PrawfsBlawg

Notes on Teaching in a Overseas Summer LL.M. Program

I realize, given my usual posting patterns, some may think that I have fallen into the Danube.  Some may hope that I've fallen into the Danube.  A bit of background.  Suffolk offers a LL.M. in U.S. and Global Business Law that is obtainable in three years, with intensive two-week stints each summer in Budapest at the Eotvos Lorand University Faculty of Law, and intervening online courses.  The program is designed for experienced non-U.S. lawyers, although we have three U.S. lawyers in the program this year.   It is a delightful polyglot of lawyers from all over the world, including Hungary, Northern Ireland, Switzerland, Austria, Honduras, Nigeria, Saudi Arabia, Czech Republic, Sweden, and Iran.

It has affected my blogging in that my course in U.S. securities law goes for two hours a day in ten sessions over two weeks.  We are into the third day today, and it is exhausting. 

Some notes on the experience follow the break.

1.  The physical setting is old, old world.  I am not positive the picture at right is actually a picture of the building, but if it's not, it nevertheless conveys the feeling.  The lecture hall is a large, long rectilinear room.  Thank God the class is small enough that it fits in the first six or seven rows, because I think the curvature of the earth actually affects one's ability to see the back end of the room.  There is a computer and a screen in the room, but it's the old-fashioned multi-stage crumbling chalkboard, complete with squeaking chalk, that makes me want to sing "Gaudeamus Igitur" every time I step in the class.  (Aside:  law school building designers, do not design the room so that one's ability to use the chalkboard or whiteboard is limited every time the projection system (for PowerPoint) is in use.  This applies to ALL law schools.)

2.  The students are far more engaged and eager than in the typical U.S. class.  It's fair to say they really are here for the content.  They are NOT here for the air conditioner.  It is a constant fight between the professor and the students - given that it is about 90 degrees outside, but the students claim to be "cold."

3.  I think my class is the fairly standard mix of theory and doctrine (for an upper level and narrowly focused course), but one of the Hungarian students told me yesterday that, by and large, the U.S. professors are far more practical than the European law professors.

4.  Speak slowly and be careful about the use of idiomatic English.  Although there are funny bits of learning.  The word for pub in Hungarian is sörhaz (literally "beer house"), but I learned, sitting at the Cafe Alibi last evening with several of the students (two Honduran, one German, one Hungarian, one Slovenian practicing in Vienna), that the word also refers to the stomach of one who drinks too much of the beer - your sörhaz hangs over your belt.  I said "oh, beer belly" or "pot belly" and for some reason, this was just hilarious sounding to the non-English natives.

5.  The exchange rate is 195 Hungarian forints to the dollar.  Last night I went out to the patisserie nearby - loading up on sugar, butter, and chocolate is unbelievable cheap.  I bought this ungodly large and rich chocolate thing for 150 forints.  

6.  Expectations on the language abilities of Americans are so low that my merely being able to say "thank you" in Hungarian (köszönöm) got a rave review.  I noticed this in Greece when we were there in May.  Amazing.  Please and thank you in the language of your hosts and you are well on the way to being cosmopolitan. 

Full Professor, Without Tenure

At the beginning of the upcoming school-year, I become a bit of a strange creature within our profession (if I wasn't already) -- a full professor without tenure.  The reason is simple enough to explain -- American University has a rigid and inflexible (six) years-of-academic-service requirement before one becomes eligible for tenure, but the only time requirement for promotion to full professor is (two) years of service at the associate professor level.  Because I was already an associate professor when I moved laterally to American two years ago (and wasn't demoted), I satisfied the latter requirement earlier than is typical for folks who start at AU, who usually don't get promoted to associate professor until after their fourth year of teaching.

I raise this, though, because it leads me to wonder about the professional etiquette of being a full professor without tenure. For instance, do I need to note on my cv (and elsewhere) that I don't yet have tenure, since most will naturally assume, based upon the title, that I do?  Does that, in turn, send perhaps the opposite message -- that I was denied tenure, and am now effectively "of counsel" at my law school? (A fate which may yet await me...)

More generally, isn't it usually the other way around -- that folks get tenure based upon their professional accomplishments before they are promoted to full professor?  That's certainly true in other academic disciplines, isn't it?  If so, does that suggest that tenure based on a rigid years-of-service requirement causes more problems than it solves?

I'm torn on the tenure question, because I totally get the egalitarianism of not allowing folks to come up for tenure early, since that would create very strange and informal pressures on both the rank and tenure committee and on the junior deciding whether or not to go up early.  But it seems equally strange to have promotions and tenure so thoroughly unrelated to each other.  What's the magic bullet, here?

Barros on Advanced Placement for Law School

Just to throw a little more spicy paprika into the "how should we re-engineer law school?" mix, Ben Barros from Widener (otherwise known as PropertyProf) has a post suggesting that basic doctrinal law courses be taught at the undergraduate level, and that students be offered the chance to place out of them when entering law school (akin to the Advanced Placement program that exists between colleges and high schools). 

Teaching undergrads sounds like fun; at the law school level, this cure may be worse than the disease.  But it's out of the box!

Budapest

Starting next week, I'll be reporting from Budapest, where I will be teaching U.S. Securities Law in 20 hours over two weeks at Eötvös Loránd Tudományegyetem (the Faculty of Law at Eötvös Loránd University), where Suffolk University Law School offers an LL.M. in U.S. and Global Business Law.

A couple quick preliminary observations.  I have a reasonable facility with languages.  I had a mother who was born in Germany, took Spanish for four years in high school, spent a number of years getting myself around business Paris, and took a year of Russian in college.  None of them help with Hungarian, a strand of the Finno-Ugric line of the Indo-European languages, unrelated to anything else in Europe, and I know no Finnish.  The only cognate that has looked even remotely familiar so far is the word for street "utca," which I can see is related to the Russian word "ulitsa."  "Sz" is pronounced "ess" and "s" is pronounced "esh".  "Gy" is the "j" sound.  Hence the word we say as Magg - Yar appears to be ma - jar.  We were in Santorini in May, and even saying "efxharisto" (thank you) as an American tourist meant you got a a very warm "parakalo" (please and you're welcome) back in response.  I hope it's similar with Hungarian.

Oh, and currency.  Hungary (officially, Magyarország) doesn't qualify for unification with the Euro, so the currency is the forint, which when I checked yesterday was trading at 195 or so to the dollar.  This is going to take me back to the days of walking down the Via Montenapoleone on a business trip to Milan (it's where Gucci, Versacci, etc. are all headquartered) with a 1,000 lira bill burning a hole in my pocket.  One thousand forints should be good for a cup of coffee in the cafe around the block.  (In 1996, a cup of coffee in the lobby of the ANA Hotel in Tokyo ran me about 1,000 yen, which was ten dollars in the pre-Starbucks era.)

Oh, and shtick.  One thing that was clear back in the days when I was an executive in a big company that had European operations was that Europeans (at least Continental Europeans) by and large hated shtick mixed with business.  It was just a more formal business culture.  I'm assuming, despite fifteen years of U.S. cultural imperialism since then, that between a more formal culture and the language issue, shtick is still a no-no.  So I went back through my class notes for a three-credit securities regulation class, which, at 28 classes times 75 minutes a class is 35 hours, took out all the shtick, and came up with exactly 20 hours worth of material.  Hmm.  That's humbling.

Giving students feedback on exams

I am halfway through my grading this term, and, as usual, I feel a certain level of guilt at the inadequacy of the feedback that we typically give to our students on their exams. If the only function of the exams is to help legal employers with their hiring decisions, then, of course, feedback is not terribly important. In my more naive moments, however, I imagine that exam-taking could be more than a painful sorting system. Instead, I imagine that it could be a continuation of the teaching process -- a sort of very intense final class -- in which students and prawfs could think about how the material fits together and have a class discussion about the problem.

For exams to serve that function, however, there has to be a feedback mechanism. Ideally, I'd like to have a "post mortem" class in which the students and I would all meet to go over the exam together. Instead, I write up and distribute a "model answer" with marginalia explaining how the arguments in the answer translate (roughly) into points. I also use old exams as hypothetical problems when teaching the course, so that the gap between preparing for the final and preparing for class can be minimized. I've attached my exam question (Download Hills Spring 2009 ARS Exam (Part 1)) and model answer (Download Model answer (with comments)) from this term's course in Administrative & Regulatory State, a mandatory first-year class here at NYU, to give you an idea of my feedback system. (Feel free to crib from the exam question, by the way, if you like it, keeping in mind that both question and model answer are now in the public domain and accessible by your own students).

It is not a very satisfactory system. Few students come by my office to discuss the exam, and I never know whether my model answer makes much sense or just adds to everyone's confusion. So I am curious whether other prawfs have discovered a better, or at least different, way of integrating the exam/evaluation system into the teaching of the course.

In the Mail: Looseleaf Casebooks!

In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System.

Is it just me, or are looseleaf casebooks the coolest thing since sliced bread?

Classroom Twitter Pages

Many of us already use a variety of electronic resources in the classroom, but what about using Twitter?  Personally, I think it might be useful for some purposes, but I can't imagine it replacing TWEN or basic e-mail. It could create interesting opportunities for faculty and students from a variety of law schools to communicate with each other, and the 140-character limit would make reading go quickly (and encourage tweeters to get to the point). There are certainly pros and cons to consider. If you're already using it, how is it working? If you're not using it, would you consider it?

"Can You Explain the Commerce Clause?"

All profs know the sinking feeling we get when we read exams that make us wonder if the student ever showed up for the class.  As a colleague of mine reminded me yesterday, describing the exam period, "never do so many show so convincingly that they have learned so little."  The sinking feeling we get when we read those exams is due in part to the fact that it's too late: the course has been taught, you've given it your best shot ... and all you get is the satisfaction of making big red X marks over entire paragraphs.

A different challenge is posed by pre-exam office hours (you know, the only office hours where students ever show up -- yeah, those).  Most students do a good job of coming in with focused questions that show they've struggled with the material.  But then you get the students that ask questions like the one in the title of this post.  They look at you earnestly, and ask you to re-teach the entire course.

I tend to be accommodating on most things.  (In discussing the exam earlier in the semester I even remarked that I tend to be a pushover when students try to negotiate things with me.  Note to self: don't say that ever again.)  But the request for a private tutorial during exam prep pushes me to the limits of flexibility.  It's not enough, I think, to give what I take to be the standard advised response here: "What issue within the Commerce Clause is confusing you?"  Frankly, that is my normal response.  But in my experience that usually just elicits a meandering reply that doesn't frame the issue any better.  And you're still left with the question.

