50 . . . .
Friday, May 02, 2014
Laptops, redux, redux
A study by two psychologists showing students learn when taking notes by hand rather than on laptops, which I previously discussed, has been published in the journal Psychological Science and is beginning to draw some attention.
Interestingly, the authors leave open the question of handwriting notes on a tablet, which may be the best of both worlds--hand-writing and initial selectivity with a permanent electronic copy.
Thursday, May 01, 2014
A Quick Hello
I am happy that Dan and PrawfsBlawg are letting me guest here this month. Thanks!
I'm Kristen Osenga from the University of Richmond School of Law. My teaching and research interests are intellectual property, interpretation, and language and the law, with a particular interest in patent law.
This month I plan on sharing some of my research and thoughts on my latest obsession -- patent trolls. Who isn't fascinated by these terrible creatures? I also want to talk about some cognitive biases I see at play in intellectual property law. Finally, this term has also been a banner year for patent cases at the Supreme Court...of course I'll be weighing in on these as the opinions come down.
And so as not to bore you all with patent law, patent law, and more patent law, I have been thinking about (and experimenting just a bit) with "flipping the classroom." Although I think this is an intriguing way to teach and allow for more problem-based learning or experiential exercises in the classroom, I am surprised at some of the skepticism and pushback I have heard. I look forward to sharing my (not so great) experiences, my plans for doing it better the second time around, and some of the debate about whether it is good for students and/or worth the excess work.
Hello—and thank you to Dan and PrawfsBlawg for inviting me to guest this month!
My name is Jennifer Bard and I am a Professor at Texas Tech University School of Law where, among other things, I direct our Health Law Program. I’ve been blogging in the “Profs” family at HealthLawProfs and more recently also at the Harvard Bill of Health. My research interests include legal & ethical issues in conducting research, the effect of increasing knowledge about the brain on the legal response to criminal conduct, and the intersection between Constitutional Law and the regulation of health care delivery and finance. Here’s where you can find some things I’ve published.
Over the next month, I look forward to blogging about issues I’ve been thinking about a lot including the future of legal education—both in terms of curricular reform and addressing the substantial challenges facing us about the cost of law school and the rapidly changing job market, current issues in higher education, and of course on-going developments in health law.
My thinking has been shaped a lot by two degrees I got after law school. The first was a master’s of public health which gave me the “prevention” model of solving. The big idea in public health is that it’s always easier to prevent a problem than to solve one—but first you need to understand its causes. The second is a Ph.D. in Higher Education that introduced me to the much larger theoretical and regulatory context in which legal education occurs.
This is a time of significant change in higher education as it faces close scrutiny from consumers and the state and federal governments representing them. For example, on Monday President Obama issued a report calling for substantial changes to the way universities both prevent and respond to sexual harassment and sexual assault. Here is the first PSA to come from the White House on this topic. Although law schools often see themselves as autonomous islands within the larger university, we are all going to see the effects of this and other related campaigns.
UF Law's (and My) New MOOC: The Global Student's Introduction to US Law
I am now officially part of a MOOC, which went online today. It has been a learning experience (!!), with the biggest lesson being that it is nowhere as easy as you might think to put one of these courses together. I plan to blog about the experience at length when I get a chance. For now, though, you might be interested in viewing the University of Florida Law School's foray into the great MOOC experiment: The Global Student's Introduction to US Law.
The course description is as follows:
In this course, students will learn basic concepts and terminology about the U.S. legal system and about selected topics in the fields of constitutional law, criminal law, and contract law. A team of outstanding teachers and scholars from the University of Florida faculty introduces these subjects in an accessible and engaging format that incorporates examples from legal systems around the world, highlighting similarities to and differences from the U.S. system. Students seeking an advanced certificate study additional topics and complete assignments involving legal research that are optional for basic level students. The course may be of interest both to U.S. students contemplating law school and to global students considering further study of the U.S. legal system.
My Senior Associate Dean Alyson Flournoy spearheaded the project, and we had excellent technical assistance, which was crucial, by Billly Wildberger. My colleagues Pedro Malavet, Jeff Harrison, Claire Germain, Loren Turner, Jennifer Wondracek, and Sharon Rush all provided lectures, and our research assistant Christy Lopez is providing support with the discussion forums.
Thursday, April 24, 2014
Tuesday, April 15, 2014
What should every lawyer know?
