Thursday, August 27, 2015
Get "PRACTICE READY." Get set. Go!
The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship). This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.” The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.”
Creating experiential learning opportunities for students is a great idea. But mandates that law schools produce “practice ready” graduates seem incompletely thought out. Fundamental questions about “practice ready” graduates remain and will continue to plague the system:
- What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?
- What sorts of skills, efforts, and methods are required to make a law student “practice ready”? Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
- Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
- Epistemically, how can you judge anyone’s “practice readiness” to begin with?
- Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training! For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
- Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
- And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness?
Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.
These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, “Practice Ready Graduates”: A Millenialist Fantasy”.
First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. Condlin characterizes practice readiness as today’s fad – as something without true substance or understanding. Lawyers, after all, must not just be “ready” to practice upon admission to the bar, but must be prepared for “a lifetime of professional growth and service under conditions of challenge and uncertainties.” Are we better off focusing on the long-term rather than the short-term “readiness” of our graduates? Maybe teaching students how to teach themselves in whatever varied area of law they practice now and in the future is more worthwhile than teaching any specialty-specific skill set.
Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified. Every hour spent teaching a student how to ask a question in a client interview is an hour that the student does not spend pondering the underlying values related to personal autonomy in our contract law, for example. Condlin admits that “skills instruction” is not in itself impoverishing, but points out that law schools and law students have limited time, money, and resources. There are thus significant opportunity costs from a shift in focus that prioritizes lawyering “motor skills” over thinking skills.
Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. Socializiation and disposition take longer than a semester (or two) to develop. Even a law school clinic class, which is something Condlin says comes the closest to preparing students for the reality of practice, is of limited efficacy, principally because of its short window (13 weeks, usually). Furthermore, because practice readiness depends on the type of practice, and it is simply impossible to prepare all students for all types of practice, efforts spent could be misapplied in a context where some or all students will not know in law school precisely what sort of law job they’ll eventually have. Even if you could come up with a list of the required “practice readiness” skills for all possible legal jobs, Condin asserts, that list would be too long to be achievable.
Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job. The loss of legal jobs in 2008 and beyond was not a function of lack of graduates’ practice-readiness. In spite of its implicit promise, in reality, it isn’t lack of skills training that is leaving new graduates unemployed. Condlin explains: The legal job market shifted in the early part of this century because of forces outside of it. At its core, the legal system, like many other sectors of our society, is now struggling under the twin problems of shrinking demand for labor and growing student debt. Legal jobs in particular were hit hard with the post 2007 economic downturn, client demands for lower fees, increased competition from non-law-firm service providers, and technology changes. None of these problems were caused by law school graduates’ level of skills preparedness or by law schools’ pre-2008 curricular focus. Furthermore, Condlin asserts that “[p]lacing students in jobs is principally a function of a school’s academic reputation, not its curriculum.” He points out the unfortunate reality that the massive overhaul in Washington & Lee’s third year curriculum, to emphasize practical skills over study of doctrine led to a decrease rather than an increase of their graduates’ rate of employment. (See story on this here.) Perhaps the reason a “practice ready” focus doesn’t necessarily translate into better employment is because it doesn’t really work. An ABA study recently found that although 71% of new graduates believe they have “sufficient practice skills,” only 21% of lawyers who work with them believe that this is true.
Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”
Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have. I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools. Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.” Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).
For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, “The New Normal” . Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2nd year associate or an unsupervised solo practicioner. It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way. Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads). Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.
I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools. But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice. I find it natural and effective to integrate the practice context into teaching. In a 1L Contracts class, for example, I do believe that students should read actual contracts, struggle with actual interpretation disputes, and try their hand at drafting clauses or even entire documents. In upper division courses (such as Real Estate Transactions), there are still more opportunities to use glimpses into practice as ways to give context and meaning to legal doctrines. But of course in a mere 39 hours of a law school course, there is insufficient time and no client reality – so these experiences may firm up a students foundation for practice, but that doesn’t necessarily make him or her “practice ready” (again, this all comes back to what this phrase means to begin with!).
Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice. But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.
It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice.
Monday, August 24, 2015
Clerkship hiring and changing clerkships
Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.
I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.
But I believe this is an unfortunate trend.
First, as one of my colleagues pointed out, it puts the clerk in a bad spot in a number of ways. She must choose between a clerkship and continuing at a firm where she already has put in time and effort towards advancing. The firm may not be happy about losing a person into whom it has sunk time and money, even if only for a couple of years. Although the clerkship is a theoretical positive for the firm when the person returns (especially if it is a prestigious appellate clerkship), the partners are likely to be dubious that the person is going to come back. And the benefits of having a former clerk still might not be worth the costs of being down an associate in a very different legal economy. And even if she does return to the firm, there remains a risk that some will doubt her commitment.
This interaction has several effects. First, it may affect employment at the start--perhaps the firm will avoid even hiring someone knowing there is a chance she will be applying for--and taking--a clerkship within a year or two. There also is a financial disincentive for the person--it is easier to make (relatively low) law-clerk wages for a year right out of school than to make those wages after a year or two of higher law-firm wages. It also may have a disparate effect on women, as Nielson points out. Many women know that they may be taking time off at some point (perhaps soon) for one or more parental leaves, which has already been shown to negatively affect chances for partnership. That same person is going to be less willing to take additional time away from the firm to clerk, which would further damage partnership and advancement chances.
Second, and relatedly, there is a geographical constraint. It is a lot harder to look nationally for a clerskship once you have been ensconced in the professional world of one city for two or three years and potentially put down some roots. Looking everywhere in the country made sense when the clerkship was an extension of the already-itinerant experience of law school. This is more of a concern for students at top-tier law schools, but it remains an issue. And this again has disparate gender effects--women may be less able to pick up and move to a new city for a year, having already settled some place for a place for a couple of years.
Third, using experienced clerks changes the nature of the job. A clerkship is (was?) like a post-graduate fellowship--an extension of the legal education. It was an opportunity for a newly minted lawyer to spend a short period studying at the feet of an accomplished figure in the legal world--an extraordinary research assistantship--and gaining a particular perspective on the law. She then carried that extra education into a more-permanent job (which made her more attractive to those employers).* And the longstanding practice of stacking clerkships was more of the same--it was multiple fellowships. But that changes when the judge is hiring someone with genuine practice experience and knowledge. Such a clerk, who knows more than a recent graduate, may be of greater help to the judge in chambers. But she also becomes less of a mentee or student-trainee. So the question, I guess, is what do we (systemically or institutionally) want a clerkship to be.
* I recall a Prawfs post years ago--I cannot remember who wrote it--comparing working for Dr. Gregory House to clerking for a particularly nighmarish judge.
There always have been some judges who preferred (even insisted) on hiring someone out of a prior clerkship. But as more judges move to wanting that experience in their own clerks, that initial (no-experience-required) clerkship becomes harder to come by. That is why more clerks have to go to law firms first, triggering the concerns I mentioned above.
Another change in the nature of the job is the loss of the two-year district court clerkship. These were somewhat in decline when I clerked in the late '90s/early 00s and, from what I can tell, have continued to disappear. Back then, it was becoming harder to attract people because the opportunity cost ($150k starting salary in some markets, plus a $10k-$20k clerkship bonus) was too high. Now, it would be harder to attract people because someone who is already two or three years into their time at a firm is not interested in stepping away for two years. Nor is the firm likely to allow her to leave for two years. So a district judge wanting to appeal to the broadest applicant pool is not going to require a two-year commitment. But I would not have wanted to have left my district-court clerkship after one year; I needed and wanted two to get everything I could out of the experience.**
[**] Judge Leonard Garth of the Third Circuit (who also had been a district judge) once said that the ideal clerkship length is 18 months, so the question for the judge is whether to structure her clerkships for less than the ideal or more than the ideal. Judge Garth argued that a district court should do more than the ideal, because there is enough variety to justify the extra time without too much boredom setting in. I am not sure about the ideal point, but I do believe two years on the district court were essential.
