Friday, November 08, 2013
Great jobs for green lawyers in the new green ganja legal world(?)
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?
Cross-posted at Marijuana Law, Policy and Reform
Tuesday, November 05, 2013
Exams: The Good, The Bad, and Well, You KnowI'm delighted to be back for another blogging stint; as always, thanks to Dan and the other Prawfs bosses for creating and maintaining this community. It's early November -- which I know because my exam-writing alarm clock is starting to ring in my head. So I'll begin my stint here on Prawfs by asking a question I've asked before: as a teacher or a student, what have been the best and worst exams you've written or taken, and why? I don't mean, of course, which exam you performed best on. I'd just like to invite people to share stories of exams they thought were particularly well-crafted or the reverse, and why. This is the perfect time to share these stories, since the alarm clock is probably starting to ring for every law prof out there. So let us know: what worked, what didn't, and why?
Monday, October 21, 2013
Tell me what I need to know
How would that be as an opening question in a meat market or faculty interview? Certainly out of the ordinary. But in theory it gets to the heart of things very quickly--it tests how well a candidate thinks on his feet, while also giving her control over the conversation.
Would you want to deal with a question like that as a candidate? Would you want to ask that question as a committee member/interviewer?
BTW: The idea for this question came from a colleague with extensive non-academic, real-world interviewing/hiring experience.
Wednesday, October 16, 2013
Law schools and the shutdown
Courtesy of Andrew Ferguson (UDC) is this story (registration required) on the effect of the shutdown on law schools, faculty, and students, including at UDC, the only public law school in DC. The story indicates that the school's clinics have been deemed essential. But the faculty has been talking about whether to continue teaching if/when the money runs out--are there ethical, legal, or other concerns by teaching during the shutdown?
Probably a moot point, as it appears this all will end with a whimper tonight (just in time for everyone to gather in DC for the meat market). But an thought game.
Monday, October 14, 2013
In praise of student-assembled reading lists for law school seminars
I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars. Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics. I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.
I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise. I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles).Cross-posted at SL&P
On online law reviews
Mark Tushnet shares a story and raises some questions about on-line law review supplements. I have had several great experiences with the format and am a big fan, both for myself and in offering suggestions to my colleagues. Mark raises two questions I wanted to respond to.
First, he wonders if the piece will be cited. It seems to me the answer is "as much as anything else by a high-profile author." Nowadays, people find scholarship on SSRN and Westlaw/Lexis. Most of the on-line supplements (certainly from the top-tier reviews) are published with hard-copy reviews. And authors will distribute their supplement essays through SSRN. So the articles will be seen.Second, he wonders what P&T (and, I might add, although to a lesser extent, appointments) committees will do with these. That answer has a few more moving parts. Given the length limitations at most supplements, such pieces will not alone be enough to satisfy the tenure standard at most law schools. At the same time, the existence of such journals should provide an incentive to scholars to take advantage of them and might give committees an expectation that faculty will do so; more scholarly outlets means more publication opportunities. At many schools, the statutory minimum for tenure is 3 "substantial scholarly works" (whatever that might mean) by the beginning of the sixth year--roughly an article every two years. Perhaps a committee might think reasonable productivity is one big piece and one smaller piece (such as might run in a supplement) in that time?
As for what P&T committees will do, that is going to change quickly as the make-up of those committees changes. The really old guard, especially the mythical "dead wood," may not look kindly on such placements, seeing tham as little more than glorified op-eds. But committees are increasingly populated and influenced by people who begin their academic careers within the past 10-15 years, just as these journals were coming into existence, and who are therefore comfortable with and respectful of what goes into publishing in them.
Wednesday, October 09, 2013
Tips for newly tenured professorsFrom Eric Goldman (Santa Clara). Discuss.
Thursday, October 03, 2013
2013 Faculty Hiring: Will Schools Be Looking for More This Year?
In making new faculty hires, law schools have traditionally focused scholarship and teaching, often looking specifically at a candidate's research agenda and teaching package. Most of the questions asked at those 25-minute interviews revolve around these topics. But I'm wondering if this year will be different. My hypothesis is that some schools will go beyond the traditional research-and-teaching-package questions to see what else a candidate might provide to the school. And my guess is that these questions will focus on how the candidate could help with employment outcomes and new pedadgogical directions.
These are not traditional topics for questions, and schools with higher employment and salary numbers will be likely focus on the candidate's scholarship. But at schools where students are struggling harder to find jobs, and where graduates may be looking for more practice-readiness, schools may be thinking more broadly about what a candidate can bring to the table. So -- does a candidate have a connection to the market(s) where the school's graduates are looking to work? Would she/he be able to facilitate connections between students and a new set of potential employers? Does he/she have subject-matter expertise that would lend itself to a center, not just for academic reasons but also because it would help students find jobs in the area? And some schools might be looking for profs who can teach not only the traditional doctrinal subjects but also more innovative or practice-oriented offerings. So -- would a business law prof be interested in working with an entrepreneurship clinic, lab, or externship program? Would a civ pro candidate want to work with appellate moot court teams, or help to set up a state supreme court clinic? Would the candidate consider working on a capstone course, like a ten-credit practicum, that the school is considering adopting?
There's a traditional dialogue in the hiring process, captured nicely by Christine Hurt's animated short. But I'm wondering if this year might be a little different. Hiring committees and candidates, feel free to weigh in. Will schools be looking for something different? Should they?
Wednesday, September 25, 2013
Subject matter ties
On the first day of Civil Rights, I discuss Reconstruction activity, including the Emancipation Proclamation. In honor of that, I wore a tie with the text of the Emancipation Proclamation, a fact I mentioned to the students. On the second day, students asked about the meaning of that tie; I chose it at random, which seemed to disappoint them. One even tried to find a tie that could represent action under color of law; he actually found one containing a police badge.
So my goal since then has been to match my tie to the topic of the day. Sometimes this is easy, as when I wore a tie with the U.S. Constitution when we covered "rights, privileges, or immunities secured," or one with cars when we covered Burton v. Wilmington Parking Authority. Others have been a stretch, such as the one with elephants for legislative immunity (explanation: The Republicans are in the majority in the House right now). We will see how this goes for the rest of the semester.