Thus, my alternative strategy, which I confess I use only sparingly: answering the question at the level at which it is asked.  If a student says the commerce clause is confusing, then I reply that the commerce clause is the part of the Constitution that gives Congress the power to regulate interstate commerce.  Then I stop.  Because I answered the question.  I'm happy to take follow-ups, but they have to come from the student; I won't anticipate the question.  I don't follow this strategy when a student asks a more probing, detailed question that reveals some level of knowledge and effort; with that kind of question I'm happy to meet the student more than halfway, pointing out exceptions and hazards to the doctrine we're discussing, even if the student doesn't raise them herself.  But if a student asks a question that shows she didn't even show up for class, sometimes I'll give an answer appropriate for someone with that level of knowledge. 

I like to believe that I apply this strategy with no animus toward the student.  But candor compels me to say that during these usually-tense discussions I visualize us playing tennis -- or maybe, given my upbringing, Pong.  The question-cursor floats over to me.  Then the answer -- blip -- and it floats back across the black-and-white screen.  Sounds not nice, I guess.  But come on.  I may not be a great teacher, so if someone comes in confused about a point or two I'm happy to assume that it was my bad.  But if a student comes in with this kind of question then I don't hold myself responsible for what happened, and I don't see my responsibility to re-teach several class meetings. ("So, there was this case called Gibbons ....")

I'd also like to think that this strategy is effective in forcing the student to articulate a better question -- in effect, that it does better at jumpstarting the learning then the standard response noted above.  But I think I'd be kidding myself.  The student usually says something in response, but if she is really asking such a basic question I can't realistically expect a more focused follow-up question.  It's not always the case: sometimes this kind of question is just a throat-clearer and my answer elicits the student's real question. But often it doesn't.  It's a terrible situation: I'm being confronted face-to-face with a student that is utterly unprepared for the exam.  And thus face-to-face with the fact that at least one student learned nothing in my class.  It's the bad exam, but this time as a premonition, with the author looking at me in the face, laptop on lap, waiting for me to save her.

Usually I'll try.  But sometimes I won't.

Ye Olde Exam Archive

I've really enjoyed guest blawging this month. In signing off, allow me to promote my archive of past exams. There are exam materials for torts, various IP classes, and media and entertainment law. Maybe you will find some of them useful as problems. As a warning, my exams tend to be heavy on plot and subpar photoshopping. 

For example, here's what you'll find for torts: A maverick scientist tries to save a posh ski resort from a mountaintop nuclear power plant spinning out of control in Atomic Avalanche. A new surgical intern gets a crush on a neurosurgeon who has dreamy good looks and disconcerting hand tremors in Cray's Oncotomy. A failing New England lumber company tries to turn its dangerously antiquated equipment into a tourist attraction in Ye Olde Sawmill. And you get top-secret security clearance to go along for the ride when torts travel to the far side of the moon in The Sirius Incident. 

In closing, I want to thank the Prawfs, of course, and I also want to thank all the PrawfsBlawg cawmmenters. The best thing about blawging on Prawfs is getting all the feedback – all the deeply thoughtful reactions and all the hilarious heckling. In particular, I wanted to give a shout-out to my law-school classmate Paul Gowder, a frequent Prawfs commenter – and one who falls into both of the aforementioned categories. Once he finishes up his Ph.D., I hope he'll go on the law teaching market. 

And I hope I'll be back on Prawfs in the not too distant future. In the meantime, I'll be on my blogs, Pixelization and the Backbencher. Have a great summer, everyone!

In-Class Exercise: Guess My Politics

A while back I posted about the question of whether law professors ought to disclose their political convictions in class. There was a good discussion in the comments. As I wrote then, my personal preference has been to be plain about my beliefs rather than dance around them. 

It turns out that if disclosure is my goal, I'm doing a lousy job.

Some weeks ago in my Media & Entertainment Law class – in conjunction with a unit on political side-taking by the press – I decided to do a different sort of feedback exercise. I asked students to scratch down on a blank sheet of paper what they figured my politics were, and to hand it back anonymously. When students were done, I wanted to discuss the results right away. But since I didn't want to stop class to read all the papers, and since couldn't ask for a show of hands and preserve anonymity, I asked a volunteer to survey the class opinion while I was out of earshot.

I walked out of class, and then I came back about a minute later. When I opened the door, I had never seen my students having so much fun. They told me to go away – they were still discussing it.

When the verdict came back, I was told that students were all over the map. There was a weak consensus that I am socially liberal but fiscally conservative. A very animated class discussion then ensued.

After class, going through the written responses, I found that a few students thought I was conservative, a few thought I was liberal, many thought I was somewhere in the middle, and one thought I was a narcissist for undertaking the exercise.

I think that last student had a point. In doing something like this, there is a real danger of veering off into self-aggrandizing irrelevance. On the other hand, I think there is something healthy about students being invited to try to deconstruct, criticize, and even pigeon-hole their teacher's viewpoint. Especially since I do roughly that to many of the authors of our assigned reading.

But the real benefit to doing the exercise was what I learned about my own teaching. Like watching yourself on videotape, there's an opportunity through this kind of feedback to learn some surprising things.

The most shocking comment I received was from a student who wrote, "I think [you are] conservative (more or less) on family values in re: marriage and children, i.e. one man, one woman ... I think you're rather neutral on the subject of homosexual/lesbian marriage, i.e., you wouldn't go advocating for or against it, but maybe you rather would prefer it not happen."

I was floored by this. I am a strong advocate of marriage equality. And it concerns me greatly that students might see me as privately squeamish about gay relationships or marriage. It has inspired me to post a GLBT "safe space" sign in my office.

At any rate, I think it was a worthwhile undertaking. Given the imposition on the class and the attenuated relation it has to the subject matter, however, I think I'll hold off on doing it again for at least a few years.

A Law School Oral (Argument) Exam: Should an Oral Component be Added to the Law School Examination Process?

This will be my last post here at PrawfsBlawg, and I again want to thank Dan Markel for having me as a guest blogger for the month of April. I also want to thank the PrawfsBlawg readers for your helpful comments on my posts. 

In the wake of the Carnegie Report, law schools and law professors across the country are funamentally re-evaluating the way that legal education is being conducted. Recently I read a great article, From Grimm to Glory: Simulated Oral Argument as a Component of Legal Education's Signature Pedagogy, 84 Ind. L.J. 589 (2009) by Lisa T. McElroy. In the article, McElory "propos[es] that law professors regularly use simulated oral argument exercises to supplement traditional Socratic dialogue, [thus] meet[ing] head on the concerns expressed by Best Practices and Carnegie that over-reliance on the Langdell method neither mimics law practice nor nurtures student learning."

The article got me thinking that, at least in one way, law school is an enigma wrapped in a paradox. Throughout the semester, law students, more so than maybe any other students, learn material through their oral participation in class, under some version of the Socratic method. At the same time, law students (at least in substantive classes) complete written work for evaluation throughout the semester less so than maybe any other students. And yet, when the end of the semester rolls around, these same law students are tested almost exclusively based upon the quality of their writing and almost never based upon the quality of their oration (besides minor bumps up or down for class participation).

Of course, it wasn't always that way. As Ron M. Aizen notes in Four Ways to Better 1L Assessments, 54 Duke L.J. 765 (2004):

Today, first-year law students typically receive course grades based entirely, or almost entirely, on single end-of-course essay exams. Using a single exam to measure law student performance contrasts markedly with earlier practices at American law schools. From the early- to mid-nineteenth century, students were generally assessed far more frequently than they are today. For example, at the Litchfield Law School, the first professional American law school, students took weekly oral exams. Harvard examined students orally or in writing both weekly and "at the end of each text or topic." Michigan hired recent graduates and young lawyers to oversee daily oral and written examinations. Cornell, Penn, and Columbia combined frequent, often daily, quizzes with more cumulative assessments, such as end-of-term, annual, and graduation exams.

In the late 1800s, however, law schools began to use final exams as the sole measure of student performance. At Harvard in the early 1870s, students were for the first time required to pass annual exams to receive their law degrees. This innovation was introduced by Dean Christopher Langdell, who also popularized the case study method. The case method and the sole final exam allowed law professors to teach and evaluate large classes of students--and high student-faculty ratios were financially advantageous. Dean Langdell's economical model was eagerly embraced by other American universities. By the end of the nineteenth century, the use of single exams to assess student performance had become widespread among American law schools.

In the wake of the Carnegie Report, many have proposed and/or implemented some form of the pre-Langdellian practice of students completing written and oral assignments throughout the semester. I haven't, however, seen anyone proposing some form of oral examination at the end of the semester to match the oral learning that takes place throughout the semester. 

One reason would seem to be that most law professors would have no idea how to give an oral exam because we don't have formal education degrees and we weren't given oral exams in law school. A second reason would seem to be that it is not possible to give oral exams in classes subject to blind grading (i.e., the vast majority of law school classes).

But assuming that a professor could get a pass on blind grading in a class or that the professor were teaching a smaller class not subject to blind grading, what might an oral examination look like? My initial thought was to transform Professor McElroy's simulated oral argument technique into an exam. A professor could prepare something like a moot court problem with materials, have students prepare a brief, and have them participate in oral arguments. Such an oral exam would actually be an oral/written exam and allow students to be evaluated based upon both the quality of their writing and oration.

Do any readers have any thoughts about how a law school oral exam might look and whether it makes sense to add an oral component to the law school grading process? In doing research, the only discussion I found on the subject was in Oral Examinations as a Method of Evaluating Law Students, 51 J. Legal Educ. 130 (2001), where John M. Burman describes how he observed oral examinations of law students in Russia (which seem a lot like high school extemporaneous speaking competitions) and then applied a similar technique at the University of Wyoming College of Law:

Russia

Oral exams are scheduled for a time and date....All the students who wish to take the exam arrive at the appointed time, most dressed as for a court appearance. The testing procedure then goes something like this. Five students enter the classroom while the others wait in the hall. Each chooses one question from about fifty; the questions are typed on separate slips of paper and placed face down on the desk. Each student is then allowed time to think about the answer (without books or notes). As soon as one of the five is ready, she meets with the teacher. After she answers the written question, along with any followup questions, the teacher assigns her a grade, which is then entered into the student's grade book and on the official grade sheet that is later given to the administration. The student then leaves the room. As one student leaves, another enters and selects a question, and the process repeats itself, for hours, until each student has met with the teacher. 

Wyoming

I scheduled the oral exams for the second-to-last week of class. Instead of the cattle-call approach used in Russia, I took a more organized approach. I prepared and distributed a set of general instructions for the exams, which we then discussed in class.

I instructed each student to sign up to meet with me for twelve minutes. Thirty minutes before the appointed time, the student could pick up the exam from my secretary. The exam was similar in scope and content to written exams. It contained a fact pattern followed by three questions. The exam was open-book. Students could consult whatever sources they wished to outline or otherwise prepare an answer to the written questions. They were also instructed to expect additional questions from me.