I should close by saying that all of the concerns I am raising as a professor hoping to place students might have worked against me when I was the student/new lawyer looking to clerk. I started my first clerkship (on the EDPa) after one year at a law firm in Chicago. (Although I interviewed and was hired for the clerkship while still in school--this was when judges interviewed in winter/spring 18 months before the clerkship would begin--so the judge was interviewing a current student and likely was not thinking specifically that I would be coming to chambers with a small bit of practice experience). I interviewed and was hired for my second clerkship (on the Third Circuit) while I was eight months into my first one and the judge especially liked (although did not require) that I would come to chambers from a prior clerkship.
The law firm I worked at during that pre-clerking gap year had given me the offer in the fall of my 3L year following a summer associateship. Partners were not pleased when I told them I was going to be leaving to clerk--for another city, no less--after a year and were convinced I was not coming back. Of course, I knew by that point that I wanted to teach, so I was not as rooted in Chicago or the life of practice in Chicago as other attorneys might be; moving around for a clerkshipswas just a step in what I expected would be more moving around for academia. Nor was I concerned with whether the firm would want me back when I finished clerking.*** But if my goal had been private practice in Chicago, taking that two-year clerkship (to say nothing of pursuing a second clerkship on top of it) in a different city would have made a lot less sense professionally and personally.
[***] The firm dissolved eleven months after I left, so there would have been nothing to go back to in any event.
Monday, August 17, 2015
Call for Papers: CSLSA Annual Conference Oct 9 & 10
Tuesday, August 11, 2015
Kids Today (or "I don't know about you, but I'm feeling 22")
Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself. In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month. For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.
- World/National Events Context:
- Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV. RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”). RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7. RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time. Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
- Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16. Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
- Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise). Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24. And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate. (Discuss.)
With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.
RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media. She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”).
- Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.
- Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).
- Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.
- Labor Law? For RLS, the only significant labor disputes have been professional sports-related.
- International Law? In RLS’s experience and memory:
- Prisoners have always been housed at Guantanamo Bay.
- There has never been Apartheid in South Africa.
- The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
- Hong Kong has always been part of China.
- It was Pres. George W. Bush (not his father) who sent troops to Iraq.
- The currency in Europe has always been the euro.
- Health Law? Cloning has always been a scientific reality. AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least). Adults have been debating the role that the government should have in providing public health insurance since her birth.
- Pop Culture Context: For RLS,
- It has never been a big deal to see women kissing women and men kissing men on television.
- The term “wardrobe malfunction” has been widely understood since RLS was 10.
- Ellen and Oprah have always been first-name-only TV talk show hosts.
- Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
- The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18).
RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!). RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.
As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV. If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school!
Do you feel old yet?
Or are you “Feeling 22” too?
Wednesday, July 29, 2015
For a variety of geographic and other reasons, my SEALS participation this year involved just two days of driving the 50 miles to the Boca Resort. And I will have to miss the MarkelFest! Happy Hour. I did have two random thoughts after the jump.
1) I was struck by what I thought was the rise of the discussion group and an initial sense that discussion groups now outnumber panels. It turns out there still are more panels, although the numbers are almost even (excluding the New Scholars panels), but that still reflects a pretty significant increase in the number of discussion groups. And I see the benefits of having more discussion groups--they allow us to hear from more voices about more things and create more of a conversation than a panel of often-unrelated talks. Even the one panel I did (the SCOTUS Individual Rights Review) was conducted as more of a discussion format and was, I think, a lot of fun for just that reason.
2) Kudos to SEALS on the two-sided name tags, so that the name is showing no matter which side the plastic card is facing. Nothing worse than trying to place someone but their card is flipped over.
The Virtues and Vices of Casebook Supplements
My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.
As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.
I. The Virtues of Casebook Supplements
- Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve.
- Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
- Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
- Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.
II. The Vices of Casebook Supplements
- Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
- Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
- Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment.
III. Closing Reflections
I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...
Monday, July 20, 2015
Teaching Open Source Civ Pro: My (current) Hybrid Approach
This month I am blogging about my journey to try and teach civil procedure from completely open source materials. This post is a bit of a confession -- I have not yet made it all the way to completely open source materials. After the jump, I'll outline why I'm still reliant on a book (although not a casebook), and my plans to eliminate this reliance within the next year or so.When I decided to undertake the project of teaching from my own materials, I didn't realize quite how big the project would be. I figured it wouldn't be too time consuming: after all, I was already fairly certain about what cases I like to teach, so I thought that preparing the materials would just be a matter of editing the cases, putting them in order, and adding a few notes and comments where necessary. Boy, did I underestimate how much work this would be. (Note: civil procedure is a five credit course at Brooklyn Law School where I teach, so doing this for a 3 or 4 credit course would, presumably, be slightly less time consuming).
I had a few part time research assistants do the initial work. They downloaded the text of cases, removed all hyperlinks, and all extraneous information (syllabus, extended captions, parallel citations, unnecessary string citations, etc.). I then had them take a first pass at editing the cases themselves. Each RA had copies of a few casebooks to work from, and I told them what I liked and disliked about the editing style in each book. After they edited the cases, they submitted the documents to me in "track changes" format, and I made the final edits. I have to say that this process was very instructive for me. In many cases, this was the first time in several years that I had read the full text of many of the cases that I routinely teach. This reread was refreshing and made me think very hard about the edits. It had a very big and, I think, a very positive influence on what I teach and how I teach it. But that, of course, took a good deal of time.
As it turned out, it took more or less a whole summer just to edit and format the cases and put together the statutory and rule supplement. I was able to write notes and comments for one chapter, however, they were still a bit rough and "not ready for prime time." My RAs had other full time work (work that I insist they prioritize and take seriously -- after all, that is the work that will be much more important to their careers), and I was using my summer to write an article.*
This left me with a problem: could I really teach the class entirely from cases, statutes, and rules with no other materials whatsoever? I quickly decided against this. For one thing, civil procedure (at my institution) is taught to first year students in their first semester. While I might consider teaching from cases only to upper-level students, I think that starting law school is disorienting enough without the complete "hide the ball" approach that is a stack of edited cases with no commentary. Short summaries of the history of certain doctrines, and summaries of other decisions provide a vital context for understanding many of the topics. Moreover, some topics are better taught through pure narrative and explanation rather than the "case method," such as the mechanics of service of process or the mechanics of discovery.
I decided to solve this problem by assigning my students a treatise that I had formerly ordered as a recommended book, Introduction to Civil Procedure (Rich Freer) from Aspen's student treatise series. On the syllabus I gave two different types of reading assignments from Freer: One set were the pages that are mandatory. This served as the notes and comments and contextual material that one might ordinarily get from the text book. The second set were "recommended pairings," meaning that these were the pages that the students might want to read for extra help and context to go along with the topics we studied. In my past experience teaching from a casebook, my students had frequently cited Freer as the most helpful text on their course evaluations, and it was based largely on this student endorsement that I felt comfortable assigning this text. It was already a book that I recommended highly to students and that many of them were already buying.