And if anyone has a relevant tie he would like to donate to the cause, I promise to return it in good condition.
Monday, September 16, 2013
Faculty Hiring: FIU College of LawFlorida International University College of Law seeks applicants for entry-level and lateral appointments for tenure-track faculty positions beginning in the 2014-15 academic year. Particular areas of curricular interest include Torts and Environmental Law.
Lateral candidates should show a demonstrated record of scholarly achievement and teaching excellence. Entry-level candidates should show significant potential for future development as scholars and a commitment to excellence in teaching.
About FIU College of Law: As a vital part of Miami's only public research university, FIU College of Law is a dynamic urban law school with approximately 502 students. The College of Law currently has 42 full-time faculty members. The FIU College of Law is housed in a state-of-the-art building in the heart of the main university campus. Over the past three years, the FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum. For more information on the College of Law, please visit our website at law.fiu.edu
The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.
Application Procedure: Interested applicants should send a cover letter and c.v. to Professor Hannibal Travis, Chair, Faculty Appointments Committee, FIU College of Law, Modesto Maidique Campus, RDB Hall, Miami, FL 33199. Applicants also may submit materials electronically to email@example.com.
Applicants also must register and create an on-line Profile through the university’s website at jobsearch.fiu.edu.; reference Position No. 70004897.
Florida International University encourages applications from candidates who would continue to enhance the diversity of our College of Law faculty and university community and does not discriminate on the basis of race, color, national origin, ancestry, sex, disability, religion, age, sexual orientation or veteran status in its education and employment programs or activities. FIU is also a member of the State University System and an Equal Opportunity, Equal Access, Affirmative Action Employer.
Tuesday, September 10, 2013
Understanding Civil Rights Litigation
I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.
My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.
Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.
Friday, August 30, 2013
Preparing to Teach Open Source Civ Pro Part III: Compiling the Materials (or, Why I Have the Best RAs in the World)
In my previous posts I have explored why I am moving towards an open source casebook for civil procedure and the materials I am using. In this post, I'll outline the process for editing and compiling nearly 500 pages of cases and statutes in just one summer! I'll also include my table of contents at the end, for anyone who is interested in seeing what made the final cut. Next week I'll look at a different model, and spotlight the fabulous playlist that Glenn Cohen has made for his open source civ pro class at Harvard.
How to Put Your Own Materials Together ... And Still Get Your Summer Writing Done!
1. Have Fabulous Research Assistants
The most important thing to note is that I had four part-time research assistants working with me this summer. Each of them had full-time summer jobs elsewhere, so I want to give a public shout out to the students who worked incredibly hard with me to make this possible. I could not have undertaken this project without them.
2. Compile a List of Cases
I began with the syllabus I had been using for the past few years. I canvassed other casebooks and syllabi to prune some cases and add others. I also added a few cases that are not traditionally in casebooks. For example, I decided to begin my course this year with a fabulous default judgment case in which a trial court entered a $1.26 billion default judgment against Pepsi. (Joyce v. Pepsico, Inc., 340 Wis.2d 740 (2012)).
Although the judgment is ultimately vacated, there are some fun personal jurisdiction and statute of limitations issues along the way, and it was a fun intro case for the class. Well, fun by my standards...
3. Assign Cases to RAs
Each RA received a portion of the syllabus and a copy of the student treatise. I had them read the relevant sections and comment on the cases I had added and deleted from previous years.
4. RAs Preliminary Edit
Each RA downloaded the text of their assigned cases. I instructed them to excise superfluous text (syllabus, extended caption, parallel citations, issues not relevant to our course), and then give a shot at their own edit. I made several casebooks available to the RAs so that they could see how different casebook authors have edited cases. I indicated which books had longer and shorter edits, and asked them to aim for a middle ground. Not only did this save me a good deal of time, but I learned a lot from what they chose to include or exclude from the edits. It was a good window into the minds of my students. The RAs also found and edited the relevant rules and statutes.
5. My Edits
The RAs returned the cases to me with all of their edits in "track changes." I accepted many of their changes and added some of my own, often including short summaries of sections or opinions that I omitted from my edits.
I then compiled the final product! It was printed and available for students to purchase for $20.35 in the bookstore. Alternatively, they could download the materials from the class web course and print it on their own.
7. Moving to Other Online Formats
I am slowly moving towards utilizing online formats that will make sharing, editing, and mixing my syllabus easier. This is Glenn Cohen's approach on the H2O system, and I'll discuss the pros and cons of that method next week. I hope that by next year I will also have my materials available in this format.
Tuesday, August 20, 2013
How often do classes meet? How often should they meet?
A very informal survey/information request:
How often do you your classes meet in a week? In other words, for a four-hour class, do you meet four times (50 minutes each), three times (70 minutes each), or twice (105 minutes each)? For a three-hour class, do you meet three times (50 minutes each) or twice (75 minutes)? And is this a matter of school-wide policy or is it left to individual faculty to state their preferences for the associate dean to accommodate? What are your preferences? And what are the prevailing trends?
In my small corner of the teaching world, I see an increasing move towards twice weekly meetings, even for four-hour courses. I believe all of our four-hour 1L classes are being done that way this semester. Are other schools seeing a similar trend? This move, by the way, is driven equally by students and faculty: Students want to limit how many days they have to come to school and especially want to avoid coming to school on Fridays, so they would rather do fewer meetings of greater length. Faculty would rather teach twice per week, which gives them an extra day to write. I will teach Civ Pro in three sessions next spring (my strong pedagogical preference) and I know someone will ask me (probably on the first or second day of class) to switch.
Update: Two additional points. In the case of my school, some (although not all) of the movement comes from the evening program, where classes have to be taught in two-day blocks to avoid having classes on Friday nights or weekends. The full-time program then moves to become more like the part time (because the other direction is not possible), especially when professors are prepping classes for both sections (sometimes simultaneously). I'm also curious if schools/faculties have had conversations (especially recently) on the subject.
