PrawfsBlawg

The Modified Workshop Queuing Experiment

In the interest of sharing ideas, I wanted to say a word about workshops. Over the last several years I have co-run with Einer Elhauge a workshop in health policy, biotechnology, and bioethics, where leading scholars present works in progress.

We usually have a significant number of faculty and fellows, as well as several students who enroll for credit. The session is about two hours, with 30 minutes ear marked for the presenter and the rest for Q & A. After observing our faculty workshops and other Harvard Law workshops over the years, I became dissatisfied with standard queue system, in part because tangents or ideas get lost and don’t build on one another as much as I would like. Instead I have used what I call the “modified queue,” am quite happy with it, and want to share it with you (and also get other ideas you have used that work).

Here is how it works (it sounds much harder than it is, it is pretty easy in operation):

- Raise one hand and get listed on the “regular” queue just like in most workshops.

- Raise TWO hands if you have a follow-up question to one that has been asked (or to the answer to it). I always remind people here that they will be policed by the social opprobrium of others if their “follow-up” question does not look sufficiently follow-up-esque. I then go through all the follow-ups and put them on a follow-up queue [But note that if you ask a follow-up to a follow-up you are given no additional priority on the follow-up queue, just put to the end of it]

- If you are on the “regular queue” and you ask a follow-up I “demote” you and put you to the end of the “regular queue” as it now stands, thereby making asking a follow-up question slightly costly in that it means your own question is delayed.

- Occasionally when there are too many follow-ups (say more than four or five) and/or when we are getting towards the end of our time and someone who has been patiently waiting on the regular queue has not yet got to ask their question, I will “cheat” and start putting people asking follow-up questions to the end of the regular queue. This way I ensure that follow-ups don’t swallow the whole regular queue.

I (and I think others who have attended the workshop from what I hear) have been very happy with this system. I have now started exporting it to conference sessions I chair where the format is workshop-y too. Try it out, if you care to, and let me know what you think!

Learning from exams

I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams.

Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391. The answers I saw on the exam showed that the overwhelming majority of students did not understand what the language of either provision means or how the pieces fit together. This is a bit ironic, actually, because both provisions recently were revised (§ 1391 in the Juridiction and Venue Clarification Act of 2011 and FRCP 15 substantively and as part of the Restyling Project) specifically to make them clearer. So much for that. Like Jessie's commenter, I wish I had known this at the time so I could have spent a bit more time going over it.

At some level, the misunderstanding as to both provisions reflects a general weakness in reading and understanding statutes, triggering the ongoing question of how to get students to properly read statutes when they otherwise are focused only on case law.

For example, this is how FRCP 15(a) reads:

    (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

            (A) 21 days after serving it, or

            (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

When given a question about whether an amended complaint had been properly filed, students regularly went for sub-part (A) rather than (B), probably because that comes first so they never got around to comparing the two provisions to see which one properly applied. Then they read either sub-part in isolation, ignoring the introductory paragraph and the word "within." So a large number of students wrote that the window for amending began at service and ran for 21 days, ignoring any other starting point. We talked about this at length in class and it came up in review sessions; apparently we needed to talk about it at even greater length. I may also give a short hypo to discuss in class (probably the question from this year's exam that caused all the problems) to illustrate how the rule works.

They had similar problems with § 1391 of not seeing how parts of a statute fit together. As amended, § 1391(b) lays out the three bases for venue, then § 1391(c) identifies the way "residency" is determined for purposes of § 1391(b)(1). But most students read (c) as an independent basis for determining venue, not as a definitional provision of a different section of the statute. Again, these exam answers show where I need to spend a little more time next year, since the venue discussion always feels rushed, thrown in between personal jurisdiction and Erie.

Finally, on a different but related note: To what extent do you hope that taking and reviewing exams/papers will be a learning experience for the students? And students, to what extent do you  feel as if you learn something in taking and/or reviewing the exam with the professor?

Spreading out grading

I am happy to say I have finished grading for the semester and it was as thrilling an experience as ever. I experimented for the first time with a mixed short-answer/multiple choice format for the final in Civ Pro and liked it a lot as a testing mechanism; it gave me a good sense of what students did and didn't know (I will have more to say about that in a later post). I also did not find grading it overly burdensome.

The real struggle for me was grading the take-home essay portion--that is the part that feels overwhelming. And it struck me this cycle that the source of the struggle is several-fold: 1) the sheer number of essays to read all at one time, 2) that they all say basically the same thing (things actually, since students wrote on one of 3 questions), and 3) the fairly short time window (about a week) to get them all read, which even if sufficient time, feels crunched. So while it is perhaps too soon (my grades have not yet posted and I have not yet met the deluge of questioning 1Ls), I am thinking about alternative approaches for next spring.

One thought is if and how to spread written assignments, and thus grading, over the course of the semester. So: At the end of each portion of the course (for example, Pleading or Subject Matter Jurisdiction), I would assign a group of students to write an essay on that topic, due 7-10 days later. This would mean I am grading more regularly during the semester--I would have a group of papers to read every other week or so (more frequently if I sub-divide a longer portion of the class, such as pleading, into sub-parts). But I would be reading fewer of them at once and on less of a deadline Maybe I am completely wrong, but it feels like that would be more manageable and less of a slog than reading 60 papers all saying the same thing all at once (or even reading 30 papers on one topic at the same time I'm reading 30 papers on another) with a week to turn them in while also reading and grading their in-class exams. And I also believe (again, perhaps wrongly) that I will do a better job of reading and grading with more time and fewer papers.

I see a couple of obvious drawbacks to this. One is that students might balk at the "unfairness" of having their workload at a different time than their classmates, with every student believing that her time--early in the semester, late in the semester, close to legal-writing time--is disadvantageous. But I think randomizing it might help alleviate the objection. Another is the trick of making sure I can fairly compare grades across different assignments on different topics, but I've been doing a version of that for a few years, so it is just a matter of careful problem selection. It also may be more difficult to assign two essays each semester, as I've been doing the past few years.

Does anyone do something like this? And how do you find it works? Are there other drawbacks I'm missing?

Oh, the Cases You'll Know

The faculty at Osgoode Hall Law School offer Seussian encouragement--sort of. (H/T: My colleague Jan OseiTutu)

 

Honoring Judge Jane Roth

Last Friday, the Third Circuit unveiled a portrait of Judge Jane R. Roth, which also doubled as a clerk reunion (which I, unfortunately, missed on account of travel SNAFUs at Miami's airport Friday morning). Judge Roth was appointed to the District of Delaware in 1985, elevated to the Third Circuit in 1991, and took Senior status in 2006. I clerked for her in 2000-01.

In the exchange of emails that lead up to the event, I was struck by the number of former clerks who went into teaching--by my count (and I apologize if I missed anyone--I am going by "edu" email addresses), there are 13 law professors (including GuestPrawfs Chad Oldfather and Miriam Baer), one anthropology professor who teaches in both a law school and Anthro department, and one professor of medicine. Judge Roth has had 78 total clerks (including the three clerking for her right now), so that means 75 former clerks, 15 of whom (20 %) went into teaching. This struck me as a lot, although I could be wrong. Judge Roth was never a full-time academic, so she is not necessarily a judge whom a clerk with clear academic aspirations would target (beyond being incredibly smart and a great judge). We talk a lot about feeder judges to SCOTUS; it would be interesting to identify feeder judges to the academy, particularly by separating out those judges whose clerks go on to teach without stopping off at SCOTUS (so we are not conflating SCOTUS feeders with academy feeders).

The run-up to the ceremony also reminded me that my fascination with the jurisdiction/merits divide was, if not born, certainly nurtured during this clerkship. One of my favorite cases of that tern was Powell v. Ridge, which arose out of a lawsuit alleging that the state system for funding education violated Title VI. Several state legislators intervened as defendants, then asserted legislative immunity from having to respond to discovery; when the district court denied immunity, the legislators sought to immediately appeal under the collateral order doctrine. The majority held there was no appellate jurisdiction because the immunity the legislators were asserting did not exist. Judge Roth concurred in the judgment, agreeing that the asserted immunity did not exist, but insisting (sound familiar?) that this went not to the court's appellate jurisdiction, but to the substance of the asserted defense. Instead, she argued, we had appellate jurisdiction because the asserted immunity was "legislative" (which is immediately appealable under the C/O/D), but the district court was right to reject the immunity.

Update: I received an email from one of Judge Roth's 2024-15 clerks, who hopes to go into academia. He said his teaching aspirations came up during his interview with the judge and she talked about the number of clerks who have gone into teaching. So she is aware of the trend and uses it as a selling point for the clerkship.

Spousal Hiring, Ethics, and the Theory of the Family

Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.

For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.

1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.

2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.

3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.

4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.

5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector  in its law school clinic.

So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5.  3 and 4 at least are what average people would call family relationships, so this is interesting.

By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.

One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?

What do people thing about these cases?

Teaching and Testing Law Students

I'm glad to be back for another rotation here at PrawfsBlawg. Like many of you, I've just finished up spring semester, and I'm grading exams while I think about new projects, line up my research and writing for the summer, and think about what I'd like to do differently the next time I teach.  In this post, and some future posts, I'll share some things I did differently this year, and my thoughts on whether or not they were a success. I hope you'll share your ideas in the comments: I'm always on the lookout for better ways to teach my students.