I began each session by telling the student to begin wherever he wished. Most began with the first question, but others elected to start with the second or third. I found that I invariably began asking clarifying questions within a couple of minutes. Such questions are helpful in determining the depth of a student's knowledge. And an Are you sure? question yields interesting results. On the one hand, it may cause a student to reflect, perhaps take another approach, and demonstrate his knowledge. On the other hand, it allows students who are not well informed or prepared to confirm their lack of knowledge. To virtually eliminate the possibility of cheating, I use several different exams. My secretary rotates them randomly so a student does not know which exam she will have until it is time to pick it up.

I took copious notes during each exam so I could review my impressions later, as well as explain to students where they had done well or poorly. At the end of each day's exams, I classified the exams from best to worst and assigned tentative grades. At the conclusion of all exams, I reviewed my notes and the tentative grades before assigning final grades. Students were then able to get their grades from my secretary before finals, and several met with me to discuss where they had gone astray.

Assigning Cases Decided Mid-Semester?

In constitutional law this week I'm teaching a Supreme Court standing case from this Term, Summers v. Earth Island Institute, to supplement the students' casebook. I decided the case was valuable enough to add it, even though we will cover it well out of turn from our other coverage of standing, which our casebook placed at the start of this semester. Was this case covered in many con law courses this semester? What criteria do professors use--or from the student perspective, appear to use--when deciding whether a hot-off-the-press case or other legal authority is worth assigning as a mid- or end-of-semester supplement?

The Professorial Second Opinion: Should Law Professors be Able to Change Student Grades After Exam Conferences?

From the movie Clueless :

Mel: Cher, what's this all about

Cher: My report card?

Mel: The same semester?

Cher: Uh-huh.

Mel: What'd you do? Turn in some extra-credit reports?

Cher: No.

Mel: You take the mid-terms over?

Cher: Uh-uh.

Mel: You mean to tell me that you argued your way from a C+ to an A-?

Cher: Totally based on my powers of persuasion. You proud?

Mel: Honey, I couldn't be happier than if they were based on real grades.  

Many law schools preclude professors from changing student grades based upon "errors" that those professors made during the grading process. At my law school, John Marshall, professors cannot change grades based upon qualitative errors, such as failing to notice that a student addressed a hearsay exception on an Evidence exam, but they can change grades based upon computational errors, such as assigning 5 points to a student's discussion of a hearsay exception but failing to add those points to the student's final score (In this way, my school is like Federal Rules of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon qualitative errors, such as failing to consider the plaintiff's comparative negligence, but allows them to impeach their verdicts based upon transcription errors, such as finding the plaintiff 10% negligent, but reducing his award by 40% based upon bad handwriting).

I suspect that there are two main reasons that many law schools generally preclude professors from changing student grades. First, blind grading rules the roost in law school, and if we routinely allowed professors to change grades, it would re-introduce the possibility of biased grading that it was designed to eradicate. Second, law students like to argue. This is why many of them came to law school in the first place. If law schools readily allowed professors to change grades, the number of exam conferences would greatly increase (which wouldn't necessarily a bad thing) as would the contentiousness of those conferences (which would necessarily be a bad thing).

These are certainly strong reasons to preclude grade changes, but it is no doubt extremely difficult for the professor, and, of course, the student, when the professor has to explain that the student deserved a B but got a C because of a mistake that the professor made. Now, maybe this doesn't happen very often (I've only heard of one such case in 1.5 years of teaching), meaning that the benefits a change would accomplish would not outweigh the burden the change would impose. But if the problem is more prevalent, what might be a way to allow for the correction of obvious grading mistakes without facilitating the problems addressed above?

In The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 Vand. L. Rev. 275 (1986), Monroe H. Freedman hints that there should be "due process in grading" and notes that he uses the following review procedure (which apparently his school does not preclude):

The review procedure works as follows. If the student is not persuaded that the grade I have was a fair one, he or she can elect to have the grade reviewed by a committee of three students from the same class. I pick one of the three committee members, the student picks the second, and those two pick a third. I then explain to the committee how I arrived at the grade I gave. The student then explains to the committee why the grade should be higher. The committee then chooses between my grade and the one the student considers appropriate. The committee must choose one of the two; it is not permitted, for example, to split the difference between the two grades.

The committee uses whatever standards its members consider fair. I impose no criteria. The committees, however, have tended fairly consistently to review the challenged grade in the context of other grades given in the same exam. (I make it clear to them that I cannot lose: either they affirm my grade, or they validate my review procedure.) The process has taken an average of two or three hours of my time a year.

I could see a law school that currently precludes grade changes adopting this procedure because it would (partially) preclude claims of biased grading and, if Professor Freedman's experience is representative, it seems that it wouldn't (really) increase the number or contentiousness of exam conferences. Of course, such a procedure only addresses cases where there is a genuine disagreement between professor and student over grading, not the situation where professor and student agree that there was a grading error.

 

Professor Freedman found that his procedure did not produce the negative result of students always affirming his grades, but I would have to imagine that students would readily agree to a grade change when both professor and student agree that there was a grading error. Thus, such a procedure in such a circumstance would in effect be the professor changing the grade, which reintroduces the possibility (or at least the perception of the possibility) of biased grading (and if the students rejected the grade change, wouldn't they, in effect, be saying that the professor was biased?).

But this seems to me to only be a problem if the student reviewers engage in non-blind grading. In other words, if professor and student agree that there was a grading error, three students could be appointed to review the exam, and they could engage in "blind grading" in that they wouldn't know the student involved, the initial grade, or the proposed new grade. Of course, one might argue that without the input from professor and student that Freedman's procedure provides, the students wouldn't know how to "grade" the exam. I imagine that the solution would be to give the students 3 exams that received scores (1) about the same as the initial score, (2) about the same as the score the exam "should have gotten" without the error(s), and (3) somewhere in between the actual and "deserved" score. Using these guideposts, the students would assign a score to the exam that would or would not change the grade. Of course, this could be done by another professor as well, under what might be called a professorial second opinion. 

So, what do readers think? Should law professors be able to change student grades, and if so, under what circumstances? Or, as Richard Heny Seamon notes in Lightening and Enlightening Exam Conferences, 56 J.Legal Educ. 122 (2006), is it "arguably unfair...to change the grade of a student who requests an exam conference without re-scoring exams of students who do not request conferences but whose exams might contain clear scoring errors?" Of course, the best way to "solve" the issue is to avoid the issue to the greatest extent possible, and I'm sure that many professors follow the same technique as Seaman:

I try to mitigate this arguably unfair situation by automatically re-scoring all exams with scores that fall within two (and, for some courses, within three) points of the next higher grade cut-off. For example, if I have decided to award a grade of “A” to all exams that have scored between 96 and 100 points (where 100 points is the highest score), I will re-score all exams with scores of 94 and 95 points; and, if the point range for “A.” is 90-95 points, I'll re-score all exams with scores of 88 or 89 points, etc.

Multiple-choice exams: Clean copy of the rules?

Colin's terrific series of posts (too many to link to) about exams and grading suggests this is a good forum to raise an issue about exam set-up:

In a multiple-choice and short-answer exam in rules-based classes (in my case Civ Pro and Evidence), should you provide students with a clean copy of the rules and statutes? I have been doing M/C in Evidence for six years now and never have provided copies of the rules; my justification has been that I am trying to simulate trial, where quick response is required and there is no time to flip through a book and read the rule. This year I also am doing M/C in Civ Pro and am less sure that not giving the opportunity to find and read the rule is more difficult and less realistic, since there rarely will be a situation in which you will get asked a question about, say, the discovery rules or the diversity statute, and not have a chance to look it up.

Thoughts? Does it make the exam too easy? Is Civ Pro different from Evidence?

The Flex (or Variable Credit) Course in Law School: A Viable Option or Oil and Water?

Last month, I was talking to a colleague who is on my law school's curriculum committee when he raised a topic that took me back to my days as a law student: the dearth of 2-credit law school classes. He noted that a number of students had raised the concern that they only needed to add a 2-credit course to graduate or complete their dance card for a particular semester, but there were no 2-credit courses that filled the bill. This led me to remember that several fellow students raised a similar objection when I was in law school. Now, two possible responses to this objection are that: (1) it's not that big of a deal for students to take the extra credit hour, so no change needs to be made, and (2) if the proposed solution is to reduce some elective classes from 3 to 2 credit hours, that solution could constitute throwing the baby out with the bathwater because students wanting to take these classes and needing 3 credit courses could lob a similar objection. I thought, however, that a third response, the flex or variable credit course, might be a viable solution, and I wonder whether any readers have taught such a class in law school.

Now, I don't believe that the law school I attended, William & Mary, had flex or variable credit courses, but I know that the College of William & Mary does. The concept is fairly simple: At the start of class, students in a variable credit course can decide whether they want to take the course for 2 or 3 credit hours (at William & Mary, students can also take the course for 1 credit hour). Thus, students in the same class can be taking it for a different number of credit hours and be expcted to complete a different number or quality of assignments. In doing some brief internet research, I found that several colleges allow students to take flex or variable credit classes (some examples include Syracuse, Hawaii, and Oregon).

I wasn't able, however, able to find any inidcation that any law school offered flex or variable credit courses. I would guess that there are two main reasons. First, with the strict law school curve, it would be difficult to place a student taking a class for 3 credit hours on the same curve as a student taking the same class for 2 credit hours. Second, this problem could be further complicated if, as with most law school classes, the class at issue were subject to blind grading.

It seems to me, though, that for the "smaller" classes (such as seminars) that are often not subject to blind grading and the law school curve, there wouldn't be any issues with a flex or variable credit course. For instance, if I were teaching a seminar with a 25-30 page paper requirement for students taking the course for 3 credit hours, I could require a 15-20 page paper for students taking the course for 2 credit hours. Or, if I had a paper and an oral presentation requirement for 3 credit students, I could simply remove the latter requirement for 2 credit students. I could also require slightly less in the way of class participation for the 2 credit students than I require for the 3 credit students.

So, have any readers taught a flex or variable credit class in law school? How did it go? Do readers think that such a class could work in law school, either in a larger or smaller classes, or do you think that the two would go together like oil and water?  

The "Seminar Exception": Is It Defensible To Remove Smaller Law School Classes From The Grading Curve?