It is schedule-selecting time again, particularly for 1Ls trying to map out the next two years. A colleague proposed a different way of thinking of this: Lawyers, as Tocqueville's American aristocracy, should have some core base of legal knowledge when they leave law school. Thus, there is some set of courses every law student should take--beyond classes targeting the areas in which a student wants to practice, bar-tested classes (although there is some overlap), and classes providing general skills and experiential practice. What is the law school canon? It must be a small portion of the 59 post-1L credits, thus leaving students room to 1) explore specific areas of interest and 2) do some skills/experiential stuff.
Accepting the underlying premise (and I understand that some people might not), what courses belong in that canon? If you were advising 1Ls on the doctrinal classes they should make sure to take before they graduate, regardless of anything else, what would they be? [Update: Just to clarify: This is for upper-level courses; I take as a given that the current 1L curriculum is unchanged] [Further Update and Clarification: I am not talking about career advice and what they should take for career/practice purposes, but general legal knowledge]
A tentative list:
• First Amendment
• Bus Orgs/Corps
• Federal Courts (at least if you are even thinking about being any type of litigator)
• Administrative Law
This is 19 credits, leaving another 40 for the student to play around with. What am I missing? Is there anything that should not be on the list?
Clarifying Again: Let me try to put the question this way. People would say you should not leave college without taking a basic course in some area of human knowledge and creation, such as, say, Shakespeare (even if your career is not going to involve his work in any way). So what are the legal equivalents of Shakespeare?]
Wednesday, April 09, 2014
(Practical) learning experiences
FIU today hosted an oral argument of the United States Court of Appeals for the Armed Forces, as part of the court's Project Outreach, a public and military education program. My colleague Eric Carpenter, who joined the faculty this year after twenty years in the Army, including a stint teaching at JAG School, arranged the visit. His Military Justice class wrote an amicus brief and one student was given ten minutes of argument. The court followed the argument with a public Q&A session for students, military lawyers and personel, and others.
It was a great learning experience; it would be great if other courts would so similar things in law schools and other public places.
Wednesday, April 02, 2014
Better to post your criticisms on Twitter, I guess
One law student's travails (from Above the Law).
Tuesday, March 18, 2014
The new experiential-learning requirement
I gather, from Brian Leiter and Paul Caron that the ABA Council of the Section on Legal Education has voted to (among other things) require six (not fifteen) credits of experiential learning of all students. Mary Lynch calls this a "small step" but a step in "the right direction." (My own view, for what it's worth, is closer to Brian's.) Here (thanks to Prof. Lynch) is the language of the relevant new standard:
“one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement. To satisfy this requirement, a course must be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and engage students in
performance of one or more of the professional skills identified in Standard
(ii) develop the concepts underlying the professional skills being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.”
Whatever we think of the merits of this new requirement, it appears that most law schools will have to make some changes -- in some cases, adding and staffing new experiential courses and in others, perhaps, simply changing their graduation requirements -- to comply with it.
Are there new, creative, "outside the box" things that schools and faculties might try? The standard is not entirely open-ended, of course: An experiential course must be "a simulation course, a law clinic, or a field placement." Still, this would seem to leave enough room to create offerings that depart from, even as they build on, the experiential offerings and models with which we're most familiar: direct-service clinics, simulated negotiations, mock-trial and moot-court courses, externships in local (or not-local) prosecutors' and public defenders' offices, etc. Brian has reminded readers that "no law school in the United States is actually equipped to offering 'experiential' learning adequate to the full range of careers lawyers pursue" so it would seem that coming into compliance, in a way that actually helps our students and does not simply protect schools' accreditation, could be a challenge. What do you think most law schools will do, given the new requirement? What could they -- we -- do?
Friday, March 14, 2014
Friday, March 07, 2014
The problem with PowerPoint
Monday, February 24, 2014
Brevity is . . . wit
In trying to make sure my students are practicing writing as a skill (along with the thinking and analysis that is a precursor to writing), while also trying to ensure an appropriate workload, I have settled on using short writing assignments. I assign quick, discrete questions inviting short, quick-hitting analysis of those questions (e.g., "Identify the problems with this pleading"). The benefit is that it forces them to perform legal analysis--identify and explain a rule and apply it--without room to ramble or BS or throw everything at the wall to see what sticks, which also makes them easier to evaluate and grade. I have a better sense of who gets it and who doesn't. I also think I am able to provide better feedback (written and oral), since the analysis necessarily is compact and concise. It also offers coverage--I can test on a lot of different areas, while avoiding the discomfort I always felt in relying exclusively (or even heavily) on multiple-choice (despite the obvious bar-exam benefits).
