Tuesday, April 25, 2017
Getting Civ Pro mileage out of Trump
For my in-semester essays in Civ Pro, I got a lot of mileage out of Zervos v. Trump, the defamation lawsuit filed by the former Apprentice contestant who alleges Trump sexually assaulted her (the allegation is that when Zervos went public with her allegations and Trump denied them, he called Zervos a liar, constituting defamation per se).
I got four essays out of the basic lawsuit, with only a little bit of elaboration beyond the Complaint itself and only a few made-up or altered facts, as necessary: 1) Whether another of Trump's sexual-assault accusers (I used Natasha Stoynoff, the People Magazine journalist) could join as a plaintiff; 2) How Trump could raise a defense of presidential immunity (that is, the difference between 12(b)(6) and 12(c) for affirmative defenses--I moved the case to federal court); 3) Whether Trump could remove to federal court in New York (a test of the Forum Defendant Rule--I tweaked the facts and had the lawsuit filed on January 23); and 4) Whether Zervos could have filed the lawsuit in her home state of California rather than New York (a test of the Effects Test for personal jurisdiction, with some internet thrown in).
All-in-all, a helpful teaching case, in a framework that students would be interested in and with which they would be somewhat familiar. And, at least so far, no complaints from students about asking them to write about Donald Trump and his misdeeds, even having to answer one question as Trump's counsel.
I will leave with a question for the Civ Pro types: What would your conclusion be on the P/J-in-California question? Based on the allegations in the Complaint, Zervos is from California and one of the sexual assaults that Trump denies occurred there (the other occurred in New York). But Trump's denials of the assault accusations (i.e., the defamatory statements) were made either via Twitter directed at the world or at campaign rallies in states other than California, with no indication the statements made it into California through his efforts. And what makes Trump's denials defamatory is that he is denying Zervos' statements about the assaults, which were not made in California, not the California-based assault itself. My initial thought was that there would be no jurisdiction in California. But when I sat down to write the sample answer reaching that conclusion, I moved in the other direction (I ended up writing two sample answers, one going each way). Thoughts?
If my initial conclusion was wrong and California would have jurisdiction over Trump, it raises some interesting questions and ties personal jurisdiction to other, strategic issues for the plaintiff. If there is jurisdiction in California, why did the plaintiff go to New York, especially New York state court? Trump is certainly no less popular in New York City than in California (although perhaps not Orange County, where Zervos lives). One answer may be that she wanted to keep the case in state court--because of the Forum Defendant Rule, Trump (almost certainly a New Yorker) could not remove to federal court in New York, although he could remove to federal court in California. But to the extent any temporal presidential immunity exists, it would be in state court (an issue the Court in Clinton v. Jones left open), while it is clear that no such immunity exists in federal court. That being so, why would Zervos pick state court over federal court?
Wednesday, April 05, 2017
AJIL Unbound is published on behalf of the American Society of International Law. AJIL Unbound supplements the American Journal of International Law (AJIL) by publishing short, original essays addressing developments in public international law and private international law. Featuring timely essays written in a readable style accessible to international law policymakers, practitioners, and students, AJIL Unbound seeks to broaden and diversify the scholarly exchanges on international law begun in the pages of AJIL and to introduce new ones online.
Sunday, March 26, 2017
Welcome to Max Stearns and "Blindspot"
Max Stearns (Maryland) has joined the law professor blogosphere with Blindspot, which he describes here. Posts so far have covered the Gorsuch hearings, coffee, the TV show "Rectify" (whose final season I need to watch), and ideological blindspots of both political parties.
Definitely worth adding to your regular blog stops.
Tuesday, March 21, 2017
Journalism, law, and asking questions
This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.
The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.
Update: Needless to say, this also would make confirmation hearings far more bearable.
Wednesday, March 01, 2017
The following is posted on behalf of Jake Linford at FSU (email@example.com), who is hosting the first PrawfsFest! since Dan's death.
I am among the many beneficiaries of that most Markelian (Markelish?) of workshops, the Prawfsfest! It has been too long since the last Prawfsfest, and so I will be hosting a new session at Florida State University College of Law in Funky Tallahassee. The plan is to gather on April 27-28, during FSU’s exam period, but before the weather turns too hot.
The point of the gathering is to be an incubator for half-baked scholarship and early works-in-progress (pre-submission, pre-SSRN). Each participant is expected to produce of a draft of no more than 10,000 words. The author does not present the paper, but instead we spend an hour on constructive criticism of each paper, which everyone will have read.
I have 6 available slots, open to any former or current PrawfsBlawgger, which will be distributed first come, first served. Each participant must cover their own travel expenses and hotel accommodations, but FSU will pick up meals. Historically, the conversation and feedback have justified the cost. I'm hoping to finalize the list of attendees as soon as possible, so please let me know (firstname.lastname@example.org) if you plan to attend by March 15, 2017.
Thursday, February 16, 2017
Acosta nominated as Secretary of Labor
Alexander Acosta, my dean at FIU College of Law since 2009, has been nominated (and will almost certainly be confirmed, possibly overwhelmingly) as Secretary of Labor. When we hired Alex, I predicted out loud that we would have him until a Republican was next in the White House. Turns out, I was right. I predicted/hoped that it would be 2021 rather than 2017. And I predicted/expected we would lose him to DOJ as Attorney General or to the federal bench; Labor never crossed my mind, despite his time at the NLRB.
Alex had what I believe should be regarded as a very successful deanship. The quality and success of our students has improved dramatically; we are ranked in the mid-50s on US News (yeah, I know) for student quality and job placement and we have topped Florida in bar passage the past three cycles. (Scholarly reputation is nearly immovable, although he supported programs to help on that front). He managed us through the financial and application drop--our applications have been up or down less than national averages most years. The only thing I predicted back in 2009 that he might do, but has not, was find a naming-rights donor. But those do not grow on trees.
I was skeptical of hiring a non-academic dean at the beginning. It turned out we were on the leading edge of a trend that numerous similar schools followed. He brought a unique skill set (notably the ability to recruit and support students) that is not easy to find or replicate and it did wonders for the school.
He will be missed, but I wish him all the best.
Monday, February 13, 2017
CFP: 2d Annual Ad Law New Scholarship Roundtable
The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.
The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.
The Roundtable will bring together a mix of emerging and established scholars to present new work on Administrative Law. Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be led by a distinguished scholar who will facilitate the discussion. Confirmed commentators currently include Emily Hammond (George Washington), Lisa Heinzerling (Georgetown), Jon Michaels (UCLA), Nick Parrillo (Yale), Peter Shane (Ohio State), Cathy Sharkey (NYU), and Glen Staszewski (Michigan State). In addition to the paper panels, a lunch program will address current issues in Administrative Law and institutional resources for empirical research projects.
Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 17, 2017. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Chris Walker at email@example.com. You may also contact Chris Walker or Peter Shane with any questions you may have about the Roundtable.
The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.
Administrative Law New Scholarship Roundtable Host Committee
- Nicholas Bagley, University of Michigan
- Michael Sant’Ambrogio, Michigan State University
- Miriam Seifter, University of Wisconsin
- Peter Shane, The Ohio State University
- Glen Staszewski, Michigan State University
- Christopher Walker, The Ohio State University
Sunday, January 29, 2017
Random thoughts on a Sunday
1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.
But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.
Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.
And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.
2) Josh Blackman has his usual thorough analysis of the procedural aspects. I do not think I agree that Judge Donnelly's order is ultra vires for not having performed the FRCP 23 analysis. In that short time, I am not sure the court could do more than acknowledge the class allegations in the motion and save them for fuller briefing. But to not allow the fullest TRO* would love potential class members subject to removal.
[*] Although not styled a TRO, this seem to me the functional equivalent--staying enforcement of the law for a finite number of days pending fuller briefing.
3) There are some interesting enforcement issues, as reports come that officials at airports are refusing to abide by the orders. Judge Donnelly included a paragraph order the Marshals to take all steps necessary to notify agents on the ground about the order. But that takes time.
4) As I wrote last weekend, I have no idea when public protest will be permitted and when law enforcement will crack down. The New York Times described the genesis and evolution of Saturday's protests at Kennedy Airport (which, famously, is a nonpublic forum), including crowds making sidewalks outside the terminal unpassable. And all without permits, pre-event negotiations, and explicit or implicit understandings. And yet there were no arrests and no efforts to disperse or remove the protesters. Same in the parking garages. At one point, Port Authority police blocked protesters from boarding the train linking the subway to the terminals, until Gov. Cuomo ordered them to stand down, which they did only after a 15-minute delay.
5) There is a teaching moment here, apart from the substantive and procedural details of the controversy and the "this is why we need lawyers" narrative (since most of our students are never going to be on either side of such controversies). Reports are that this order was not vetted by the lawyers and policy experts at various agencies, including in the Office of Legal Counsel, but was thrown together by non-lawyer policy makers and some lawyers guiding them within the White House. So the teaching point is that lawyering matters and lawyering means care and precision and avoiding ambiguity and the chaos that ambiguity brings. And that is true not only as to major government orders that affect the entire world, but wills that affect an elderly widow.
Monday, January 16, 2017
Sponsore Post: West Study Aids
The following post is by Anna Lawless-Collins, Associate Director for Systems and Collection Services at Boston University Law School, and is sponsored by West Academic.