This, of course, means that I am far from teaching a "free" course. Currently, students must obtain the course packet, either by downloading and printing it themselves, or by buying a printed copy from the school for $20. The Freer treatise costs about $70, but is available cheaper if it is rented or bought used. While this is an improvement over a $200+ casebook and a $40+ statutory supplement (plus a $70 recommended hornbook or outline), it is certainly not free.
I have found that this worked smoothly as a matter of teaching. The students did not seem to mind switching between the two texts. In the meantime, I've been slowly writing my own interstitial materials for each unit of materials, and I'm about halfway there. My hope is to be free of the treatise by the fall of 2016 or 2017, and return to assigning the treatise (and other supplemental materials) as a recommended text.
A final note on teaching more directly from the treatise: it has enhanced class discussion. Because a student treatise will be more direct in summarizing cases, their facts, and their holdings, I have been able to use class for a more thorough discussion of reasoning, policy and doctrine. This is a modified and light form of the "flipped classroom" that has become popular as of late. I have enjoyed this innovation, and it has influenced how I've been writing the introductory material and notes for my own materials.
*Yes, I do spend my summers writing articles. It has been debated ad nauseum on this and other blogs whether this is a good or appropriate use of professors' time and compensation. Suffice it to say that I accept the world as it is: a world in which I am expected to produce scholarship and in which I enjoy doing so. It was not realistic for me to abandon scholarship wholesale for an entire summer so that I could write a casebook. But it should also be noted that I have been able to undertake this teaching project without sacrificing the ability to write altogether.
Tuesday, July 14, 2015
Teaching "Open Source" Civ Pro -- a Recap and a Revisit
A few years ago, I blogged (here and here) about my plans to teach “open source” civil procedure by using my own materials that students could access at little or no cost to them. I've now taught the course twice with my own materials, although I have not yet reached my goal of completely open source or completely costless to students (more on that later).
During my guest stint here this month, I’ll write about how that’s been going, highlighting things that have worked well and challenges that I still face. I’m looking forward to readers’ comments with suggestions for improvements and additions to my efforts. I’ll also devote a few posts to challenges inherent in teaching specific topics within civil procedure with a call for creative ways to teach some of this material.
Feel free to start posing questions or thoughts in the comments and I'll try to incorporate that in my posts over the next few weeks.
Wednesday, July 08, 2015
AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.
The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (firstname.lastname@example.org). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.
Tuesday, June 30, 2015
Strange Bedfellows #12: Closing Thoughts on The Science of Learning
This post is part of the Strange Bedfellows series.
In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together. But is it any more than a parlor game?
For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher. The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems. I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach. This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.
The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.
In Make It Stick: The Science of Successful Learning (2014), authors Peter Brown, Henry Roedinger, and Mark McDaniel describe a study that compared different methods to teach students how to identify works by different painters:
Researchers initially predicted that massed practice in identifying painters’ works (that is, studying many examples of one painter’s works before moving on to study many examples of another’s works) would best help students learn the defining characteristics of each artist’s style. Massed practice of each artist’s works, one artist at a time, would better enable students to match artworks to artists later, compared to interleaved exposure to the works of different artists. The idea was that interleaving would be too hard and confusing; students would never be able to sort out the relevant dimensions. The researchers were wrong. The commonalities among one painter’s works that the students learned through massed practice proved less useful than the differences between the works of multiple painters that the students learned through interleaving. Interleaving enabled better discrimination and produced better scores on a later test that required matching the works with their painters. The interleaving group was also better able to match painters’ names correctly to new examples of their work that the group had never viewed during the learning phase.
Similar results occurred in a study teaching people how to identify different families of birds, how to hit different kinds of pitches, and how to solve different kinds of math problems. These tasks strike me as similar to what we expect law students to do: transfer the knowledge gained through study of past cases to help identify, categorize, and resolve issues when they arise in previously unseen circumstances.
However, the studies showing the power of interleaving also reveal a cognitive illusion: students who learn interleaved material routinely underestimate their progress when compared to the silo method. This is largely because the advantages of interleaving tend to reveal themselves slightly later in time. From Make It Stick:
The learning from interleaved practice feels slower than learning from massed practice. Teachers and students sense the difference. They can see that their grasp of each element is coming more slowly, and the compensating long-term advantage is not apparent to them. As a result, interleaving is unpopular and seldom used. Teachers dislike it because it feels sluggish. Students find it confusing: they’re just starting to get a handle on new material and don’t feel on top of it yet when they are forced to switch. But the research shows unequivocally that mastery and long-term retention and are much better if you interleave practice than if you mass it.
In my experience, students actually do not dislike the type of interleaving described in these blog posts and in my casebook, so long I am transparent with them about the logic. A few months into the semester they can feel the benefits of better comprehension and retention as they solve problems across silos. By the end of a semester, they know they are further ahead than they would have been, despite the initial feeling of unfamiliarity.
One advantage of interleaving is that it forces some delays and spreads given material over a larger stretch of time. Instead of studying everything about the Commerce Clause in a one week silo, it is studied a bit at a time over several weeks or months. Repeated work with a topic over time, with enough lapse between exposures for a little forgetting to occur, improves a student’s ability to later retrieve and apply the knowledge. This passage from Make It Stick describes some of the research:
For a vivid example [of the benefits of spacing out lessons] consider this study of thirty-eight surgical residents. They took a series of four short lessons in microsurgery: how to reattach tiny vessels. Each lesson included some instruction followed by some practice. Half the docs completed all four lessons in a single day. … The others completed the same four lessons but with a week’s interval between them.
In a test given a month after the last lesson, those whose lessons had been spaced a week apart outperformed their colleagues in all areas—elapsed time to complete a surgery, number of hand movements, and success at reattaching the severed, pulsating aortas of live rats. The difference in performance between the two groups was impressive. The residents who had taken all four sessions in a single day not only scored lower on all measures, but 16 percent of them damaged the rats’ vessels beyond repair and were unable complete their surgeries.
Why is spaced practice more effective than massed practice? It appears that embedding new learning in long-term memory requires a process of consolidation, in which memory traces (the brain’s representations of the new learning) are strengthened, given meaning, and connected to prior knowledge—a process that unfolds over hours and may take several days. Rapid-fire practice leans on short-term memory. Durable learning, however, requires time for mental rehearsal and the other processes of consolidation. Hence, spaced practice works better. The increased effort required to retrieve the learning after a little forgetting has the effect of retriggering consolidation, further strengthening memory.
In addition to Make It Stick, interested readers can consult two free online books about the science of learning:
- Susan Ambrose et al., How Learning Works: Seven Research-Based Principles for Smart Teaching (2010)
- Victor Benassi et al., Applying Science of Learning in Education: Infusing Psychological Science Into The Curriculum (2014)
Monday, June 29, 2015
The Most Dangerous Precedent (or, A Silly Extravagance)
In today’s concurrence to Glossip v. Gross, Justice Scalia identifies a precedent that “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”
The villain is Trop v. Dulles, 356 U.S. 86 (1958), which held that it was unconstitutional to strip a native-born American of his 14th-Amendment-provided citizenship as punishment for briefly deserting his military post while serving in Morocco in 1944. (“He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base.”) The mischief arises from a passage frequently quoted from Chief Justice Warren’s plurality to the effect that the Cruel and Unusual Punishment Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Let’s leave aside that the Trop language is a tolerable paraphrase of Weems v. United States, 217 U.S. 349 (1910), which rejected an originalist approach to the Eighth Amendment to hold that fifteen years of hard labor for falsifying a public document was unconstitutional. Has Trop caused more mischief “to our society” than any other case that Justice Scalia can think of? Even if you disagree with the Trop language, at worst it means that a handful of persons can successfully challenge an extraordinary criminal sentence, and that a larger handful can make colorable but unsuccessful challenges to theirs. This is worse for society than any other case that the justice has decried? Than the decisions mandating a right to abortion, to sodomy, to same-sex marriage, or to coeducation at the Virginia Military Institute? No, society is most harmed by jurisprudence that prevents the government from getting as close as it possibly can to the very edge of cruel and unusual punishment.
