Wednesday, April 22, 2015

CFP: Eighth Junior Faculty Federal Courts Workshop

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

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

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

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

Please send abstracts to Please contact Seth Davis with questions.

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

Sunday, April 19, 2015

Lateral hires and PrawfsBlawg

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

Congratulations and good luck to all.

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

Monday, March 23, 2015


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Any thoughts or suggestions?

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

Friday, March 13, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEALS: Prospective Law Professors Workshop

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

For more information on the program, including how to apply, please visit our website at

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

Thursday, March 12, 2015

Crawl, walk, run

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

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

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

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

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

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

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

Wednesday, March 11, 2015

Teaching the importance of independent problem solving

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

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

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

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

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

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

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

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

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

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

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

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

Friday, March 06, 2015

Erwin Chemerinsky at FIU

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



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

Thursday, March 05, 2015

Teaching professionalism -- my starting point

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

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

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

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

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

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

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

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

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

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


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

Wednesday, March 04, 2015

Experiencing practical education

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

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

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

Friday, February 13, 2015


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

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

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

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

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

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

Thursday, February 12, 2015

LSAC Report on Best Practices

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

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

Wednesday, February 11, 2015

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

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

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

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

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

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

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

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

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

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

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

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



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

Monday, February 02, 2015


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

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

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

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

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

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


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

To be continued.

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

Friday, January 30, 2015

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

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

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

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

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

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

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

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

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

Monday, January 26, 2015

Submission angsting: Spring 2015

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

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

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

Posted by Howard Wasserman on January 26, 2015 at 09:31 AM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (1480)

Thursday, January 15, 2015

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

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

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

Tuesday, December 30, 2014

Bar None

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

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

Monday, December 29, 2014

Going to the Dogs

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

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

Have Law Students Become Worse Students in Recent Years?

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

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

Are they doing worse while in school as well?

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, December 27, 2014

Finding what is emotionally charged

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

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

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

Tuesday, December 23, 2014

Teaching emotionally charged subjects, ctd.

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

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

Monday, December 22, 2014

The Dating Game

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

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

Friday, December 19, 2014

Civ. Pro. is the New Black

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

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

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

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

Thursday, December 18, 2014

Unlikely Holiday Films

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

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

The '60s, ctd.

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

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

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

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

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

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

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

Civil Procedure "Creativity" Extra Credit

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

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


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


Civ. Pro. Cartoon (Ashley Angello):

Angello Cartoon

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

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

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

3. The outlines were made so no one need cram

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

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

6. While visions of A pluses danced in their heads

7. And everyone still wearing their thinking cap

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

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

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

11. Where district courts have initial jurisdiction

12. All related state claims in the action

13. Give district courts supplemental jurisdiction

14. United Mine Workers of America v. Gibbs

15. Clarified when a district court does have dibs:

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

17. From a common nucleus of operative fact

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

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

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

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

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

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

24. Now lets recite 1367 in all:

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

26. Supplemental claims are in if sufficiently related;

27. If a claim is based just on diversity

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

29. There’s no jurisdiction for certain defendants

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

31. This rule extends to plaintiffs on occasion–

32. 19 and 24 may have no relation

33. But now there’s another exception afoot:

34. Supplemental claims can still be caput!

35. There are four situations in which to apply;

36. It can make district courts seem very sly

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

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

39. If the secondary claim is too much to bear

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

41. If the district court has dismissed all other claims

42. The secondary cause can go down in flames;

43. The final reason a district court can decline

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

45. In exceptional circumstances a court can refuse,

46. Their supplemental jurisdiction in this case to use

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

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

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

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

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

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

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

54. And nary a problem which you must skip.

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

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


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

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

Over many concepts and cases of forgotten lore—

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

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

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

        Hopefully this time and none more.”

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

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

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

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

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

        Nameless here for evermore.

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

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

Desolate the ideas of Pennoyer, deserted lands—

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

        Quoth the Jurisdiction “Nevermore.”