The Fineman and Pappas Law Libraries at Boston University added the West Academic Study Aids Subscription in April 2016, just in time to help with end-of-year exams, and it was an immediate hit with our students. We went on a marketing blitz (aided by materials sent by West Academic) and set out table tents, posted flyers, added slides to the law school's slide show, blogged about it, and handed out materials at the circulation desk. We even wore buttons encouraging students to ask us about using the materials. Students told our library director, Ron Wheeler, that they find the online versions infinitely better than the print reserve materials - not least because they can use them anytime and anywhere. They don't have to worry about other students returning the materials late or the print versions going missing.
From the implementation end, we worked with the West Academic team to set up school branding on the page. Now, when students visit the page, it's clear that the library is providing access to the study aids. It also includes a "Most Popular at Your School" module that pulls real-time usage reports from our school. That, plus the "Recent Releases" module, shows students new and important content their peers are accessing. We are also using the free MARC record collection from OCLC to ensure discoverability in our catalog. We have had to do some tweaking to the records to make sure they are complete and to get the records to FRBRize with our print holdings, but that work is minimal when compared to the number of records we are adding with the monthly updates.
The platform initially was only accessible from the Westlaw home page, but recently moved to an independent platform with IP access. This allows students to browse the titles as a guest, but they still have the option to create their own account and sign in to their own account within the platform. If they do that, they can take notes, highlight passages, and keep track of important information in their own accounts. Students have told our Head of Access Services that this platform is the easiest to use of all our eBook platforms. The usability, good content, and new features being added (like audio lectures) has led to high usage. For Fall 2016, we saw our usage rise steadily over the semester, reaching a high of well over two thousand document views for the exam period in December.
The statistics themselves are very useful. We can see breakdowns by month, guest users by IP authentication, and unique visitors by month. We also get breakdowns showing which series are being used and how frequently, number of global searches, the top search terms, searches within books, and the top ten books searched. This gives us a good idea of what our students are looking for help with and we can use that to help guide our collections decisions in other areas.
The Study Aids Subscription from West Academic has been a great investment for us. It's helped our students access materials more easily during stressful times, it's eased the burden on our print reserves collection, and it's created an enormous amount of goodwill for the library.
Tuesday, January 10, 2017
Silence in the classroom
As we all start spring classes, I want to share an observation about the value of silence in the classroom. I am interactive with my students, even in my large class (Business Entities). One of the most fruitful questions I ask myself as I do my class prep is, "What questions would make a bright student who has done the reading think a bit before replying?" Those questions add particular value to the class experience because they're not something the students will get just by a careful reading of the assignment. They actually have to go to class to get that value. In turn, I feel an obligation to make the class time valuable to the students by asking questions that do more than reinforce a basic understanding of the reading.
But a necessary consequence of asking questions of that kind is that students pause before replying. Frequently they start a sentence then stop. All of that involves what can seem like considerable silence in the classroom. While the students are wrestling with a question, they are also dealing with the dynamic of silence.I am explicit with the students about this, telling them on the first day, and usually giving them a reminder later in the semester, that silence is a good thing in this context. That, in fact, it's a way to know whether I'm doing the job I'm supposed to be doing (i.e., doing more than just assigning pages and explaining what they've already read). Still, the silence itself has a tendency to unsettle some students.
If you're looking for a new technique for class or for class prep, I recommend finding questions that are just one step past what the students would think of on their own. The silence really is golden, but be aware that you may want to be open with your students about the value of silence.
Tuesday, January 03, 2017
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
Friday, December 30, 2016
Sponsored Post: Experiencing Trusts and Estates
We’re delighted to have the chance to talk about a casebook that we have forthcoming from West Academic in its Experiencing Series. The key idea behind the books in the Experiencing Series is to incorporate more experiential lessons than the typical casebook. While seemingly all casebooks are making that move these days, trusts and estates lends itself to this approach in particular. We are building on the really terrific teaching materials that have been out for decades now in trusts and estates by keeping many of the well-known cases and building out more documents and some of the key issues that students who will be in small firms will likely face on a regular basis.
We start Experiencing Trusts and Estates with planning for the physical act of death -- that is, planning for durable powers for attorney for health care and for financial matters. We introduce right up front those very basic documents, and the statutes that govern them, to give students a sense of what those documents look like, how they can prepare them using statutory precedents, and some of the problems that attend (particularly) durable powers of attorney for financial matters. Then we introduce the basics of the estate and gift tax regime and the basics of the probate process. All this material gives students a 360-degree view of the field and gets them ready for lessons in the drafting and execution of wills and trusts. Our focus is to introduce students to planning documents and to see how those documents (like spendthrift trusts) are written and interpreted. One of our hopes is that this approach prepares students with the vocabulary and the basic understanding of how documents relate to the more esoteric wills and trust doctrines that they’re learning about. And to make things a little more entertaining, we draw a lot of examples from “wills of the stars” -- from George Washington to Elvis, Michael Jackson, Katherine Hepburn, and Whitney Houston. Experiencing Trusts and Estates will be published this spring and available for fall 2017 classes.
Wednesday, December 28, 2016
Northwestern Law Review exclusive submissions
Northwestern University Law Review has instituted a system of exclusive submissions for the upcoming cycle. Authors can submit exclusively until January 28 and will receive a response by February 17. It is a good way to get a jump on the submissions cycle. Full details on submissions here.
Friday, December 09, 2016
Professor Michael L. Rich
Michael L. Rich of Elon law passed away Wednesday, after a several-years illness. Michael was a guest prawf in April of this year and wrote movingly about his experiences and challenges balancing his prawf life with a terminal illness.
Our thoughts and prayers go to his family, friends (in and out of the legal academy), and Elon colleagues.
(Thanks to Eric Chaffee (Toledo) for sharing the news).
Monday, November 07, 2016
Best writing practices
Hi all, it’s good to be back at Prawfs for another guest stint. I’ve written for this site more times than I can count, but this is my first time guesting as a Texan, having just joined the faculty of the University of Houston Law Center, where I’m also serving as research dean.
In that latter capacity, I’ve been thinking a lot about how to encourage productivity both for others and for myself, and this has led to some reflection on best practices for optimal writing. I’ve found that working on scholarship is the easiest part of the job to put off. Teaching and service typically happen on regular, no-exceptions schedules—classes and meetings require your presence and start and end at specific times—while writing can almost always be delayed until some theoretical future time of idealized productivity.
So in this initial post, I’ll share three of the leading suggestions I’ve read about how to maximize writing productivity based on my admittedly casual perusals of the surprisingly vast literature on this topic (the existence of which leads me to believe I’m not alone in often finding it challenging to stay on-task with respect to writing). The question I’m most interested in is whether these general best practices for writing translate into good practices for legal scholars, and/or whether there are other techniques folks have found helpful.
All this follows after the break.
First: write early. Whether there is an ideal time during the day to write is to some extent idiosyncratic. Charles Dickens and Ernest Hemingway were morning people who cranked out the words when they got up and finished by afternoon. Robert Frost and Hunter S. Thompson were nightowls who got their best work done later in the day. But there is some evidence that most people are best served by writing earlier on, particularly soon after waking up. For one thing, to the extent that writing requires mental focus and will power, those qualities are at their peak earlier in the day, especially the morning before other tasks and distractions have the chance to sap our energy and attention. Neuropsychologists have also found that the part of the brain associated with creative activity—the prefrontal cortex—tends to be the most active earlier in the day, so that if you’re thinking through issues or working out a particularly difficult conceptual problem, you’re more likely to succeed after your morning coffee than your evening dinner.
Second: write regularly. Whether you get your best work done in the dark of the earliest morning or of deepest midnight, one universal nearly all productive writers agree on is: find a pattern you like and stick to it. Part of this is about efficiency. Making writing a regular part of your life makes it increasingly likely that you’ll actually write, turning it into an expected and standard part of your day rather than something you have to spend time and effort making time for. But there’s also the related point that writing regularly makes what can be a challenging task easier. Haruki Marukami unsurprisingly put this much more eloquently than I could in describing his own routine: “The repetition itself becomes the important thing; it’s an act of mesmerism. I mesmerize myself to reach a deeper state of mind.”
Third: write often. One of my favorite quotes about writing comes from the late, great Roger Ebert, who said something along the lines of “I’ve developed a reputation as the fastest writer in town. But I’m don’t write faster than others. I just spend less time not writing.” This is certainly closely related to having a regular schedule (if you commit to writing every day, you’ll likely be writing more often just by virtue of committing to doing so on a daily basis). And this one rings true to me for intuitive reasons. The analogy seems that writing is like a muscle. Exercise it frequently and it gets stronger. Fail to do so and it atrophies.
The question for this audience is: Do these notions, most of which come from looking at novelists or essayists, hold true for legal and/or academic writers as well (I’m not sure that Marukami’s self-mesmerism is something that would be helpful in writing scholarship)? There are a number of potential distinctions: scholarship requires research and entails a different sort of creativity (persuasive argument as opposed to something more akin to pure creativity). And since writing is only part of the professor’s job, is it reasonable to expect to have a regular writing schedule given the need to prioritize students and the competing demands of service? Or does that mean that picking and insisting on a schedule is all the more important?