Teaching Open Source Civ Pro Part II: The Materials I'm Using
This week I will begin teaching civil procedure without a traditional casebook. In my last installment, I wrote about why I've decided to "go rogue." In this post I'll recap the process I used to choose and produce my materials. My materials for this semester are: (1) A course pack "case book " that I edited; (2) A statutory and rules supplement course pack that I edited; (3) a student treatise; (4) a book of experiential learning exercises.
After the jump, I'll discuss the various methods I considered and why I chose the materials that I did.Possible Methods for Teaching Open Source
1. The Bare Bones Method: No Materials But a Syllabus
One possibility is not to give students any materials at all, but simply distribute a syllabus and tell the students to download the relevant cases and statutes from Westlaw or Lexis. (Derek Tokaz made this suggestion as a comment to an earlier post). While there is some appeal to this idea, I felt it was not right for this class:
(a) because I am teaching first semester 1Ls, I do not expect them to enter the class with Westlaw and Lexis skills, even ones that seem easy to us like finding and printing cases. I also do not want to add extra stress to their lives.
(b) many cases are far too long, or contain extended discussions of irrelevant issues. I figured that by the time I explain "read this, but don't read that" for each of the cases, much of the simplicity of the "find and print" approach would be gone. I also didn't want students to "compete" with each other by reading more of each case.
(c) students would still have to print out the cases, and printing costs money. So this method is not quite as "free" yet as we would like. Which brings me to the next point...
2. Edit the Cases and Statutes/Rules and Post Them Online
The advantage of this approach is that it's still completely free, and it solves the problem of unedited cases. I decided that this would be part of my approach, but was not completely sufficient.
(a) First, as I edited the cases, I began to realize that I needed interstitial material. While I'm moving away from from the extensive "notes and questions" approach of some casebooks, there are situations where it is useful to summarize or introduce material, or expose students to synopses of related cases. And sometimes I'd just like students to read about an area of law without reading a principal case, such as when I teach about the mechanics of service of process.
(b) The students would still need to print out the materials themselves. This point was a difficult decision for me. When I first thought about using open source materials, I imagined that students could use their tablets or e-readers. But there are some barriers. First, I do not permit students to use laptops in the classroom (that's a different debate), and I worried that the tablets could be used for distracting non-case reading purposes. More importantly, I realized that if I wanted to give an open book exam, I would need to make all of the materials available in print format because the students cannot bring tablets or e-readers to the final exam. Now, one solution to these problems is to just permit laptops and give a closed-book exam. These are changes I might consider for future years. For now, I'm sticking with my no laptop and open-book exam policies because I have had such positive experiences in the past.
(c) Not all materials are actually open source. This was not a big issue for civil procedure. If, however, I used this approach for other classes there could be problems. For example, when I teach International Business Transactions, some of the materials found in the statutory supplement are not in the public domain (think Incoterms or the UCP, both published by the International Chamber of Commerce).
3. Create a Course Packet and Post Materials Online
To solve these problems, I compiled the cases into one course packet and the statutes and rules into another. The students now have a choice: they can buy the packets at the bookstore, or print them at home if that is easier and cheaper for them. They could even use a tablet for reading and then print the sections with their own annotations. I have posted the coursepacket as a large pdf file, as well as several smaller files to enable easier printing and downloading.
4. Use a Student Treatise as a Secondary Text
Here's where I begin to depart from full-fledged adherence to open source. For reasons described above, I am not yet ready to teach exclusively from principal cases. So I decided to supplement with a student treatise. Here are the advantages:
(a) Cost. Although the students must purchase the book, it is much cheaper than a case book ($79 new, $30-ish used or rented).
(b) Context. The student treatise provides the context and summaries of areas that I do not expect students to learn from reading principal cases.
(c) No More Hide the Ball. I almost always recommend a good treatise or horn book to my students. I think we have moved past the days in which there is a classroom fiction that the students don't know the law until it is magically revealed to them exclusively through socratic dialogue about principal cases. I would much rather have them read a comprehensive and comprehensible account of an area of law in a treatise so that classroom discussion can focus on the nuances and difficulties in the caselaw itself. In this way, I hope that classroom time will be less about the "punchline" of every case because the students have access to thorough discussions of the black letter law in their reading. I have assigned my students Richard Freer's Introduction to Civil Procedure (Aspen Student Treatise Series), a text with which many former students have had a positive experience.
Perhaps in the future I will begin to write my own summaries and introductions so that I can move away completely from requiring purchased texts. For now, I am comfortable asking students to purchase a text that is cheaper than a casebook, and one that many students might buy anyway as a study aid.
5. Use an Exercise for Experiential Learning
This semester I am teaching a small section of procedure. We have extra time, and I am using that time to teach discovery through a simulation exercise. While I would love to create my own simulation, I have opted for one that has been "road tested" and will use Michael Vitiello's Bridge to Practice book. Although it's not completely relevant to the open source problem (as I would only use this for a smaller group), I wanted to fully disclose all of the purchases that my students must make.
So, there you have it -- a complete account of my desire to totally ditch the casebook and the reality that I was not able to get all the way to "free" on the first try.
Thursday, August 15, 2013
Seeking suggestions for "must-reads" for my Marijuana Law, Policy & Reform seminar
As I have mentioned in this space before, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this Fall semester titled "Marijuana Law, Policy & Reform." The seminar starts next week, and I am trying to finalize my (necessarily tentative) reading list for the first part of the semester. As the title of this post indicates, I am eager now to get some concrete suggestions about what others would consider to be "must-reads" for the students in this seminar.
I am very pleased to be able to utilize Controlled Substances: Crime, Regulation, and Policy, a brand-new casebook by Professor Alex Kreit, as the primary text for the seminar. Students will be exposed via big parts of this book to lots of great general readings on drug regulation and prohibtion debates, as well as specific materials on medical and recreational marijuana laws and policies. In addition, I have just created this new blog, titled simply "Marijuana Law, Policy & Reform," where I plan to provide new resources and materials for student consideration (e.g., I have already linked/discussed AG Holder's recent ABA speech via this post over there).