In a post from last week, I argued that some fire-breathing dissents can be worth teaching in an introductory Con Law class. But now that Justice Scalia has declared, in his Obergefell dissent, that one should expect “separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression,” I need to add a note of caution. A silly extravagance like the overblown attack on Trop v. Dulles can teach students lessons that I would prefer not to impart: that it’s more important to sound good than to be correct (long live truthiness); that consistency is the hobgoblin of small minds; that picking your battles is for suckers; and that once you’ve risen to a prominent place in your profession, nobody can stop you from phoning it in. These lessons may have bits of truth to them, but I’d rather focus on others.
(Apologies for shooting fish in a barrel, but since we're talking about the quality of legal prose...)
Strange Bedfellows #11: Subsequent History Surprises
This post is part of the Strange Bedfellows series.
Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.
It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.
But I confess that I have not had the stomach to tell my students about some of them. Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?
Cooper v. Aaron
The issue in Cooper was whether the Little Rock School District could postpone further compliance with a court-approved desegregation plan. The tumultuous experience with the Little Rock Nine during the 1957-58 academic year involved so much “chaos, bedlam and turmoil” (in the words of the trial court that granted a postponement in Cooper) to justify a cooling-off period. SCOTUS unanimously disagreed. Desegregation must proceed as previously scheduled for 1958-59, and Governor Faubus and the segregationist legislature must get nowhere with their noises about not being bound by Brown v. Board of Education. State obedience to SCOTUS’s interpretations of the US Constitution is “indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us.” Score one for the federal judiciary.
Except that the desegregation plan did not proceed in the 1958-59 school year. Instead, the legislature authorized the governor to shut down any school if “an efficient educational system cannot be maintained because of integration of the races.” Using this power, the governor shuttered the four Little Rock high schools that were scheduled to desegregate, and the Arkansas Supreme Court upheld the order. Garrett v. Faubus, 230 Ark. 445 (1959). The postponement that Cooper refused to authorize occurred anyway.
The end came not through direct enforcement of Cooper, but through the political process. After a year without high schools, Little Rock began to rethink its commitment to segregation now that white families were personally experiencing the costs of maintaining it. In early 1959, an extreme segregationist who had joined the school board was removed from office through a recall election. The Little Rock Chamber of Commerce issued a statement urging the District to reopen its schools because continuing the controversy would be bad for business. The four closed high schools reopened in fall of 1959, and the desegregation plan slowly resumed.
This political process was no doubt affected by Cooper, but teaching Cooper as the end of the story paints a misleading picture. With its surprising subsequent history taught as part of the case, Cooper works better as a demonstration of how complex the constitutional system can be, rather than as a demonstration of the supremacy of judicial interpretation. As a result, Cooper strikes me as a case worth teaching with its subsequent history, or not at all. It may well be worth it for the next few years, since a potentially significant story will be whether Obergefell (and perhaps the Obamacare cases) end up generating political backlash comparable to that following Brown.
Palmore v. Sidoti
By contrast, I have not had the heart to use Palmore v. Sidoti to teach a related lesson about the limits of litigation.
In Palmore, a Florida family court awarded custody of a girl to her father because the mother had entered into an interracial relationship. The Supreme Court found this to be an invalid consideration: even if community prejudice might make a placement with the mother and her new husband stressful for the girl, the law cannot “directly or indirectly” give effect to private biases. (That point is similar to the reasoning in Shelley v. Kraemer, as discussed in a previous post.)
SCOTUS reversed the custody ruling and remanded the matter to the Florida state courts to make a ruling untainted by invalid racial considerations, but by that time, the father had remarried within his race and moved to Texas with the daughter (as allowed by the Florida custody award). The state trial court in Tampa relinquished jurisdiction to Texas, and the decision to close out the Florida action was affirmed on appeal. 472 So.2d 843 (Fl. App. 1985). I have been told that the Texas courts decided in unpublished opinions that it would be in the best interests of the child to remain with the father.
Assume for purposes of discussion that the Texas court considered only questions of family stability and not race. Nonetheless, one may wonder if the same result would have been reached had the Florida courts not originally removed the daughter from the house for constitutionally improper reasons; stability may have favored the mother in that alternate universe. The subsequent history makes Palmore a story about the limitations of individual rights litigation, and not about its glorious aspirations. This could be a valuable discussion, but I have been loath to tell my students how all of a lawyer’s principled hard work may not ultimately benefit the client, who sometimes becomes a martyr with little to show for her Pyrrhic victory.
After Carolene Products, the Filled Milk Act has been remembered in the Con Law canon as the paradigm of a law that has a rational basis. Except that as of today, it officially doesn’t.
As explained in Geoffrey P. Miller, The True Story of Carolene Products, 1987 Sup. Ct. Rev. 397 (1987), the Act was held to be irrational in Milnot Co. v. Richardson, 350 F.Supp. 221 (S.D. Ill. 1972), a case brought by the Carolene Products Company’s successor corporation. The government did not appeal. As a result, filled milk is now readily available online. No semester is complete without me drinking a can of filled milk while my students clutch their stomachs and gasp in fear for my nutritional safety. (Your students will never forget Carolene Products after that bit of show and tell!)
It’s been a hard choice, but I have chosen to keep the demise of the Filled Milk Act a secret from my students—it would cause too much cognitive dissonance. Yet it makes a potentially valuable exploration of how constitutional judgments can change—and whether they should. In Carolene Products (the famous one), Justice Stone said that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” Evidently they did. The later invalidation of the Filled Milk Act can potentially be an interesting counterpoint to Shelby County v. Holder (2013), which similarly found that changed facts made a statute unconstitutionally irrational.
I’d be interested to know if you dare to share these subsequent histories with your students. And if there are other similar stories we should consider teaching.
Thursday, June 25, 2015
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.
Wednesday, June 24, 2015
Strange Bedfellows #9: The Frame Game
This post is part of the Strange Bedfellows series.
The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”
My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?
The frame game inevitably reveals itself in many canonical substantive due process cases, but it can also be woven into discussions of cases arising under many different doctrines.
Framing can be a battleground in equal protection cases where the court must decide which groups to compare against each other. Goesaert v. Cleary, 335 U.S. 464 (1948), sometimes taught as an example of the bad old days, involved a frame that strikes most modern students as bizarre. A Michigan statute would grant bartender’s licenses to two kinds of applicants: (a) a man or (b) a woman who is “the wife or daughter of the male owner” of a tavern.* For Justice Frankfurter, writing for the majority, the statute distinguished between two classes of women: those who are close relatives of bar owners and those who are not. The legal question was whether Michigan was “play[ing] favorites among women without rhyme or reasons.” Frankfurter tipped his hand that his choice of frame controlled the outcome, saying: “To ask whether [the state may distinguish] wives and daughters of owners of liquor places and wives and daughters of nonowners, is one of those rare instances where to state the question is in effect to answer it.” Indeed. The dissent asked a different question: could the state justify discrimination “between male and female owners of liquor establishments?” The dissenters answered that question (in the negative) in two quick paragraphs. Other, even crazier, frames are possible on the Goesaert facts. The statute discriminated against corporations who own taverns, because they are not "male owners" capable of having a "wife" or a "daughter." The state is facilitating cheaper labor for certain sole proprietors, but owners who exercise their Citizens United right to assemble in the corporate form must hire from a slightly smaller and hence more expensive all-male labor pool.