Finally, consider one alternative approach I’ve observed in some colleagues, which I’ll call the binge-writing model. The notion here is that given the inherent disorder of the academic schedule, it’s not really possible to write regularly, and perhaps not even that effective. I have colleagues who sincerely believe that writing is best in concentrated marathon chunks when blocks of time open up (or if they don’t, in a mad series of sleepless nights). The idea, I suppose, is that this kind of fugue-based approach produces more interesting and coherent work than plodding along gradually, adding a bit at a time.
Again, it’s good to be back and Prawfs and I look forward to thoughts on these or any other best writing practices.
Tuesday, September 27, 2016
Letters of recommendation
I come from a family that overwhelmingly worked in blue-collar jobs. Growing up, my father was a stagehand and my mother was a homemaker. In addition, very few members of my (large) extended family went to college. Having grown up without a lot of professional mentors myself, I've since worked to seek them out. Now that I'm a law professor, one of my favorite aspects of the job is the opportunity to mentor students. Maybe that's why I consider helping students find jobs to be part of my own job description.
One of my colleagues recently asked me if I would write a letter of recommendation for a student that did above average in two of my classes (i.e. A-, B+) but was in the bottom third of the graduating class. He seemed surprised when I responded that I am willing to write a letter of recommendation for any student. I'm curious to know if I am the outlier. Would you write a letter for the student so-described? Some further thoughts on my own approach after the break.When a student asks me for a letter of recommendation, I invite them to meet with me to discuss their career goals. I find that these meetings help me get to know the student a bit better and often provides useful color for my letters. It also affords me the opportunity to ask students to name three qualities about themselves that they would like me to comment and to discuss the possible basis for these comments. For example, if they'd like me to comment on how bright they are, perhaps they'll note that they received a very high grade in my course. Or if they want me to comment on their public speaking, they'll remind me that they served as a group spokesperson during some of our in-class exercises. To my mind, this discussion serves multiple purposes. Particularly for my 1Ls, it is a continuation of our work in class, where I constantly seek to teach them to connect facts to law to reach legal conclusions. It also helps me flesh out the substance of my letter. Finally, it helps to set expectations about what I can and cannot say. I do make clear to students that they should consider whether I'm the best person to write a letter for them based on our prior interactions, their performance in my class, and the their other alternatives. But if I'm the best they've got, I work to write them the best letter I feel comfortable with.
My colleague worried that he would debase the value of his other recommendations by writing a letter for any student that asks. As a result, he said that he refuses to write anything other than letter of unqualified praise. By contrast, I think that there are always positive attributes that I can comment on and I believe that even our weakest students deserve my help to get a job. Apparently, I'm more willing to write a broader range of recommendation letters from those providing "the strongest possible recommendation" all the way to encouraging the employer to "consider" the applicant.
What do you think? Am I failing to adequately safeguard my reputation?
Sunday, September 25, 2016
Submitting to online journals
Wednesday, September 21, 2016
Election Day and law schools
The following comes from Beau Tremitiere, a 3L at Northwestern-Pritzker School of Law, the EIC of the Law Review, and the organizer of the Election RAVE Campaign. Administrators, faculty, and/or students interested in finding out more can contact Beau at (firstname.lastname@example.org). Thanks to Friend-of-Prawfs Jim Pfander for passing this along.Law faculty may want to know about a burgeoning nonpartisan national movement, the Election RAVE Campaign, which encourages law students to participate on election day in the 2016 Presidential Election. Northwestern Law has cancelled all classes for this purpose, and at least five other law schools have taken the day off. Many others are encouraging professors to reschedule election-day classes individually. By encouraging students to spend the day volunteering at the polls, law faculty can provide an enriching learning experience, reaffirm our profession’s commitment to public service, and significantly reduce the risk that voter suppression, intimidation, tampering, and honest mistakes will disenfranchise large swaths of voters.
We believe active participation in our elections should be part of American legal education, offering experiential learning to enrich the classroom discourse and contextualize abstract concepts. Moreover, active engagement may enable law schools to satisfy their institutional commitment to public service. By dispatching volunteers into our local communities to assist elderly, ESL, and otherwise at-risk voters, we can improve our schools’ standing within a sometimes skeptical public. Finally, your students could be the difference between a free, fair, and peaceful election and one that further entrenches distrust and conflict. Law students offer problem-solving skills and familiarity with technology that can shorten wait times and prevent honest administrative errors; in many instances, their mere presence can deter would-be troublemakers.
We recognize that rescheduling class is an inconvenience, but among your students are future professors, deans, judges, legislators, and governors. By rescheduling one day of class and encouraging your students to be active civic agents, you can empower, inform, and inspire this next generation of legal, intellectual, and political leaders.
Monday, September 19, 2016
Aargh, avast yee, ATS plaintiffs
Today is International Talk Like a Pirate Day. Unfortunately, I did not find that out until late today. Because this morning in Fed Courts, I taught the Alien Tort Statute and Sosa, which identified piracy as one of the acts that could be the basis for an ATS claim. The confluence would have been perfect. And, like Thanksgivukkah, the opportunity will not come around again for years.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 4, 2016, for one-year fellowships to begin in August or September 2017. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service. Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $92,145) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2017, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Wednesday, September 14, 2016
Some Resources for Grading
Given the article in the New York Times the other day and Prof. Preis’s Post, I want to share some observations about and resources for grading from both a statistical and educational perspective. First, it’s important to get on the table that there is a persistent and deep-seated misunderstanding that there is something “scientific” about assigning grades based on a “bell curve” or “normal curve.” Neither concept is relevant to the actual scores law students receive on exams. An equally problematic misconception is that just because you can put things in rank order means you know the interval between them. Imagine an A,B,C, and D. grading scale. If the top five scores on an exam are 99 and there are only five A’s, then the first student getting a B (student number 6) could have scored 98.
How much less does student number 6 know the material than students number 1-5? Hard to tell without a lot more information. But what if the top five A’s were 98, 90, 85, 72, 70 and the first B a 65. Would you feel comfortable that the two “B” students probably had the same level of competence? Remember how little we like rank order when it comes to ranking colleges.
The whole concept of a comparative grading scheme rather than measuring against external measures of success is problematic. Imagine the catastrophic results if the Navy did this with pilots who land on aircraft carriers—advanced students through training by comparing their skills to the group rather than to objective criteria of generally agreed upon success. (they don’t). Sometimes students (and faculty) point to curving grades as protecting students from variations between classes in that it guarantees that some students will get A’s and B’s and that not everyone will get an F. But comparative grading also can mean that until the bar exam, it can be hard for the student (and for us) to assess how much "torts" or "contracts" he or she really knows.
Also, looking back to yesterday, by artificially limiting high grades, we run the risk of discouraging students who really are achieving at levels very similar to their peers with higher grades but who may drop back from intensive study once they realize that they will always be at the middle of the pack.
What to do? Well, first of all, it’s helpful to remember that there is an entire literature devoted to grading. Second, it's likely that the focus on learning outcomes is going to be very helpful here because a core concept is that before you can effectively assign grades, you have to know what you want to measure.
Tuesday, September 13, 2016
Learning from Some Great Educators--President Freeman Hraboski
One of the things I learned on the way to getting a Ph.D. in higher education is that very little research on how college and graduate students learn ever makes its way into law schools. And almost no one does large scale, generalizable research on law school learning—probably because there isn’t any money to fund it. In law, at best, we now have schools studying their own students retrospectively to identify factors that might correlate with bar success or high grades--but these studies tell us nothing about what we could be doing differently or better in the classroom. And yet law schools are changing how we teach.
My neighbor up the road, Prof. Deborah Merritt of the Ohio State University Moritz College of Law, recently proposed some explanations for the slight rise in MBE scores after a period of steady decline, one of which was "improved preparation." And by that she didn't just mean direct bar preparation but changes in teaching methods that involved more feed-back and more frequent assessment. This change is an example of using research on effective learning done in other areas of higher education and applying it to law.
To start the discussion, I'd like to share the work of a visionary educator, Dr. Freeman Hraboski, President of University of Maryland, Baltimore County whose institution sends more African American men to medical school than any other college in the country. This TED talk reflects how he is using the research generated by one of the most generously funded topics in education today, increasing the number of students who succeed in STEM fields. See here, here, and more accessibly, here. This is antithetical to many STEM fields which pride themselves in weeding out, not encouraging, students. There may well be some things for us to learn as well.
Friday, September 09, 2016
Commitment to furthering social change
A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):
My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."
This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).
Tuesday, September 06, 2016
Assigning videos for class?
This semester, I'm teaching a seminar on consumer financial law. It's my first time teaching this topic and my first time teaching a paper-based seminar. Adam Levitin was gracious enough to let my class use a draft version of his textbook. And both Adam and Susan Block-Lieb, who also uses his casebook, shared some of their notes and slides with me. Yet, I still spend an enormous amount of time preparing for this class. After all, while it's relatively easy to figure out what I want students to learn, it's much more challenging to figure out how best to present the material so that they will learn it.
Some folks who teach consumer law have made use of a series of medium-length videos by John Oliver. I've been thinking of doing so too. I'm also considering assigning a ~40 min film called Spent. My gut reaction is that it's likely to be more effective than assigning additional reading, if purely for the novelty of it. The only variety I had in assignments when I was a student was being asked to read books vs. law review articles vs. cases.