Here's something that gets the goat of many law students: uncurved law school classes. At most law schools with grading curves, students taking classes with roughly more than 30 students will be graded according to the grading curve. Students taking classes with about 30 students or less will not be graded according to the grading curve. So, what happens in these smaller classes (usually seminars)? Well, according to Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L. Rev. 667, 678 n.62 (2005):

At my institution, a report showing the average grade in each course is circulated to the faculty at the end of each semester. These show the grade disparity very clearly: in Spring 2003, 14 of 18 upperclass exam-graded courses had a mean grade below 3.3, while only one of 16 paper-graded classes had a mean grade below 3.3....All of the anecdotal evidence from other law schools confirms that higher average grades in Softer courses is a universal (or near universal) phenomenon in American law schools. For example, one U.S. News top-fifty law school provided me with a semester grade report listing two seminars in which all students received A's....While some of this grade disparity is due to schools giving more grading discretion in smaller classes and non-exam-based classes, many schools have actually mandated higher mean grade ranges in "seminars." (emphasis added).

Now, this gets the goat of many law students because some 2Ls and 3Ls load up on these smaller classes, "artificially" inflate their GPAs, and end up with higher class ranks than students who outranked them after 1L year and then took mostly curved classes in their last two years. The question is whether uncurved classes are defensible. My (tentative) answer is that they are not.

It seems to me that, as Barbara Glesner Fines noted in Competition and the Curve, 65 UMKC L. Rev.879, 893-94 (1997) there are three main grounds upon which these "seminar exceptions" might be defended:

These “seminar exceptions” may be based on two rather divergent rationales:one relies on the randomness of ability, the other relies on the educational effectiveness of these classes. The first rationale exempts small classes from a curve because these classes do not provide a statistically significant sample--there is less likely to be a random distribution of ability in these classes, so we cannot expect a curve to result. Even if there is a random distribution of ability, many seminar classes allow such a degree of flexibility in the products by which students are measured (e.g. seminar papers) that we do not trust our ability to adequately differentiate student ability in these settings. The operative assumption here is that the purpose of law school is to test the ability of students to perform rather than to teach the students to perform ably.

However, given that these seminar exceptions usually do not completely eliminate the requirement of a curve, but rather increase the required means or broaden the distribution requirements, another rationale seems equally likely. This rationale accepts the legitimacy of higher grades when instructional effectiveness is higher. The rationale is well supported by educational literature. Students do truly learn better in smaller rather than larger classes. Students do learn better when they have more formative evaluation (such as rough drafts, practice arguments, etc.). Students do learn better when they have the ability to choose their topic of study (as is often the case in seminars).

In other words, smaller classes should not be curved because (1) they might not contain a random distribution of students, (2) it is difficult to distinguish students in such classes given the flexibility of grading measures; and (3) instructional effectiveness is higher.

 

There is some merit to each of these arguments, but I think that there are also some problems. With regard to argument 1, here are my thoughts. First, aren't the current policies at most law schools underinclusive? I have two examples from when I was in law school: (a) I took a moot court class in law school with the other 31 students who had made the Moot Court team, and (b) I took Federal Courts along with many other members of Law Review, Moot Court, and the top 10% of the class. Both of these classes were curved. Neither had anything close to what I would call a random distribution of students, and I doubt that they are the only examples. If law schools are worried about certain classes not having random distributions of students, shouldn't they just review the GPAs/class ranks of students in particular classes and see whether the law school curve needs to be altered or removed from that class?

 

Second, how did most law schools reach (about) 30 as the magic number where there is no longer a statistically significant sample of students? 168 students graduated in my law school class, and classes with fewer than 30 students were uncurved. Here at John Marshall, where I now teach, classes with 30 or less students are also uncurved, but the overall class size is much larger. From what I have heard, most schools cut off their curves at about the same number, regardless of their overall class sizes. How can 30 be the magic number when overall class sizes can vary by hundreds of students?

 

Third, accepting the argument that there might be random distributions of students in smaller classes, wouldn't we expect a non-insignificant number of those classes to result in mean grades below the law school mean? And yet, based upon the data compiled by Lloyd (and my own personal observations), noncurved classes almost always end up with mean grades significantly above the law school mean. It thus seems to me that the remedy of taking smaller classes off of the curve is worse than the ailment it is intended to cure.   

 

With regard to argument 2, here are my thoughts. Initially, doesn't the flexibility of grading measures help (albeit in a different way) to counterbalance the statistical significance problem mentioned above? Most "larger" law school classes contain one point of grading: the final exam. Most "smaller" law classes (at least the ones I took) had at least three points of grading (class participation, some type of presentation/oral argument, and a paper). I always feel a bit uncomfortable giving students grades on a curve based just upon the final exam. Conversely, I would imagine that I would feel much more comfortable distinguishing between students if I had several points of grading (I haven't yet taught a seminar).

 

Also a related argument to argument 2 is the argument raised by Jeffrey Evans Stake in Making the Grade: Some Principle of Comparative Grading, 52 J. Legal Educ. 583, 601 (2002):

For a class of thirty students,...forcing the scores onto a curve will be troublesome because some of the intervals will contain very few students. For classes of the size that are common in law schools and for grading scales with more than a few intervals, forcing a specific percentage of students into each interval is riskier than mandating a standard deviation because each of the intervals involves only a portion of the class, whereas the standard deviation relates to the whole class. With the whole class, small variations will average out in a way that is not likely when an interval includes only a few students.

In other words, if a professor needs to give a certain percentage of Bs (or Bs, B+s and B-s), it can be arbitrary to force the professor to make fine distinctions where intervals might contain only 1, 2, or 3 students. This seems to me to be a valid criticism, but it seems to me that the remedy is removing intervals and not removing the law school mean. In other words, if curved classes at a school require a 3.0 mean and 10% of students getting a B-, a professor in a class with 20 students shouldn't have to adhere to the 10% B- requirement, but it seems that the professor should have to adhere to the 3.0 mean requirement.

 

Finally, with regard to argument 3 here are my thoughts. First, aren't the current policies at most law schools underinclusive? I give an ungraded midterm in each of my classes. On most of my midterms, the mean grade is in the low to mid 60s (out of 100). In my Criminal Procedure I class this semester, my students blew that mean away, beating the previous high mean by over 10 points. But even if these students repeat their performance on the final, they are still stuck on the curve despite one conclusion being that instructional effectiveness was higher than (my) usual in this class (of course, another argument is that I didn't have a random distribution of students;).

 

Second, aren't the current policies at most law schools overinclusive? Sure, many "smaller" classses are popular seminars taught by terrific professors that have less than 30 students based upon an artificial cap. But, let's face it. There are also some smaller classes that have less than 30 students because, well, the professors in those classes just aren't that great. For instance, I took a 12 student criminal law seminar in law school with an AUSA who cancelled class half of the time and based students' entire grades on a 10-12 page paper (on which I believe everyone got an A or an A-).

So, what are your thoughts/experiences? Does your law school remove smaller classes from the curve, and is (about) 30 the magic number? Has your experience been that these uncurved classes typically produce mean GPAs well above the law school mean? Do you think that making these classes uncurved is defensible? Is there a middle ground that can and should be reached?

A Modest Proposal Regarding Blind Grading

Why does blind grading rule the roost in law school? (Even Justice Stevens noted, in McIntyre v Ohio Elections Com'n, 514 U.S. 334, 342 n.5 (1995), that the practice of grading law school examinations "blindly" is "now-pervasive."). The most common rationale that I have heard is that "blind grading is meant to ensure, at least in part, that a student's actual performance on the exam, and not any improper influence, is the exclusive factor in determining her final score." Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and  ACLU of Nevada v. Heller, 50 St. Louis U. L.J. 925, 927 n.13 (2006).

Fair enough, but why is blind grading not nearly so prevalent at colleges and most other graduate schools? Is the implication that blind grading was introduced based upon the proposition that law professors were less able to remain unbiased during the grading process than other teachers? Well, historically, the answer is apparently, "yes," but not in the way that I expected. In One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s. He then notes that "[t]o protect against concerns of favoritism for students specially admitted, most schools adopted some form of blind grading."  

 

So, it seems as if the main reason cited in support of blind grading is not (really) the same reason that it was created. And it seems to me that there are many possible problems with blind grading, with the foremost being (my belief) that it reinforces the one final exam to rule them all mentality. Of course, there are also many benefits to blind grading, not the least of which is the assurance it gives to students that they are being treated fairly (although it seems as if many students believe that blind grading is a myth). Moreover, regardless of the pros and cons of blind grading, it seems that blind grading has become embedded in routine law school practice to the point where it has become part of our law school culture. Well, 1L culture, anyway.

But, what about upper level classes, and especially electives and/or classes taught by more than one professor? Shouldn't professors teaching these classes have the option to chose blind or non-blind grading in the same way that they can decide issues such as whether to give an in-class or take-home-exam or an open book or closed book exam? Sure, many students would not want to take a non-blind graded class, but they could simply decide not to take the class just as students averse to closed book exams can now choose not to take classes with professors who give such exams. Conversely, I imagine that there are many students who would prefer classes where they could be evaluated based upon their performance over the entire semester and not simply their performance on one exam at the end of the semester. Indeed, many of these students already do so by chosing to take many seminars or other "paper" classes where grading is not "blind."

So, what do readers think? Should professors teaching upper level classes have the option of making their classes non-blind graded, or is blind grading different and thus something that should be required in every (non seminar/paper) class? If given the option, would you engage in non-blind grading, or do you prefer the blind grading approach? 

The Take-Home Final Exam

It's that time of year, so I'm working on my final exams. In my 1L structural constitutional law course I'm giving a take-home exam, as I have done for the last two semesters in this course. My sense with this subject had been that I was reading too much of a rushed exam when I tried to test in three hours what I thought the students should take out of the semester, which made me less confident that the better-prepared students could distinguish themselves consistently.

The biggest challenge has been how to schedule a take-home exam in the midst of the 1Ls' very structured final exam schedule. But overall, I have been happy with this exam format for this particular course. In other courses, though, I find the timed in-class exam more effective for assessing my students. I haven't polled my students formally, but they generally seem pretty split on which format they prefer.

What leads professors to give take-home exams in certain courses but not others? The nature of the subject generally? What a professor wants to test in a particular semester? Whether the course is a 1L or upper-class course? What specific testing goals do professors pursue with a take-home exam that differ from an in-class exam, and how are these goals reflected in the exam itself? And, do some professors object to take-home exams in law school?

Not Testing Material From the Last Week of Class or: Do We Need to Make the Reading Period Longer?

I still remember the meltdown of Paper Chase proportions that resulted in another section of my 1L class after they took their Civil Procedure final exam.  You see, that Civ Pro final was their first last school exam, and the last topic they covered in a frantic final class was the class action.  So, along came the final, and the majority of it was an essay question covering, you guessed it, the class action.