* (As noted in an earlier post, alcohol pops up Con Law teaching more often than one might expect.)
All disparate impact cases are a variation on the frame game. Did the law in Geduldig v. Aiello (1974) classify along the lines of male v. female or, as the majority thought, “pregnant women and non-pregnant persons?” Did the law in Personnel Administrator v. Feeney (1978) classify between veterans and non-veterans, or between men and women?
The frame game is inescapable in substantive due process cases where the task is to define the relevant unenumerated right. Did the terminally ill plaintiffs in Washington v. Glucksberg (1997) seek to enforce “a right to commit suicide which itself includes a right to assistance in doing so” or “the right to a humane death” or “freedom from pain and indignity”? Did the biological father in Michael H. v. Gerald D. (1989) seek “parenthood” or “parental rights [of] the natural father of a child conceived within, and born into, an extant marital union [to which he is not a party]?” And as we await a result in Obergefell v. Hodges, one can ask whether the couple in Loving v. Virginia (1967) sought the right to enter into “marriage” or into “interracial marriage.”
Finally, one may consider an often explicit choice among legal frames, with the most common nominees in individual rights cases being freedom and equality. This is likely to arise in Obergefell, which is a case about the freedom to marry and about equality among marriages. While abortion rights were framed as a matter of freedom of reproductive choice in Roe v. Wade (1973), pro-choice advocates also argue that legal abortion is necessary for women to have the same options as men. In many such cases, the frames would not necessarily generate opposite answers; this is seen in an earlier post about jury selection cases, where the right of a juror to be seated correlates with the right of the defendant to a representative jury. In these situations, students can develop the lawyering skill of choosing which frame to emphasize.
Monday, June 22, 2015
Strange Bedfellows #8: Precedential Floors and Ceilings
This post is part of the Strange Bedfellows series.
The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.
A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?
The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office. Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal. Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted. (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.) In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding. For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well. For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”In Ingraham v. Wright (1978), the plaintiff secondary school students argued that their public school district’s use of corporal punishment amounted to cruel and unusual punishment. All of the previous SCOTUS decisions decided under the Cruel and Unusual Punishment Clause involved criminal defendants objecting to their sentences or the methods by which the sentences were carried out. For the majority, the precedents represented a ceiling, indicating that the Clause would protect no more than the criminal defendant, and hence offer nothing to a public school student. For the dissenters, the precedents were a floor: they meant that, at least, cruel and unusual punishments could not be inflicted on criminal defendants, but perhaps others were protected against them as well. (Ingraham is an excellent showcase for a number of other methods of interpretation, including disagreements over the meaning of text, history, consequences, values, and constitutional structure; for this reason I have had good success starting my courses with it, and now my casebook.)
Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989).
Once you have sensitized students to how different judges can approach precedential ceilings and floors, you can then see a very similar contrast of interpretation with regard to the text of the Constitution itself, particularly with regard to enforcement of unenumerated principles. If the two precedents from Caperton are a ceiling, limited to their facts, then perhaps Bill of Rights should be read the same way: as precise enumerations of narrow principles without Griswold-style penumbras that form a subterranean rational continuum. And the same could be said for the various Art. I, §10 limitations on state commerce regulation: they mean only what they say (no duties of tonnage, no non-essential imposts on imports or exports), and do not contribute to a larger rule against state laws that impose burdens on interstate commerce in unenumerated ways.
Sure enough, one often sees exactly this combination: Justice Scalia opposes broad applications of the dormant commerce clause doctrine and substantive due process, and frequently reads precedents narrowly as well. The reverse combination is usually true for Justice Breyer.
Wednesday, June 17, 2015
Strange Bedfellows #7: Liberty Lists
This post is part of the Strange Bedfellows series.
To enumerate rights or not to enumerate them? Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected. The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Enumerate away!
The story’s not quite that simple, as the disagreement between plurality and dissent in this week’s Kerry v. Din shows. But as a teaching tool, it can be useful to compare and contrast the decision to enumerate rights in the constitution with the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom. These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.
Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty. The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).The most famous early liberty list is Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823), a trial court opinion rendered by Justice Bushrod Washington while riding circuit. The question was whether New Jersey had violated Art. IV, section 2 by wrongly failing to extend to a citizen of another state a “privilege and immunity” available to New Jersey citizens.
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.
The majority opinion in The Slaughterhouse Cases (1872) applauded Corfield’s list, saying that the rights protected by the Art. IV Privileges And Immunities Clause embrace “nearly every civil right for the establishment and protection of which organized government is instituted.” The punch line is that the right sought in Corfield—to engage in oyster farming in state waters on equal terms with a state resident—was not fundamental, the breadth of the Corfield list notwithstanding.
Crandall v. Nevada, 73 U.S. 35 (1867), involved a state law imposing a tax on exit from the state, a law found unconstitutional because it interfered with the ability of US citizens to travel to and access federal facilities. Crandall was decided before the Fourteenth Amendment was ratified; it reached its conclusion based on general principles that Slaughterhouse called “implied guarantees of the Constitution.” Just by being a US citizen, one automatically enjoyed the Crandall rights:
[The citizen] has the right to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.
Once attention shifted to the Due Process Clause as the textual home for most of the unenumerated rights, two frequently-quoted lists appeared in majority opinions. Allgeyer v. Louisiana, 165 U.S. 578 (1897), generally viewed as the first SCOTUS case to invalidate a state statute for violating an enumerated right under a substantive due process theory, described it this way:
The “liberty” mentioned in that [Fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.
Described this way, the right reached the ability to purchase life insurance from an out-of-state company. A reformulation of the list, this time emphasizing non-economic rights, appeared in Meyer v. Nebraska, 262 U.S. 390 (1923):
While this court has not attempted to define with exactness the liberty thus guaranteed [by the Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
The right to send one’s children to a private school to learn the German language fit comfortably in this list.
An interesting contrast to the Allgeyer and Meyer liberty lists is the formula from Bolling v. Sharpe (1954), the companion to Brown v. Board of Education that used reverse incorporation to find that the Fourteenth Amendment Equal Protection Clause should be binding on the federal government. Here, the Court offered no list (only a principle), and then concluded that the asserted right fit within that principle. It is not widely remembered today, but Bolling may offer the most expansive (or is it the most circular?) definition of liberty of any SCOTUS opinion.
Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.
So who might lose under a modern application of the liberty lists? For one, the untenured college professor in Board of Regents v. Roth. After quoting the Meyer list, and citing Bolling for the proposition that “in a Constitution for a free people” the meaning of liberty “must be broad indeed,” the court proceeded to find that no liberty was implicated when the professor’s one-year contract was not renewed. For another, the alien children held in immigration detention centers in Reno v. Flores, 507 U.S. 292 (1993). They might have thought they did not need to rely on a liberty list, given the universal agreement that “freedom from bodily restraint” was protected. The majority concluded that this right was not implicated by the facts of the case—only “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.” Turns out that one isn’t on the list.