This spring, in both Contracts and Copyright, I added a graded, mid-semester memo to the course requirements. In case you don't know, the typical law school class bases the entire grade on one exam at the end of the semester, so this is a departure from the norm, although I'm not the first person to try it. In fact, I shamelessly lifted the idea (and my implimentation of it) from Michael Madison at Pittsburgh. In copyright, I put together my own closed universe of materials and wrote a problem for the students to analyze. I asked them to pitch the memo at two different levels: give the client what she needs to understand what you think she should do and why she should do it, and provide the partner with a grounding in the case law and a suggestion for whether and how to litigate the case.

I tried something similar for Contracts, although I gave the students one "shadow" graded memo as a warm-up. I graded it for them, so they could see how I approached the memo, and what I was looking for. We followed it up with a graded memo a few weeks later. For both memos, I took my material from Doug Leslie's CaseFile Method assignments for contract law. I like the CaseFile method problem sets for this purpose because they provide a narrow issue, with a closed universe of reading materials.

In both cases, my hope was that the memo would help me assess how the students comprehend and synthesize the law, without worrying that they failed the assignment because they didn't find something they should have. I'm not downplaying the importance of research skills for the practising attorney, but I feel like that is a skill better handled in a course structured toward developing those skills.

The students in Contracts really rose to the challenge. The graded memo dealt with UCC 2-207 and the "Battle of the Forms." It's tricky stuff, and I feel confident that they mastered the material better than they would have after a day in class, although there were plenty of missteps in the memos themselves.

The memos written for the Copyright class collectively underwhelmed me. It's possible the problem I constructed, which asked roughly the same question that was posed in the recent litigation over custom Batmobiles, was somehow off, but they didn't come at the problem with as much energy and care as the Contracts students. Perhaps it's a difference between 1Ls and more experienced students. It's also possible that they needed the warm-up like the one I provided my Contracts students.

Despite my concerns, I feel like the memo assignment in both classes provided a unique opportunity for students to dig into a substantive area of the law and get feedback from a scholar who has developed some expertise in that area. I'm certainly not the best "legal writing" instructor that these students could have, but my perception is that the end result is nevertheless worth the effort, both for me and for the students.

What subjects do students choose to write about?

In Fed Courts, a big chunk of the final grade is builty around a large writing assignment and oral arguments (arguing one case and judging one case). The arguments are on recent court of appeals and students are randomly assigned. For the writing portion, each student picked whatever third case she wanted (other than the ones assigned to argue or judge) and write the reviewing opinion. There were seven possible cases for 14 students--seven wrote on a Ninth Circuit case involving standing to bring a First Amendment challenge to a campus sexual-harassment policy and four wrote on a Fifth Circuit case involving ripeness of a challenge abortion-clinic regulations. Only one wrote about Hollingsworth. And no one wanted to write about the collateral order doctrine or mandamus to review pre-trial orders (imagine).

Do those selections surprise?

Sleep No More: Sleep Deprivation, Doctors, and Error or Is Sleep the Next Frontier for Public Health?

How often do you hear your students or friends or colleagues talk about operating on very little sleep for work or family reasons? In my case it is often, and depending on the setting it is sometimes stated as a complaint and sometimes as a brag (the latter especially among my friends who work for large law firms or consulting firms). To sleep 7-8 hours is becoming a “luxury” or perhaps in some eyes a waste – here I think of the adage “I will sleep when I am dead” expresses that those who need sleep are “missing out” or “wusses.” My impression, anecdotal to be sure, is that our sleep patterns are getting worse not better and that many of these bad habits (among lawyers) are learned during law school.

One profession that has dealt with these issues at the regulatory level is medicine. In July 2011, the Accreditation Council for Graduate Medical Education (ACGME) – the entity Responsible for the accreditation of post-MD medical training programs within the United States – implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. In a new article with sleep medicine expert doctors Charles A. Czeisler and Christopher P. Landrigan that just came out in the Journal of Law, Medicine, and Ethics, we examine how to make these work hour rules actually work.

As we discuss in the introduction to the article 

Over the past decade, a series of studies have found that physicians-in-training who work extended shifts (>16 hours) are at increased risk of experiencing motor vehicle crashes, needlestick injuries, and medical errors. In response to public concerns and a request from Congress, the Institute of Medicine (IOM) conducted an inquiry into the issue and concluded in 2009 that resident physicians should not work for more than 16 consecutive hours without sleep. They further recommended that the Centers for Medicare & Medicaid Services (CMS) and the Joint Commission work with the Accreditation Council for Graduate Medical Education (ACGME) to ensure effective enforcement of new work hour standards. The IOM’s concerns with enforcement stem from well-documented non-compliance with the ACGME’s 2003 work hour rules, and the ACGME’s history of non-enforcement. In a nationwide cohort study, 84% of interns were found to violate the ACGME’s 2003 standards in the year following their introduction.

Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law. I would love reactions to our proposals in the paper, but wanted to float the more general idea in this space.

 Obesity is a good example of something that through concerted action moved from the periphery to safely within the confines of public health thinking and even public health law. Is it time to do the same for sleep? Should we stop valorizing sleeping very little in our society? Should we be thinking about corporate and public policies directed to improving sleep pattern? What might that look like? One thought I have is about encouraging telecommuting to reduce commuting time, sleep rooms in offices? Of course, on the parenting sleeplessness sides many of the solutions are social support.  What about what we tell and model for our students? I try to impart to my students that extra hours spent studying well into the night will have diminishing marginal returns, but who knows if that message is imparted. I also worry that with the number of journals, moot courts, clubs, etc, we encourage our students to join at law school that we are enablers of sleeping too little and perpetuating the “superman” myth (and I do wonder about the gendered component here)... Real men don’t sleep. And then they perform badly at their jobs and get into car crashes….

- I. Glenn Cohen

Are Your Students Cheating On Your Take-Home Exam? Would You Know? What Should You Do About It?

After the well-publicized cheating through collaboration scandal at Harvard College (not the law school to be clear) I have been thinking more about whether law students routinely cheat through collaboration, whether I would know if they did in my classes, and what fears about their doing so should cause me to do in terms of my exam format.

In Civil Procedure I give an 8-hour take-home, typically with one long multi-part issue spotter (worth most of the grade), a few true/false (and explain why if false statements), and a theory question.

When I asked some of my former students I trusted to be honest to me if they had encountered cheating at Harvard Law (and specifically on my exam) they told me emphatically no, and in a back-handed compliment told me my exam was hard enough to require so much of the eight hours they would think it would be very risky to try to do this.

I certainly do not want to help people with “how-to”s on cheating, but I told these former students that if one was worried about this drawback, I could imagine telephoning a friend mid-way through, comparing issues spotted on the issue-spotter and the true/falses, and then getting back to work.

I am curious whether others have thought about these issues and what it has or has not motivated them to do. Are your students cheating on take-homes? How would you know? Unlike other kinds of cheating (like copying) this form strikes me as hard to detect: among 82 students I suspect people often cluster on the issues they spot or do not spot) Should I be thinking about moving to an in-class exam (which, I think, is for this course pedagogically less good for my purposes) to avoid it?

-I. Glenn Cohen

 

How Many Years of Famine to Follow Seven Years of Feasting for VAPs?

I was guest-blogging at Prawfsblawg seven and a half years ago when I wrote a post about trends in law professor hiring.  As that post described it, VAPs and JD / PhDs were taking over the academy.  People with a profile like mine (JD to clerkship to big law firm / government to tenure track teaching position) were becoming rarer and rarer.  Top schools were interviewing people with fellowships or PhDs, and in many cases both fellowships and PhDs.   I talked about the benefits of this shift, and encouraged candidates interested in law teaching to think about fellowships, ending my post with the words of advice: Do as I say, not as I did.

I think it is time to update that advice.

As various posts have made clear, a number of candidates on the entry level hiring market struck out this year, and they are scrambling to land other fellowships or transition back into legal practice.  I am very cognizant of the privileged position I occupy as a faculty member at an elite school.  The Bigelow Program's track record of placement into tenure track jobs is unusually good, even compared to fellowships at other elite schools, and that has always enabled the school to cherry pick aspiring academics.  Each of the five University of Chicago fellows on the teaching market this year have accepted excellent tenure track offers or are still weighing elite school tenure track offers.  But the contracting market raised anxiety levels for many of them (and for those of us who were advising them).   

Nobody knows what law professor hiring will look like seven years from now.  We can be pretty confident that next year will be a buyer's market, though.   So candidates thinking about going on the law teaching market in the next few years need to be very selective about the sort of fellowships they are willing to take.  Taking a fellowship, even at a fancy school, is risky because the professional doors a fellowship closes may be as significant as the academic doors it opens.  In a market where permanent faculty hiring is substantially constrained, the question "can this applicant develop into someone who will be hired into a tenure-track job two years from now?" has taken on increased significance among those who decide who gets hired into the best fellowship programs.

In this sort of market, those of us who are involved in hiring fellows and VAPs ought to ask ourselves at the time of hiring whether a candidate is sufficiently promising to enable us to predict with a high degree of confidence that the candidate will be able to transition into a tenure track position at the conclusion of the fellowship.  Tenure track hiring is a grave responsibility, and fellowship hiring ought to be as well. A vote of confidence from the fellowship programs that combine high hiring standards with extensive due diligence ought to entice good candidates to take the leap from practice into a fellowship. A fellowship offer that follows little vetting or minimal outreach to existing references ought to set off alarm bells for the candidate who receives it, at least if that candidate has other options for gainful employment.