But, especially based on terrific feedback I have received via my prior posts about my new seminar, I suspect some folks may have some especially informed and/or innovative thoughts about some (student-friendly) readings that I must make sure to have my seminar students read. If so, please share those thoughts in the comments.
A few related prior posts (via SL&P):
- Starting a summer series on the upper-level law school canon and my marijuana seminar
- How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?
- Guest blogging on "Controlled Substances: Crime, Regulation, and Policy" by Professor Alex Kreit
New laptop studyFrom two doctoral students in Canada: The studies found that students who multi-task on computers perform worse, as do those sitting near the multi-tasking students (even when those students are not using computers at all). It makes sense that students who are paying less attention in class will not perform as well, although the researchers claimed to be surprised by the size of the effect (11 % difference, possibly the difference between a B+ and B-). Of course, that result is not really about computers per se, but about distractions. And while computers and the internet dramatically increase the number and type of potential distractions, one would expect the same effect if the multi-taskers were preparing shopping lists, doing crossword puzzles, reading the newspaper, or doodling by hand). I would still like to see a study of the effect, if any, of using computers as opposed to pen-and-paper for taking notes in class.
Wednesday, August 14, 2013
Preparing to Teach Open Source Civ Pro Part I: Why I’m Doing It
This semester I will be teaching civil procedure without a casebook and blogging about the trials and tribulations of this approach. As the semester approaches, I’ll be writing about my preparations. This post will be about why I’ve decided to take the plunge. Part II will be about the materials that I’m using, and Part III will be about how I put the materials together. My reasons for embarking on this project appear after the jump.
It shouldn’t surprise anyone that this tops the list of reasons to go casebook-less. As other bloggers have noted, many casebooks have broken the $200 barrier. Statutory supplements often cost between $35-$40. Add this to the hornbook and commercial outline or two, and students can easily spend $300-$350 per course on books. I am mindful of these costs, and to the extent that I can minimize them for my students, I would like to do so. As I will explain in future posts, I was not able to get all the way down to completely free materials, but the list price for the books (including a course packet) that I have ordered come in at under half the price of the materials I have used in the past.
2. Many Materials Are Available for Free
This reason is closely related to the cost issue, but it is worth making the separate point: a large chunk of the materials that we assign to our students are public. So why should students pay for this? Casebooks do add value (some more than others) in the form of editing, summaries of law, and giving historical context. If anything, I have an even greater appreciation for this value-added after a summer of editing my own materials. Still, I am left with the feeling that if my primary text consists of cases, and those cases are freely available, why should we charge so much to read them?
I hope that my work here, along with the work of other such as Glenn Cohen will be the beginning of a collaborative effort to use open source and creative commons to provide our students with high quality materials at a minimal cost.
3. Flexibility for Students
I have made the cases, rules, and statutes available to my students as PDFs, and have also printed them as a course packet that they can purchase. I will also begin to make the materials available on Harvard’s H2O platform. I hope that this will allow some freedom from schlepping the whole book each day, or perhaps the ability to mark up the text online or on a tablet. (Ultimately, though, the students will need some sort of a hard copy of the materials because I give an open-book exam. I’ll delve deeper into this problem in a future post).
4. Flexibility for Me
Putting together my own materials allows me to choose the cases, order them, and present them to students in a streamlined format. Moreover, I hope that this format will allow me some flexibility within the curriculum. For example, I might choose to use shorter edits of some material and longer edits of others depending on my focus from year to year. Swapping cases in and out of the curriculum will be easier than changing casebooks or providing a large number of handouts.
5. Collaboration and Feedback
My hope is that I will learn from others who are embarking on similar projects, that I can borrow from their materials and edits, and that they will borrow from mine. I hope that I will learn from my students about what works well and what does not. In that spirit, one of the reasons that I am blogging about this experience is to get the comments, feedback, and suggestions from prawfs readers!
Because, really, would I have made this decision in any state other than a caffeine-fueled brainstorm? Probably not. But I’m glad I’ve chosen this path, and I look forward to seeing how it all turns out.
Saturday, August 10, 2013
Training, education, and the ABA Working Paper
Here is the ABA Task Force's Working Paper; here is a response from former Cincinnati Dean Joseph Tomain (H/T on the latter: Brian Leiter). Tomain's response is excellent; it captures and beautifully expresses a lot of the inchoate thoughts I had both after my initial read of the report and have had throughout much of this debate. I want to flag and think about a couple of points.
First, Tomain notes that the report repeatedly speaks of law schools "training" lawyers rather than "educating" them (although it also speaks about "legal education"). That seems a meaningful, deliberate word choice that elides a critical distinction that I have not seen discussed but that goes to the heart of much of this conversation. He explains the difference as follows:
I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes. I cannot, however, educate them about market definition, information asymmetries, or public policies regarding employment in different sectors of the economy. One might quickly ask: Why would someone who knows how to draft such a clause need to know about economics and market dynamics? The answer is as simple as it is obvious. They need to know the context so that they can critically assess a non-compete clause or draft one in another situation for another client.
A good lawyer needs both education and training. The question is who should provide what and in what order. My late father-in-law spent his career in academic medicine and regularly spoke of doctors who had "trained with" him. In all cases, he was talking about residents or, more likely, post-residency fellows in oncology; he was not talking about med students, people working through the four years of basic medical school. Training, in other words, happened after school--and after education. Which makes sense: One only can be trained to do anything if one first has a basic education as to what that thing is, how it works, and why. And even if some training can and should happen in school (and Tomain notes that clinical and externship opportunities are constantly expanding to provide an introduction to training) it cannot be at the expense of education.Second, much has been made of the differences between legal and medical education and the purported goal of importing the med-school model into legal education. Tomain shows why that may not work, given the cost and sprawl of residency programs (i.e., training). But let's compare a different professional discipline--social work (thanks to conversations with my wife, who has been in social work education for a decade). Although requirements vary by state, in general, to be a licensed clinical social worker requires: 1) an MSW, a two-year program that includes two semesters of externships, usually following a full year in the classroom, with those externships subject to very specific, enumerated requirements and educational goals; 2) a licensure exam; and 3) two years of post-graduate supervision by a licensed social worker. In other words, there is no expectation that someone will be ready to practice social work on her own the minute she steps out of school, even where, as in social work, experiential learning is a fundamental and required part of the educational process. No one expects "practice-ready social workers." Even if some experiential training becomes a more core part of legal educational--as Tomain, and many other people in legal education, support--law schools are still not going to produce graduates who, on day one, are going to be ready to practice unsupervised and unguided. Because no professional school does.