And now, in Kerry v. Din, a plurality would hold that a US citizen with a foreign spouse has no liberty interest in that spouse receiving a visa to enter the country (not even enough of a liberty interest to trigger procedural due process). Justice Scalia’s opinion for a three-justice plurality offers its own liberty list that is limited to what Lord Coke perceived within the Magna Carta. The opinion goes on to expressly rejects the entire American judicial tradition of liberty lists:
To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: "Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience" Meyer v. Nebraska (1923). But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases.
Monday, June 15, 2015
Strange Bedfellows #6: Streams of Commerce
This post is part of the Strange Bedfellows series.
Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.
These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.
During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states.
The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation. As Justice Holmes opinion said:
When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.
This ruling was only ten years after SCOTUS had ruled in United States v. E.C. Knight Co., 156 U.S. 1 (1895) that federal antitrust laws could not reach the purportedly local activity of operating a sugar refinery. The tension between the two rulings was fairly obvious. In both cases, an economic combination (monopolization in E.C. Knight, price fixing in Swift) affected customers in other states with regard to their purchase of a commodity food item, yet only one could be federally regulated. After decades of back and forth over where the “stream of commerce” began and ended, NRLB v. Jones & Laughlin Steel, 301 U.S. 1 (1937) put the entire framework to rest:
We do not find it necessary to determine whether these features of defendant’s business dispose of the asserted analogy to the “stream of commerce” cases. The instances in which that metaphor has been used are but particular, and not exclusive, illustrations of the protective power which the government invokes in support of the present act. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce.
Now consider the stream of commerce as used in modern personal jurisdiction decisions. World-Wide Volkwagen v. Woodson, 444 U.S. 286 (1980), said in widely quoted dicta: “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” The opinion did not cite to any Commerce Clause decisions, but instead to a well-known Illinois Supreme Court decision—Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961)—that did not use a riparian analogy, but noted that goods had passed from one state to another “in the course of commerce.” The image of a stream helpfully captured the idea for a jurisdictional context. If a person poured poison into a river in one state, knowing that it would be carried downstream and cause injury in another state, personal jurisdiction in the second state ought to be proper. So too for pouring injurious items (like malfunctioning automobiles or radiator parts) into the stream of commerce.
Since World-Wide Volkswagen, SCOTUS has not been able to clearly articulate when a manufacturer has a legitimate “expectation” that its goods will be purchased in the forum state, and hence whether it has been properly introduced into a stream of commerce that predictably flows there. Fractured decisions in Asahi Metal Industries v. Superior Court, 480 U.S. 102 (1987), and J. McIntyre Machinery Ltd v. Nicastro, 131 S.Ct. 2780 (2011), have left confusion about how the concept should be applied.
The stream of commerce under the Commerce Clause is not regularly taught, since it has been successfully interned. The stream of commerce remains a live topic in Civil Procedure. Some useful comparisons can nonetheless be made.
Both lines of “stream of commerce” cases involve a similar problem: when should a person’s local activity, having effects elsewhere, give rise to legal consequences outside the home state? Both also involve line-drawing problems: where should the stream of commerce be declared to begin and end? In both settings, the stream of commerce concept seems to have been introduced as a way to soften an otherwise draconian rule that prevented the government from taking action desired by the political branches. And in both settings, the concept has been an unreliable guide to deciding concrete cases. In response to the doctrinal confusion, Justice Kennedy’s plurality opinion in Nicastro sought to inter the stream of commerce metaphor, but unlike Jones & Laughlin, there was no majority willing to take that step. If Justice Kennedy’s view in Nicastro prevails, the stream of commerce concept would be banished from personal jurisdiction because a conservative court perceived that it allowed governments to do too much—contrasting with Jones & Laughlin, where the stream of commerce was be banished from the Commerce Clause because a newly liberal Court perceived that it forced government to do too little.
Thursday, June 11, 2015
Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)
This post is part of the Strange Bedfellows series.
Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage). For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed: Plyler v. Doe (1982).
Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully. The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect. Free public education for youth was sort of, but not really, a fundamental right. The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event). There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix. Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.” The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”
When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny. But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies. Yet upon reading Windsor, I felt as if I was reading Plyler 2.0.The majority in Windsor portrayed federal DOMA as a statute that sort of, but not really, shifted control over marriage policy from states to the federal government. Marriage was spoken of in grand terms, but its role as a fundamental right was not really the basis of the opinion. The opinion implied that discrimination on the basis of sexual orientation was objectionable, but not really suspect. These various sort-of considerations allowed the majority to conclude that the statute was motivated by animus, obviating the need to undertake the usual examination of legislative means and ends. The dissenters decried the result and also criticized the majority for offering “rootless and shifting” justifications: for coloring outside the lines.
Time will tell if Windsor heralds a revival of Plyler’s approach to equal protection. If it is not, then Plyler remains one of the one-offs among the canonical Con Law cases—good teaching decisions whose results are in no real danger of being overruled, but whose reasoning never shaped the mainstream. The most prominent of the one-off decisions is Shelley v. Kraemer, which held that judicial enforcement of racially restrictive real estate covenants violates equal protection. Almost all instruction on Shelley includes discussion of why its approach to state action didn’t ultimately carry the day; not every instance of contract enforcement is treated as state action subject to the Equal Protection Clause.
For what it’s worth, Shelley makes more sense to me if viewed less as a state action decision but as a precursor to Brown v. Board of Education (if formally neutral law like “courts should enforce contracts” may violate the Equal Protection Clause, then so may a formally neutral segregation law) and Palmore v. Sidoti (1984) (the child custody case most often quoted for the notion that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”). Viewed in that frame, Shelley is not the one-off that its reputation suggests.
I’d be interested to hear other nominees for one-off decisions, whose reasoning we are unlikely to see again, but that are nonetheless part of the current Con Law canon. My other suggestion is the Spending Clause holding from NFIB v. Sebelius.
Tuesday, June 09, 2015
Strange Bedfellows #4: Jury Selection All Over The Place
This post is part of the Strange Bedfellows series.
Jury selection appears often in the Con Law canon. The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool. Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool. Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses. Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine. More recently, the first US Court of Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications. SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).
These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course. Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.
Trial by jury is one of the few individual rights enumerated in the original constitution (in Art III, §2), and then reiterated and expanded in the 6th and 7th Amendments. Strauder considered jury service so important that it described ineligibility in terms usually associated with the badges and incidents of slavery: statutory exclusion from the jury pool “is practically a brand on them, affixed by the law, an assertion of their inferiority, and a stimulant to racial prejudice.”
Conversely, jury service can be seen as a badge or incident of citizenship. The jury allows ordinary citizens to control the workings of the judiciary in a way not possible for the legislative or executive branches. Although Art. III judges are not selected through popular election, the jury makes the courtroom a site of self-government in action. This deep connection between jury service and voting explains why in most jurisdictions, one is eligible for jury service only if one is eligible to be an elector (voter). Indeed, in 1887 the women in the state of Washington lost their statutory right to vote as a result of a criminal defendant’s challenge to the practice of seating women on the jury. See The History of Women’s Jury Service in Washington (2005).