And, of course, it famously can be harder to write less than more, so there is a writing challenge to it. (As I think back to my days as a journalism undergraduate, the longest thing I wrote in my first two writing courses was at most 1000 words). Meanwhile, student are writing "full" papers (briefs, memos, etc.) in legal writing, so I know they are meeting a different type of writing requirement elsewhere.
There are a number of ways to do this. One colleague shared that in courses in which students write judicial opinions, the word limit is 2,358--the number of words in Justice Holmes' dissent in Abrams v. United States. As my colleague explains, if Justice Holmes only needed that many words to create what would become free speech doctrine, law students do not need more. I am going to adopt this for the opinions in my upper-level classes. As for other assignments, my in-semester essays run anywhere from 500-1000 words (depending on the class and the assignment). And I have moved to primarily short-answer in-class exams, consisting of 30-or-so questions, with a maximum of 110 words for each answer.
The goal in all of this is that students are writing, even if only a small amount at a time, and even if it does not precisely reflect the briefs they will write in practice. There still is educational benefit in this sort of writing.
Thursday, February 20, 2014
Show me plead on, plead off
At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.
Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:
Monday, February 17, 2014
Law Schools Competing on Course Material Prices
Christine Hurt's post about the sales model of legal scholarship included a new approach for providing students with course materials:
The direct-to-student model for casebooks. I've been thinking about this since I discovered how much a new edition of the Torts book I use cost (gasp). So, currently, I can use my work time to write a casebook that is then sold to law students, including mine, who pay $200/ea, and I get $20/ea. For doing my job. (I know, others deviate from this model, including paying their own students back their royalties .) But why not just self-publish? I spend my summer coming up with my own materials (as many do for their own courses anyway) and make them free for my students online? All the cases are available on the internet, and so are all the statutes/Restatement sections/etc. The only thing missing is the commentary and the questions (which I usually skip). This could save students $1000/semester. I'm teaching a course for the first time this semester, BA II, and I put together my own materials -- cases, law review articles, public disclosure documents. It takes a lot of time, but it's not crazy. What about first-time professors? Well, I would be happy to share my materials. In fact, all the Torts professors here could combine forces. Just a thought.
I have written (here and here!) about moving to an open-source model for casebooks. But it hasn't happened yet. I think there are pretty clear reasons why: (1) casebooks provide value to professors by organizing and synthesizing complex material, and (2) professors and law schools do not have to pay the costs of those materials directly or personally.
Ian Ayers, in the op-ed cited by Christine, argued that schools should have a "textbook maintenance organization" that provides students with books as part of tuition. So I was thinking about revisiting this idea now, and adding a twist: schools could compete against each other on course material prices. Here's what one enterprising law school could do:
- Instead of having students buy their own books, have students pay the school a yearly "course materials fee," and then the school would provide them with all the books or other materials assigned for their courses.
- The school would then buy books for its students (and, in theory, negotiate a cheaper bulk rate) or pay its professors to produce their own materials for their classes.
This system would incentivize not only cheaper casebook prices, but it would also incentivize the production of course materials more specifically tailored to that set of students. So schools with a local employment base could, for example, teach the criminal law of that particular state using state-oriented materials. I think (almost) everyone wins here:
- Students would pay less overall, as the school would have an incentive to keeps its fee lower given the salience and openness of the fee. And they also might get course materials more directly targeted to their educational needs.
- Schools would get the money for course materials directly and then either pay the publishers lower prices (by negotiating) or pay their own profs to produce teaching materials.
- Profs who produce their own materials locally could get some compensation for the value they add.
- And even though it might not be "good" for them, it would incentivize casebook publishers to add more value for what they are selling, so profs continue to use them. (Ayres argues that publishers would sell more books, which is possible but seems unlikely to me.) Plus, the school would not cover supplemental materials and/or study aids, so publishers would still be able to get full value there.
Ayres argues for textbook maintenance organizations as an efficient and fair reform. But couldn't it also be grounds for competition? Schools would have to make clear that they were working hard to save their students money overall, rather than just hitting them with another fee. So one school could advertise: "Students at most schools can pay over $2000 in course materials per year. At X School of Law, we'll cover all your course materials for only $500."
The response to educational market change seems to be slow and sticky. But given the ever-increasing cost of casebooks, paired with the new incentives for schools to compete on price, some schools might find some success here if they are willing to be first-movers.
BTW: if you need more evidence about the crazy inflation of casebook prices, check out this line from Ayres's 2005 op-ed: "We're used to paying $25 for a hardcover novel, but my casebook on contracts now sells to students for $103 . . . ." The 2014 price is here.