But, in addition to highlighting these resources through this post, I'm also curious for feedback. While I've assigned podcasts, I've never assigned movies. Do folks have any experience in doing so? Is it well received by students? Do you find videos to be more (or less) effective than assigning reading?
Too politically charged?
The Second Circuit last week decided Sokolow v. PLO, holding that a federal court in the United States lacked personal jurisdiction over the PLO and Palestinian Authority in an action brought by a number of U.S. citizens and their family members, arising from some terrorist attacks in Israel. The case contains good analysis of both the new general-jurisdiction analysis after Daimler and the new effects test after Walden.
This would be the type of case I would use for a subject essay on personal jurisdiction in Civ Pro. But is the underlying subject matter too hot and too controversial? Will people who feel strongly about either (or both) sides of this debate find the subject too painful, hurtful, etc.? Will I be seen as insensitive to one (or both sides)? Is this likely to get a reaction similar to the First Amendment exam question about whether Michael Brown's stepfather could be successfully prosecuted for incitement?
As I think I have written before, I like using real-world cases/problems for exams and essays. And I like questions that force students to look past their political preferences to see and explore the legal issues in a case--one's political views about Israel and the Israel-Palestine conflict should be irrelevant to whether the PLO is "essentially at home" in New York. But in this case, am I asking for trouble?
Tuesday, August 30, 2016
Guerilla Guides to Law Teaching
Guerilla Guides to Law Teaching is a new web-based course resource for incorporating social movements into law-school classes. It is produced by Amna Akbar (Ohio State), Sameer Ashar (UC-Irvine), Bill Quigley (Loyola-NO), and Jocelyn Simonson (Brooklyn). Here are the Four Principles for using this material in teaching.
Saturday, August 27, 2016
Defining terms and the U of C letter
Some of the problem surrounding the U of C letter is that we do not or cannot agree on terms. A commenter on my prior post on this argues that we are conflating content warnings with trigger warnings, because much of what we warn about is not actually "triggering" for trauma victims. An interesting point. Although i wonder if, at some level, we are quibbling semantics--the point comes to whether we must warn about something and whether that warning comes with some form of opt-out.
At Balkinization, Mark Graber posts a letter from a music professor at the University of Georgia (who happens to share his last name) arguing that intellectual safe spaces are essential to allow students to "speak, write, listen, challenge, and learn." But the letter defines safe spaces as ones in which students can present their ideas--even wrong or half-baked ones--without fear of reprisal from colleagues or professors. I agree with this conception. Of course, that is not what "safe space" has come to mean on campus and, at least I do not believe, it was not the conception the U of C letter was challenging or the conception that has been at the heart of most campus speech disputes.
Thursday, August 25, 2016
More on the University Chicago letter
First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:
At times this semester we will be discussing historical events that may be disturbing, even traumatizing, to some students. If you suspect that specific material is likely to be emotionally challenging for you, I’d be happy to discuss any concerns you may have before the subject comes up in class. Likewise, if you ever wish to discuss your personal reactions to course material with the class or with me individually afterwards, I welcome such discussions as an appropriate part of our classwork.
If you ever feel the need to step outside during a class discussion you may always do so without academic penalty. You will, however, be responsible for any material you miss. If you do leave the room for a significant time, please make arrangements to get notes from another student or see me individually to discuss the situation.
Like Rick, I have on occasion included a light heads-up on assignments (e.g., "This is a sexual harassment case and involves sexually explicit conduct"). I have never considered offering an opt-out. Interestingly, Johnston explains that he originally drafted the warning in reverse--the opt-out first and invitation to discuss second; he switched to lead with the discussion because it "centers dialogue — before, during, or after class — as central to the academic project."
Second, Johnston and The New Republic argued that the letter violates the academic freedom of those professors who wish to provide trigger warnings. This seems to me to over-read the letter. I read it as stating that the university would not provide official trigger warnings in its own programs and activities (e.g., no trigger warning when a controversial speaker comes to campus); that it would not officially designate campus spaces as "safe spaces" (e.g., the dorm is not a space where you are free of offense from what someone else says or has in his dorm room) (Kevin Drum agrees); and that it would not make trigger warnings official university policy. But the letter said nothing about what individual professors could, could not, or must do. A university spokesperson confirmed that "professors maintain broad latitude to engage in teaching practices as they see fit or to accommodate student requests."
This was not good enough for TNR; it insisted that the fact that trigger warnings are not banned "doesn’t get at the problem: the University administration is clearly making a stance on a pedagogical decision that has traditionally been left up to professors. That in itself constitutes a chilling effect and breach of academic freedom." But that is nonsense. A university can--and arguably should or even must--take a stance on many things, including pedagogy, without offending academic freedom. Academic freedom only demands that the university not prohibit or punish any professors who disagree or reject that stance. So academic freedom means the university should not fire the professor who writes a book denying the Shoah; it does not mean the university cannot make public statements that the professor is an idiot. Similarly, academic freedom means the university should not fire a professor for giving his students trigger warnings and opt-outs; it does not mean the university cannot make public statements rejecting trigger warnings as inconsistent with robust, free, and mature debate.
Monday, August 15, 2016
9th Junior Faculty Federal Courts Workshops
Saturday, August 13, 2016
More on names
Shima sparked a conversation over how prawfs and students should address one another. I want to explore a different issue of student names.
At SEALS last week, a co-panelist told a story relayed of a female law professor who had twice been the subject of formal administrative complaints by students whose (first) names the prof had mispronounced in class. In the discussion that followed, some panelists recognized the concern that mispronouncing the name can send a message of exclusion or otherness, while others suggested that this provided another good reason to use last names in class (hence the connection to Shima's post).
This story unnerved me, although I recognize that there may be more to it. I am troubled that students are so suspicious and so ready to assume the worst of what was presumptively an innocent mistake that the professor (hopefully) handled with some tact. I am troubled because, if mispronouncing a name does send a message of exclusion, there is not much I can do about it; any attempt to avoid mispronouncing would send that same message of "you have a funny name." Ask the student if I am not sure? "You did not ask Jim how to pronounce his name." Ask for phonetic spellings? "You didn't need Jim's phonetic spelling." Get phonetic spellings in advance? That does not help me during the first class. Use last names? I am not sure they are so much easier to pronounce (I began using first names in part because I thought it would minimize pronunciation problems).
As I said, I hope there is more to this story than the sparse details I heard.
Tuesday, August 09, 2016
Practice your talks--with dogs
One of the worst parts of attending conferences, workshops, etc., is sitting through the obviously unprepared presentation. Speakers meander, repeat themselves, run over time, race through the final points because they wasted too much time getting started, etc.* There is a tough balance to strike. You do not want to sound overly rehearsed or as if you are reading the paper (although that is the norm in many fields, such as English). But you want to be coherent and stay within the time limits. And that requires that you practice the talk with a timer and tweak as you must.**
[*] Not for nothing, I find these problems--especially the last two--exacerbated when the speaker uses PowerPoint.
[**] This is especially true for job talks, but it applies to any presentation.
So I liked this story about a program at American University's Kogod Center for Business Communications, which provides dogs as an audience for students (especially those anxious about public speaking) to practice presentations. The dogs have a calming influence; the students practice before a non-judgmental audience; and the students have to work a bit to keep the audience attention (the director of the study says a dog is no more distracted than the typical college student, which might not be untrue). The accompanying video is after the jump.
My dog better be ready to sit through some talks in the coming years.
Wednesday, July 27, 2016
Oral Arguments for Law Students
I will sometimes – not often, maybe once a semester, if that – play a couple of minutes of oral argument from the Supreme Court for my students if they are particularly enlightening. For example, I have played portions of the argument in the recent Facebook threat case, Elonis v. U.S., in Criminal Law in order to put a spotlight on how the Court decides on what mental state requirement it will impute to a statute when the statute is silent. Particularly helpful is Justice Kagan’s ticking off of the Model Penal Code’s taxonomy of mental states, just as the students are being introduced to this taxonomy in class. In my death penalty seminar, I recently had the students do moot courts of two pending cases, and then in subsequent classes we listened to the actual arguments. This was particularly helpful because students were by then intimately familiar with the issues in the case and had read the briefs.
It occurred to me recently that we ought to encourage, or perhaps even require, our students to listen to full oral arguments outside of class. For students who are still under the mis-impression that law school is about learning the law as opposed to learning to think like a lawyer, listening to arguments is a helpful reminder that the law is largely indeterminate and in flux, and that good advocacy skills are essential to the practice of law.
I would even strongly suggest that students listen to a few oral arguments before starting law school in the fall. After all, the back-and-forth between judge and advocate is strikingly similar to the back-and-forth between professor and student. Listening to oral arguments will prepare students for what law school is really all about. It may also teach students to avoid some of the common pitfalls for students, which are often reflected in poor advocacy, such as dodging the question and fighting the hypo.
While most of our students will never make it to the Supreme Court, I think there is a value to having them listen to arguments from that Court rather than some other court. First, the recordings are easily available. Second, the arguments in the Supreme Court are much more likely to cut to the heart of an issue, whereas arguments in lower courts can get bogged down in jurisdictional, procedural, or factual issues that are less interesting and accessible for future lawyers. Third, the students are more likely to be familiar with the issues in Supreme Court cases without having read the briefs. Finally, and most importantly, the issues that arise in Supreme Court cases, of course, are not peculiar to Supreme Court cases. The same issue might arise in scores of lower court cases that, for one reason or another, never make it to the Supreme Court.