In a world where promising but risk-averse candidates might still worry about taking a fellowship, schools with the resources to hire that have shied away from hiring "straight from practice" law professors in the past might need to re-calibrate their expectations so they can identify unpolished talent.  Perhaps they might even go back to reading published student notes / comments again and taking them seriously as an indication of scholarly potential (or lack thereof).  If one result is more practice experience among newly minted assistant professors, few will bemoan the trend.

In recent years, a fellowship has become a proxy for candidate quality, but that may no longer be as true a few years from now.  By then, having a fellowship on a CV from a program that isn't quite elite might merely signal some combination of commitment to the scholarly enterprise and tolerance for risk.  Decreased interest in such programs, combined with budgetary constraints, might kill off less-established fellowships.  A process that begun this year could accelerate next year.

In the short term there will be fewer tenure track positions.  In the medium term, tenure track positions may be filled by a more balanced mix of candidates with elite fellowships and no fellowships.  And for aspiring professors currently in law school, the importance of finding the right topics to write about, finding the right mentors, and finding one's voice while still on campus may become more important than ever.

 

The Moody Bluebooks

Just to show that it's not only law students who can do song parodies. The following was passed along by Lou Mulligan at Kansas: It's The Moody Bluebooks, a band of KU law faculty, performing "I'm a Gunner, So Call On Me Maybe." The performance was at the school's Pub Night, an event sponsored by the school's Women in Law that raises money for a local women's shelter. Lou didn't identify the members of the band, so best guesses are welcome.

 

 

How do you know your exam is ready?

A while back, someone asked when and how you know an article is ready to be sent out. Well, that question also can be asked about exams. I find myself reviewing and re-reviewing and re-re-reviewing my Civ Pro exam, making sure every word is precisely correct and making largely cosmetic changes (changing "this" to "that", etc.), almost certainly to the point of diminishing returns. In other words, the same thing I do in the closing stages of an article.

Crazy coaches=Professor Kingsfield?

The video of (now former) Rutgers men's basketball coach Mike Rice physically and verbally attacking his players has been widely viewed and parodied on SNL. It also has started some conversations of coaching styles then and now and of the demise (whether welcome or not) of the "bullying" coach. At some level, what Rice did was not unusual in the world of college basketball, at least historically. One of the great sports books is John Feinstein's A Season on the Brink, which followed Bob Knight and the Indiana Hoosiers for the 1985-86 season. The book described Knight berating players (his insult of choice was "pussy" rather than the anti-gay slur favored by Rice, but the principle seems the same) and on at least on occasion throwing basketballs at a player. And no one (other than Knight, who was livid about the book) batted an eye. That was just how coaches were back then. The difference with  Rice at Rutgers--besides two fewer national championships than the two Knight had won when Brink was published in 1987 (he won his third that same year)--is what we as a society now are willing to accept as appropriate behavior, especially from adults placed in control of young people and in an educational environment.

I'm thinking of this as an extreme analogy to the demise of the Professor Kingsfield-type Socratic law professor. Mike Rice is something of a basketball version of Kingsfield in the classroom; both now are perceived as bullies, intimidators, inapproriate and ineffective teachers who should be avoided and discouraged, if not removed from the classroom altogether.

At the AALS hiring conference two years ago, multiple candidates described their teaching style as "Modified Socratic," which we all took as code for "I'm challenging without being mean." Like crazy coaches, intimidating professors are no longer a wanted part of the law school experience.

Mismatch between expressed subject matter interest and actual appointments in law faculty hiring

Last week at the Faculty Lounge, Dan Filler tabulated the first and second subject matter preferences of the entry level hires reported on Sarah Lawsky's Entry Level Hiring Spreadsheet.  I've compared Prof. Filler's list of subject matter for new hires with Prof. Lawsky's earlier "hiring committees" spreadsheet, in which schools expressed interest in considering candidates in particular subject matter areas.

I calculated the difference between the number of schools that expressed interest in a particular subject area, and the number of new hires that Prof. Filler identifies as focusing on that subject area. 

If there were many more schools interested in a subject matter than hires in that area, this might indicate potential unfulfilled demand for teachers and help identify next year's "hot" areas.  The comparison might also reveal something interesting about how law schools consider subject matter in their actual hiring decisions.

Caveats are in order -- this comparison ignores lateral hires; the information here is self-reported by schools and candidates and may miss some hires; some schools expressed no subject matter preferences (even though they may have had one); some schools expressed many more subject matter interests than they had slots to fill; Prof. Filler's list only includes first and second teaching preferences, so candidates may have met subject matter preferences in their other identified listings.

The tabulation is available in spreadsheet form here and appears below.

Some observations. The biggest mismatch was in tax. Fourteen schools expressed an interest in hiring a tax teacher, but only three schools hired in that area (-11). This suggests there may be continued interest in tax next year.

The next two largest differences were for Commercial Law and Evidence. Eight schools expressed interest in hiring in each of those fields, but there were no hires in those areas on Prof. Filler's calculation. 

An explanation in both cases may be that candidates were hired to fill those teaching needs even though they had expressed other subject area preferences first/second.  Only five schools expressed an interest in hiring Civil Procedure teachers, but there were ten hires in that area (+5).  Perhaps those candidates are being reoriented towards an Evidence teaching load.  Similarly, only two schools expressed an interest in hiring contracts but there were five hires in the area (+3). Perhaps candidates interested in teaching Contracts are expected to cover related Commercial Law needs. 

In two areas -- T & E/Wills and Torts, there were a number of expressions of interest (six and five, respectively), and no hires (-6 and -5).  In Con Law, only two schools expressed interest, but there were six hires (+4).

The success of civil procedure and con law candidates even in the face of relatively lower expressed interested in those fields may be an indication of the relative strength of candidates in those subject matter areas (at least relative strength as perceived by hiring faculties).  My own school has hired in the con law or civil procedure areas in each of the last three years, and I can say that in each year there have been many more appealing candidates than we had on-campus interview slots to accommodate.

 

Laptops and book readers

A question for the laptop-banners in the audience: What do you do about book readers (Kindles, iPads, Nooks, maybe even some larger smart phones)?

In all of my classes, I assign a lot of supplemental materials (additional statutes, proposed bills, sample pleadings), which I upload to my course blog and expect students to print out and bring to class. And I teach Civil Rights entirely from unedited cases that the students are expected to bring to class. This equals a lot of paper, some burden and cost to them (paper, printer cartridges or ink, or the time of printing in the library), and lot for students to drag with them to class. So maybe it would be fair to allow those students who wished to use some reader in class (especially for all those cases in Civil Rights). I must admit to being swayed in this direction by reading that Justices Scalia and Kagan use Kindles on the bench.

So: Should I allow students to bring devices just for reading stuff? And can I do that without undercutting the no-laptop policy? Note that my laptop hatred is not about students surfing but about stenography, so I am not overly concerned (at least not at the moment) if a student who uses an iPad to read the statutes also starts looking at Facebook instead of paying attention. And can I allow readers and still ban laptops (my theory is that most students today have both, so there won't be any unfairness)?

Holes in the dueling submission systems

Redyip has again been sighted. But now, her (his? its?) semi-annual call sends us scurrying to a second main submission system (putting aside the direct-submits). And Corey Rayburn Yung (Kansas) emails Dan and me to suggest that this creates some problems; his email is reprinted in full below (with his permission):

I thought either of you might be interested in posting about a hole in the new submission system with Scholastica and Expresso. If an author receives an offer from a Scholastica journal (i.e., Cardozo, Iowa, USC, or California) and wants to use it as the basis for an expedite request to an Expresso journal, there is a problem. Most, if not all, of the Scholastica journals are no longer listed as sources of offers in Expresso. And an author no longer has the option to just type in the name of the journal that made an offer. As a result, the only option an author can choose is to that he or she did not wish to disclose the identity of the offering journal. Then the author can put the name of the journal in your subject line and body of the email.

That would be fine except for how the new Expresso system looks on the journal’s end. When viewing all expedite requests, the text and subject of the email is not visible. Instead, the journal editor will click on “Details” from the list of expedited articles which will then reveal only that the author chose not to disclose the source of the offering journal. And given that most (if not all) journals will not take expedite requests from unknown journals, the editor will simply reject the article. Until this issue is resolved, I would implore law review editors to look further at those expedite requests with no offering journal listed to see if there really is an offer from a Scholastica journal before disposing of the article based upon policy.

Has anyone else experienced this problem and/or figured out how to resolve it?

Student Humor-Civ Pro Edition

My in-semester essay for Civ Pro was to be due on the Tuesday after spring break. On Tuesday, several students filed a Complaint and served it (by another faculty member) in class; the students alleged an Eighth Amendment violation and sought an injunction giving them an extra two days to complete the essay. I submitted an Answer later that day. In class yesterday, another colleague came in as judge (complete with gavel and robe) and announced her decision from the bench (includes video).

I admit to not being thrilled to have moved the assignment. But creativity counts for a lot. It was nice to see them being very creative and funny, while also showing they are learning something (their complaint shows an OK basic level of understanding of how to structure and write a pleading) and even having some fun in law school. And as you can hear, they appreciate humor from us in response.

Clerkship Quest

is a new blog designed to allow crowd-sourcing of information on clerkship hiring (explicitly modeled on this blog's hiring threads). See if it catches on as a place to go for information and gossip about judicial hiring and the clerkship process generally.