Thursday, February 06, 2014
FIU's First Decanal Lecture on Legal Education
I was happy to welcome Dean Daniel Rodriguez (Northwestern) to FIU this week, for our First (hopefully Annual) Decanal Lecture on Legal Education, titled Innovation in legal education. The video of his lecture is after the jump.
Monday, February 03, 2014
Decanal Lecture on Legal Education
The idea behind what I hope will become an annual program is to invite a dean to the College of Law for a multi-day visit to talk to the law school community about any part of the past, present, and future of legal education. Rodriguez will do a faculty workshop on Tuesday and the lecture, entitled Innovation in legal education reform, for the FIU community on Wednesday.
Again [TV announcer voice], if you're in the Miami area on Wednesday and can make it over to the law school, the event is open to the public. I hope to post video of the lecture later this week.
Innovation in legal education reform
From Ecclesiastes 1:9, we learn that “what has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.”
Not an encouraging message to those of us who are working hard to reimagine the modern law school. But a reality check from those who would advise us that such reimagining is a fruitless endeavor. And what counts as “new” anyway? From the law school trenches, we celebrate innovation and creative rethinking of our educational structures and processes while wondering, in our private moments, whether we are creating truly novel modalities of education and professional training, are essentially reinventing the wheel, or are mostly scrambling to keep up with a rapidly changing profession and an educational world gone haywire.
I want to talk about innovation and legal education reform by focusing on innovation as an intriguing concept, and as an aspiration. What do we talk about when we talk about innovation in law schools? How are the disruptive innovations at work in the professional environment into which we are sending our students? And what are the important connections between the answers to these two questions?
Friday, January 31, 2014
Laptops, redux: Yeah, Science!
Here is a story from HuffPost about two studies by UCLA psychologists concluding that students who take notes by hand learn better than those who take notes by computer, both in short-term and longer-term learning. They found that computer users tend to engage in "mindless transcription," which gives them lots of notes, but did not learn as much, especially when testing focused on concepts rather than facts. In addition, at one point they specifically told laptop users not to simply transcribe what they were hearing, but it didn't work--the computer users were unable to stop themselves from trying to get verbatim notes.
Thursday, January 16, 2014
Stanley Fish and the Meaning of Academic Freedom
FIU Law Review will host Stanley Fish and the Meaning of Academic Freedom next Friday, January 24, 2014. This is a roundtable discussion of Fish's new book, Versions of Academic Freedom: From Professionalism to Revolution. Participants, besides Fish, are Robert Post (Yale), Larry Alexander (San Diego), and Fred Schauer (Virginia). The Review will publish the discussion, papers from the participants, and a micro-symposium on the book.
If you are in Miami, please come for what should be a great program.
Wednesday, January 08, 2014
Seeking input on "must-teach" units as I start a new version of my Sentencing Law course
I am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course. I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course .
As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years. Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.
Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring. But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate. The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.
Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester. Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics. But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.
So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course. Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.
Friday, January 03, 2014
Saturday, December 28, 2013
Concluding on a high note: student papers highlight diversity of important marijuana law and policy topics
I was eager and excited to teach a law school seminar this past term focused on marijuana law, policy and reform in part because I have come to see how many diverse and dynamic legal and policy issues are raised and impacted by states legalizing medical and recreational marijuana use. Last week, my students providing a fitting final demonstration of this reality when they turned in their final papers. Below I provide the titles of the seminar papers submitted for this course:
You’re Fired…Maybe: How the Legalization of Recreational Marijuana Will Affect Employee and Employer Relations
The Anonymous Online Black Market
The Pliant Majority: Cognizing the Attitudinal Shift Toward Marijuana Legalization in America
The War on Federalism: Battleground Medical Marijuana
Federal Sentencing in Marijuana Offenses: How Should Federal Judges Reflect the National Changes in Policy When Sentencing Marijuana Offenders?
Marijuana or Xanax: the Lesser of Two Evils
Marijuana Policy and Immigration Law: Policing Borders, Blurring Lines, and Reforming Policies
Privacy Concerns Within the Ever-growing Marijuana Industry
Responsible Smoking – A Guide to Police Powers in a Recreational-Use State
Nuestra Voz Entre La Hierba: the Latino Vote and Marijuana Reform
“Weed Here, Get Your Weed Here!”:The First Amendment and Advertising Legalized Marijuana
Keeping the Flashing Lights On: Using Civil Forfeiture to Fund Law Enforcement by [Not] Punishing Drug Offenders
Additional Revenues for the City of Detroit and State of Michigan: An Initiative for Legalized Marijuana within the City of Detroit
Legalize and Tax Marijuana: The Path to a Better Fiscal Future for Ohio
A Guide to Marijuana Reform in the Buckeye State: How and Why Ohio Should Lead America’s March Towards Marijuana Legalization
Starting a Retail Marijuana Business: Colorado or Washington?