So, in the fall of 2007, I was teaching my first law school class, Civil Procedure I, and the last topic that we covered in the last week of class was the ever-popular Erie doctrine (see, e.g., Howard's recent post on the subject). Shortly thereafter, I gave the final exam, and a (much smaller) part of the exam covered the Erie doctrine. And while students did reasonably well on that part, they didn't do nearly as well as they did on topics we covered throughout the semester: personal jurisdiction, subject matter jurisdiction, notice, venue, etc.  Now, part of that may have been that the Erie doctrine is probably the most difficult topic in Civil Procedure I, if not in the entire first year curriculum (okay, you property professors might have me with the rule against perpetuities).

Nonetheless, I thought that a big piece of the puzzle was that I could neither test students on the topic on the midterm nor give them hypotheticals in subsequent classes so that they could sort vertical choice of law from horizontal choice of law.  Moreover, because the Erie doctrine came at the very end of the semester, I am sure that students (understandably) had already shifted their focus somewhat from the final reading material to outlining and final exams.  Therefore, after I finished grading exams, I made a choice:  I would no longer test students on material from the last week of class.

 

In one regard, this change was not that radical for me because I had already decided never to test the last topic of my Evidence class, privileges, on the final exam because the state of privilege law is so uncertain and inconsistent across the country.  Also, when I look at all of the classes I teach, the last week of class for each of them not only introduces discrete topics but also topics that are relatively difficult or at least difficult to test.  As noted, there is the Erie doctrine in Civil Procedure I and privileges in Evidence. In the last week of my Civil Procedure II class, I teach collateral estoppel and res judicata, and I will teach entrapment and eyewitness identification in my last two Criminal Procedure I sessions this spring.

Now, there are some cons to my approach. It decreases the amount of testable material on the exam, and it (likely) means that students pay less attention during the last week of classes and don't learn the new material as well. But, from what I have heard from students, knowing that this new material will not be on the exam reduces their stress levels and allows them to get a good head start on putting the pieces of class together before the reading period, allowing them to spend more time during the reading period re-examining that puzzle and applying it to hypotheticals. 

That was the plan. As Douglas A. Henderson noted in Uncivil Procedure: Ranking Law Students Among Their Peers, 27 U. Mich. L. Ref. 399 (1994):

Learning theory suggests that reflection on the subject matter-and better yet, periodic assessment combined with reflection-provides essential feedback for the learning process....Typically, however, law students ignore thinking throughout the term, substituting instead a last minute cramming process in the last week of the term. Apparently, law professors did this as students, and hence encourage their students to do the same. [FN82] 

[FN82] Evidently this represents the standard view of law professors:

Many law professors believe students learn more during the final week of "cramming" before a final examination than they do in the whole preceding semester. They see the value of final examinations as being an inducement to students to engage in review, in the process of "putting it all together."

Nickles, supra note 4, at 462 n.165. My own law school professors frequently commented, "don't worry if you don't understand it all now, I didn't understand this stuff until the last week of class either."

Now, of course, part of what Henderson is saying is that professors need to give students feedback throughout the semester, which is why I give an ungraded midterm and review hypotheticals at the start of each class. But part of it also seems to be that it it a bad idea for students to not start seeing the big picture until the start of the reading period, which typically is a week or less and "typically [is] scheduled for the convenience of faculty and administrators without, in many cases, any serious consideration of the optimal timing for student assimilation of material in particular courses or any major effort to otherwise structure the best learning environment." R. Lawrence Dessem, Principle 5: Good Practice Emphasizes Time on Task, 49 J. Legal Educ. 430, 434 (1999).

 

So, what do readers think? Do law schools need to make the reading period longer? Should the last week of class not introduce any new testable material? Should the last week simply consist of the review sessions that professors now usually give during the reading peiod? (In my Evidence class, I already start my review session on the last day of class). Or do you think that your school's reading period is sufficient and/or that the cost of cutting (testable) material from classes is not worth the possible benefits? 

Avoiding a Biased Exam: Always Expect Students to Know the Law But Never Expect Them to Know the Facts

I remember being a law student and taking the class Women and the Law with the terrific Susan Grover when a topic came up that would (thankfully) inform the way that I draft my law school exams when I became a professor. The topic: Biased exams. One student brought up a Torts exam she had taken her first year that left her perplexed. The exam was in the fall of 2000, and it involved an XFL fact pattern with, if memory serves me, running back George W. Bush assaulting linebacker Al Gore either as part of a football play or immediately after it had concluded. The reason for the student's confusion was that she didn't follow football and therefore had difficulty answering this torts in sports fact pattern because she couldn't figure out what role the running back plays on the football field, making it tough to analyze how out-of-the-ordinary W's conduct would have been. 

I could sympathize with my fellow student's comment even though I had taken the same Torts exam and not realized the difficulties it could create at the time. I once had a Sri Lankan friend attempt to explain cricket to me (I remember this involving both explanations and diagrams), and I had about as much success in figuring out what she said as the XFL had as a sports league. I imagine that I would have struck out if given the wicked googly of an exam with a cricket fact pattern if I decided to get an LLM in England (except, wait, there is no strike out in cricket). I therefore could easily imagine a football-averse J.D. student, whether male or female, going three-and-out on an exam with a football fact pattern, and I could see the same thing happening to an LLM student from a country not as American football crazy as us Yanks (i.e., every other country in the world). 

 

Another student could sympathize as well. He mentioned that after his Contracts exam, several students had complained. You see, the fact pattern on the exam involved a vendor breaching a contract by supplying the buyer with off-brand clothes instead of designer duds. These students didn't understand the concept of off-brand clothes and thus the nature of the breach by the vendor. 

The discussion of the topic in class taught me an important lesson that I otherwise wouldn't have learned: Professors should always expect students to know the law on an exam, but they should never expect them to know the facts. In other words, don't throw students the curveball of a baseball fact pattern (unless you teach Sports Law) unless you expect some to fall below the Mendoza Line. Don't give students a fact pattern where you tell them that a movie finished "in the black" unless you want some exams to end up "in the red." And don't give students a fact pattern where they have to understand the difference between Berdorf Goodman and TJ Maxx and expect the Maxx for the Minimum. 

Of course, any of these fact patterns would be problematic, but they wouldn't be offensive. In doing research for this post, however, I came across the following passage from Angela I. Onwuachi-Willig, Note, Moving Ground, Breaking Traditions: Tasha's Chronicle, 3 Mich. J. Race & L. 255, 274 n.33 (1977):

See generally Patricia J. Williams, The Alchemy of Race and Rights (1991). In her book, Williams describes a number of race- and gender-biased exams created by White male professors. Some included:

--a tax exam that asks students to calculate the tax implications for Kunta Kinte's master when the slavecatchers cut off his foot.

--a securities-regulation exam in which the professor muses about whether white-collar defendants should go to jail, since “unlike ghetto kids” they are not equipped to fare in that environment.

--a constitutional-law exam in which students are given the lengthy text of a hate-filled polemic entitled “How To Be a Jew-N*****” and then told to use the first amendment to defend it.

--a description of the “typical criminal” as a "a young Black male with an I.Q. of 87 who is one of eight children and has always lived on welfare and who spends his time hanging out in pool halls with his best friend Slick."

--numerous criminal-law exams whose questions feature exclusively Black or Hispanic or Asian criminals and exclusively white victims.

--many questions depicting gay men as the exclusive spreaders of AIDS, asking students to find the elements of murder.

--many, many questions in which women are beaten, raped, and killed in descriptions pornographically detailed (in contrast to streamlined questions, by the same professors, that do not involve female victims) ***

The problem with such questions, as Williams argues, is that they: require Blacks, women who have been raped, gays and lesbians, to not just re-experience their oppression, but to write against their personal knowledge. They actually require the assumption of an "impersonal" (but racist/sexist/homophobic) mentality in order to do well in the grading process....[I]t requires students to suppress any sense of social conscience. It requires them to devalue their own and others' humanity for the sake of a grade....In essence, such questions disproportionately require that women and minorities move outside of their experience to perform well on exams. 

This is pretty disturbing and part of the reason I chose not to test Federal Rules of Evidence 412-415 on my Evidence exams. But these are the obvious examples. Have you come across an exam as a professor or a student with facts that seemed innocuous but which ended up being unfair to a number of students?

"Hard" Word Limit, "Soft" Word Limit, or No Word Limit: What Type of Tester Are You?

Back in 2006, Steve Vladeck did a post about what type of "punishment" there should be for a student exceeding the word limit on an exam. He noted that his "[t]enative course of action [w]as to grade the answer it its entirety, and then reduce it in proportion to the percentage of excess words." The post prompted vigorous commenting, with different commenters suggesting proposed punishments ranging from not reading a single word beyond the word limit to giving the student no credit. Other commenters speculated that professors rarely, if ever, enforce word limits, leading to students who played by the rules being treated unfairly.

The discussion made me gun-shy about imposing word limits when I became a professor, and the decision I made was to test the waters by giving exams without word limits my first few years to see how often a word limit would even apply. So far, the answer for me has been "not very often." For instance, last semester, I had 182 students, and of those, 164 wrote exams that contained fewer words than the hypothetical word limit I had in my head (4,000 words for a 4 hour exam, 3,000 words for a 3 hour exam), i.e., slightly less than 10%. 

Of the remaining 18, 5 students wrote A exams that went into more depth on the main issues than most exams and/or identified legitimate issues that most exams did not address. 7 students simply used a very deliberate IRAC method on each issue and sub-issue. And 6 students threw in everything but the kitchen sink, bringing up issues that really weren't raised under any reasonable reading of the exam(s). My conclusions: (1) a word limit would have no (direct) effect on the vast majority of my students, be "unfair" to some of my best and brightest students, and have the consequence I intended for, at most, slightly more than a handful of students; and (2) if I were to impose a word limit, it would be a "soft" word limit, not a "hard" word limit.

Of course, there are several purposes served by word limits. When students become lawyers, they will be subject to official word limits while writing for the courts. They will also be subject to unofficial word limits while writing for their superiors, who often want them to get to the heart of the issue and not its extremities. Word limited exams lead to more concise exams for professors to grade and probably incentivize careful discussion of the main issues on the exam instead of the classic brain dump. All of these pros might have led me to consider word limits if I had many students exceeding my hypothetical word limit(s), but, as I noted above, that has not been the case. This has led me to decide not to impose "hard" word limits on future exams without even taking account the cons. And there are a few cons:

-What do you do with students who handwrite their exams? In law school, I remember that "word limit" professors imposed a limit on the number of bluebooks that these students (including myself) could use, but this neither correlated perfectly with the word limit nor took into account the differences in handwriting size among students;

-While students will have to learn to write efficiently when they become lawyers, the product that they turn over to their superiors or the court is (usually) not their first draft, but something that they have edited over at least a couple of drafts. When someone goes over the word limit in a time constrained exam, they (often) won't have the time to be able to edit out the surplusage before the clock strikes 0 (The problem is heightened for students handwriting their exams but ameliorated when professors give 8 or 24 hour take home exams with word limits);

-Word limits seem to me to constitute unfair Tiger-proofing (or, I guess it would be the opposite of Tiger-proofing) for the best and brightest students I identified above; and

 

-While, according to my calculations, imposing a word limit would have a direct effect on only a few students, my law school experience was that word limits cause unnecessaryfagita for many more. I knew many law students (including myself) who never came close to the word limit on any exam but still stressed about the limit before and during each such exam.