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

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

An unrelated and isolated and infrequent contact is unconstitutional!

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

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

        Quoth the Jurisdiction “Nevermore.”

And Jurisdiction, never flitting, still needed, still needed

In every case or otherwise not constitutional

And first look for minimum contacts,

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


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

New Law Teachers' Workshop at SEALS

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

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

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

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


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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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

Wednesday, December 17, 2014

The '60s

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

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

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

The Price is Right

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

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

Suk, "The Trouble with Teaching Rape Law"

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

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

Tuesday, December 16, 2014

Let’s Make a Deal

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

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

Sunday, December 14, 2014

Promissory estoppel in emotionally charged contexts

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

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

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

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

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

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

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

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

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

Friday, December 12, 2014

Much ado?

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

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

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

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

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

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

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

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

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (24)

Thursday, December 11, 2014

Selling Law

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

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

Tuesday, December 09, 2014

Who Would Hire Kingsfield?

KingsfieldOver the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty.  It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set.  With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers?  Are seasoned lawyers wasting their time by going on the market?  If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?

Posted by Kelly Anders on December 9, 2014 at 01:28 PM in Entry Level Hiring Report, Getting a Job on the Law Teaching Market, Life of Law Schools, Teaching Law | Permalink | Comments (35)

Faculty Teaching Loads

This semester I am serving on an Ad Hoc Committee to consider the University of Kentucky's teaching loads.  Specifically, we are looking at whether there is a disparity in how much each of us teach.

To that end, it would be helpful to hear what other schools do to allocate teaching resource.  In the comments, would you be kind enough to share whether your teaching loads are based on:

-Courses taught

-Credit hours taught

-Student contact hours (credit hours times number of students)

-Something else

I'll start:  at the University of Kentucky, each faculty member generally teaches two courses per semester, regardless of credit hours or student contact hours.


Posted by Josh Douglas on December 9, 2014 at 10:44 AM in Life of Law Schools, Teaching Law | Permalink | Comments (9)

Thursday, December 04, 2014

Tone Deaf (or Deft)?

Sweet N LowI wonder if fledgling law students still watch films like “The Paper Chase” to see what to expect from the law school experience.  Certainly, there are more modern examples, but all tend to include frightening faculty who, these days, might be viewed as uncivil, particularly with respect to their tones, mannerisms, and treatment of students.  Sometimes, these images have their very real counterparts.  I have known of actual professors who prided themselves on mirroring Professor Kingsfield.  To be sure, the Soccratic method has its place, but I sometimes wonder whether students learn to treat words and questions as weapons in law school, or, conversely, whether law school may attract those who like to argue.

With recent discussions of the importance of civility within the practice of law, just where (if anywhere) can anything but the sweetest of tones be inserted?  Are lawyers allowed to raise their voices and argue fervently anymore, or are we instead expected to immerse all professional disagreements in a bath of saccharine pleasantry that appears insincere in spite of its veiled civility? Where is the balance between civility and healthy (but heated) debate? 

Posted by Kelly Anders on December 4, 2014 at 04:14 PM in Deliberation and voices, Teaching Law | Permalink | Comments (1)

Tuesday, December 02, 2014

Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors

Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time.  During the election season I published a few Op-Eds on various issues involving the electoral process.  Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press."  Why do some professors welcome media inquiries or write Op-Eds?  And what value should our schools give to that activity?

In my view, there are several benefits to using the popular press to share our expertise.  Of course, there's the inherent "wow" factor in seeing one's name in a major publication.  But that's purely self-serving.  I think there more signfiicant instutitional and prudential considerations for being quoted or writing an Op-Ed.

First, it brings publicity to one's law school.  Especially given that I teach at a public institution, I believe it is my duty to explain complex election law problems to the general public.  It provides institutional goodwill, giving the state's taxpayers some additional value for employing me.

Second, it helps expose more people to my work.  In an age when judges and others question the value of legal scholarship, using the popular press shows the world how scholarship relates to the "real world" and can have an actual impact.