Does Not Translate?: How to Present Your Work to Real People

Recently I've agreed to give talks on social media law issues to "real" people. For example, one of the breakfast talks I've been asked to give is aimed at "judges, city and county commissioners, business leaders and UF administrators and deans." Later, I'm giving a panel presentation on the topic to prominent women alumni of UF. My dilemma is that I want to strike just the right tone and present information at just the right level for these audiences. But I'm agonizing over some basic questions. Can I assume that every educated person has at least an idea of how social media work? What segment of the information that I know about Social Media Law and free speech would be the most interesting to these audiences, and should I just skip a rock over the surface of the most interesting cases and incidents, accompanied by catchy images?  How concerned should I be about the offensive potential of talking about the real facts of disturbing cases for a general but educated audience? As a Media Law scholar and teacher, I'm perfectly comfortable talking about the "Fuck the Draft" case or presenting slides related to the heart-wrenching cyberbullying case of Amanda Todd that contain the words "Flash titties, bitch." But can I talk about this at breakfast? If I can, do I need to give a disclaimer first? And for a general audience, do I want to emphasize the disruptive potential of social media speech, or do I have an obligation to balance that segment of the presentation with the postive aspects for free speech? And do any of you agonize over such things every time you speak to a new audience?

Anyway, translation advice is appreciated. I gave our graduation address in December, and I ended up feeling as if I'd hit the right note by orienting the address around a memorable story from history that related to the challenges of law grads today. But the days and even the minutes preceding the speech involved significant agonizing, which you'd think someone whose job involves public speaking on a daily basis wouldn't experience.

 

 

Do We Grade Typing Speed?

Grading exams is the hardest part of being a law professor. Evaluating essay exams with any precision is a challenge. And I frequently revisit what I’ve done to ensure that I’m grading in the most accurate way.

Exams are often scored as a series of points. The more a student says about the essay prompt, the more points a student earns. The more points a student earns, the higher grade she earns.

Well, that’s not quite it. The first stage, “The more a student says about the essay prompt,” comes with a caveat: the student must say something relevant, something in response to the call of the question. But that’s hasn’t stopped law students from passing along the tale that one of the most important things to law school success is typing as many words as possible.

It’s hard to read the advice given to law students, usually from one another, discussing exam-taking techniques to this effect. One is the “attack outline,” a pre-written series of answers (mostly black-letter law) that the student can vomit upon the screen when there’s any essay prompt in the general vicinity of said pre-written answer for an open-book exam. For instance, if the question is one about, say, “personal jurisdiction,” a four-paragraph regurgitation of everything about personal jurisdiction, relevant or not, will appear on the page.

So, is there any truth to word counts as a proxy for better grades? Mostly no, in my experience.

Yes, of course, the student who types more usually has more to say because she usually “gets” more. She usually spots more issues, she usually grasps nuances, she usually has a superior analysis. So, more words would mean a higher score.

But, that’s not always the case. Longer answers invite discussion of irrelevant material. Well-crafted outlines threatened to go unused if none of the essays ask about certain topics, and students find an outlet for discussion of them.  Students find themselves addressing tangential material as a prophylactic measure.

I look at my answers each year to see if I can find a trend. These are essay answers from a first-year course, the X-axis point values, the Y-axis word count. (Also, I’m deeply grateful to my colleagues Rob Anderson, who blogs at WITNESSETH, and Babette Boliek for their data-driven support.)

The answer lengths ranged from around 1200 to 3100, with a median of 2311. Scores ranged from the high 30s to over 140, with a median of 87. The red dot in the center represents both medians. (Points were later added to other graded components and converted to a grading scale.)

I ran a regression analysis, and, as you can see, the R² is only 0.31, which is fairly low, but not insignificant.

But let me slice the data one more way. The relationship is largely driven by outliers on the negative side. If I take out the five lowest scores (it’s unlikely those students performed poorly because of typing; it’s probably that they simply didn’t have as much analysis), there’s not much of a relationship at all, as the R² drops to 0.14. (For those not statistically inclined, that's pretty low.)

I note a few items. First, it was almost impossible to exceed the median score using fewer than 2000 words. That suggests some minimum threshold of analysis necessary.

Second, high scores didn’t necessarily come with wordier answers. There were answers in the range of 3000 words below the median, and answers in the range of 2200 words among the very highest scores in the class.

Third, it doesn’t necessarily mean typing speed (as opposed to word count) is unimportant. Fast typists may well type the same number of words as their peers, but have more time to think and analyze.

This, I think, is pretty consistent with the “mostly no.” Longer answers tended to have better analysis; but, it isn’t highly correlated with higher scores.

So, how about your experience?

Are You a Syllabus Maximalist, a Syllabus Minimalist, or a Syllabus Somethingelsealist?

Well, it's time to start getting ready for a new semester, and that means putting together a new syllabus or two.  I've noticed over time that my syllabi, never particularly complicated or fact-filled, have gotten simpler and simpler over the years.  Two pages at most.  The materials.  A couple lines about how students will be evaluated.  A tentative list of topics and assignments.  Nothing much if anything else.  I prefer to talk in some detail about the class at the first meeting rather than putting together a long complex document.  But in reviewing tenure cases and whatnot, I've come across all sorts of syllabi--some as simple as mine, but most longer and more detailed, some with pages and pages of suggested readings and questions to guide the readings and DVD recommendations and puzzles like maybe one of those intricate mazes where you have to help a hungry mouse find its hunk of delicious cheese, etc. etc.  Anyone want to share some thoughts about what they put in their syllabi and why?  What makes a good (or bad) syllabus?  I'm particularly interested in what students think.  My own memory of being a student (and I still take undergrad courses in Spanish language at my university, so this memory isn't so distant actually) is that all I want was a clear roadmap to the course--what topics we were going to study, and when, and what materials go with what topics.  And a few words about what the evaluation would be based on.  In other words, what I provide to my students now.  But I bet there's a wide variety of opinion on the issue, yes?

On teaching loads

I do not write much about the law-school-reform stuff, because I have not thought as deeply about it as Matt, Paul, and others. But commenters in two earlier posts have raised the issue of tenure-track teaching loads, suggesting that moving to a 2/3 (or even 3/2 or 3/3) teaching load would resolve some problems without overburdening professors.

My school's regular teaching load is 2/2 and I have taught 2/3 for the past few years. It is manageable and I have not found that it interferes with scholarship or other writing--although my view on it as a second-year professor may have been different than as a tenured full professor. So I agree that upping the ordinary teaching load would not overwhelm most of faculty and is a change that schools could make.

But beyond appearing to make law profs sing harder for their supper (which some of the angrier birds seem to want), I doubt increased teaching loads will resolve the teaching-resource problem. After all, even with most of our non-administrator professors teaching four classes, we still, by necessity, have many classes taught by adjuncts and other non-TT faculty.

First, upping the teaching load will not necessarily mean more course offerings covered by tenure-track faculty. The need to offer multiple sections of 1L and required or "required" upper-level classes means that several profs already have 1/4 to 1/2 of their loads taken up on one subject. For example, most years, I have had to cover two of the three Evidence sections we offer each year--1/2 of my normal load taken up by Evidence. Next semester, I have to cover two sections of Civ Pro--again, 1/2 of my normal load taken up by Civ Pro. Several of my colleagues are in the same boat. This, by the way, is part of why I started teaching a fifth class--I wanted to make sure I got to teach, and the school offered, Fed Courts and Civil Rights every year.

We have a small faculty (only 24 tenure-earning faculty, one of whom is a clinical professor), which explains the need to double-up. We also have a small class (around 160 each year) and try to keep class sections small--no more than 60 or so (1L) or 80 (upper-level). These are all things that everyone in the reform conversation likes. Smaller faculty means less money spent on faculty, cost savings that can be passed along to the students. Smaller classes are pedagogically beneficial--they allow more students to engage in classroom conversations and allow for more non-lecture activities and more in-semester assignments and projects. But when you put all of that together, it means tenure-track faculty are not available to cover all of the courses a law school needs to offer--even when we up the expected teaching load. This is exacerbated when we throw in the practice-oriented and clinical classes (which, again, reform advocates insist must be a greater part of the law school curriculum), which must be kept especially small, demanding more sections and more profs.

Again, I am not arguing against increasing the typical teaching responsibility (I have always been perfectly happy teaching what I do). It would remove one faculty-recruitment disadvantage we have long fought. It is just to say that it does not actually solve any problems beyond the cosmetic.

Balancing scholarship and new course preps

Thanks to Dan for inviting me to blog on Prawfs, I am a long-time reader and I am excited to blog here in December. I plan to blog about a number of things, but with the semester just concluding right now I find myself thinking about how I could have managed my workload better this past semester. This Fall semester I undertook a new course prep: Torts. This was a big new prep for me, and I spent far more time than I had planned preparing for each class. Combined with serving on my faculty’s recruitment committee, this didn’t leave much, if any, time for scholarly endeavors.

My question for the Prawfs community is, then, how do you balance a new course prep and your scholarship? Do you negotiate less committee responsibilities in semesters when you have a new prep? Do you find that you get quicker as you undertake yet another new prep? Is this something that gets easier with seniority? I hope to get some advice I can utilize next time I undertake a new course prep!