While I have thus abandoned the idea of using a "hard" word limit, I have considered adopting a "soft" word limit. Under a "soft" word limit, I would simply tell students throughout the semester that while there is no specific word limit on the final exam, efficiency is a virtue. In other words, students who give me a tangential history of rules/exceptions, address rules/exceptions not raised by the fact pattern, etc. can expect to not do as well as students who give me just the facts (and the law) ma'am.

It seems to me that a "soft" word limit would serve each of the pros I mentioned above while avoiding the cons. Students would still learn the value of efficient writing, and their exams would be more concise and in depth and less of a brain dump. There would be no need to worry about the differences between typed and written exams, the best and brightest wouldn't suffer, students wouldn't need to hastily edit to get under a "hard" word limit, and, well, students would still stress, but it would seem to me to be a more constructive stress.

Of course, this is all conjecture on my part because I have yet to use either a "hard" or a "soft" word limit. So, do you impose a word limit, and if so, what type? Why did you choose the method you use, and how has it turned out?

Forgetting Erie

When I was in law school in the early/mid-1990s, there were two civ pro professors teaching sections of a one-semester, four-hour course. And it was legend that one of them always taught Erie and the other did not. In fact, the failure of the latter to do so was a frequent topic for the annual student revue. A typical skit:

Student: Professor, I would like to meet with you before I go home for break. "Professor": Oh, where is home? Student: Erie, Pennsylvania. "Professor": Erie? Never heard of it!

I am becoming that professor (fortunately, we have no student revue that could lampoon me for it--or for anything else). For the second straight time teaching a one-semester, four-hour civ pro class at FIU (not counting my year at SLU, where civ pro is a five-hour course), I will not get to Erie. And this is disappointing, both because I consider it important and it is probably my favorite subject (along with subject matter jurisdiction) in the class. As it stands, I have roughly 10 hours of class time left in which to do a quick subject-matter jurisdiction review, then cover personal jurisdiction and venue.

I honestly have no idea how to remedy this. I am fairly sure that I have cut everything as far down as possible, in terms of time and coverage. We spent only three classes/four hours on Discovery and one class on Rule 11. We spent a lot of time on pleading standards (about 4 classes/5 hours); but that much time is unavoidable as we try to figure out what to do about Twombly and the looming Iqbal and as I have tried to respond to demands for more practical discussions by incorporating sample problems into class discussions. Subject matter jurisdiction probably has taken longer than it should, but again, we need to spend time making heads or tails out of an incomprehensible recent supplemental jurisdiction decision.

Perhaps I am making the wrong choices in the depth v. breadth debate. But it seems to me that coverage of one topic must be sufficient to make it coherent and to give students a sufficient base of knowledge. You can't simply refer to joinder in explaining pleading--you also have to spend some time with the basic joinder rules; you can't teach supplemental jurisdiction without teaching the exception in § 1367(b), which is confusing. Actually, the one time I tried to gloss over joinder, I kept getting questions from students who, armed with Glannon's or some other study guide, wanted to know more than I had planned to cover.

My conclusion is I need five hours (or at least 4 1/2 hours) of civ pro. That pretty clearly is not going to happen, both because of the legal-academic trends and because prawfs in every other 1L subject could tick-off a list similar to mine. So I continue searching for some other solution.

Are You A Backwards, Forwards, or Sideways Grader, and How Does Your Grading Style Correlate With Your Writing Style?

Last fall, Gordon Smith did a post over at The Conglomerate about writing backwards vs. writing forwards. In other words, some professors do all of their research before writing a law review article and dutifully fill in footnotes as they write the body of the article. Other professors write first and ask questions later, i.e., write the body of the article first based upon what they know and then fill in the footnotes after most or all of their writing is done. And, of course, many professors fall somewhere in between these two extremes (these could be called "sideways writers," I suppose). Smith's post was followed by subsequent posts over at Volokh Conspiracy and here, and it prompted a question for me: Is there a correlation between the way that professors write and the way that they grade?

I fall squarely in the writing forwards camp, doing all of my research before finger hits keyboard and filling in Bluebooked footnotes with parentheticals as I write my articles. The same goes when I grade exams, under what I will call "forwards grading." When I draft my exams, I try to anticipate the possible answers that could be given for every question and create a preliminary answer key that assigns a maximum number of points for each issue and sub-issue. After students complete their exams, I skim through several of them to determine whether there are any additional issues that I need to add to the answer key.

Then, I begin the official grading process. When I finish reading the discussion of a particular issue on a given exam, I immediately go to my answer key and assign that discussion partial or complete credit (if the student adds a later discussion of the issue, I go back and change the point allocation). By the end of the exam, I have assigned all of the points, giving the student his or her final score. If the student mentions some good issue(s) I did not include in the answer key, I will add some points to the exam. If I think that an exam was exceptionally well written overall, I might add some points as well, and I might take away a few points for poorly written exams.

In talking with other professors, I know that many engage in "backwards grading" on exams.  That is, they read an entire exam and then assign a score to the exam (other professors assign a score after reading each answer to each essay question on an exam). And, of course, as with the writing process, it seems that many professors fall somewhere in between the two extremes. For me, the classic "sideways grader" is the professor who doesn't go into the grading process with an answer key but puts numbers in the margins of the exam as good points are made and then adds all of them up at the end of the exam to reach the final score.

Of course, there are pros and cons to each approach. Some pros to my approach are that:

-When students do a midterm or final exam review with me, I can show them the answer key, and they can see exactly where they got and lost points;

-I can ensure pretty good consistency between exam 1 and exam 100 (graded weeks later) by having the answer key to tell me how to assign points; and

-If I see something in a later exam which makes me realize that I did something wrong on an issue in prior exams, I can pretty quickly go back to those prior exams, see how many points prior exams got on the issue, and make changes accordingly.

There are also some cons to my approach:

-My guess is that my grading process takes a lot longer than backwards or sideways grading;

-Forwards grading might be too restrictive and unfairly work against students who "think outside the box"; and

-Forwards grading might overvalue content and undervalue style/organization.

So, what type of grader are you? Forwards? Backwards? Sideways? Why did you pick your grading style? And how closely does your grading style correlate to your writing style?     

The "Open Everything" Exam: Why (or Why Not) to Choose it Over the Closed Book, Open Book, or Partial Open Book Exam

Before teaching my first class, I knew that the first question I had to answer before even choosing the casebook or deciding which topics to cover was what type of exam I should give.  And central to that question was whether that exam would be closed book, open book, or partial open book (students can only use materials that they had a hand in preparing, students can use rule books but not supplements, etc.).

The choices were many and complicated, but I felt that my answer was simple: I would give an open book exam in every sense of the word (open book, open note, open commercial outline), i.e., an "open everything" exam. The reason? Cheating. Now, I have no idea what percentage of law students cheat. (According to recent research, "seventy percent of high school and college students admit to having engaged in some form of cheating, and...forty-five percent of law students admit to having cheated."). What I do know is that at every level of school I attended starting with junior high, students were worried that other students were cheating and that they would be graded unfairly as a result.  Of course, in the curve-happy world of law school where so much depends on grades, these concerns were heightened.

An "open everything" exam doesn't eliminate these concerns, but it does greatly reduce them.  With an "open everything" exam, students can still cheat off of each other, but they can't cheat out of the casebook, an outline, a rule book, or a hornbook because everyone has access to these. Based upon feedback, this approach greatly reduces student stress about other students cheating.  It also has other things to recommend it.

First, it also reduces student stress about getting stuck in a moment during the exam and seeing their grade failing them along with their memory.  Second, I think that it improves exam performance compared to the closed book exam. After closed book exams in law school, I remember post-exam discussions focusing on what was remembered vs. forgotten instead of who best applied fact (pattern) to law.  Also, from my own experience, I remember "wasting" several minutes on closed book exams doing the brain dump (i.e., hastily jotting everything down that I might otherwise forget once the proctor told us to put our materials away). Third, I think that students in open book classes are more proactive in creating their own outlines because they know that they can use them on the exam. And from what I have heard from students, this not only helps them on the exam but also on the bar and in practice. 

Of course, there are some drawbacks to the "open everything" exam.  First, some say that it levels the playing field too much.  In other words, students who lollygag all semester can catch up to the hard workers in a way that can't occur in a closed book class. This is a legitimate concern, but it seems to me that it can be alleviated to a great extent by exam length.  I try to make it so that students who know the material and only check their materials a few times will be able to finish the exam with no time to waste. Indeed, I tell students that their materials should only be used as crutch for a forgotten point, not as a constant point of reference.

Second, some say that it creates an arms race for high priced supplements.  In my classes, however, I make sure to dig much deeper than those surface supplements and even teach opinions that are only a few weeks old. I always tell students that if they rely on supplements, they will not do very well in my classes, and as far as I can tell, that advice has rung true.

Third, some say that it is unfair because certain organizations such as law review have "outline banks," which make the "rich" richer and the "poor" poorer.  I think that this is a valid concern, but my decision was to nip it in the bud by preparing and giving students outlines throughout class and a comprehensive outline at the end of class. On the one hand, I realize that this might discourage students from making their own outlines, nullifying the third benefit listed above. On the other hand, before I gave outlines, I had several students asking me to review their outlines, and many of them were put together in a manner that didn't make (enough) sense.  My conclusion was that giving out outlines was the lesser of two evils, but based upon student feedback, my choice might not be an evil at all.  I have heard from several students that they are intimidated by the prospect of preparing outlines from scratch in other classes but that they were were able to take what I gave them and make it their own in a way that was helpful and not overly time consuming (Indeed, this is what I tell students that they should do).

 

Fourth, some see law school exams as bar preparation, and obviously the bar exam is closed book. I also see law school exams as bar preparation, but I just don't see law school as the time to require closed book knowledge.  I see law school as laying the groundwork for the bar exam and, ultimately, the practice of law.  With a closed book exam, it seems to me that students spend most of their exam preparation time memorizing.  With an "open everything" exam, it seems to me that students spend most of their exam preparation time working on their outlines and applying those outlines and the law to hypotheticals and practice exams (and many students have told me that they later use those outlines for bar prep).

 

But, of course, as I noted before, I am new to this game and still testing the waters.  What type of tester are you? Closed book? Open book? Partial open book? Open everything?  And how did you arrive at that type of test, and what do you see as its pros and cons? 