Third, I think it makes me a better scholar.  When I have to distill a concept from a law review article into a quote or Op-Ed, it inherently makes me refine and shape the overall argument.  

Fourth, it assists my teaching.  Law students are generally not "experts," and one goal of classroom instruction is to explain complex topics in easy-to-understand ways.  The more we practice this technique, whether in the classroom or in the media, the better we are at what is often a very difficult task.

But this discussion raising an intriguing question: what value should this kind of activity have in our assessments?  It's not obviously teaching, scholarship, or service, although it fits in with all three activities.  Should law schools value this activity more?  Or is the inherent excitement of being known publicly as an "expert" enough?

I'm not sure.  I engage in these activities because, as noted above, I believe it is my public duty, and because I think it makes me a better scholar and teacher.  Plus, I have tenure now, so does it matter anyway?!

Posted by Josh Douglas on December 2, 2014 at 01:45 PM in Current Affairs, Law and Politics, Teaching Law | Permalink | Comments (7)

The People’s Law School (Revisited)

Back in 2012, I posed a question about what a law school for “the people” would look like, and I specifically asked how it might compare to schools already in existence.  This question produced a fruitful discussion.  Since then, there have been many discussions throughout the legal academy about the need for law schools to produce “practice-ready lawyers,” with many recommendations for improvement that focus on nut-and-bolts skills training (as opposed to doctrinal topics).  My question today is, how far have we come since 2012, and what will it take to reach the goal of either creating law schools for the people or practice-ready lawyers, or both?

Posted by Kelly Anders on December 2, 2014 at 11:47 AM in Life of Law Schools, Teaching Law | Permalink | Comments (0)

Monday, December 01, 2014

Did You Hear the One About the Lawyer…

…who brought home a shoplifter for Christmas?  This is the premise for one of my favorite “lawyer” holiday films – “Remember the Night” (1940) – and one that almost made the final cut for my book (please pardon the plug) that employs classic films to demonstrate important lawyering skills.  What’s interesting is that, despite its warm and gentle premise, this film likely never would have been made today – or, conversely, it would now be made much differently.  This film is airing on TCM later this week. For those who show film clips in their classes, there are many here to consider using, especially the trial scenes. 

Speaking of films, I plan to spend my visit this month focusing on classic films and professionalism in the law.  I am honored to visit again in our shared effort to keep this wonderful Blog thriving in Dan’s memory.

Posted by Kelly Anders on December 1, 2014 at 02:39 PM in Culture, Film, Teaching Law | Permalink | Comments (4)

Friday, October 31, 2014

Tenure standards and recruiting

A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?

Posted by Howard Wasserman on October 31, 2014 at 10:46 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (10)

Thursday, October 30, 2014

Scholarly productivity, generational change, and empirical data

Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.

    * Who also chides me for not bringing data to bear in my original post.

    ** For what it is worth, she did not find them inversely correlated.

But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.

I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.

Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.

Posted by Howard Wasserman on October 30, 2014 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (0)

Wednesday, October 29, 2014

Kentucky Law Journal: Exclusive Submission Window

The following was forwarded by Josh Douglas at Kentucky. If you have an August piece that did not place or you want to get a head start on February:
The Kentucky Law Journal is opening an exclusive submission window for articles until November 14, 2014, at 5:00 PM EDT. All papers submitted during this window will be reviewed for publication in Volume 103, Issue 4, set for publication in Spring 2015. By submitting your article during this window, you agree to accept a publication offer, should one be extended. This window is available for articles on all topics, including articles previously submitted to the Kentucky Law Journal, though resubmission will be required. Submissions should be between 15,000 and 25,000 words with citations meeting the requirements of The Bluebook.
Submissions should be sent via email to Please include your article, a copy of your C.V. and a short abstract or cover letter.

Posted by Howard Wasserman on October 29, 2014 at 01:03 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tenure's "New Normal"

Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?

The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*

    * So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.