Third, we also can use social work for comparison on another aspect of the Working Paper--discussion of non-J.D. education and the training/education of non-lawyers to provide certain basic legal services. Social work has both graduate and undergraduate studies; students can earn a bachelor's degree. And at least in some states (Florida is one), a professional only can identify herself as a social worker only if she has a social work degree (BSW or MSW). But these layers of professionals often creates confusion, especially when the media gets hold of a story about a child being hurt, missing, or killed in the child-welfare system. Reports often talk about failures of "social workers," although often the people involved were not licensed, did not have social work degrees, and not as fully trained or educated. I wonder if we will see similar things happen if non-lawyer legal services catches on more broadly.
Monday, July 29, 2013
Ten (No, Make that Nineteen) Tips for New Law Professors
I recently received an email from a professor who said he'd found this list of tips helpful. I've added a couple of his tips that were not on the original list.
1. Begin a little more strictly than you mean to go on. If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.
2. If you put a policy in the syllabus, stick to it even if you think you might have been wrong. I learned this the hard way. The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam. After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it. I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that. Thankfully, he backed me up, but I never again made a major policy shift midstream. She wasn't the only disgruntled student that day, either.
3. Put everything you can think of in the syllabus, even things that should go without saying. For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is. You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong. More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism. Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand. Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.
4. "Don't be moody."This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned by violating it. What the advice boils down to, I think, is that students desparately need you to be predictable. It is comforting to them when they know roughly what to expect each day.
5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right. I've been teaching for 19 years, and I only had one class that hated me. They decided early on that I was mean, and everything I did provided confirmation. They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too. However, in telling this story, I'm violating the next tip in my list.
6. Be careful about generalizing how "the class" feels. A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang). Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience. That said, it is easy to assume that outspoken students represent the feelings of the entire group. It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.
7. Watch out for group dynamics. Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea. Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow." For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward. That does the trick 99 percent of the time. If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."
8. Try not to project insecurity. In other words, fake it until you make it. Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't. Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level. Also remember that as little as you think you know, you still can read a case far better than even your brightest student. So project confidence, but . . . [see next rule.]
9. When you make mistakes, fix them. When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside. I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep. I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them. Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.] One classic dodge is to say: "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.] If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class: "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.] Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers. Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.
10. Trade-offs are inevitable. More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme? Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another.
11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable. Silly is sticky. Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) twenty years later. The principle had something to do with whether separate property acquired after the marriage becomes community property or not. Okay, so the idea wasn't that sticky, but my point still holds.
12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class. Conversely, use Power Point less than you think you need to. Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture. Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.
13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else.
14. Keep a degree of formal distance between you and your students. You can treat them like future colleagues, but you cannot be friends with students until they have left your class. Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.
15. Never use the same exam twice!! Violate this rule at your extreme peril.
16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.
17. You will teach a class best the third time you teach it.
18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.
19. Consider wearing a suit. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now, but I believe in signalling I take the endeavor seriously by dressing professionally.
Wednesday, July 24, 2013
Things you ought to know if you're about to teach criminal law
I realized a few weeks ago that people may have forgotten about our pedagogical series, Things you ought to know if you teach X. Of course, I'm only now reminding you, and I hope it will be helpful for the group of rising professors among our readership, or for those undertaking new preps.
Oddly, we didn't have a criminal law version of this post, so I informally took a stab at drafting one for Facebook, and here's what I've got. I've appended some of the comments from fellow prawfs (without attribution) in the event that a few extra perspectives are helpful.
Dear Crim prof friends:
A friend who's a rising crim prof wants to know what she should know as she enters the legal academy and begins teaching crim/crim pro. Here's an opinionated stab at what I wrote her, but let me know what else you'd add in terms of conferences, resources, opinions about casebooks, etc.
So, for crim law's basic class, I'd highly recommend using the Dressler casebook. If you want to make casebook costs very cheap for your students I'd use the 5th edition. In the chapters I teach, there's basically no difference b/w the 5th and 6th edition, and that would make the cost go down substantially. That said, at the very least there will be a secondary market for the used 6th edition this fall so if that's enough, you could do that. With apologies to friends who have their own casebooks, I'll just say that I've never had a complaint about the Dressler casebook in teaching this casebook over ten times. Also, there's a very good teacher's manual, Dressler has a good hornbook, and there are lots of folks who can give you their notes/outlines,etc. Also, Joshua and Steve are very good about servicing the casebook meaning that they respond to emails quickly.
For crim pro, I teach only bail to jail and I used Marc Miller and Ron Wright's excellent book, Criminal Procedures, most of my career. Last year I experimented with the Allen/Stuntz casebook and I found it unsatisfying for reasons that it is a) too Supreme Court focused, b) too federal focused and c) here, i'll get in trouble, but I found it too Stuntzian in the embrace of perversity and fantasy in the interpretation of criminal procedure. (Yes, Bill was a prince of a guy, teacher and colleague; still, the work has largely been over-valued imho--sorry, friends). That said, it is probably easier to teach/test material from that casebook than the Miller and Wright one. Both have very good teacher's manuals and support from the casebook authors. Your choice on this matter should probably turn on whether you're interested in crim pro II as an extension of con law stuff, or whether you're interested in, you know, criminal procedure in all its legal and policy diversity. There are important and interesting reviews of these casebooks back in the day by Bob Weisberg and Stephanos Bibas.