Hello and a Conference Announcement

Thank you so much to Dan and PrawfsBlawg for inviting me to post here again. I teach at Gonzaga University School of Law in eastern Washington State, where Mother Nature played a bit of an April Fool's Day joke on us this week by fooling us into thinking that winter had ended. Hopefully better weather will greet us for the start of the baseball season this Sunday evening!

I look forward to posting on an assortment of topics this month, but let me begin with a conference announcement that hopefully will interest some readers. Our law school co-directs the Institute for Law Teaching and Learning with Washburn University School of Law, and this June 23-24 we are hosting the Institute's summer conference, Implementing Best Practices and Educating Lawyers: Teaching Skills and Professionalism across the Curriculum. The program looks great, and the Spokane area is quite lovely in the summer, so we hope to see many of you here. Full details on the conference can be found in the most recent edition of The Law Teacher.

The Law School Case Method & How to Assess the Teaching/Learning Process Throughout the Semester

My post yesterday noted that there is a dual feedback problem in law school:  The "one exam to rule them all" format means that both students and professors aren't able to assess how the teaching/learning process is proceeding throughout the semester.  Well, actually, there is the opportunity for such feedback, but it is often in the moment while the professor is teaching a concept to students through the Socratic method.  But after I have completed a class on, say, the search incident to a lawful arrest, how do I know whether students retained that material when we have moved on to the next class and the discussion of the plain view doctrine?  I mentioned in my last post that I use an ungraded midterm, but I give that out in Week 7 or 8 of a class, and that lets misconceptions fester for a while if students misunderstood something in week 2 or 3.  And what about material from after the midterm?  Sure, there is a final review session to clarify that material, but it comes just before the final exam and after most students have made their outlines.

When I started teaching, in order to achieve immediate feedback, at the start of a given class, I would begin with a 5 minute review of the material from last class.  But I soon realized that this was merely me restating what I said the class before in a way that didn't engage students or provide them or me with actual feedback. Meanwhile, updated editions of casebooks do give students some relatively recent opinions (although often not as primary cases), but I also felt like I wasn't giving students enough of the living, breathing law as it is being decided in the trenches.

As a way of killing two birds with one stone, I decided to scrap the 5 minute refresher and replace it with what I call my "law school case method."  Now, at the start of class, I give students condensed (and sometimes slightly modified) portions of recent (and Illinois/7th Circuit) precedent dealing with the topic of the last class to see where we stand.  So, after the search incident to a lawful arrest class, we opened the next class by discussing the following 4 cases:

Hypo 1: State v. Campbell, 185 P.3d 266 (Idaho.App. 2008): Two officers were conducting a traffic stop when a white El Camino went past them. One of the officers recognized the vehicle as matching the description of a vehicle involved in a reported stalking incident earlier that day. The officers left to look for the El Camino and located it in a nearby parking lot. The officers approached Campbell and his passenger. The passenger told one officer that Campbell had driven the vehicle into the parking lot. The other officer “asked [Campbell] who drove the car here, and he said that he did.” Campbell also told the other officer that his driver's license was suspended, which information was confirmed by a dispatcher. Campbell was then arrested for misdemeanor driving without privileges. A search of the vehicle incident to arrest turned up drugs and other evidence. Campbell filed a motion to suppress the seized evidence.  Should his motion succeed?

Hypo 2: United States v. Varner, 481 F.3d 569 (8^th Cir. 2007): Two officers approached Varner's home with an arrest warrant for failure to pay child support. At the door, Varner identified himself, and stepped outside. He was arrested and handcuffed. He asked if he could go inside the house to tell his girlfriend he was leaving. The officers agreed, following him inside.  Entering the living room, the officers saw a glass pipe used for methamphetamine and seized it.  Varner moves to suppress the pipe.  Should the motion succeed?

Hypo 3: United States v. Arnold, 388 F.3d 237 (7^th Cir. 2004): Officer Ford arrested Arnold for driving his four-door Pontiac Bonneville with only a learner’s permit and without anyone else in the car.  Before towing the vehicle, Officer Ford searched it.  Beginning his search in the back seat, Ford observed that the car contained a middle armrest. From experience, the officer knew that the area behind the armrest opened directly into the trunk. Officer Ford pulled the armrest down and discovered a loaded handgun that was visible in the immediate space of the trunk. Arnold was later charged with carrying a handgun without a permit.  Arnold moves to suppress the handgun.  Should the motion succeed?

Hypo 4: Lewis v. Secretary, Department of Corrections, 2009 WL 151097 (M.D. Fla. 2009): Officers had a warrant to arrest Lewis for trafficking in hydrocodone.  From a distance, they observed Lewis park in a parking lot.  Over the next 30 minutes, they observed Lewis repeatedly approach somebody, go in and out of his car (but not turn the car on), and then approach somebody else.  After 30 minutes, they arrested Lewis, searched his car incident to that arrest, and discovered hydrocodone.  Lewis moves to suppress the hydrocodone.  Should the motion succeed?

These cases allowed me to make sure that students had retained information regarding several important aspects of the search incident to a lawful arrest doctrine: (1) when an arrest is lawful, (2) how officers can stay at the arrestee's elbow after a lawful arrest, (3) what constitutes the passenger compartment of an automobile, and (4) what makes someone a recent occupant?

I also take one of these introductory opinions (and sometimes add facts to it) and weave it through the rest of the class so as to tell a story to the class about the doctrine we are learning that day.  For instance, in the plain view class, after we discussed Horton v. California, 496 U.S. 128 (1990), I explained that the officers in Varner also could have seized the pipe under the plain view exception.  But after we discussed Arizona v. Hicks, 480 U.S. 321 (1987), I cautioned that the plain view exception would not have applied if the pipe were upside down and an officer had to flip it over to determine whether it was a crack pipe or a regular pipe used for smoking tobacco.

Of course, my "law school case method" still does not ensure that students will retain material a couple of classes down the road, and that is why I try to use cases that will test not only concepts that we just learned, but also concepts that we learne in earlier class.  To wit, to test the independent source and inevitable discovery doctrines, I used the following case last class:

Hypo 1: United States v. Pruneda, 518 F.3d 597 (8^th Cir. 2008): After the police received information from a cooperating witness that was sufficient to establish probable cause to arrest for drug trafficking and justify a search warrant for Garcia-Delacruz’s house, Drug Task Force officers only obtained an arrest warrant.  After properly executing the warrant and arresting Garcia-Delacruz, an officer conducted a protective sweep of Garcia-Delacruz's basement to ensure that no other individuals were present. While conducting the protective sweep of the basement, the officer observed firearms and drug paraphernalia in plain view.  At the suppression hearing, One of the officers testified that his team, which executes high-risk arrests, is trained to do a protective sweep each time they do an entry.  Will the evidence be suppressed?

This case allowed me to test not only those two doctrines but also the protective sweep and knock-and-announce doctrines from earlier classes.  I have found that this method works well, but I am open to any suggestions on what I think might be the most important teaching topic.  Besides a midterm, what techniques have you used to test how well students are retaining material throughout the semester?

The Ungraded Midterm

I would like to thank Dan Markel for having me as a guest blogger here on one of my favorite blogs, PrawfsBlawg, for the month of April.  I am an Assistant Professor at The John Marshall Law School, where I teach Evidence, Civil Procedure, and Criminal Procedure.  My primary blog is EvidenceProf Blog, where I post on a daily basis, and I also have started posting at Feminist Law Professors on about a bi-monthly basis.  For the most part, my posts on both of those blogs deal with evidentiary issues, and my plan this month at PrawfsBlawg is to expand the scope of my blogging to an area with which all teachers must grapple: the grading and evaluation of students.

While studying as a student and teaching as a professor at law school, the most persistent complaints I have heard regarding classes are that the "one exam to rule them all" format fails to give feedback to students throughout the semester and fails (literally and figuratively) students who had a single bad day.  I wish that I could figure out a way to solve the latter problem.  I know that my colleague, Sam Jones, gives students a few graded multiple choice tests throughout the semester in addition to the final exam and that other professors give students a graded midterm.

Certainly, there is a lot to commend these approaches, but I have two main reservations.  First, I have the feeling that if I gave a graded midterm, students would understandably but detrimentally (for both their other professors and them) shift most of their attention away from other classes in the week(s) before the midterm (giving students multiple points of stress in addition to multiple points of grading). Second, by the time the middle of the semester rolls around, I've set things up in class that won't pay off until later.  I do give an ungraded midterm, and my recent Criminal Procedure midterm contained a knock-and-announce fact pattern after we had discused the knock-and-announce requirement but before we had discussed Hudson v. Michigan, 547 U.S. 586 (2006), and its holding that the exclusionary rule does not apply to evidence seized after officers fail to comply with it.

I do, however, feel that my ungraded midterm at least partially addressed the latter problem (I will explain another way that I try to address this problem in my next post).  Here's what I do.  In a 14 week semester, I hand out an ungraded midterm in week 7 for one class and week 8 for the other.  Students have a week to complete the midterm, and I suggest that they treat it as if it were the final exam and do it under timed conditions.  The class after students turn in their answers, I do a general in-class discussion about the midterm and the answers/analysis I wanted. The following week, I give students answer keys with the points that they got and missed and the grades that they would have received if the midterm were the curved final exam. I then encourage students to meet with me to discuss ways to improve on the final.

It seems that there are pros and cons to my approach:

Pros

(1) It lets students see where they stand near the mid-point of the semester;

(2) It helps students better understand how to tackle the rest of the class and final exam preparation;

(3) It lets me see where I stand and whether I need to go back and further explain some concepts from the first half of class;

(4) (I hope and think) that it improves the overall class performance on the final exam;

(5) (For new(er) professors): It gives you a dry run to see whether your final exam will be too short/long and/or easy/difficult;

(6) (For new(er) professors): It gives students an opportunity to see what they can expect on the final exam;

(7) Compared to the graded midterm, it doesn't take too much time away from other classes;

(8) Compared to the graded midterm, it isn't overly stressful for students; and

(9) (For 1Ls): It provides an introduction to law school test taking.

Cons

(1) It is still somewhat time consuming for students;

(2) It is time consuming for the professor (but this can be reduced by using the same midterm each semester, just doing the general in-class discussion rather than giving individualized feedback, etc.);

(3) Compared to a graded midterm, fewer students will turn in answers (I have gotten about a 75% completion rate; I suppose that I could keep the midterm ungraded but make it mandatory and decrease the grades of students who don't turn in answers);

(4) Midterms in general are difficult to give in some classes, such as Criminal Law, and on certain subjects that are developed over the course of the semester; and

(5) Students who do poorly on the midterm might "check out" during the second half of class (although it might also light a fire under them).