Posted by Howard Wasserman on October 29, 2014 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Thursday, October 23, 2014

More scholarly outlets?

Zak started a conversation and Bridget Crawford asks a follow-up: When did it become the case that one post-law school is not sufficient to make one a viable candidate and that 2-3 post-school pieces are the norm? One possibility (raised by Bridget and Glenn Cohen in the comments to Zak's post) is the rise of the VAP and the time and writing expectations it provides.

I want to connect it several changes in scholarly publishing (which may be complementary to the VAP explanation):

   1) There are more outlets for scholarship. Most schools have several journals and the number seems to be rising. The number of speciality journals has increased, including "law-and-policy" journals that publish the same type of public-law stuff that already plays well in general law reviews.

   2) The "typical" article is shorter than it was 10-15 years ago, prompted by the guidelines adopted by several of the t14 reviews. The typical piece is 15-20k words, as opposed to 25-30k. This means, I suppose, that you can write two articles in roughly the time you used to be able to write one.

   3) The rise of on-line supplements and similar outlets for shorter scholarship provides an incentive and opportunity to publish one big piece and one small piece in a year.

I am not looking at FAR forms this year, so I do not know if any of these explanations is empirically supported. But I do know that all 3 have affected how and what I write. So it makes sense that they also might affect what VAPs and others planning for the market do (especially if they are getting advice from people in roughly the same position as me).

Posted by Howard Wasserman on October 23, 2014 at 11:13 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

The Slow Writing Movement

Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.

In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.

Slow down.

I tend to think that, as a general matter, we write too much, too quickly. Sure, there are execeptions, freaky people who pound out amazing stuff at an intimidating pace. But I've always admired the folks who take their time a little, who publish more like every other year. These folks tend to workshop the junk out of their stuff. They road test, reflect, restructure, rewrite.

One impact of VAPs on entry-level hiring is that new professors come to schools with writing habits/tendencies already built in. I have always felt that I am more a scholarly creature of my VAP than my home institution. My mentors during my VAP years pushed quality over quantity. Quality and quantity aren't mutually exclusive. But there's something to be said for beating the crap out of a paper before publishing it.

There are other factors at work here, to be sure. Sometimes tenure policies specify a certain amount of output. Other times there are social norms that dictate a specific level of productivity. Tenure matters, and you have to do what it takes to get tenure. But if there is wiggle room, slow down.

Rather than cranking to submit in your first year, another option is to write and reach out. Orin is correct that faculties value productivity. But only when it's good. Rather than impress your colleagues with your speed, make your paper the absolute best it can be. Engage your colleagues, ask for advice, get their feedback on what you've done.

For the slow writing movement to take hold, however, faculties have to be on board. If newly-hired faculty members don't submit a paper in their first year, rather than whisper behind their backs about productivity, take them to lunch. Engagement is a two-way street.

Posted by Zachary Kramer on October 23, 2014 at 03:49 PM in Life of Law Schools, Teaching Law | Permalink | Comments (7)

Tuesday, October 21, 2014

Another voice on classroom technology

From Clay Shirky, a professor media studies at NYU. I especially appreciate the point that student distraction by technology is a biological inevitably; as he writes, "[h]umans are incapable of ignoring surprising new information in our visual field, an effect that is strongest when the visual cue is slightly above and beside the area we’re focusing on." This is important on two levels--one personal, one professial First, it gives lie to the "if you'd be more interesting in the classroom, they'd pay more attention" trope. Second, I can use it to explain to my wife why my eyes always move to watch sports on a tv screen in a restaurant.

Posted by Howard Wasserman on October 21, 2014 at 03:47 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tips for First-Year Law Professors

I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching.  Everyone has a different perspective, of course, and  if I go astray, I hope others will respond in the comment thread.  But if this is your first year of tenure-track law teaching, here are some tips you might consider:

1.  Send out an article in the spring submission window of your first year.   When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar.  Now they're watching you to see if their bet was correct.  Prove them right by sending out an article in the spring of your first year.   You'll benefit in lots of ways.  First, your colleagues will be very pleased to see you off to a good start.  Second, tenure will look (and be) so much easier with a new article already under your belt.  And third, it will get you into the habit of sending out an article in the spring submission window.  My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.