Regarding intellectual networks: if you're interested in crim law theory, I co-run a colloquium up in nyc (usually at nyu) that meets once a month or so during the academic year and I can put you on that list. If you're interested in presenting crim-related papers, there's a shadow conference at Law and Society that Carissa Hessick and I run. There also used to be a junior crimprof workshop that met once a month. I'm not sure if that's still up and running.
There's a crimprof listserv: I think the way to get on it is by emailing Steve Sowle at Chi-Kent.
There's a crimprof blog you might want to bookmark:
And Doug Berman's sentencing law blog is indispensable too:
For reading generally, you might want to make sure you get the Ohio State Journal of Criminal Law, which is excellent, and consider perusing some other "specialty" peer-edited journals, such as the New Criminal law review, Punishment and Society, and Criminal Law and Philosophy.
From the FB thread: some people chimed in to say they agreed on Dressler, and liked Dressler's crim pro book with Thomas; others liked Paul Robinson's crim law casebook b/c of its emphasis on statutory interpretation; some liked Chemerinsky and Levinson for criminal procedure (my recollection is that this would be a heavily doctrinal scotus kind of book); and some liked Kadish/Schulhofer et al or Kaplan Weisberg for crim. I had heard complaints before about Kadish/Schulhofer as too dense but the revised editions seem quite good. The best advice is to order them all and see what fits your teaching priorities. The next tidbit: be leery of over-assigning. I only assign 20 pages or so per 80 minutes class. Better to do what you can well rather than over-reach and be scattered. Keep in mind that criminal law is a class that students have lots of priors about and so you want to make sure you can exploit that level of interest by having rich discussions rather than racing through the material. Of course, YMMV.
Please feel free to use the comments for signed and substantive contributions, especially with respect to criminal procedure (cops and robbers), which I've not taught and which might have other networks and nodes of which I'm scarcely aware.
Thursday, July 11, 2013
Clinical Legal Education and the Future of the Academy
I may be naive, but it's mystifying to me that there's still serious debate over the value and import of clinical legal education. I admit that I'm not an objective observer -- participating in a clinic as a law student was the most valuable thing I did during those three years, and I've spent the past decade happily teaching in a clinical setting. Yet, given the dramatic drop in law school applications combined with the collapsing job market and escalating student debt, I'm surprised that more law school deans aren't promoting clinical and experiential education, as it may be one of the best strategies for keeping American law schools afloat.
Although this reality is slowly dawning on some law school administrators (and development officers) at places like Washington & Lee, UC-Irvine, and CUNY, it's those who regulate admission to the bar along with leaders of the practicing bar who are taking the lead. In recent months, rule changes in New York, Arizona, and California and important reports issued in New York and Illinois reflect the shifting landscape. In New York, a report by the state bar called for an expansion on the cap on clinical credits, leading the NY Court of Appeals to acknowledge that supervision by law school clinics was the "gold standard" and to amend its bar admission rules so that as many as 30 of 83 law school credits may come from clinical courses. The NY court also allowed work done in clinics to apply to the new 50 hour pro bono bar admission requirement.
Meanwhile, in California the state bar is considering a bar admission requirement that applicants complete at least 15 academic credits of practice-based, competency skills courses during law school or participate in an internship or clerkship; 50 hours of legal services devoted to pro bono or modest means clients, either before or after admission; and 10 extra hours of Minimum Continuing Legal Education (MCLE) after admission, specifically focused on competency skills training. The State Bar's Task Force on Admissions Regulation Reform unanimously approved the draft proposal in June; the proposal needs only approval from the full Board of Trustees and California Supreme Court. Given that California is the largest bar in the country, any change in their admission requirements will be closely followed by others.
Arizona has taken a different approach, amending its bar admission rules to allow law students to take the bar exam in February of their third year, provided they have no fewer than 8 credits left to complete. At the University of Arizona, third year law students will spend the first two months of that year studying for the bar exam and participating in an 8-10 week "theory to practice" residency that is "designed to explore real-world, practical topics relevant to legal professionals, such as applied ethics and professionalism, economics of modern law practice, cutting-edge issues in policy and law and how to better serve client needs."
Perhaps most dramatic, the Illinois State Bar Association has issued a report urging law schools to transform the second and third years "to help students transition to practice through apprenticeships in practice settings, practical courses, and teaching assistantships, rather than more traditional doctrinal courses." The report also called for the full inclusion of clinical and legal writing faculty in law school governance.
On the national level, members of the Clinical Legal Education Association (CLEA) have petitioned the ABA Task Force on the Future of Legal Education and the ABA Section for Legal Education and Admissions to the Bar to require at least 15 credits of professional skills instruction.
Having served for several years on the admissions committee at UNC, including this past year as chair, I can attest to the fact that prospective students are consistently heartened to hear about clinical and experiential opportunities in our law school curriculum. I can also share from my own teaching evaluations as well as those of my clinic colleagues (which I now review as interim clinic director) that our third year students repeatedly say the clinic was their best course/experience in law school. Likewise, my experience practicing among the bar and alongside Carolina alumni has confirmed that prospective employers and donors are also strongly supportive of "transition to practice" type courses, externships as well as clinical course offerings. They recognize that otherwise, the responsibility and cost of training and preparation for practice falls to employers, clients, and the graduates themselves -- something that the down economy can no longer subsidize. In addition and of particular importance to me, when law schools fail to endorse skills and professional training in their curricula, this disproportionately disadvantages students who are unable to afford/independently finance alternative opportunities for training.
Yet, the legal academy has continued to drag its proverbial feet, a fact acknowledged by the California task force, which disapprovingly noted "the persistent, unresolved debate in the legal academy about whether clinical legal education ought to be a mandatory part of the standard legal education curriculum." More than twenty years after the dissemination of foundational studies recognizing the import of experiential legal education, including the MacCrate Report and the more recent Carnegie Report by my colleague Judith Wegner et al. and Best Practices for Legal Education by Roy Stuckey et al., students can graduate from an ABA-accredited law school and sit for the bar having met only the minimum ABA accreditation requirement of a single credit (out of an average of 89 academic credits) of professional skills, meaning that they can be deemed ready to practice law without ever handling a client's legal problem. In contrast, other professions -- including medicine, veterinary medicine, architecture, social work, dentistry and pharmacy -- require at least one quarter, and up to more than one half, of a student's pre-licencing education be fulfilled by in-role supervised professional practice.