Friday, July 15, 2016
SSRN postings and copyright
The following was sent by Stephen Henderson (Oklahoma) to the Law Prof Listserv; it is reposted here with his permission. It is one experience and could be unique, but it presents something to watch for.
It appears that the corporate takeover of SSRN is already having a real impact.
When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well. Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract. So, download counts are gone, and no article. Not the former working version nor the final version. And then in the revision comments, I found this:
It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to email@example.com, or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US.So, not only have they completely changed their model, but—at least to me—they gave no effective notice, and they pull papers without asking. Nobody bothered to _ask_ whether I had permission; they simply took down every version of the article and said nothing. Alas. And when I called customer support and someone called back, I pointed out that some profs have hundreds of articles posted for which SSRN doesn’t hold the copyright agreements. “Are you going to take all those down too?,” I asked. The answer, in essence, “Those were posted in error.” Unbelievable.
Of course, for years they have insisted on maintaining “citation counts” for legal papers despite knowing their algorithms don’t work for papers with footnotes as opposed to endnotes. So, I suppose one should not expect much. But this is new and much worse. So, be wary, and long live Bepress Digital Commons!
Tuesday, July 12, 2016
Professor Patricia Leary
Saturday, July 09, 2016
Law professor responds to students on "Black Lives Matter" (Updated)
Update, July 10: As noted in the comments, the response states that the professor wore the t-shirt on the day the Crim Pro class discussed police violence against the Black community. But that leads me to a curriculum question: How many of you cover police violence (or, more broadly, Fourth Amendment/excessive force) in crim pro? This seems an odd fit in a course that typically focuses on how police conduct affects subsequent prosecution and the evidence that can be used in that prosecution. I think of excessive force (aside from physically coercing confessions, which has not been BLM's focus) not as a matter of the lawfulness of a search or seizure for evidentiary purposes, but only for subsequent civil damages suits.
This letter by an unknown crim law professor at an unknown law school responding to an anonymous student complaint about the prof wearing a "Black Lives Matter" t-shirt to class is making the rounds and drawing raves in the left-leaning interwebs, as well as Facebook accounts of law profs.
I post it and welcome responses comments. I have not yet figured out what I think.
On one hand, the substantive defense of BLM as a name and a movement is spot-on, especially the idea of focus v. exclusion. So is the defense of the opinion, philosophy, and social context involved in creating, and thus teaching, "law." The student letter is poorly written nonsense, trafficking in "freedom from speech" tropes ("alienates and isolates," etc.).
On the other, the letter comes across as pedantic (especially Part II, where she picks apart the structure of the letter).*
[*] I agree with most of her arguments, especially about the use of CAPS. It is gratuitous in a debate.
I cannot get past wearing a t-shirt (to say nothing of a politically charged one, which seems intentionally provocative) to class.** The professor's argument either means it would be permissible for me to wear a t-shirt with a Confederate flag or an IDF logo to class (a position I doubt the professor would endorse) or that the freedom-of-thought-in-the-classroom ideal is limited only to ideas with which this professor agrees. Finally, I cannot help thinking that something else is going on. Is this really about the t-shirt alone? Is the t-shirt alone the "indoctrination or personal opinions" while the class content was focused on the elements of murder, or whatever? Or is the t-shirt reflective of the broader approach to teaching crim law? This does not make the students' arguments any better, but it would make the stuff about BLM, in the original letter and the response, beside the point.
Again, I do not know what I think. But I would like to hear from others.
Update: A commenter notes that the letter identifies one time when the professor wore the shirt "around campus." That being so, I take back all of the above criticism of the professor. The student letter becomes even more inane--the professor wearing that shirt, outside of the classroom, does not impose a personal opinion on them or undermine their learning of the law.
Thursday, July 07, 2016
Learning About Gender Identity
As transgender people have gained more visibility over the past couple of years, many of us have had to consider what it means to be transgender for the first time. Understanding what it means to be transgender is important for unpacking the legal issues confronting transgender individuals, but, as educators, being knowledgeable about gender identity is also necessary to make sure we are serving our students. As a recent study by UCLA’s Williams Institute concludes, roughly 1.4 million adults in America are transgender, suggesting we are likely to have trans or gender nonconforming people in our classrooms.
So, while in future posts I will dive into some of the legal issues, I thought it might be useful at the outset to share some of things I’ve learned about gender identity.
First, a transgender person is someone whose sex assigned at birth (usually based on a quick exam of their external genitalia) does not accurately reflect their gender identity.
Second, we all have a gender identity, which simply refers to one’s personal sense of being a certain gender. People whose gender identity comports with their sex assigned at birth are referred to as “cisgender.”
Third, sex and gender are not as straightforward as the boxes we check, or even our external genitalia, might suggest. There are many aspects to sex. According to medical experts such as Dr. Deanna Adkins, “although we generally label infants as ‘male’ or ‘female’ based on observing their external genitalia at birth, external genitalia do not account for the full spectrum of sex-related characteristics nor do they ‘determine’ one’s sex. Instead, sex related characteristics include external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes. These sex-related characteristics do not always align as completely male or completely female in a single individual.”
Fourth, gender identity is increasingly understood as the principal determinant of sex.
Fifth, many people do not fit neatly into categories we love to create (such as male, female, trans or cisgender). Many people are simply gender nonconforming, which, according to one definition, “refers to the extent to which a person’s gender identity, role, or expression differs from the cultural norms prescribed for people of a particular sex.” Indeed, to a certain extent we are all gender nonconforming in particular ways—if we are a female with short hair, a male with skinny jeans, then we are cutting against the grain—we are not conforming with gender norms or stereotypes.
Sixth, one of the most important aspects of transgender health is socially transitioning. Yet socially transitioning is extremely difficult, and to be transgender also means being subject to higher rates of violence, suicide, poverty, discrimination, and incarceration, as detailed in the National Transgender Discrimination Survey.
Finally, given the significance of socially transitioning and our responsibility to our students as educators, to me at least, it is important that we do what we can to make trans students’ lives as smooth as possible, and reduce any feelings of isolation and despair they may be feeling. We should consider ways in which our teaching methods may be silencing or singling out trans students. Gabriel Arkles has put together a great list of suggestions for ways we can make our classrooms more inclusive for trans and gender nonconforming students. One simple thing that I’ve adopted from colleagues is instead of using the school’s attendance list, I circulate a sign-up sheet on the first day of class letting students provide me their name and preferred pronoun, which prevents me from using an inaccurate pronoun based on my perception of their gender or calling them a name they no longer prefer.
Thanks for reading; happy to discuss and learn about these issues with anyone further! I look forward to launching into some of the legal barriers facing trans folk in the coming weeks.
Friday, June 03, 2016
Exclusive Submissions: FSU Law Review
The Florida State University Law Review will be conducting exclusive article reviews over the next few weeks. Any article submitted to the Law Review between now and June 15th will be evaluated for publication purposes by June 22nd. By submitting an article the author agrees to immediately accept a publication offer with the Review should one be extended. The author is not required to withdraw any article previously or contemporaneously submitted for consideration elsewhere. However, the author may not accept an offer of publication from another journal for any article submitted to the Law Review’s exclusive review process unless the Review indicates that the submitted article will not receive a publication offer. Author requests to further expedite the exclusive review process will be accommodated to the extent practicable. Any articles accepted through this exclusive review process will be published in the Review's third and fourth issues, which are slated for publication in summer of 2017.
If you have an article you would like to submit, please e-mail Jazz Tomassetti a copy of the article and your CV at firstname.lastname@example.org with the subject line "Exclusive Article Review." We look forward to reading your submissions.
Adding Civil Procedure to the Bar Exam: A Squandered Opportunity to Understand the Impact of Admitting Students with Lower Indicators
The following post is by my colleague Louis Schulze, who runs FIU's Academic Excellence Program.
As is well known, Erica Moeser of the National Conference of Bar Examiners (NCBE) famously stated that July 2014 bar takers were “less able” than students of the recent past. Equally famously, deans of many law schools objected to this comment, at the very least for its lack of tact. Commentators noted that other factors, such as the ExamSoft breakdown during the exam, could also have led to lower bar passage rates. The NCBE rejected this theory. When bar pass rates once again declined in 2015, the NCBE effectively doubled-down on its “less able” theory.
Last week, Judith Gunderson, Director of Testing at the NCBE, presented a plenary address at the annual conference of the Association of Academic Support Educators. Much of the address focused on rather pedestrian matters that would be well known even to the greenest of AASE members. Additionally, despite promising to allot 30 minutes of an hour-long talk for questions, that period was only a few minutes long (and even that brief period took us three minutes over the session’s end-time).
I was one of the lucky few able to pose a question. My query was this: “When adding Civil Procedure to the MBE, to what degree did the NCBE consider ‘cognitive load?’” Ms. Gunderson’s response was, basically, that Civil Procedure tested equally as well as the other subjects. But this answer demonstrated a troubling misunderstanding of cognitive load theory. Below the fold, I’ll briefly explain “cognitive load theory” and how the NCBE’s possible unawareness of the subject renders us once again less able to draw conclusions from the recent decline in bar passage rates.