Cases involving jury selection can be a useful opportunity to consider the role of chance in the law. I like to begin my Civil Procedure courses by identifying four main ways one might resolve private disputes: (a) negotiated agreement, (b) binding decision by third parties; (c) violence; and (d) chance. Our system privileges voluntary agreement; it provides a judicial system as a backstop if agreement does not emerge, in hopes of avoiding reliance on violence and chance. But just as the system cannot entirely eliminate violence (those judgments are ultimately executed through the threat of incarceration), it does not entirely eliminate chance, either. Among the main ways the luck of the draw affects litigation is in the assignment of a judge, the summoning of a jury pool, and the selection of a petit jury. In these settings, chance is tolerated, even if it might predictably result in deviations from the mean in any given case. Chance has constitutional implications as well, as seen in the majority’s reasoning in Washington v. Davis (1976). Because we allow the occasional all-white jury as a natural consequence of a jury system that involves random selection, there must obviously be no constitutional bar to facially neutral government policies with racially disparate impact.
Finally, viewing jury selection as an independent constitutional topic can help show how any one case might involve more than one individual right—and indeed, how multiple constitutional guarantees can interact with each other to create an entire ecosystem of rights. As the Batson cases recognize, jurors have a right (as well as an obligation) to serve, while litigants have a right to trial by a representative jury. The combination of these two principles were ultimately needed to overrule the holding in Hoyt, which rejected an Equal Protection Clause challenge to a statute that excused all women from jury service. Hoyt’s reversal involved two steps. The first nail in Hoyt’s coffin was Taylor v. Louisiana, 419 U.S. 522 (1975), which held that a similar law violated the Sixth Amendment right to trial by a fair cross-section of the community; this defendant-centered case effectively overruled the result in Hoyt without addressing its equal protection reasoning. The right of women to serve as jurors as a matter of equal protection was finally announced in J.E.B. v. Alabama, 511 U.S. 127 (1994), which held that an attorney’s use of peremptory strikes to eliminate women violated Batson.
Monday, June 08, 2015
Strange Bedfellows #3: Alcohol All Over The Place
This post is part of the Strange Bedfellows series.
For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.
The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).
Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching. One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam. As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia. Did you know that the 18th Amendment is the only amendment to be repealed in full? Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures? Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals? (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)
One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins.Section 1 of the Amendment repealed the 18th Amendment, returning the Constitution to its pre-prohibition state, but Section 2 seeks (somewhat inartfully) to guarantee the power of a state to stay dry if it wishes: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Does this represent no more than a federal ban on individuals violating state liquor bans (essentially constitutionalizing the similar federal statute upheld in Clark Distilling Co. v. Western Maryland Railway (1917))? Or does it mean, as Justices Brennan and O’Connor argued in their Dole dissents, that Section 2 is designed to give states broader control over alcohol policy? Under this reading, the textual references to transportation and importation connote a broader control. One can ask similar questions about the 19th Amendment: perhaps it should have been read to guarantee a wide range of equal rights for women—as argued by the majority in Adkins v. Children’s Hospital (1923) and the dissenters in West Coast Hotel v. Parrish (1937)—instead of limited to its text, as occurred in practice.
Students would readily see the pattern of the modern alcohol cases: a state relying on a 21st Amendment argument will always lose. To harmonize two arguably competing provisions of the Constitution, the Court routinely gives the 21st Amendment a narrow reading, where it essentially means that states may regulate alcohol so long as they do not violate any other provision of the constitution, be it enumerated rights (like equal protection, due process, religion, speech) or unenumerated structural concepts (like the dormant commerce clause), and subject to override by federal laws enacted under the commerce power that have preemptive effect. But must the harmonizing always come at the cost of the 21st Amendment? Take Craig v. Boren, which privileged the Equal Protection Clause over the 21st Amendment. Given that Section 2 of the 21st Amendment was enacted decades after the Equal Protection Clause—and given the canon of construction that a later, narrower enactment should control over an earlier, more general one—perhaps the harmonization should operate in the other direction, so that a state may not discriminate on the basis of sex unless it is in the course of exercising its reserved power over alcohol. That approach is legally possible, but unpalatable to our heirarchy of values. Sex equality is simply more important than alcohol regulation, and so is freedom of speech, religion, and so on. But how is the importance of a constitutional value recognized, and should that be the business of the courts?
In a unit focusing on the 21st Amendment, the 5-4 decision in Granholm v. Heald would have special pride of place, since it explains how the language of Section 2 was designed specifically to interact with the Supreme Court’s then-existing dormant commerce clause doctrine. If Granholm is taught as an example of the dormant commerce clause in a unit without a focus on alcohol, it would likely be drastically edited down to size. But the case’s clash of values—and of interpretive methodologies—breathes more freely when one thinks about Granholm as an alcohol case as well as an interstate commerce case.
Thursday, June 04, 2015
Strange Bedfellows #2: Eugenics All Over The Place
This post is part of the Strange Bedfellows series.
It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws. But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).
To best see the connections, it helps to know some of the history of intelligence testing. Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low. The two original terms were idiot and imbecile. An idiot was pre-verbal, with no more intelligence than an infant. An imbecile could use language, but had the intelligence only of a pre-pubescent child. Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid. They might be good for factory labor, but they tended to be "immoral" and prone to "criminality." These were the morons. When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons. And she wasn’t one of those either. See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985). The blanket category for idiots, imbeciles, and morons was feeble-minded.
The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today. Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test. Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command. The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings. Their alarming conclusion: the United States was “a nation of morons.”
Their conclusions were based on draftees’ responses to questions like these:
The Orpington is a kind of:
An air-cooled engine is used in the:
Why is beef better food than cabbage? Because
A. it tastes better
B. it is more nourishing
C. it is harder to obtain
Researchers at the time did not recognize that their questions tested culture, not native intelligence. An extremely bright draftee raised in poverty on a farm in the 1910s might be forgiven for not poring over the advertising copy for cars he could never afford and committing their features and brand names to memory. Yet many were convinced that the nation would be better off if we could extirpate from future generations the morons who failed this and similar tests.
The nation’s flirtation with eugenics appears fleetingly on the surface of Cleburne and Loving. In Cleburne, a city denied a zoning variance to a group home that fit within the city code’s definition of a “hospital for the insane or feeble-minded.” As Justice Marshall’s carefully-researched dissent explained, this term was drawn from a Dallas zoning ordinance from 1929, during the thick of the eugenics movement. 473 U.S. at 467 n. 19. The opinion in Loving indicates that Virginia’s then-existing statutory ban on interracial marriage was found in the Racial Integrity Act of 1924, a law “passed during the period of extreme nativism which followed the end of the First World War.” The eugenic sterilization law upheld in Buck was passed by the Virginia legislature during the same legislative session, and for the same purpose: to ensure that future generations of Virginians would fit the current generation’s vision of genetic adequacy.
The connection to eugenics appears nowhere on the surface of Washington v. Davis, but to my mind it is equally strong. That case challenged the Washington DC police force’s reliance on Civil Service Test 21 as part of its application process, even though the test was not validated to measure competence as a police officer and had disparate impact on the basis of race. The opinion does not describe Test 21 in any detail. My casebook includes some of the questions, which bear an obvious similarity to the WWI intelligence tests:
Of the following reasons, the one that best explains the continued sale of records in spite of the popularity of the radio is that the:
A) records make available the particular selections desired when they are desired
B) appreciation of records is more widespread than appreciation of radio
C) collection of records provides an interesting hobby
D) newest records are almost unbreakable
E) sound effect of records is superior to that of the radio.