So, why the academy's reluctance to mandate that professional skills training and experiential learning be a foundational part of the curriculum -- and that faculty who teach in these areas receive comparable pay and voting rights? As for the first part of the equation, the usual retorts that such courses are too expensive and too difficult to implement are losing their teeth, as more than a dozen law schools -- both public and private, rural and urban -- have worked hard to provide cost-effective ways to mandate clinical education, and many more now guarantee a clinical experience for every student (see Karen Tokarz et al., "Clinic Requirements, Clinic Guarantees, and the Case for Experiential Pluralism: The New, Improved American Law School Curriculum," 43 WASH. U. J.L. & POL’Y (forthcoming fall 2013)). As for the issue of faculty status, my personal feeling is that until the schools at the top dismantle the hierarchy in which clinicians are second or third class citizens, the majority will not follow.
Your thoughts? Please share in the comments.
Wednesday, June 19, 2013
Do legal blogs still matter?Al Brophy asks the question at Faculty Lounge. Answer there or here (or both).
Saturday, June 08, 2013
How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?
In my first post here last week in my new summer series discussing my plans for my law school semester titled "Marijuana Law, Policy & Reform," I raised some questions about how law professors should think about covering legal history topics in courses not dedicated to legal history. I am deeply grateful for all the helpful feedback I received via this blog and elsewhere, and I am starting to slowly develop a working game plan for how I will cover and discuss Prohibition and related legal and social history during the first part of my law school seminar to be taught at OSU this coming Fall semester.
As the title of this new post highlights, today's topic on which I seek feedback concerns how I should think about covering drug markets and related economic issues in this seminar. As I mentioned when talking about how to cover legal history, I sometimes worry that teaching "poor legal history" may be worse than no legal history. Candidly, I am even more concerned about the prospect of teaching "poor economics" in my seminar — especially concerning modern drug markets, both legal and illegal.
The graphic reprinted here, despite being dated and hard-to-read, provides just a window into the range of challenging market/economic issues that surround just the topic of so-called "medical marijuana." (For the record, and as I plan to discuss at length in my seminar, I am generally suspicious of any and all uses of the term "medical marijuana" because so many concepts, both valid and not-so-valid, can be and have been rolled into this phrase.) The graphic draws some data from (biased?) reports like this one, titled "The State of the Medical Marijuana Markets," which is produced by a company trying to market its marijuana market analysis through this website titled Legal Marijuana Markets.
Specifically, one of my chief concerns here is that most, if not all, of those persons and groups likely to assemble information and analyses on modern marijuana markets are likely doing so with a specific advocacy agenda. More broadly, what necessarily defines a black or gray market is a need or desire not to be transparant about how the market operates and its various economic inputs and outputs. Indeed, public policy groups like Rand doing sustained reasearch concerning marijuana markets are quick to note that "variation in assumptions such as grams per joint and extent of underreporting can cause substantial variation in estimates of market size."
In addition, I am eager in my seminar to integrate stories about the various historic and modern market/economic realities of marijuana with the various historic and modern market/economic realities of various other licit and illicit drugs — ranging from alcohol to oxycodone to tobacco to valium. Knowing simply that the national marijuana market might reach up to $10 billion in coming years does not mean much if one does not also know, for example, that the national alcohol market may be well over $250 billion and that tobacco companies spend about $10 billion each year on advertising alone.
So, dear readers, any clear thoughts about how I can and should cover opaque drug market realities? In particular, I would be eager to get advice on essential dos and dont's: are there certain drug market dynamics I must be sure to cover and/or certain market myths or economic falacies I must be sure not to perpetuate in my marijuana seminar?
Cross-posted at Sentencing Law & Policy
Recent related post:
Wednesday, June 05, 2013
More on MOOCs
Glenn Cohen beat me to the punch in blogging about MOOCs, but I thought I might build on what he's written by giving a different perspective: describing my own (admittedly limited) on-the-ground experience with MOOCs.
Taking a MOOC, or at least signing up for one, is extraordinarily easy and painless . A MOOC--Massive Open Online Course--is a course that is open to anyone and everyone and requires no tuition or fee, but also carries no actual academic credit. There are at least three major providers of MOOCs--Coursera, Udacity, and EdX--and signing up is as easy as entering your name and email address.
For the sheer fun of it, I suppose, I signed up for a literature course through Coursera and a statistics course through Udacity. I am just starting both. Some very brief and mostly practical observations, aimed primarily at those of us who may be doing some online teaching in the future:
1. Udacity and Coursera have radically different styles, or at least the courses I'm taking do. The Coursera course, offered through Brown, is rather sparse and staid and feels more like a traditional lecture. The Udacity course, offered through San Jose state, is flashy and interactive and self-consciously entertaining. The Udacity lecture segments are short, and they are spoken not by the professors themselves but rather by someone who appears to have been hired by Udacity for the purpose of presenting the material in an appealing way (read: an attractive young woman with a pleasant voice). Moreover, Udacity seems to be totally asynchronous, whereas Coursera requires you to follow an overall week-by-week schedule. In other words, there are a lot of choices that can be made about presentation style in the online format, and the above are just a few examples.
2. It is exceedingly hard to pay close attention to a lecture on a video, even an engaging one, even for the brief 10-minute segments that Coursera offers. In real life, I have found that I can have difficulty focusing on live lectures for more than about 20 minutes or so too, unless the speaker is unusually entertaining. But with the computer format, it is even harder, because you are at an additional remove from the speaker, and because it is just too easy to start surfing the web, checking email, checking your bank account, etc. while still convincing yourself you are "listening" to the lecture in the background.
3. Because thousands of people can (and do) take these MOOCs, the discussion threads are extremely lengthy. Though I suppose they are meant to give the student of feeling of interactivity, I find them rather overwhelming and not worth the time -- especially since many of the comments are relatively devoid of useful content.