Cognitive load states that working memory has the capacity only to hold a certain amount of information at one time. Because that capacity is limited, the possibility of overload exists, and this overload produces sub-optimal mental processing and, thus, learning. (Sweller, 1994).
One can think of cognitive load as similar to “bandwidth”; there’s only so much of it to go around. If an Internet service has 60 Gbs of bandwidth, and it is distributed over six devices, each device will work just fine if it takes up 10 Gbs. But, let’s say that you buy a new device that also takes up 10 Gbs of space. Well, now each device will perform below its optimum ability because 60 Gbs must be distributed over seven devices. Each device drops from 10 Gbs usage to 8.57 Gbs.
Similarly, if we add a seventh subject to an already taxing exam, we run the risk of undermining the performance on each subject. If the material learned in exam preparation hinders processing into long-term memory, this would lead to lower test scores across the board. Deflecting the question about cognitive load by saying that Civil Procedure tests equally well as other subjects, therefore, entirely misses the point. Just as each device in my analogy performs equally well, the problem is that each of them dipped in performance from 10 Gbs to 8.57. This is why Ms. Gunderson’s answer is troubling.
To be clear, my claim is not that adding Civil Procedure caused the plummeting bar passage rates. (In fact, my own personal opinion is that decreasing entrance indicators likely contributed significantly to this phenomenon). Instead, my claim is that the NCBE’s rolling out Civil Procedure concurrent with the plummeting passage rates scuttled an excellent opportunity to obtain clean data showing that lower incoming indicators likely caused the decreased passage rates. Just as the ExamSoft debacle muddied the analysis of the dropping passage rates in 2014, the addition of Civil Procedure similarly prevents legal education reformers from acquiring powerful data to support their important cause.
I acknowledge that the NCBE works tirelessly to produce a fair bar exam. The organization uses sophisticated statistical analyses and extensive vetting of questions to work towards this goal. Not considering cognitive load theory, however (if that is indeed what happened), was a critical mistake.
Truly, this was a squandered opportunity.
Monday, May 30, 2016
More small developments as the season moves towards the inevitable vote in the House.
Selina must choose two failing banks to bail out and picks one of them because it is based in Illinois, a state she needs. The show still has her treating the House vote like a mini popular vote, with individual House members voting the state's interests rather than the party line.
Along those lines, Jonah's congressional campaign turns the corner when he begins criticizing the President and her poor performance. If he wins running on that platform, how might it affect his vote in the House? (Again, this is assuming he is running to become the new representative-elect for the next Congress). [Update: Jonah Ryan for Congress has a website]
Finally, we see the next step in Tom James' plan, as he is shown meeting with the Speaker of the House and the head of the lobbying firm Dan worked for (and for which James appeared to be shilling last week). Clearly James is trying to manipulate the House vote. But how? To formally get his name in the House election, he needs that faithless elector, but we do not know what has been happening with the electors. If James is trying to create a stalemate in the House as the way to become President, I go back to my original argument that he only acts as President until the House breaks that stalemate, so this seems a constitutionally unsuccessful move (and one I hope the show does not build the entire season around).
Tuesday, May 17, 2016
Elsevier purchases SSRN
Elsevier's press release is here. Matt Bodie is curious, Paul Gowder is outraged and looking to start-up a not-for-profit rival that will continue to be open-access for law and political science scholarship (similar not-for-profit services exist for hard sciences), and others are commenting.
Another data point on computers in the classroom
The new study comes from West Point; it created three sections--one that could use any technology (laptops or tablets) to take notes, one that could use tablets to read course materials, and one that could use no technology. The study offers two new insights. First, using a laptop hurt better students (measured by ACT scores) than weaker students--students with high ACT scores who used computers performed worse than comparable students who did not use computers, while students with low ACT scores performed similarly whether they used computers or not. Second, there was no performance difference between those who used technology for notes and those who used it only for reading--both sections performed worse than the non-technology sections.
This last point is notable to me. In Civil Rights, where I assign raw cases, I allow students to use a tablet for their cases (and thus to get the supplemental treatise by ebook). I may have to rethink this.
Friday, April 29, 2016
Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?
Complete Junior Law Prawfs FAQs Series
It has been such a pleasure to guestblog at Prawfsblawg this month and to do this Junior Law Prawfs FAQs Series on how to become a voice in one's field. I have learned so much from your comments, your Twitter conversations, and your very thoughtful emails. I appreciate the time the PrawfsBlawg community has taken to crowdsource answers to these frequently asked questions. Based on the emails I've received from other junior (and aspiring) law professors, many others are also grateful.
For ease of reference, here is the complete list of questions (with links) to the frequently asked questions we covered this month:
4. Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (See Also: P Horwitz, Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors)
11. What About Podcasts? What About Media Consultations? (See Also: C Turner, Podcasts; C Walker, Rethinking Law Review Podcasts)
As the outline I included in the first post in the series suggests, there are numerous additional questions that junior scholars (and all scholars for that matter) frequently ask with respect to becoming a voice in one's field. I hope we will continue to have discussions about those here and elsewhere.
I also hope that we continue to ask ourselves whether we are asking the right questions. I hope that these questions above won't get in the way of writing high-quality scholarship that is useful and relevant to our fields. Perhaps more importantly, I hope we keep asking the "best" questions about how we can use this amazing opportunity we have as law professors to have a profound and lasting impact on the students we teach and the communities we (and they) serve through our research, teaching, and (university, local, state, national, and international) service.
Thursday, April 28, 2016
SEALS Prospective Law Teachers Workshop
Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.
If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at email@example.com. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.
Wednesday, April 27, 2016
Am I Asking the Right Questions? (Jr. Law Prawfs FAQ)
Before turning to this final question, I was going to do one more post (on writing casebooks and treatises) to wrap up the Jr. Law Prawfs FAQ Series for this month. But after Michael Rich's courageous Hard Prawf Choices post earlier this week, I thought I'd skip to the last question I included in my initial post: Am I asking the right questions?
The short answer, I think, is: probably not. Put differently, there are "good," "better," and "best" questions, and these types of questions likely fall in the "better" camp.
The "good" questions -- indeed, the necessary but not sufficient questions -- concern the quality and type of our scholarship. Derek Tokaz's comment on an earlier post captures the critical importance of these "good" questions:
6. Write Higher Quality, Useful, Relevant Articles. I mean, I know that Batman v Superman has shown that enough buzz and advertising can get eyeballs on the screen no matter how low quality your product is, but I still think the most important way to get an audience is to have something worth reading.
This is certainly true. Our primary mission as scholars should be to produce high-quality scholarship that is useful and relevant to our field. With the exception of a quick post on Dean Minow's Archetypal Legal Scholarship: A Field Guide, admittedly I haven't focused on those "good" questions.
But I hope this FAQ series has underscored that once a scholar has answered the "good" questions -- and produced high-quality scholarship that is useful and relevant to one's field -- it's time to turn to the "better" questions of how to get those ideas read, digested, and incorporated. As Eric Segall commented on a prior post, "The hardest part is engaging in self-promotion (especially on social media). It often feels super yucky but in our new interconnected world, it is usually necessary if you want the piece read."
If we truly believe we have produced high-quality scholarship that is useful and relevant to our field, we should think about these "better" questions to maximize the chances that our scholarship will reach the relevant audiences and have an impact on our field. That may involve choosing wisely the format of the scholarship as we discussed in the first week, including responses to scholarship, book reviews, and online law reviews. It definitely involves thinking about how to participate in one's field, as we discussed in the second week with respect to commenting on others' draft articles, increasing in-person scholarly interaction (with limited resources), and otherwise improving the chance one's scholarship will be read. To maximize one's voice, as we discussed in the third week, it might be worth blogging regularly, it probably is worth being on Twitter, and podcasts and other media consultations may well be the future (or not). And advocacy work, such as law professor amicus briefs and white papers, might also help one develop a voice in one's field, as we discussed on Monday.
Unfortunately, sometimes worrying about the "better" questions gets in the way of taking care to answer/complete the prerequisite "good" questions. Those "better" questions can also get in the way of asking the "best" questions. To borrow a line from President Shepherd, "I was so busy keeping my job I forgot to do my job."
So what do I mean by "best" questions? Borrowing from Michael's Hard Prawf Choices post, I think the "best" questions concern more broadly this amazing "opportunity [we have as law professors] to make an impact." No, neither Michael nor I are referring just to one's "scholarly impact" -- though scholarly impact is definitely part of the impact we can have as law professors. Instead, this impact likely takes into account our tripartite mission of teaching, research, and service. These "best" questions no doubt differ for each of us based on why we became law professors and what impact we hope to leave on the world through our work. But I'm guessing for most of us that mission extends beyond becoming a scholarly voice in our field.
Here's another way to frame these "best" questions: One of the most common phrases I've heard from junior scholars is "after tenure." After tenure, I'm going to write that book. After tenure, I'm going to design that experiential learning course that I wish I could have taken in law school. After tenure, I'll finally be able to serve on that state commission, on the board of that public interest legal service provider, or with a political campaign. After tenure...