2.  Invite your senior colleagues out to lunch.   Your senior colleagues can be a tremendously useful source of wisdom and insight for you.  They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined.  Plus, some of them are even really nice people.  (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops.   Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're  particularly prominent scholars -- and invite them each to lunch.    Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can. 

3.  Don't assign too much reading.   It's common for new law professors to assign a lot of reading for class.  In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way.  And in many cases, more reading means more students unprepared for class.  I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark.  If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester.  Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.

4. Lay low in faculty meetings, with one possible exception.  New profs usually don't know of any long-running tensions on the faculty.  If you're lucky, the tensions will be very minor.  Still, it's best to stay away from fault lines if you can, especially before your tenure vote.  Given that, you should plan to stay out of any particularly contentious faculty debates that might come up your first year.  Go to faculty meetings and pay close attention, but mostly stay out of controversies for now.  A possible exception is entry-level appointments. Having just been through the appointments process yourself, you're particularly well-suited to weigh in on entry-level hires. You may know the candidates personally, and as a peer you'll be familiar with their accomplishments in a way that more senior faculty won't be.  So consider weighing in on entry-level appointments as your one area of participation. 

5. Consider guest-blogging, at least at some point.  This advice is probably more for second-year or third-year professors than first-year professors.  But relatively early in your academic career, consider guest-blogging for a month at a general-law-blog site like Prawfs.  Ideally, write a handful of posts connecting your scholarly work and scholarly interests to some news story or issue of interest to the broader readership.   This is a great way for your work to come to the attention of other law professors.  Sites like Prawfs are widely read by legal academics, especially among more junior scholars.  A few blog posts introducing your work is an effective and relatively easy way to promote your work within the academy.  

Posted by Orin Kerr on October 21, 2014 at 02:25 AM in Life of Law Schools, Teaching Law | Permalink | Comments (14)

Thursday, October 16, 2014

In praise of being a white belt

My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.

1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?

Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.

Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in.  In beginner-ness is there is no shame, and only potential.  

2. Practice makes you better, and practice involves failure.

As a beginner, your job is to try something you never have before or do something in a new way. You will fail in some way. But you will learn from the way that you failed and will try something different the next time. And that time, you will fail in a new way. And the process will continue.

Performance of some skill can really only be learned this way, through demonstration, attempts, failures, analysis of the failures, and new attempts. Learning how to be a lawyer is learning to perform a set of skills. Because many people come to law school thinking that they will be only gaining knowledge, i.e. memorizing rules, they aren't prepared for this reality. They don't always realize that they are learning how to perform or how to show they are engaging in the right process. And we are not always clear that the process is what we are teaching them.

3. Perseverence. Being successful means continuing to try and learning from those failures. It sucks to fail in new and exotic ways. But working through that is necessary not just to succeed in law school but to succeed in practice, too. As we are frequently reminded Grit Trumps Talent and IQ when it comes to success.

4. Perspective. In school and in practice, unlike tae kwon do, people aren't always trying to kick you in the head, at least not literally. But even when they are, you've got your equipment and learned how to evade and block those kicks. In addition, you can learn to live with a little bit of anxiety, learn to accept that for what it is and not let it paralyze you. Finally, I have lots of bruises from all of those kicks, bruises that I cover up with long sleeves and pants, so people can't see them. This helps me remember that everybody has bruises that don't show. Some of them are literal, and some are emotional. I have to be careful to recognize the potential of these bruises in my interactions with students, dealing with difficult topics in the law or aspects of their performance in school.

5. It is awesome to kick stuff and break things when you read, talk, and think for a living. Need I say more?

Posted by Marcia L. McCormick on October 16, 2014 at 11:42 AM in Life of Law Schools, Sports, Teaching Law | Permalink | Comments (2)