Teaching Through Trauma

Things are more or less back to normal for the New Yorkers who were spared the brunt of Hurricane Sandy (obviously, people who took more direct hits remain homeless and traumatized).  Having never taught in an area that had suffered through that sort of event, I have to say it was an interesting experience.  

The first class back -- after several days of cancelled classes -- was particularly odd.  I use a lot of humor in class, and in general it's a pretty light environment.  That tone clearly struck me as inappropriate, and was not my plan as I walked into the room.  But as I got started, it also seemed out of place to do a standard, "serious" class, where the students and I would critique the Court's analysis together.  I'm not sure why.  Because it involved pushing the students a little,which might be inappropriate?  Because that sort of academic-style critique seems trivial at a time like that?  After a few minutes of getting a sense of the room I settled on a "just the facts, ma'am" approach, walking the students through the rules and the doctrine mainly through lecture.

Looking back on it, that seems to me the right approach, at least in the immediate aftermath.  Others might disagree; in particular, I can see the value in returning to a normal class (without inappropriate levity) as soon as possible, if for no other reason than to provide a space unaffected by what was going on outside.  I'm curious what other people think of this -- in particular, teachers or students who have gone through a trauma like this during the academic year.  How does teaching resume?  How does learning?

Bad Exams (and Good Ones)

It's time again for profs to start thinking about exams (and students to start worrying about them).  The last couple of times I've been on Prawfs during this time of year I've invited readers to share their thoughts about good and bad exams -- either particular examples or more general thoughts about what worked or didn't work, what was fair or not fair, etc.  I'm doing that again.  

In the hopes of starting the conversation off I'll throw a topic out to see what people think: hypos based on real (either expressly or transparently) facts.  I think there was a discussion about this, for example, when I asked at one point about testing on hot-button fact patterns such as the health care law.  But this topic is broader: are there good or bad points to using real facts on a law school exam?  And, more generally, what in your view is a good or a bad exam, or the best (as in fairest, etc.) or worst exam you ever took or wrote?

How to Scare a Law Professor

In honor of Halloween--and as my farewell guest blog--I want to add a little scare (and levity) to your day.  If you are faint of heart, you may want to skip to the next post.  But if you are of a heartier constitution, read on.  Today I propose the scariest of activities . . . reread your . . . Teacher Evaluations and (as if that's not sufficiently terrifying) . . . share them with me!  Muahaha!!

Now if you are pre-tenured, the terror elicited by teacher evaluations is self-explanatory (a little thing called self-preservation) but, I submit that dark monsters lurk in those pages for tenured professors as well.   Such as: irrefutable evidence that your brilliant teaching of [place issue of choice here] for two days left no impression; the fact that few students seem to realize that "ru" is not actually a word; and, the realization that no matter how important the subject/issue/process you taught and how creatively/well/in-depth you taught it, students base their evaluation of your teaching skills on complete non sequiturs. 

Therefore, for a little terrifying fun, I invite you to share your most choice teacher evaluations here.  It would not be right if I didn't offer myself as the first public sacrifice.  Here are a couple of jems . . .

             Please let students use computers in class.  Also, professor has great taste in shoes.
and
             Great shoes. ;-)

Oh yeah, those comments will get me tenure. 

Looking forward to hearing from you!  To those on the East Coast (including my own family in New Jersey, Delaware and Maryland), know our thoughts and prayers are with you--we all hope you are well, keep safe and please call when you can.  A big thank you to PrawfsBlawg for the guest spot and, to all, Happy Halloween!

What if they'd stayed in law school?

Michael Madison (guesting at Faculty Lounge) started a discussion about famous people who have started, but not completed, law school before going on to fame and fortune. He and his commenters have identified Gene Kelly, Paul Simon, and Cole Porter (who, while giving up the law, famously set the old standard for summary judgment in a case still included in many case books, even if students no longer know who Porter was).

Can you think of others? Leave comments here or at The Lounge (or both).

10 Tips for Giving for a Job Talk that Doesn't Suck

My FIU colleauge Joelle Moreno (who is our Associate Dean for Faculty Research and Development) offers an updated version of her job-talk tips, which we posted last year. As hiring season ramps up this week, hope people, on both sides of the process, find these helpful.

Remember you are salmon swimming upstream

Every school that paid the big bucks to attend the meat market is bringing back a slate of candidates.  It may only be six, but more likely it is ten to twelve.  This means that the faculty is exhausted before the first candidate even arrives.

Most of you have received bad advice.

If the 75 job talks I have attended over the past dozen years are any indication, most faculty candidates have been advised that the goal is to convince the faculty that you are a deep thinker and the smartest person in the room.   This is bad advice.  Your goal is to be interesting, to make us understand why you care, and to leave us wanting more.

1.              Don't be Boring

Your most important and challenging task is not to convince us that you are smart.  Assume that all of the candidates we have invited to campus are smart.  You have 30 minutes to make us care about your ideas and your work.  The best way to do this is to explain why you care.

2.              Be Clear

Use road maps and signposts.  Begin with a road map for your talk that explains why you are interested in this topic and what you hope to accomplish in your talk and your research.  Use signposts to signal transitions (e.g., "I'll begin with a brief discussion of the legal history."  "Now I will explain why recent developments in behavioral economics provide new insight.")  If we can’t understand what you are saying and where you are going -- what hope do our students have?

 3.              Don't be Slick

If you try to sex-up your talk, name drop rock star academics, or imbue your talk with jargon or highfalutin theory, you don't sound smart, you sound arrogant. 

 4.              Be Organized

Start strong and end strong.

 5.              Don't be a Techie, Unless....

Don't use PowerPoint unless you plan to show us:  (1) pictures (e.g., If your work focuses on the environmental impact of particular regulations on a rare spotted songbird; show us the bird); or (2) a simple graphic that illustrates complex information (e.g., a graph showing trends, a timeline).  If you must use PowerPoint, do not trick your slides out with fancy animations or cute cartoons. 

 6.              Be Prepared

A good job talk provokes questions and debate.  This is not a happy accident.  You must make this happen.  If you present your ideas clearly and explain why these questions are interesting, we will engage with you.  The best way to provoke good questions and comments is to practice giving your job talk to three of the smartest people you know -- who know nothing about the subject -- and then revise based on their suggestions.

7.              Don't be Unrealistic

Don't waste time during your talk regaling us with the details of your brilliant and ambitious research agenda.  We know you are just starting out, so claiming that you have shattered the paradigm or forced Professor X to reconsider 30 years of work are just spurious nonsense. Instead, near the end of your talk raise three provocative questions that you intend to explore in the future and invite us to respond.

8.              Be Relaxed, but not too Relaxed

Use notes.  It is a short talk and you need to stay on task especially if you are interrupted with questions. Besides, Spaulding Gray needed his notebook and he was a more interesting speaker than any of us will ever be.  But don't ever read anything especially a PowerPoint slide.

9.              Don't be a Suck-Up

Do not tell us that at dinner last night our colleague Bill offered wonderful insight that has really changed the way that you are looking at these questions.  Even if you are genuinely nice person who hopes to befriend our entire faculty, you sound like an obsequious sycophant.  Besides, Bill may be the biggest and most vacuous blowhard on our faculty (we all have at least one); so you are not sucking up, you are sucking down.

10.           Be Reasonable

Do not, under any circumstances, speak for more than 30 minutes.

 

Finally, remember it's not just what you say, it's how you say it.  Communicate your enthusiasm.  Use your voice (volume and pacing) for emphasis.  Use your space; don't trap yourself behind the podium.  Make eye contact with us and assess our interest.  If we start to look bored, change it up, throw us a question, or grab our attention by telling us the most interesting thing you can think of about your work.

Legal Humor

I first this joke when I was clerking so many years ago, but I was reminded it of it just this morning.

A law professor, a federal appellate judge, and a federal trial judge go duck hunting. Under state law, they are only permitted to shoot ducks at this time of year, so they obviously must be sure that anything they shoot is a duck.

A group of birds flies overhead, making noise. The appellate judge stands up and says, "I conclude that those are ducks. I know those from applying the six-part, eight-factor test established in Goose v. Duck," which he then explains in great detail. By the time he has finished his explanation, the ducks have flown out of range. He sits down.

A few minutes later, a second group of birds flies overhead. The law professor stands up and says "I conclude that those are ducks. But the test of Goose v. Duck is ridiculous, because it is biased against historically oppressed species, ignores principles of rational efficiency, ignores the insights of animal behavioral economics, and departs from Kantian ethics." The professor continues to explain this all in great detail. By the time he has finished, the ducks have flown out of range. He sits down.

A few minutes later, a third group of birds flies overhead. The trial judge stands up, squeezes off three rounds and blows three birds out of the sky. He turns to his friends and says

"Boy, I hope those were ducks."

Civ Pro, Fed Courts, and figuring out what goes where

Two commenters on Trey's post on Erie sugget that the weeds of the doctrine belong in Fed Courts rather than Civ Pro, especially in light of the general reduction of Civ Pro to four hours. The problem is that there are other subjects besides Erie that potentially could go in either course. And, of course, Fed Courts is usually only three hours (at least at my place), so there is only so much that can be moved to Fed Courts without overloading that class. Plus, as Steve has written, there are competing theories of what Fed Courts should be, which naturally affects what gets covered; I structure my Fed Courts class as I do precisely because it flows from my own four-hour Civ Pro class.. Finally, I have the benefit of also teaching Civil Rights, which really is an advanced Fed Courts class, into which I can move some topics. But Civil Rights is not a hugely subscribed course (certainly compared with the other two), so there is the risk that not enough students will get some material.