As these paper titles highlight, students used their final papers as an opportunity to explore employment law, cyber-law and markets, public opinion trends and minority voting patterns, privacy law, federalism, the First Amendment, federal sentencing and civil forfeitures, immigration law, and health law as well as the array of tax and business issues that surround marijuana reform policies and practices. (Once I finish grading all the papers, I am planning to post some or all of them in this space if I surmise there is reader interest.)
In some future "wrap-up" posts, I hope to discuss more broadly what I thought worked best (and did not work so well) in my development of this seminar. I also want to discuss a bit why I think I should probably wait until late 2015 or early 2016 to teach a course like this again.
Cross-posted at Marijuana Law, Policy & Reform
Wednesday, December 18, 2013
Via Paul Caron. I know the rankings are the root of all evil, but they remain the coin of the realm (at least for the moment). And the recognition for FIU is always welcome.
Sunday, December 15, 2013
Learning the language of law
Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence--"failure to state a claim upon which relief can be granted," "proof sufficient to support a finding," "meet the burden of production on the non-existence of the presumed fact" . . . it goes on. (In fairness, I'm sure people can find similar examples in their own specialties).
My question is how much should that language matter, both in class discussion and on the exam? How much precision should we demand of student answers when it comes to stating the legal standards and rules and important lingo. Is it enough that the student gives us the "gist" of the standard when we understand what they mean? Or should we demand that they be precise, especially when (as with my recently completed Evidence exam) they have the rules in front of them (in which case imprecision just shows unwillingness/inability to engage with text, which is separately problematic).
For example, I gave a question with a rebuttable presumption (rear-end collision is the rear driver's fault); the plaintiff offered evidence that a rear-end collision occurred, the defendant offered testimony that he was going along with the flow of traffic when the plaintiff stopped in the middle of the road for no reason, with no cars in front or around her. One student wrote the following: "Because this is a rebuttable presumption, the defendant could offer evidence to rebut the basic facts or the presumption; he did the latter." Now, I know what the student meant (I think) from the context of the sentence and she is correct, although she did not use the proper term. At the very least, she would look really uninformed if she said this in a brief or in open court.
So should she get full credit? Or should we insist that full credit comes not only from applying the concepts, but also from stating them precisely and accurately--from using the right language.
Friday, November 08, 2013
Great jobs for green lawyers in the new green ganja legal world(?)
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?
Cross-posted at Marijuana Law, Policy and Reform
Tuesday, November 05, 2013
Exams: The Good, The Bad, and Well, You KnowI'm delighted to be back for another blogging stint; as always, thanks to Dan and the other Prawfs bosses for creating and maintaining this community. It's early November -- which I know because my exam-writing alarm clock is starting to ring in my head. So I'll begin my stint here on Prawfs by asking a question I've asked before: as a teacher or a student, what have been the best and worst exams you've written or taken, and why? I don't mean, of course, which exam you performed best on. I'd just like to invite people to share stories of exams they thought were particularly well-crafted or the reverse, and why. This is the perfect time to share these stories, since the alarm clock is probably starting to ring for every law prof out there. So let us know: what worked, what didn't, and why?
Monday, October 21, 2013
Tell me what I need to know
How would that be as an opening question in a meat market or faculty interview? Certainly out of the ordinary. But in theory it gets to the heart of things very quickly--it tests how well a candidate thinks on his feet, while also giving her control over the conversation.
Would you want to deal with a question like that as a candidate? Would you want to ask that question as a committee member/interviewer?
BTW: The idea for this question came from a colleague with extensive non-academic, real-world interviewing/hiring experience.
Wednesday, October 16, 2013
Law schools and the shutdown
Courtesy of Andrew Ferguson (UDC) is this story (registration required) on the effect of the shutdown on law schools, faculty, and students, including at UDC, the only public law school in DC. The story indicates that the school's clinics have been deemed essential. But the faculty has been talking about whether to continue teaching if/when the money runs out--are there ethical, legal, or other concerns by teaching during the shutdown?
Probably a moot point, as it appears this all will end with a whimper tonight (just in time for everyone to gather in DC for the meat market). But an thought game.