I don't mean to suggest that we shouldn't worry about securing tenure. We should. And no doubt the difficulty of obtaining tenure varies by institution. The cardinal Ask Your Colleagues rule should be followed, especially pretenure. But at many schools the tenure requirements leave time and space to develop in all three areas; indeed, one is often rewarded for accomplishments in all three. Moreover, for some scholars, that "after tenure..." may never happen even after tenure if they continue to fixate on these "better" questions without also focusing the "best" questions.
I find much inspiration from my fellow junior colleagues on the faculty here (at The Ohio State University): The colleague who spends countless hours each year running a national security simulation for his students. The colleague who got involved with students and others in the Black Lives Matter movement in Columbus while she was juggling a clinical course and an ambitious research agenda. The colleague who advocates on behalf of children with disabilities at both the state and federal level, at both the administrative and legislative level. The colleague who takes the time to weigh in on how states should regulate drones and also serves on a city-wide commission to implement a police body camera policy. The colleague who volunteered to help rewrite the university-wide intellectual property policy for the benefit of thousands of professors on campus. These are just a few examples.
To be sure, these service activities leverage my colleagues' relevant expertise and often overlap with their research agenda. But these endeavors don't really have anything to do with the "good" or "better" questions. If merely doing a cost-benefit analysis based on enhancing one's scholarly profile (or securing tenure and/or promotion), these activities most likely wouldn't make the cut. Instead, they seem to be my junior colleagues' answers to the "best" questions about how they can have an impact as a law professor.
Pausing to ask myself whether I'm asking the right or "best" questions could lead me, as it did for Michael, "to change the timeframe of my planning. I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon."
Tuesday, April 26, 2016
Rethinking Law Review Podcasts (Jr. Law Prawfs FAQ)
Last week I questioned the value of law review-sponsored podcast programs, predicting that they'd be the next Betamax (as opposed to the next iPad). Based on the comments, Twitter responses, and emails, a line from one of the most ridiculous and ridiculously funny new shows on TV comes to mind: "But what if it wasn't."
In particular, it seems like there are a number of really terrific law podcast series out there, including Oral Argument and The Week in Health Law. These podcast series are not sponsored by law reviews, and seem to have carved out a niche audience with field-specific content. So I'm still skeptical that just generalist law reviews doing podcasts on the diverse articles they publish would be a recipe for success, as you need to build subscriptions and an audience.
Accordingly, if I'm the editor-in-chief of a major law review, I see two main paths forward:
First, you become the official podcast of the law school more generally, and you turn all of the school-sponsored speeches, ACS/FedSoc debates, events, etc., possible into podcasts as well as sponsor your own live events to turn into podcasts. That way, you tap into the alumni network of your school as well as lawyers within your region. Depending on the speakers, there's a potential to build your audience beyond those networks.
Second, you specialize in one area of the law and do a podcast series around that. Some journals already do this with online blogs, annual symposium issues, etc. For instance, the Harvard Law Review could do a Supreme Court Review podcast (perhaps partnering with SCOTUSblog?) similar to their annual issue, and those journals that cover particular circuits could do the same -- like the Ohio State Law Journal with the Sixth Circuit Review or the Wake Forest Law Review with the Fourth Circuit Review. The Duke Law Journal and George Washington Law Review both do annual administrative law issues, so that could be an option. That said, the Administrative Law Review and/or Yale Journal on Regulation would also be in a prime position to do a weekly administrative law podcast.
I guess there is a third and slightly different path forward: The law review editors could approach one of the existing podcasts and see if they wanted to partner, lending time and resources to an already successful podcast series.
In all events, my hunch is that the generalist law review doing a generalist podcast series probably won't cut it. But, again, I could be wrong. I'm much more optimistic, though, about a focused podcast that develops an audience in a field (or around a law school's general programming and built-in networks). That said, my guess is that launching and maintaining a successful podcast would require a fair amount of time and energy -- time and energy that could be put to other good uses. So consider the opportunity costs.
Monday, April 25, 2016
Hard prawf choices
A little less than three years ago, I was diagnosed with metastatic kidney cancer, a disease that does not lend itself to optimistic prognoses. I have been fortunate to be able to continue prawfing since then, but it has changed the way I understand my job and interact with my students and the prawf community.
One of my first challenges was deciding how much of my situation to share with my students. I pride myself on treating my students as much like adults as possible. So, the first semester after my diagnosis, knowing that treatment would interfere with their class schedule, I shared with them the general diagnosis (cancer) and let them know that it would require flexibility on their part. I also reconfirmed my commitment to them to do my best and to be available when I could. That semester was challenging, but the students were incredibly generous and forgiving. Since then, however, I've tended to share less and less with my students. I don't tell them I have cancer. I simply explain cancellations by pointing vaguely to medical necessity. The change didn't came about because I trust these students any less than the others, but because the process of disclosure was hard and I don't want to add my problems to the preexisting stress of law school. Moreover, my current set of treatments are not as disruptive to class schedules as the first ones were. I wonder sometimes if this is right decision -- if I value setting boundaries between myself and my students too much -- but fortunately my students have continued to be flexible and generous.
Another challenge has been whether to disclose my disease broadly. I shared things with close friends, but I didn't go fully public on Facebook for fear of losing professional opportunities. Would folks be hesitant to invite me for speaking gigs if I might not be able to fulfill them? Would schools be uninterested in hiring me? Again, I'll never know if this was the right choice or not. The hiring market hasn't exactly been active in the last three years anyway, and speaking invitations don't overflow my inbox. Obviously, though, I've now changed my mind. My change of heart came about because my priorities have changed. Honesty about an issue that has impacted me personally and professionally now trumps concerns about even short- and medium-term opportunities.
Finally, it's been interesting to change the timeframe of my planning. I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon. In the first year after my diagnosis, I was fortunate enough to get an offer to teach at an excellent school outside of the United States. Because of concerns about my access to experimental medical treatment there, I ultimately made the extremely difficult decision to decline the offer. When I did, I decided to recommit myself to my current institution, not because it's perfect, but because it gave me an opportunity to make an impact. I worked hard on curricular changes at the expense of my own research interests. I do not regret my choice, but I do wonder how things might have panned out if I had put my focus elsewhere. Service, after all, does not give rise to notoriety outside an institution like scholarship does.
Anyway, I share these thoughts, because I've also learned that my life before my diagnosis was actually more unusual that my life since. Before, my life was relatively straightforward and free of complications, but I've come to realize that most lives are complicated, even if the nature of the complications differ greatly from person to person. So perhaps discussing the hard choices that complications forced on me will be useful to someone else.
Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)
My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.
So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?
In tackling this question, it might be helpful (or not) to put to one side the other benefits of engaging in advocacy work as a law professor, such as service to the broader community (and making a difference in the world!) and instead focus on the impact on one's scholarly profile. Also, as with prior questions, we're assuming the tenure work is getting done and the Ask Your Colleagues cardinal rule has been followed.
Let's start with law professor amicus briefs, as my sense is that there is quite a division of opinion on whether law professors should join them. As a former Kennedy clerk who teaches and writes in administrative law and constitutional litigation, I receive a fair number of requests to join law professor amicus briefs. My general rule is to not join them, unless they are squarely within my area of expertise, I have the time to thoroughly review and comment on the draft, and I agree completely with the final version. I have not joined many amicus briefs; in fact, I think I've only joined one, for a case in the Ohio Supreme Court. Time constraints for review are usually the main barrier, and I hope to join more briefs going forward.
One of the main benefits of working on and joining law professor amicus briefs is that it gives one an opportunity to interact with other scholars in one's field and further strengthen one's networks. Another potential benefit is that it could provide an opportunity to get one's scholarship into the brief before the Court -- bringing more exposure to one's research. The adlaw profs brief in support of the United States in the pending immigration case United States v. Texas is a terrific example of that. Although this may be an obvious point, one should make sure one agrees with everything in the brief. Having drafted a fair number of amicus briefs with my lawyer (not academic) hat on, there is often a lot of room to maneuver in an amicus brief to allow more parties with diverse views to join.
Of course, we're not talking about the somewhat distinct scholarly project of writing one's own amicus brief in a case. The scholarly benefits of that may be different and perhaps can be much greater. Stephen Sachs' amicus brief in Atlantic Marine Construction comes immediately to mind. My coauthor Aaron Nielson and I are just waiting for the right qualified immunity case to file a law professor amicus brief based on our empirical work on qualified immunity to encourage the Supreme Court to, among other things, require lower courts to give reasons for exercising (or not) their Pearson discretion to reach constitutional questions.
As for white papers and reports for organizations, my guess is that the scholarly cost-benefit analysis is going to vary greatly depending on the field, the organization, and the topic. That's been my experience. The first white paper I did was on the importance of cost-benefit analysis in financial regulation. My colleague Paul Rose and I coauthored the report for the U.S. Chamber of Commerce, and we presented the report and our findings at a conference at the Chamber shortly thereafter. At the time (though not now), Paul and I were among the few defenders of cost-benefit analysis in financial regulation, so the report got a lot of buzz and "but see" citations.
The second report was commissioned by the Administrative Conference of the United States (ACUS) to assess the role of federal agencies in the legislative process, with a particular focus on technical drafting assistance. ACUS is a government agency composed of government agency officials at various agencies and public members (including a lot of law professors) that commissions research on the federal regulatory state. This was an amazing opportunity, as ACUS opened many doors at federal agencies for me to conduct interviews and surveys for the project. The feedback from the ACUS members during the drafting and recommendation process was invaluable. I should note, though, that this was a tremendous amount of work. For example, the final product, with agency-specific case studies in the appendices, reached 90 pages, and I spent hundreds of hours on the project.