The point is, any coverage decision in Civi Pro has a downstream effect. It seems to me that these are the "movable" topics that could go in any of the three classes: 1) "Advanced" Federal Question Jurisdiction (embedded federal issues, private rights of action, etc.); 2) Erie; 3) Appealability (both to the courts of appeals and to SCOTUS); 4) Habeas (post-conviction and national security); 5) Eleventh Amendment; 6) Abstention;  and 7) Probably others that I'm forgetting.

My choice as been to keep Erie in Civ Pro, move Federal Question and Appealability to Fed Courts, move Eleventh Amendment to Civil Rights (beyond a 30-minute lecture on it in Fed Courts), and largely skip Habeas (beyond a quick overview on the way to teaching Heck v. Humphrey).  I cover Absention in both Fed Courts and Civil Rights, with a narrower focus in the latter. Of these, I am rethinking putting the Eleventh Amendment back into Fed Courts (while also covering a narrower version in Civil Rights), provided I can figure out what to remove in its place.

Orwell on writing

Slate's weekend feature of Longform writing today includes George Orwell's Why I Write. One of my senior colleagues always recommends that new scholars read this.

Baby on (white)board

This dust-up over an anthropology professor at American University who nursed her infant during (ironically) a "Sex, Gender, Culture" class should resonate with recent Prawfs conversations over breastfeeding and bringing our kids to school/class. Not much I want to add, other than to highlight one comment in the Slate post: The irony of the student insisting that he was distracted by the professor breastfeeding, while he is posting messages to Twitter and Facebook.

YLS Admissions Blog: Unapologetically Elitist

My friend Lisa McElroy is a Legal Research and Writing Professor at Drexel.  She alerted me to this blog missive from Yale Associate Dean of Admissions Asha Rangappa, providing advice to potential transfer students: 

“The other part of your application that is going to carry a significant amount of weight is your law school recommendations (we require two).  We use these references to place your grades in context and also to determine what kind of student you are.  A common mistake on this front is to make one of your two required recommendations from a legal writing instructor -- most students do this because they've usually had much more one-on-one interaction with their legal writing instructor than with their other professors, and so the instructor usually knows them well.  There's nothing wrong with this per se, but the Admissions Committee generally likes to have at least two letters from one of your first year core subject area professors, who can speak to your ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts (a third letter from your legal writing instructor is fine).  Letters from professors who went to YLS -- who as you probably know are ubiquitous in the legal academy -- are often especially helpful, since they usually discuss why the applicant would fit into the academic and cultural experience here.  But don't go stalking a Yale alum just for this purpose -- just pick professors from classes in which you have performed very well and you'll be on the right track.”

As Lisa writes (I'm closely paraphrasing her post on the LRW listserve) , the subtext of the advice is basically as follows:  (1) LRW is not a "core subject area;" (2) LRW profs don't really teach "subject material," or at least none that is hard to keep up with; (3) LRW profs don't lead class discussions, or none that require student contributions; (4) LRW profs don't teach difficult concepts, or ask students to think them through; (5) LRW profs are "instructors," and, as such, could not have attended YLS.  [Lisa went to Harvard Law, btw & fwiw!!]

Please also note that those of us who didn't go to YLS couldn't possibly understand the rigors of legal education there, and thus our letters are discounted.

[Addendum: It has been brought to my attention since I originally posted that it is unfair to single out Dean Rangappa as being "gratuitously insulting" simply for being bracingly honest about the elitism in legal academia, and I thought the point a fair one. Dean Rangappa's letter, in fact, is a way of levelling the playing field somewhat for students from non-privileged backgrounds seeking to transfer to YLS; it gives them access to valuable information about how the process really works.  The reason her letter has resonated among LRW profs and others is the fact that many, if not most, law schools treat their LRW profs as second-class citizens and LRW as an unimportant subject that can be picked up by osmosis.]

 

McCormick on SLU and law teaching

Marcia McCormick (SLU) at Workplace Prof Blog offers some thoughts on the dean mess at SLU and what it says about broader issues of legal education and the role and responibilities of law factulty.

What is tenure?

As reported here, the Sixth Circuit recently held that a tenured professor at Thomas Cooley Law Schooldid not have permanent employment or a right to continuous employment, where the contract was only for a one-year term and did not provide for, or define, tenure. The court also read the ABA standards, which were incorporated into the contract, as exemplary and hortatory, and not as formal contractual definitions of tenure as lifetime employment in this contract. The court also held that a faculty review process held three years after the termination decision was sufficient process under the contract.

I always have considered myself to be on a one-year contract that is automatically renewable, except for cause and with certain contractual process rights, which seems to be what the Sixth Circuit is saying here. Do others define tenure differently?  Is this decision unique to the contract at issue and to Michigan law? Is this case really not about tenure per se (despite the tenor of the NLJ report) but about a conclusion as to what cause and process is sufficient for a school to fire a tenured professor?

Update: Jeff Hisrch comments at Workplace Prof Blog, calling the court's disregard for the ordinary meaning of tenure "troublesome" as a matter of ordinary contract law, doubting that anyone at Cooley believed or inteended that faculty could be fired at will at the end of an academic year. Jeff believes this is partly a product of the contracts at issue and most contracts specifically define tenure (or will going forward). One of my initial thoughts, confirmed by Jeff's post, is that under the Sixth Circuit's view, a tenured professor has less job security year-to-year than a professor on a long-term contract.

AALS Award for Best Untenured Article on the Law of Federal Jurisdiction

The AALS Section on Federal Courts is pleased to announce the creation of an annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty members at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2013 AALS Annual Meeting in New Orleans.

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 in the field of Federal Courts law that were published by a recognized journal during the twelve-month period ending on September 1, 2012 (date of actual publication determines eligibility).  Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2012), 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 Steve Vladeck at American University Washington College of Law (svladeck@wcl.american.edu), Chair-Elect of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2012. Nominations will be reviewed by a prize committee comprised of Professors Richard H. Fallon, Jr. (Harvard), Amanda Frost (American), and Carlos Vázquez (Georgetown), with the result announced at the Federal Courts section program at the 2013 AALS Annual Meeting. 

More job talk advice

It's a bit early for this, since job talk season is a couple months away. Last year, my colleague Joelle Moreno offered Ten tips for giving a job talk that doesn't suck that started a pretty good conversation (I was going to rerun this later in the fall anyway). Now, Dan Shapiro, a humanities professor in the Penn State College of Medicine offers five more tips. I like a lot of what he says, particularly about the talk also being a demonstration of teaching ability. Note the one on learning norms of campus culture; I agree about not reading the paper, but should slides/no-slides (or PowerPoint/No PowerPoint) really depend on school to school?

The Scalia Dissent

Nice NPR piece today from Nina Totenberg on notable dissents by Justice Scalia, including his fiery dissent this Term in the Arizona immigration case. I wonder, has anyone ever proposed a law school seminar, "The Scalia Dissent?" A Scalia-dissent seminar would be an engaging and, I suspect, lively course of study for students. Did Nina Totenberg overlook any particular Scalia dissent highlights that should have made her list?

Crim Pro: How To Tame the Beast?

I’m teaching investigative criminal procedure this summer. My practice background and research agenda make this subject very familiar to me, but I have taught the course only a couple of previous times. Each time, I have felt more than a little challenged by the volume of material to cover. I easily could spend a whole semester on search and seizure law alone. Add the mountain of material on the exclusionary rule, confessions, identification procedures, and other suggested topics, and the semester begins to feel like a daily sprint through our casebook—my current casebook offers nearly 900 jam-packed pages of potential material. The accelerated pace of summer school has intensified this feeling.

In crim pro, so much of this material seems too important to omit, and the Supreme Court keeps adding important new stuff every year. Yet, I do not want to sacrifice depth for breadth. How do other criminal procedure folks work through this volume of material without making students turn to commercial outlines to synthesize it all for them? I could lecture my way more efficiently through the semester, but I am mindful of Rick Hills’ recent post. Nevertheless, I also am not good at pursuing “productive confusion” efficiently. Do people cut-and-slash the material in ways they could recommend, or do something else to make this course efficient for rigorious study?

Greetings and War Stories

Greetings, and many thanks to Dan and Prawfsblawg for the invitation to blog again. I don't bring a specific blogging agenda to this visit. But I am thinking about teaching more than usual for the off-season, because today I started teaching summer crim pro. And after class today, I thought about teacher "war stories."

Before teaching, I practiced as a public defender, and I continue to practice as appointed CJA counsel on federal appeals. As a result, I do find myself lapsing periodically into classroom war stories. I don't know whether students see these stories as particularly helpful or just self-indulgent, although I do consciously attempt to ensure any war story illustrates something from our class discussions. But I do follow a couple of rules: (1) to protect confidentiality, no names of clients, other lawyers, judges, witnesses, or other obvious case identifiers, and (2) generally, I do not discuss my pending cases in the classroom--I don't think I'm often ready to wear my classroom teaching hat in a case where I am still actively advocating for my client, and I worry about confidentiality slips even more with a pending case.

What thoughts from teachers and students on war stories? Little pedagogical value, even when entertaining, or a great insight into how textbook law works in the real world? Any important rules teachers should follow when telling classroom war stories? And, what memorably good or bad war stories have you used or heard for classic law school topics?