Monday, October 14, 2013
In praise of student-assembled reading lists for law school seminars
I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars. Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics. I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.
I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise. I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles).Cross-posted at SL&P
On online law reviews
Mark Tushnet shares a story and raises some questions about on-line law review supplements. I have had several great experiences with the format and am a big fan, both for myself and in offering suggestions to my colleagues. Mark raises two questions I wanted to respond to.
First, he wonders if the piece will be cited. It seems to me the answer is "as much as anything else by a high-profile author." Nowadays, people find scholarship on SSRN and Westlaw/Lexis. Most of the on-line supplements (certainly from the top-tier reviews) are published with hard-copy reviews. And authors will distribute their supplement essays through SSRN. So the articles will be seen.Second, he wonders what P&T (and, I might add, although to a lesser extent, appointments) committees will do with these. That answer has a few more moving parts. Given the length limitations at most supplements, such pieces will not alone be enough to satisfy the tenure standard at most law schools. At the same time, the existence of such journals should provide an incentive to scholars to take advantage of them and might give committees an expectation that faculty will do so; more scholarly outlets means more publication opportunities. At many schools, the statutory minimum for tenure is 3 "substantial scholarly works" (whatever that might mean) by the beginning of the sixth year--roughly an article every two years. Perhaps a committee might think reasonable productivity is one big piece and one smaller piece (such as might run in a supplement) in that time?
As for what P&T committees will do, that is going to change quickly as the make-up of those committees changes. The really old guard, especially the mythical "dead wood," may not look kindly on such placements, seeing tham as little more than glorified op-eds. But committees are increasingly populated and influenced by people who begin their academic careers within the past 10-15 years, just as these journals were coming into existence, and who are therefore comfortable with and respectful of what goes into publishing in them.
Wednesday, October 09, 2013
Tips for newly tenured professorsFrom Eric Goldman (Santa Clara). Discuss.
Thursday, October 03, 2013
2013 Faculty Hiring: Will Schools Be Looking for More This Year?
In making new faculty hires, law schools have traditionally focused scholarship and teaching, often looking specifically at a candidate's research agenda and teaching package. Most of the questions asked at those 25-minute interviews revolve around these topics. But I'm wondering if this year will be different. My hypothesis is that some schools will go beyond the traditional research-and-teaching-package questions to see what else a candidate might provide to the school. And my guess is that these questions will focus on how the candidate could help with employment outcomes and new pedadgogical directions.
These are not traditional topics for questions, and schools with higher employment and salary numbers will be likely focus on the candidate's scholarship. But at schools where students are struggling harder to find jobs, and where graduates may be looking for more practice-readiness, schools may be thinking more broadly about what a candidate can bring to the table. So -- does a candidate have a connection to the market(s) where the school's graduates are looking to work? Would she/he be able to facilitate connections between students and a new set of potential employers? Does he/she have subject-matter expertise that would lend itself to a center, not just for academic reasons but also because it would help students find jobs in the area? And some schools might be looking for profs who can teach not only the traditional doctrinal subjects but also more innovative or practice-oriented offerings. So -- would a business law prof be interested in working with an entrepreneurship clinic, lab, or externship program? Would a civ pro candidate want to work with appellate moot court teams, or help to set up a state supreme court clinic? Would the candidate consider working on a capstone course, like a ten-credit practicum, that the school is considering adopting?
There's a traditional dialogue in the hiring process, captured nicely by Christine Hurt's animated short. But I'm wondering if this year might be a little different. Hiring committees and candidates, feel free to weigh in. Will schools be looking for something different? Should they?
Wednesday, September 25, 2013
Subject matter ties
On the first day of Civil Rights, I discuss Reconstruction activity, including the Emancipation Proclamation. In honor of that, I wore a tie with the text of the Emancipation Proclamation, a fact I mentioned to the students. On the second day, students asked about the meaning of that tie; I chose it at random, which seemed to disappoint them. One even tried to find a tie that could represent action under color of law; he actually found one containing a police badge.
So my goal since then has been to match my tie to the topic of the day. Sometimes this is easy, as when I wore a tie with the U.S. Constitution when we covered "rights, privileges, or immunities secured," or one with cars when we covered Burton v. Wilmington Parking Authority. Others have been a stretch, such as the one with elephants for legislative immunity (explanation: The Republicans are in the majority in the House right now). We will see how this goes for the rest of the semester.
And if anyone has a relevant tie he would like to donate to the cause, I promise to return it in good condition.