Both projects built on existing research interests and have led/will lead to more traditional scholarship. Both also included some monetary compensation for the work, despite both reports being independent from the sponsoring organizations (and ultimately departing at least somewhat from the organization's position on the issues). If you decide to do any consulting work for which you receive compensation, I highly recommend that you disclose those outside activities, even if your institution does have a form or policy for that (mine doesn't). For instance, per John Coates' helpful advice, I post a financial disclosure form on my faculty profile. It's also worth flagging specifically any consulting work directly related to a subsequent law review article in the article itself.
So what have been others' experiences regrading the scholarly value of doing advocacy work in their field? I hesitated to do a FAQ on this topic because my hunch is that the answer(s) to this question will depend so much on one's field, in addition to the specific opportunity. But because I think advocacy projects can (and cannot) present incredible opportunities to build one's scholarly profile, especially as a junior scholar, I thought I'd post it and see what others think.
Friday, April 22, 2016
What About Podcasts? What About Media Consultations? (Jr. Law Prawfs FAQ)
We already covered Twitter and blogging this week, so I thought I'd finish the week with two somewhat related questions: First, what should we make of this emerging trend among law reviews to do podcasts concerning scholarship they publish and other legal issues? And, second, how do media consultations fit into the scholarly agenda, especially pretenure?
When the law journal board here turned over last month, one of the questions they had for me was whether they should start a podcast series on the articles they publish. I was caught off guard as I apparently hadn't been following this development. The editors noted that there is a fair amount of buzz about podcasts among law review editors nationwide. Sure enough, a quick google search reveals that law reviews at American, Harvard, LSU, McGill, Northwestern, UCLA, Yale -- to name a few -- have implemented some version of a video or audio podcast.
I confess I haven't given too much thought to the value of podcasts in the scholarly dialogue. To be sure, I have participated in, and have very much enjoyed, teleforums sponsored by the ABA AdLaw Section or the Federalist Society (which I'm told are then turned into podcasts). I'm not sure, however, those are the same thing as law review-sponsored podcasts. I'm skeptical about the enduring value of this law-review innovation, but then I also was skeptical when Apple launched something called the iPad. If others in the PrawfsBlawg community have experimented with law review-sponsored podcasts, I'd love to hear about those experiences in the comments.
So what about media consultations? Our law school's communications team does a great job of directing reporters my way when they have questions related my research and teaching interests. I seldom turn these opportunities down (when they concern topics within my areas of expertise) -- whether that's local TV news, print or online news outlets, or radio appearances. Sometimes these media consultations are fun -- especially the sit-down NPR-styled interviews -- but most of the time I'm just nervous which soundbite or two the reporter is going to use from a ten-minute conversation.
Although I seldom turn these opportunities down, that's not because I think media consultations help me become a voice in my field or otherwise build my scholarly profile. So I think we're straying from the purpose I originally articulated for this Jr. Law Prawfs FAQ series, but would welcome disagreement on that front. Instead, I view media consultation primarily as a means of service to the law school and university (and hopefully the public). At times I also see those activities get incorporated into the classroom if students come across the TV news segment, article, or radio show.
While we're on the topic of media consultations, I wish I had received more training on how law professors should interact with the media. I've had a number of awkward interactions with reporters since arriving at the law school. The worst, I think, is when I commented at length on a case, and the reporter decided to make the article about me instead of the case with a clickbait headline of "Justice Kennedy's Former Clerk Thinks..." -- not my finest hour. A few tips, based mainly on lessons I've learned the hard way, immediately come to mind:
(1) Reporters Aren't Your Friends: Reporters are really great at getting people to open up by expressing interest in your opinions, but they often have the story already written and are just looking for the quote they want from you. So they will keep you talking until they get that quote, even if it really isn't your main point (or really your position at all). You have to reframe questions, resist narratives, and make clear your positions.
(2) Know the Difference Between On the Record, Off the Record, and On Background: Here is a quick description. Unless I've dealt with the reporter before, I tend to ask that everything is on background until I get a better sense of where the interview is going and then we can decide what is on the record/attributable to me.
(3) You Don't Have To Answer Questions: Especially as a more junior scholar, it's important to stay within one's comfort zone and area of expertise. If reporters ask me to talk about legal or policy areas where I'm less familiar, I either just say I lack the expertise to weigh in and refer them to a colleague. Or I'll explain that I don't feel I have the sufficient expertise to go on the record or background, but that I'd be happy to talk through the issues off the record.
(4) Email Interviews: I've become a bigger fan these days of responding to emails with my take on a case, regulatory development, etc. I then don't have to worry about what could potentially be included in the story or whether my quote is accurate. One related best practice our communication team utilizes is to get a one-paragraph take from the relevant faculty expert to send out to the law school's media contacts. Sometimes the reporters just pull a quote from that release, or they follow up with additional questions but know in advance where the faculty expert is coming from on the issue.
These are just four observations that come immediately to mind. A google search of "tips for talking with reporters" would no doubt produce many more. Definitely share your wisdom and experiences, as I'm guessing I'm not alone in feeling less than fully competent in dealing with the media.
Wednesday, April 20, 2016
Is There Any Reason Not To Be on Twitter? (Jr. Law Prawfs FAQ)
As the framing of the FAQ from Monday and today suggests, I'm somewhat agnostic when it comes to whether law professors should blog. But not when it comes to law professors on Twitter.
First, though, a few follow-up thoughts on blogging: As Will Baude noted in the comments, "the advisability blogging, even more than most of aspects of this series, is going to turn heavily on personal tastes and abilities. Blogging is certainly not *so* important as to be worth a person's spending time on it even if they find it unpleasant and time-consuming." I think that's right, though my attempt at categorizing the types of blogging to include field-specific blogging, practitioner-oriented blogging, and beyond blogging was aimed at suggesting that the pain of law blogging may be even more worth it if your goal is for your scholarship and ideas to reach policymakers, practitioners, and the public more generally. In those circumstances, Orin Kerr's observation may no longer be the case that "blogging is still an extracurricular activity instead of something that is part of the core mission of legal academics." For example, I'm guessing that's not the case for Doug Berman, Paul Caron, Noah Feldman, Rick Hasen, or Steven Davidoff Solomon, or perhaps even for Stephen Bainbridge or Josh Blackman.
With respect to Twitter, however, I'd reframe the FAQ I often get as whether there is any reason for a law professor not to be on Twitter.
I'm a big fan of Twitter for law professors, as my leading question suggests. At the start of my second year at the law school, I decided to experiment with Twitter as a professional resource and social media tool, and I haven't looked back. A few benefits come immediately to mind.
First, a lot of academics are on Twitter, so from an information-gathering perspective you can find out about developments and new scholarship in your field much more quickly. Because you choose who you follow, you can structure your Twitter timeline (or create lists if your timeline consists of a lot of different fields, etc.) to track in real time what's going on in your field.
Second, a lot of academics -- in addition to other experts and media in most law and policy fields -- are on Twitter, so from an information-sharing perspective you can add your voice to the conversation on a particular issue and get your scholarship and ideas out there more quickly. For instance, I've fielded a lot of media inquiries based on my tweets about current cases or regulatory developments (more on media consulting on Friday), and my blog posts and draft articles get a lot more eyes on them by circulating them on Twitter (not so much on Facebook or LinkedIn).
Third, conversations about your scholarship, blog posts, and ideas are likely already happening on Twitter. And because you're not on it, the likelihood that others will find your more extensive commentary on the issue -- or explore your other scholarship and ideas -- is diminished. So much of information-sharing is driven by social media these days that I'm puzzled, for instance, why a number of law bloggers aren't even on Twitter. These seem like missed opportunities to join the conversation around an idea, blog post, or article that you've already written, or to add your scholarship to the discussion.
Fourth, especially in comparison to blogging, Twitter requires very little effort. It's not the case that you only get out of it what you put into it. You get a lot out of the very little effort of setting up the account. Just create an account, let Twitter search your contacts for potential accounts to follow, follow those accounts in your field, and then tweet out stuff when you feel like it -- once a day, once a week, or whatever. Having a Twitter presence, without too much more, helps reap the benefits discussed above. Of course, some scholars put a lot more effort into Twitter than that, and I'd be curious if they feel the benefits are commensurate to the costs. Plus, Twitter, like all social media, can be quite addictive and could distract from scholarship if one does not exercise self-control. On the other hand, Twitter can also be a nice reprieve from waiting in line at the DMV, sitting in the audience at an event you have to attend (you can always live-tweet conferences, etc., to keep you more engaged too), or filling some other dead time in the day.
Finally, some remark that they are already on Facebook and/or LinkedIn (or Instagram or Snapchat (!?)), so they do not want to take on another social media platform. In my experience, however, the benefits listed above are much better on Twitter than Facebook or LinkedIn. I'd be curious what others have experienced with the various social media platforms. As for tips for navigating twitter, there are lots of how-to guides out there. Plus, over at the Faculty Lounge in February we brainstormed some tips for law reviews on Twitter, and many of those tips apply to law professors as well.
So what say you PrawfsBlawg community? Is Twitter great or the greatest?