Signing Off and Remembering Andy

Multitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

Thoughts for New Faculty

With my tan wearing off and sleep pattern returning to normal, I wanted to submit the final post of my, ahem, May guest stint.  About a year ago today, I was looking forward to attending the AALS Workshop for New Law School Teachers and the AALS Workshop for Pretenured People of Color Law School Teachers.  Having now completed my first year of tenure-track law teaching, I thought I would share some observations that those on the verge of their first year may want to consider. 

1.  You are not alone.  This is a genuine statement of fact, not a reference to Michael Jackson's hit single.  My family came to the United States with $8 -- none of my immediate or extended family went to law school, and thus my existing network of lawyers, let alone law faculty, was extremely limited.  Initially, the process of becoming a law professor -- from preparing the FAR form to selecting my "dance card" for the "meat market" -- seemed like a rather solitary adventure.  I thought I may be at a disadvantage, as others may have access to significant support and coaching.  Soon, I realized that there were many established law professors who were eager and willing to show me the ropes and guide me along the way.  At the National People of Color Legal Scholarship Conference, for example, I met two impressive law faculty who provided extensive help to me and who continue to serve as valuable mentors.  The AALS conference for new faculty was another setting in which I met fantastic colleagues, particularly in my area of teaching, who were ready and delighted to lend a hand.  My network, in other words, expanded considerably, and my confidence in succeeding increased as well.  Feel free to utilize the experience and generosity of these wonderful faculty members -- to the extent I can be of any assistance to you, please do not hesitate to contact me.  I have received a number of emails from new and prospective law faculty because of my participation on this web site, and would be happy to meet (and hopefully help) others as well.

2.  Computers.  One of the classroom issues that faculty have to deal with is whether to permit the use of laptops.  There is no shortage of views on this subject, and new faculty will likely hear a few of these perspectives at the AALS conference.  A colleague that I admire and respect a great deal bans the use of laptops, not because of possible Facebook use or similarly unrelated use, but because of a concern that students with laptops will merely transcribe what he is saying, as opposed to absorbing and reflecting upon what is being said in class.  I personally allow students to use laptops, but make it plain in the syllabus and on the first day of classes that any laptop use that I find to be disruptive is deemed to be a breach of the duty of civility students owe to each other and to the professor, and thus can result in the loss of laptop use privileges.

3.  Syllabus. Perhaps one of the most important things to spend time on prior to the start of the semester is refining the syllabus, and in particular developing a sensible structure to the course, identifying some themes for the course, breaking up the readings so that no one class session has too much reading (what is "too much" obviously amounts to a subjective judgment call), and having the schedule "fit" around the law school's academic calendar (e.g., fall break, spring break, holidays).  How to assess student performance is also a huge issue.  In my large doctrinal classes (constitutional law), I measure student performance using several factors.  At the end of each class, I ask a group of three students to respond to a question related to the course material; by the start of the next class session, the group is to submit an essay (of no more than three pages) resolving that question (concurrences and dissents are permitted); the group is to present that essay in class, and the non-presenting students and I can ask questions, like an oral argument; after class, I post the essay on TWEN to facilitate and allow for further class discussion on the topic.   The group assignments allow students to work together and collaborate in a substantive fashion, break up the monotony of the class period, enable students to take ownership over some aspect of the material, and to develop their skills in oral and written advocacy.  I came across this quote -- on my Facebook feed no less -- which is attributed to Ben Franklin: “Tell me and I forget. Teach me and I remember. Involve me and I learn.”  Students seem to learn, and maybe even have a little fun, while engaging in these group projects.  Accordingly, for my con law classes, student performance is assessed by way of in-class participation, on-line participation (the TWEN discussions centered around the group essays), the group essays themselves, and the final examination.  

4. Reach out. A key to my first year has been getting to know and learning from the other pre-tenured faculty at my law school, who are among the most eager and willing to provide assistance and support to new, incoming faculty.  They also possess a wealth of institutional knowledge on why things are the way they are, and why certain, seemingly minor issues may be proxies for other, long-standing issues.  This background and context can be extremely helpful in ensuring that new faculty do not unwittingly join a faction or become embroiled in an entrenched, ongoing debate.

5. Just Do it. A persistent message of the AALS conference is "just say no."  In other words, new faculty shouldn't feel shy about declining committee assignments or other tasks that may take them away from their core responsibilities.  Admissions was one of the major committee assignment that we were advised to stay away from.  Fast forward several months.  My dean is sitting in my office, asking if I had interest in serving on admissions.  Ignoring the advice I had received, I expressed my willingness to join the admissions committee.  In all honesty, serving on admissions was very rewarding and fulfilling.  It was, however, very, very, very time-consuming.  I also founded and directed our law school's chapter of the Marshall-Brennan Constitutional Literacy project.  Again, more conservative voices may suggest to hold off on starting such initiatives, but it is something I wanted to do and thankfully my law school was nothing but supportive of the project.  In short, don't be too risk-averse.  Make your mark early on! 

6.  Appreciate.  At the AALS conference, attendees will likely hear over and over that this is the best job in the world.   It is true.  The opportunity to work with students, to help them along in their understanding of the law, and to give them the tools to be agents of social change is rewarding, fulfilling, and humbling.  The opportunity to develop and share ideas about how the law and society can be improved also fosters a sense of purpose and excitement that I am not sure many other professions can match.  The amazing thing is that we get paid to do that which is most satisfying and stimulating.  Joubert said that, "To teach is to learn twice over."  To get paid to enhance the knowledge of others -- and my own knowledge in the process -- is simply remarkable. 

7. Congratulations and Welcome! Almost a thousand individuals hoped to become tenure-track law professors this upcoming academic year.  New faculty were selected out of these many, many applications because the appointments committees and the full faculties saw something special and unique about the hired faculty.  They see scholarly promise, potential in the classroom, and the makings of a good friend and colleague.  Don't forget that you do have exceptional qualities that have been recognized and acknowledged.  What is great is that, now, you will have the resources, support, and platform to flourish and become leaders in your law schools, communities, and society more broadly. 

I hope these thoughts are of benefit or use to the reader.  Thanks for letting me stay way past check-out. 

Keeping Tact ... Intact

I’m delighted to return to PrawfsBlawg. During this month’s visit, I plan to focus on topics that are included in my second book, Advocacy to Zealousness: Learning Lawyering Skills from Classic Films (Carolina Academic Press, 2012). I thought I’d start with something about the skill of tact, and how its presence or absence impacts the teaching, study, and practice of law. In the not-too-distant past, when communication methods were limited to in-person meetings, telephone calls, and written correspondence, there were still myriad minefields to maneuver around to avoid the commission of communication faux pas. Rude or terse statements (made intentionally or unintentionally) could lead to hurt feelings or heated arguments, but, absent national print or television coverage, the unfortunate words and misunderstandings were limited to condensed areas, and relationships could be mended much quicker. Today, words can spread around the world in a split second, and private resolutions are harder to come by. What we say, and how we say it, has permanence, presence, and persistence. And, sadly, the least tactful statements tend to last the longest. It’s this new sense of permanence of words and statements that makes it crucial to learn to exercise great care in their use and delivery. Law professors are charged with preparing students for the practice of law, and tact is an essential skill for any lawyer. However, times have changed, and people are generally less tactful, which can pose challenges in guiding students in this delicate area. How do you address tact in the classroom and among colleagues? How do we keep tact … intact?

School of Rock

I had a unique experience last Friday, teaching some copyright law basics to music students at a local high school. The instructor invited me to present to the class in part because he wanted a better understanding of his own potential liability for arranging song for performances, and in part because he suspected his students were, by and large, frequently downloading music and movies without the permission of copyright owners, and he thought they should understand the legal implications of that behavior. The students were far more interested in the inconsistencies they perceived in the current copyright system. I'll discuss a few of those after the break.

First, the Copyright Act grants the exclusive right to publicly perform a musical work, or authorize such a performance, to the author of the work, but there is no right public performance right granted to the author or owner of a sound recording. See 17 U.S.C. § 114. In other words, Rod Temperton, the author of the song "Thriller," has the right to collect money paid to secure permission to publicly perform the song, but neither Michael Jackson's estate nor Epic Records holds any such right, although it's hard to discount the creative choices of Michael Jackson, Quincy Jones and their collaborators in making much of what the public values about that recording. To those who had tried their hands at writing songs, however, the disparity made a lot of sense because "Thriller" should be Temperton's song because of his creative labors.

Second, the Copyright Act makes specific allowance for what I call "faithful" cover tunes, but not beat sampling or mashups. If a song (the musical work) has been commercially released, another artist can make a cover of the song and sell recordings of it without securing the permission of the copyright owner, so long as the cover artist provides notice, pays a compulsory license (currenty $0.091 per physical or digital recording) and doesn't change the song too much. See 17 U.S.C. § 115. If the cover artist makes a change in "the basic melody or fundamental character of the work," then the compulsory license in unavailable, and the cover artist must get permission and pay what the copyright owner asks. In addition, the compulsory license does not cover the sound recording, so there is no compulsory license for a "sampling right." Thus, Van Halen can make a cover of "Oh, Pretty Woman," without Roy Orbison's permission, but Two Live Crew cannot (unless the rap version ends up qualifying for the fair use privilege).  

It was also interesting to me that at least one student in each class was of the opinion that once the owner of a copyrighted work put the work on the Internet, the owner was ceding control of the work, and should expect people to download it for free. It's an observation consistent with my own analysis about why copyright owners should have a strong, if not absolute, right to decide if and when to release a work online. 