4. It is really fun, but weirdly intimidating, to be a student again.
Tuesday, June 04, 2013
Higher Education From Scratch
Hello Prawfs readers: it's nice to reemerge from the comments again for the first time in a few years. But my first post here will be in the nature of a comment, or at least a thought inspired by Glenn's post below on MOOCs. I'm sympathetic to a lot of what Glenn writes, especially the skepticism of those whose arguments (albeit understandably) seem to be focused more on short-term distribution effects rather than long-term gains for society.
But I'm much more skeptical of a refrain that Glenn employs a couple of times in his post-- the idea that it's helpful for us to imagine that we were "creating the first universities for our day and age," and use those imagined ideal first universities to evaluate whether and how our actual universities ought to change. Maybe it's my inner Hayek, but I'm not sure how good our imaginations really are, and I'm not sure how relevant the product of those imaginations ought to be.
I mean, for starters, once we are in the imagining business, why universities?If we were creating the first system of higher education for our day and age, is there any reason to believe we would do it via university, rather than some much more unbundled combination of written and oral materials? Would we have general rather than specialized certifications? And if we did decide to invent universities, what ought they be like? Despite having thought about this for a while, I honestly have no idea, and I'm skeptical of most of those who do have a confident idea.
I come at this problem quite differently. One of the defining characteristics of American universities is the way that they've become embedded in our society over time, and the set of social norms in and around them. You don't have to be Tyler Cowen to think that two of the main reasons people learn things by going to universities are the effects of socialization and the higher social status obtained by going. We can tell stories about the superiority of interactive class discussion over the internet and the library, but surely those embedded social effects are a huge part of any such superiority. And many of those social norms are bottom-up, not top-down. Imagining new from-scratch universities pushes us to dissociate the university from some of its most important virtues.
So I'd evaluate the role of MOOCs and online education by asking: To what extent can we introduce the advantages without dramatically changing the social norms on which the univeristy system depends? (And, if the social norms will change dramatically, will it be worth it?)
As for lectures, it may well be that students pay a lot more attention when there is a real human being at the front of the class. Similarly, it may be that the success of classes relies in part on the desire of many students to "impress" the professor because he is a high-status person, and that repeatedly seeing the professor in the flesh is important to inspiring that desire.
As for cross-subsidization, again I'd ask whether unbundling research and teaching is consistent with the current status games on which universities depend. I'm not sure about the answers, but I propose that these are the more relevant speculations than the question of how we'd design universities if we were doing it from scratch.
Monday, June 03, 2013
Three Reflections on the MOOC Debate
Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:
(1) A failure to disentangle distributive impact from merit of MOOCs:
Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.
One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.
(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.
The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.
The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.
(3) What is so great about the traditional live lecture?
I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?
Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.
If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.
* * *
None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.
I am sure many will disagree and look forward to hearing your thoughts.
- I. Glenn Cohen
Sunday, June 02, 2013
Course materials on Facebook?
I use blogs in all of my classes. I post the syllabus and supplemental materials, the class audio (I record all classes), and the assignments and questions for the next class. Students are expected to post questions, comments, material, etc., to the blog for continued discussion. I also include a Blogroll, to encourage them to read on-line legal sources (How Appealing, etc.). It has worked reasonably well, I think. The one limitation is that it marks an additional web site that they must affirmatively seek out to look for new postings (or get an RSS fee to an email account).
A colleague suggested moving all of this onto Facebook. I would set-up the "FIU Civ Pro" Facebook page and students would have to friend the site. They then would be notified through Facebook (which they always have on) of a new posting, etc. The theory is that they can access information and material passively, without having to seek out a new site. I am not on Facebook (for no reason other than I haven't done it), so I do not fully know its technical capacity (thus whether I can post documents or hold conversations), whether this would work (and work better than the current set-up), or whether it is a good idea.
Friday, May 31, 2013
Starting a summer series on the upper-level law school canon and my marijuana seminar
As revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform." As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.
As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar. Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and at my home blog Sentencing Law and Policy) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.
Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series here at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers. But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts. Consequently, I will not be surprised if I end up doing a lot of cross-posting both here and at SL&P in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."
Speaking of substance, I will conclude first this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition. Public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco. I believe there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into the modern marijuana law and policy; my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.
But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history. A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history. (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.) Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.
Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history. In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.
Cross-posted at Sentencing Law and Policy.
Saturday, May 25, 2013
Curves in the upper level
Jessie raises some good issues about the use of curves. I agree with the commenters who argue that grades are inherently comparative and relative, so I am generally good with using curves.
I want to ask a slightly different question about using curves in upper-level classes. At least arguably, the curve's signaling and weed-out functions are gone, at least as to smaller, niche non-core classes, particularly with respect to 3Ls in their final semester. And smaller class size means that the mandatory low end may be one student forced to get a C-. Certainly the sample size may be too small to get a "natural" bell curve. Upper-level curves tend to be higher than 1L curves (fewer mandatory low grades, more mandatory high grades, higher median, whatever). But even if we accept curves in the first year, are they justified after that, especially as to the mandatory low end? At what enrollment point should the curve kick-in--15 students? 25 students?
Friday, May 17, 2013
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!
Thursday, May 16, 2013
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?
Tuesday, May 14, 2013
Oh, the Cases You'll Know
The faculty at Osgoode Hall Law School offer Seussian encouragement--sort of. (H/T: My colleague Jan OseiTutu)
Monday, May 13, 2013
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.
Thursday, May 09, 2013
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.
Wednesday, May 01, 2013
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
Tuesday, April 30, 2013
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
Monday, April 22, 2013
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.
Wednesday, April 17, 2013
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.
Saturday, April 13, 2013
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.
Tuesday, April 09, 2013
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.
Monday, April 08, 2013
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.
Friday, April 05, 2013
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)?
Tuesday, March 12, 2013
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?
Friday, March 08, 2013
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.
Monday, February 11, 2013
Clerkship Questis 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.
Wednesday, January 30, 2013
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.
Wednesday, January 16, 2013
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?