Laws restricting hunting to certain regions and to a specific time of the year were passed chiefly to:
A) prevent people from endangering their lives by hunting
B) keep our forests more beautiful
C) raise funds from the sale of hunting licenses
D) prevent complete destruction of certain kinds of animals
E) preserve certain game for eating purposes
PROMONTORY means most nearly:
Such questions are about as well-suited for the task of selecting police officers as the question about the Orpington (it’s a kind of chicken) was suited for selecting military officers. Next time you get pulled over by the highway patrol, be sure to use “promontory” in a sentence; the officer will sense a kinship and let you off with a warning. Although Test 21 was never used as a tool for shaping genetics, the DC Police Department shared a eugenicist’s assumption that a unitary form of intelligence can be detected and precisely ranked as a basis for making important life decisions.
Scores on employment tests also appear in the facts of Griggs v. Duke Power (1971), Personnel Administrator v. Feeney (1979) and Ricci v. DeStefano (2009), but the opinions do not describe the questions asked. If anyone knows the contents of those tests, please share them!
Wednesday, June 03, 2015
Strange Bedfellows #1: Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette
This post is part of the Strange Bedfellows series.
For those accustomed to the silo method, this collection of cases will seem really weird. “Barnette is a First Amendment case! Skinner is a fundamental rights case! Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny. Do some types of cases deserve more intense judicial review than others?
In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine). Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases. Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.
Reading Skinner (1942), the Internment Cases (1943 and 1944), and Barnette (1943) as part of this same question helps make sense of the choices made in those decisions. Barnette, in particular, loses much of its power if it is saved purely for a First Amendment discussion. The bulk of Justice Jackson’s opinion is devoted not to First Amendment reasoning, but to the propriety of the Court ever enforcing individual rights. In stirring language, the majority concluded that judges were required to enforce the bill of rights vigorously. Justice Frankfurter’s dissent is premised on the notion that the Constitution does not award the Supreme Court “greater veto power when dealing with one phase of ‘liberty’ than with another.” It's a case about judicial review that only happens to involve freedom of speech and religion.
Skinner (a eugenic sterilization case) is the first appearance of the term “strict scrutiny” and hence is a natural for any exploration of the rise of different levels of scrutiny. The debate between the majority’s choice of an equal protection framework and the concurrence’s preference for a due process framework can be explained in part because the majority wanted to apply a stricter scrutiny, and felt that the Equal Protection Clause, rather than the Due Process Clause, made it possible.
My casebook also includes the Japanese Internment cases as part of this debate. In Hirabayashi (upholding a curfew applicable to persons of Japanese ancestry), the Court expressly looked only for a rational basis behind the law. Korematsu, a year later, expressly said that racial classifications are “immediately suspect” and subject to “most rigid scrutiny.” That decision is widely viewed as a misapplication of strict scrutiny, but its choice of that frame was momentous.
In my experience, students make the connections quite readily. The interleaving of multiple doctrines (speech, due process, equal protection) as a way to explore a larger legal concept (levels of scrutiny) poses no problems. In particular, it does not harm their later ability to properly cite the right case for the right principle in an exam. Given that these cases all arose in the same historical time frame, there are huge benefits in combining them into a single unit.
Guest Blogging: Strange Bedfellows
Thanks to the PrawfsBlawg for welcoming me as a guest for June 2015!
Early summer is a good time to think broadly about how we structure the courses we teach, before the daily and weekly deadlines start to constrain our choices. In that spirit, I will devote this month’s guest posts to the theme of Strange Bedfellows in the Constitutional Law Curriculum: cases that are not ordinarily taught together, but could be.
For many courses that rely on the case method, case selection can be a major outlet for a teacher’s creativity. When teaching, say, the intentional tort of battery or the proper operation of Rule 11, one can find good vehicles from literally thousands of cases from dozens of jurisdictions. This is less of an option for US Constitutional Law, which by its nature largely devoted to teaching a single text interpreted through a canon of famous (and infamous) cases. If a Con Law teacher isn’t entirely happy with the facts or reasoning of Brown v. Board of Education as a teaching vehicle, it can’t simply be replaced with another opinion that better matches the teacher’s pedagogical goals.
The major creative choice in this course is to decide which relationships to emphasize among a basically fixed set of cases. The usual approach structures the course into a series of doctrinal silos—e.g., begin with judicial review, then move to powers of Congress explored one at a time, then individual rights explored one at a time—with the cases assigned to the best-fitting silo. Among the problems with this approach is that almost all of the important Constitutional Law cases involve more than one silo. US v. Windsor (the DOMA case) is about Congress’s power over marriage and about fundamental rights and about equality and about the proper role of the judiciary and about methods of constitutional interpretation. If we reduce our reliance on the silos, a case like Windsor (and virtually any other really important canonical case) contains many opportunities for comparison among cases that aren’t ordinarily conceptualized together.
The inspiration for this blogging project came while working on my new casebook, An Integrated Approach to Constitutional Law (out now! don’t delay!). The writing process made me realize that I am by nature a lumper, not a splitter. I hope you will enjoy reading about some differently-structured lumps.
[To see the various posts that make up the series, click on the "Teaching Law" link below, and then scan the posts from June 2015.]
Saturday, May 30, 2015
This essay explains why PowerPoint should be banned and then killed, using PowerPoint slides to illustrate. I especially like the mocking "PowerPoint Karaoke" shows.
My experience at a conference last week leads me to one more thought: If the audience could follow and understand what you are talking about even without the PowerPoint, then you do not need it and should ditch it.I was the third paper on a three-person panel. I was presenting my empirical study of the infield fly rule, which includes a number of tables, a photograph, and several charts marking the location of batted balls. The talk would be utterly incomprehensible without the slides (it may not be comprehensible with them, but that is another story). I cannot talk about the conclusions to draw from the location of a batted ball unless people can see where the batted ball is; I cannot talk about five seasons worth of data in four different game situations without the audience being able to look at the numbers in a chart.
Unfortunately, the projector was not working initially. The second presenter still managed to get through the talk perfectly clearly, which may prove the point. The moderator whispered that I should "do my best" without the slides, although I cannot imagine what that would have entailed. But the moderator thought it was possible, which shows that most PP is supplemental to the talk at best, unnecessary at worst, and likely little more than extraneous in the main run of cases.
Fortunately, they managed to get things working right before I was to start, so I only had to deal with the threat of the other great risk of using technology--that likelihood that it will not work.
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.
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.
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?
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.)
SEALS: Prospective Law Professors Workshop
The Southeastern Association of Law Schools (SEALS) is pleased to once again offer its Prospective Law Professors Workshop as part of its annual meeting. This two-day workshop is for those seeking law teaching jobs in Fall 2015. The Prospective Law Professors Workshop will run on Tuesday, July 28, and Wednesday, July 29, at the Boca Raton Resort & Club. The workshop will include practice interviews, practice jobtalks, guidance on drafting CVs and FAR forms, and several panel discussions geared toward prospective law professors. There is no supplemental fee to participate. Participants in the workshop need only pay the standard SEALS registration fee. The number of participants will be limited.
For more information on the program, including how to apply, please visit our website at http://sealslawschools.org/seals-prospective-law-professors-workshop/
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.
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?
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.
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.
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.
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.
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).
Wednesday, February 11, 2015
Introducing Skills Training in the Doctrinal Classroom: An Overview and a New Coursebook
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.
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.
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.
Monday, January 26, 2015
Submission angsting: Spring 2015
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.
Thursday, January 15, 2015
Fair Grading in a World of Curves? Concepts and an Algorithm...
Tuesday, December 30, 2014
With 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?
Monday, December 29, 2014
Going to the Dogs
It 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?
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.
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?
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.
Monday, December 22, 2014
The Dating Game
Dating 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?
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!
Thursday, December 18, 2014
Unlikely Holiday Films
One 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?
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).
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.
* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.
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.