On a personal level, I confirmed a suspicion about my own teaching: if I try to teach the same subject six different times on the same day, it is guaranteed to come out six different ways, and indeed, it is likely there will be significant differences in what I cover in each class. This is in part because I have way more material at my fingertips than I can cram into any 45 minute class, and so I can be somewhat flexible about what I present, and in what order. I like that, because it allows me to teach in a manner more responsive to student questions. On the other hand, it may expose a failure to determine what are the 20-30 minutes of critical material I need to cover in an introduction to copyright law.

 

Law as Plinko

My last moments in the classroom this past semester were spent engaging in what is likely a familiar exercise for most law professors -- trying to inspire students and leave them with some parting words of wisdom, encouragement, and motivation.  I look forward to these moments, and hope that my last-minute ramblings help bring together the general themes of the course and, more broadly, replenish their passion for the law to the extent that specific and more immediate parts of their experience -- such as Socratic conversations, lengthy readings, and concerns about the final examination -- have them questioning why they are in law school and are incurring debt in the process.  To quote Michael Scott, I might as well tell my students on the last day of classes to "get as much done as you can... because, afterward, I'm going to have you all in tears."

This semester, I discussed what I attempted to accomplish in the course and apologized to the extent that I fell short of their expectations.  I revealed to them what led me to study the law, and why I am continually fulfilled and humbled by my pursuit to understand the law and the law's role in society.  In my constitutional law course, I read to my students Neal Katyal's comments after Hamdan, celebrating the rule of law and how it distinguishes us from other political communities.  I also asked my students whether anyone has seen The Godfather.  Predictably, all hands were raised. When I asked what the first line of the movie is, no hands went up.  The first line is, "I believe in America."  I explained candidly why I believe in America, and it is specifically because of the structure of the Constitution that they just (hopefully) learned about and also because they will be active participants in that structure, seeking to improve the law and society.

I also, in a rather light portion of my semester-ending remarks, share my fun theory of the law -- that the law is like Plinko.  Yes, Plinko. An explanation follows:

Plinko, as shown here, is a game on the long-running CBS game show, "The Price is Right," in which contestants place chips flat at the top of a large vertical board -- once the contestant lets go of the chip, it moves down through a series of pegs and ultimately lands at the bottom, in one of several spaces labeled with different dollar amounts.  The contestant wins the amount of money assigned to the space where the chip lands.  Part of the fun is seeing how the chip winds its way through the pegs and, of course, where the chip's journey comes to an end -- the winnings range from $0 to hundreds and even thousands of dollars. 

It seems to me that the law is similar -- the facts of a case are like the chips, and the pegs are established cases that the facts must work through, and the space is the result that the court eventually hands down (e.g., granting or denying a motion, reversing or affirming a decision).  What, I believe, we do in law school is also related -- we attempt to ensure that students understand the pegs (the applicable precedents), how they have evolved or shifted over time, and the critical facts and context that help explain where the pegs are.  In general, in a Socratic exercise and on the final examination, students entertain a modified or new fact pattern, and analyze how those facts may "fit" in the existing framework.  We give students random fact patterns because it is unlikely that, in practice, they will receive a factual problem that is identical in all respects to an established case.  They must have a substantive foundation -- an understanding of the precedents -- and the skills -- how to research, write, and argue -- in order to properly assess how the new facts may work their way through the relevant cases and to then be able to advocate, on behalf of their client, for how those facts should work their way through the prior cases.  This is why I refer to cases as guideposts -- they literally are the pegs that set the general bounds within which certain issues will be examined and resolved. 

Further, students, equipped with an understanding of the law and the tools to analyze and advocate, can argue for why the guideposts should and must change.  Here is where they can become agents for broad social change -- by removing and reconstructing the guideposts that previously constrained and dictated how certain issues would be reviewed.  Again, in order to do this, students need the substantive foundation in the law and the skills with which to dissect cases and propose new legal principles.  The study of legal doctrine and professional skills may seem tedious, slow, and boring at times, but is critically necessary if students are to one day be effective representatives of their clients' interests and/or instruments of robust changes in the law and society.

This rather informal way of looking at the law as Plinko seems consistent with Holmes's theory of law as prediction.  When a contestant puts that chip down on the board, one does not know where it will land; at best, one can develop some sense as to where it may land given certain data points.  Similarly, armed with a set of facts, an attorney can offer only his or her prediction as to how a certain judge will apply certain guideposts, and what the outcome will be. 

Law as Plinko also may help one appreciate the different aspects of the legal process.  Whereas the top pegs may be akin to standards for the sufficiency of a complaint and jurisdictional issues, later pegs may be akin to guideposts governing whether the facts should survive a motion for summary judgment, and the final pegs akin to the standards on the merits of a legal issue.  This theory also emphasizes framework and process, where students focus on result (e.g., who "won" and who "lost").

It doesn't leave them in tears, but students seem nonetheless to enjoy this admittedly nutty way of viewing the law. 

Modelling Professionalism, Part II (Get Your Spitballs Ready)

In the wake of the commentalooza over Rick Hills' question about students bagging on RA jobs, I thought I'd throw up another issue to get some crowd-sourced wisdom about teaching professional conduct in a slightly different context.

I speak here of students blowing meetings.

So, let's say a student contacts you, wanting to meet with you, his prof.  You set the meeting up -- Wednesday at 11:00, say.  (By the way, these are not actual facts, Wednesday at 11:00 was not an actual meeting time, nor does this question have anything to do with anything that's happened to me recently.  So there.)  The student doesn't show.  The student then contacts you later, apologizing and giving, let's say, what I would consider a bad reason or no reason at all.  The student asks for a new meeting date, soon (say, the next day).

Frankly, part of me doesn't want to oblige.  It's not that I'm busy -- though I certainly am.  Let's stipulate that I used the original meeting time very productively on other work.  So giving the student a meeting time on Thursday doesn't subtract from the total amount of time I'd have for other work endeavors that week.  (And let's further assume I was planning on coming into the office on Thursday, anyway.) 

So why don't I want to oblige?  Well, because I'm annoyed.  But I'm also concerned that I'm letting the student get away with something if I simply reschedule.  The obvious response -- reschedule, but make it clear it's not professional to miss appointments -- strikes me as close to futile, a finger-wagging talking-to that, because it doesn't come with obvious material consequences, may not have much effect.  Or maybe it does -- I'd love to know if students, or former students, have recollections of such dressing downs making a real impact. 

So, I don't think there are consequences from a simple dressing down, and I want to establish some real consequences.  The obvious one is simply not to reschedule, or at least not to reschedule promptly (I know myself, and I could never hold onto a line that says, "I simply will not meet with you any more, period.")  But not rescheduling for a decent interval (say, a week) seems petulant (assuming I do in fact have the time).  I basically have to lie ("No, actually, I can't meet with you until next week, because ... well, I'm busy.").  That's really a non-starter, unless I want to say that I'm not rescheduling promptly as a punishment.  But even that strikes me as punishment that doesn't really fit the crime.

So is there anything else I could do, other than giving them a talking-to?  Tell them it will affect my willingness to write a recommendation letter?  That seems really harsh, and again, not completely credible: if I have enough interactions with a student to justify writing a letter, one blown meeting probably won't make the list of top 10 things I can say about the student.  Tell them that all these little things add up to create someone's impression of the student?  That takes us back to the talking-to, right?  Turn down any substantive request they make because of one procedural default?  Again that's pretty harsh -- I'm not the Rehnquist Court, after all.

Gentle readers, do any of you have a better response to this type of situation?  Am I missing something obvious?  If you're wondering, I normally stew a little bit, think about avoiding the student's request for a while, then reschedule and wag my finger when we meet.  It's not satisfying.  Is that the best I can do?

Kindergarten law

Last week, I did my first-ever "what my parents do" presentation for my daughter's kindergarten class. I decided to demonstrate the "word puzzles" we do in law classes, using Hillel Levin's The Food Stays in the Kitchen: Everything I Needed to Know About Statutory Interpretation I Learned By the Time I was Nine, which worked very well for that age group. We used the rule "No eating in the classroom," then my daughter and I showed them a cookie, a bottle of water, a smoothie, and a baggie of grapes. They got purposivism pretty quickly, although usually at the expense of the text--which just means they're ready to be law students or judges.

Hello from guest blogger Jeff Yates

I thought about trying to make this introduction  cute with a video of Lionel Richey's "Hello" or something about Hello Kitty, but future me is going to thank present me by keeping this short and not so campy. I'd like to thank Dan and the rest of the Prawfs group for inviting me to guest blog for May.

A little background -- I am an attorney and political science professor at Binghamton University where I usually teach law classes, but sometims dabble in other topics - for instance, next fall I will be teaching a graduate course on The Presidency. You can see more about me here and here.

Here are some of the topics that I *plan* to blog on (emphasis on 'plan' - you never know where this guest blogging thing will take you):

* New lawyer employment woes

* Attorney work hours and working at home in an era of technology

* Use of the title "Doctor"

Hopefully I will come up with some more blogging ideas - until then, thanks for having me.

Civil Procedure Brilliance

Jaya at CoOp beat me to the post, but this been making the Civ Pro rounds all day. It's one of the best (in terms of cleverness and quality) of these that I've seen.

Survey question: Is this too risque to put up on a course blog?