On balance, I think that the pros outweigh the cons, but I'm new to this game and would love to hear what others think.  Do you give a graded or ungraded midterm and why or why not?  Also, is anyone aware of a law school that had mandatory midterms in all classes and blocks off a week for all midterms to be given so as to avoid the "focus shift" problem I raised above? 

Multiple-Choice Law School Exams

I've informally asked around over the last few years about giving multiple-choice (or partially multiple-choice) exams and have noticed: 

• Views (and institutional norms) are strong

• Whether multiple choice is considered acceptable varies among subject areas (civ pro ok?  con law no way?)
• Some of these strong positions are linked to issues about "teaching to the bar"

So, multiple choice - pro or con?

Laptops in the classroom: Now a word from our students

Please Repeat the Question from Amanda Bakale on Vimeo.

(H/T: Donald C. Clarke (GW) on the LawProf ListServ).

2008 Newsletter for AALS Section on New Law Professors

In my (now-expired) capacity as Secretary for the AALS Section on New Law Professors for the 2008 calendar year, I had the privilege to put together the section's annual newsletter, which includes fun little pieces about tenure, name-calling (the good kind), and reprints. For those who are interested, I thought I'd post a copy here!

Taking stock mid-semester

Last Friday, I held "Light Bulb Day" in civ pro. That is when I sum up and (hopefully) bring together all of pleading by talking and walking the class through the first phase of a civil action, from the filing of the complaint until the pleadings are "closed." This is something I did by request the first time I taught civ pro (at Florida State) and I have continued to do it, even making it an explicit part of the syllabus. It is the forest-and-trees point. Pleading involves so many discrete pieces (trees) that must be taught individually and not necessarily in chronological order; LBD is the point that I fully explain the forest.

It also marks something of a mid-point of a semester in which I tried to do some different things (my approach to civ pro, in terms of coverage and order of coverage, changes more than for any other course I teach). So it is worth pausing to reflect.

1) The laptop ban is going better than I hoped. I look at it much as I look at my iPhone: Why did I wait so long and what did I ever do without it? I never realized how much I missed eye contact. Even the bored and checked-out students at least look up at me. And when students have to look up, you can get a sense from their eyes as to whether they are "getting" what you were talking about and adjust accordingly. I also never realized how loud keyboards are when 75 students are typing simultaneously.

The students seem OK with the policy, although I will not know that for sure until I see the evals at the end of the semester. Interestingly, virtually all of them use laptops in their other classes. Which tells me that my banning laptops is not having any broader pedagogical effect of showing them the wisdom and benefits of laptop-free note taking. It has only the narrower (but still positive) effect of making my class function better.

2) I gave them four sample complaints from well-known cases, to illustrate the form and structure of pleadings and the form that a lawsuit takes. I think four is too many and two of them (from Iqbal v. Ashcroft and from the telecom wiretap suits) were too long and complicated to be fully useful. I need fewer and better examples next year.

3) My new order of covering pleading went well, I think. We covered the basics of the complaint other than notice v. fact pleading (number paragraphs, etc.), joinder, and Rule 11. We then talked about Rule 12 motions, especially 12(b)(6). We then came back to the central question of the level of detail necessary for a complaint under Rule 8(a)(2) and 9(b), tracing the evolution of pleading from Conley to Rule 9(b) to Twombly (and perhaps to Iqbal, a Bivens claim that could further re-define notice pleading.

Two benefits to this. First, it seemed that by the time we got to the "how much detail in notice pleading" question, the students understood the overall stylistic and structural concerns of a complaint and the process for putting the suit together. Now they were ready to consider how much information they had to include to put together a successful complaint. Second, it allowed me to proceed in order, rather than breaking it up.

4) I think I need to add a short reading assignment and a ten-minute lecture on claim preclusion (res judicata) as part of pleading. I do not have time to cover res judicata in only four hours, but I think the basics are necessary to help them understand how to frame a complaint and the claims they want to bring. One student asked a question after class the other day demonstrating that he had made the link between preclusion and joinder of claims under Rule 18(a). I think I need to teach that more clearly for all.

5) I now am in the middle of what probably will turn out to be 2+ days on Discovery, basically doing straight lecture providing very broad overview of what the rules and issues are, without much normative discussion. Discovery presents a paradox: On one hand, it is the most important part of the course because it so dominates the pre-trial process; on the other hand, I have found it very difficult to teach in a classroom environment following my usual approach. I decided that the purpose of this section should be to give them enough to understand summary judgment (which depends entirely on what turns up in discovery) and a basic familiarity with the rules and concepts they will face in pre-trial practice, clinic, and the real world.

CALI has some on-line exercises that I did not have time to prepare for this semester. The solution may be to incorporate those into this part, so their working through those practice problems supplements the lecture. But that is a change for next year.

6) The first of two in-semester, 500-word essays will be distributed this week and due the following week. Having to grade 135 redundant essays will not make for a fun spring break, unless the essays turn out to be pretty good. But this frees me up to do a broader, greater-coverage multiple choice/short-answer final. I never have done in-semester writing assignments before, so we will see how it goes.

Law Review Submission Season Stories of Inspiration: Written Apology from YLJ!

Two years ago, the editors of The Yale Law Journal actually apologized to me, in writing, for not publishing my article.

Perhaps they will make amends by publishing my most recent piece.  Indeed, they said they hoped to see it - which has kept me going:

Dear Prof. Foley,

Thank you for submitting your work, Guantanamo and Beyond: Dangers of Rigging the Rules, to The Yale Law Journal.  We are sorry that we will not be able to publish it.  Each year, we receive many excellent submissions from which we can select only a handful for publication. We appreciate having had the chance to consider your manuscript and hope you will continue to submit your work to us.

Sincerely,
The Yale Law Journal

Swearing in class

One of the distinctive features of the dialogue in HBO’s series Deadwood was its complexity. It’s not that common to hear dependent clauses on TV, much less dependent clauses within dependent clauses. So why was the show so popular? Why were people willing to listen to characters who talk the way Jane Austen writes? The reason was another unique feature of the show’s dialogue (one that can’t be found in Jane Austen), namely the unprecedented use of profanity.  It was as if Elizabeth Bennett had been possessed by Joe Pesci.

The point is that profanity can make complex language easier to digest.  This makes it an attractive tool in the classroom. I’m convinced that if I could swear like a Deadwood’s Al Swearengen when lecturing about the Erie doctrine, my students would remember it much better come exam time.

As it is, I limit myself to language that would be acceptable on network TV, such as “No one gives a damn about service rules when choosing whether to sue in federal or state court” or “Who’n the hell knows whether a federal rule abridges, enlarges, or modifies a substantive right?” For a while I toyed with the idea of using Battlestar Galactica’s “frak,” but decided in the end that it was over the line.

But maybe I’m over the line already...?

A for Effort?

The Times has an article on the attitudes of college students that if they put in the time and real effort in class (doing all the read, showing up for class), they should get at least a B, regardless of the quality of their papers or exams. A recent study found that 1/3 thought showing up for every class was sufficient for a B and 40 % thought doing the reading (presumably while also showing up) was enough.

A keeper quote from a senior at the University of Maryland:

If you put in all the effort you have and get a C, what is the point? . . . .If someone goes to every class and reads every chapter in the book and does everything the teacher asks of them and more, then they should be getting an A like their effort deserves. If your maximum effort can only be average in a teacher’s mind, then something is wrong.

The story deals with undergrads, but surely the same attitudes have or soon will trickle into law schools. Apparently, the legal writing listserv has been talking about this all day today, with one commentator capturing the issue as it relates to law school: "I think putting in a lot of effort should merit not getting sued for malpractice. What else is there really than the effort that you put in?"

I have not yet had a student dispute a final grade on these grounds. But I have had a student demand to know why he received no credit for class participation (which is worth 10 % of the final grade) when he was in class and prepared every day--but never spoke once the entire semester. He did not quite seem to understand that a) you don't get credit for showing up, since that is the independently required as part of the class; b) it's not entirely clear that you "participated" in class if you never actually, you know, participate; and c) even if doing the reading were enough, how am I supposed to know that you've done the reading if you never speak.

FIU Dean Search II: Oops

In my earlier post on the news accounts of the FIU dean search, I likened a mainstream media accounts of a law dean search to accounts of judicial proceedings--ripe for context to be lost in translation. I was more right than I thought.

It turns out that the ten people mentioned in the newspaper stories are not finalists for the job in any sense; those were ten candidates that were discussed during that meeting (which was attended by a Herald reporter). Other candidates also were discussed. Other candidates will be discussed at the next meeting. And Alex Acosta, the outgoing United States Attorney who was the focus of both newspaper stories, was at the top of the list because the list was alphabetical. So, contrary to what the media reports suggested to some observers, we actually were not doing anything "strange" compared to other dean searches, such as presenting twice as many finalists or identifying and highlighting one person as a "leading" candidate early in the process. The reporter apparently completely misunderstood what had occurred at the meeting.

The committee is taking steps to publicly correct the (mis)perception, to preserve the efficacy and workability of the search and to ensure all candidates (mentioned in the article and not mentioned in the article) that no firm decisions have been made.

Update:

The text of the public statement is after the jump:

Search for new College of Law dean moves forward

MIAMI (Feb. 12, 2009) - The search committee charged with finding FIU College of Law’s next dean discussed a preliminary list of candidates this week.

This list, published in several media outlets, is not a final slate of candidates. In future meetings, the committee will consider these and other candidates and will continue to solicit applications for this position until it is filled.

“We have, and continue to receive, applications from throughout the country to lead this young and promising law school,” said College of Medicine Dean John Rock, who is heading the search committee. “We will not settle on anyone until we are absolutely certain that we have chosen the right candidate.”

The next meeting of the search committee will be on Wednesday, Feb. 18 at 9 a.m.

The current dean, Leonard P. Strickman, came to FIU in January 2001 as a professor and founding dean of the College of Law.

Under his stewardship, the College of Law received accreditation in the fastest time allowed by the American Bar Association. Graduates have passed the Florida Bar Exam at rates exceeding the statewide pass rate and at the most recent examination, in July 2008, FIU graduates passed at the second highest rate when compared to graduates from all law schools in the state of Florida.

Strickman will remain a member of the law faculty after he steps down as dean this summer.

Comments on FIU's Dean Search

As much of the country seems to now by know, both South Florida newspapers yesterday ran stories yesterday reporting the ten candidates for FIU's deanship (what I have been calling the "medium list"). The stories focus (in headline, lede, and content) on one name--Alex Acosta, the outgoing United States Attorney for the Southern District of Florida, who is described in both stories as a "leading" candidate. He also is listed first among the names, although the list is alphabetical, further demonstrating that alphabetical order is not neutral. Dan Filler at The Faculty Lounge wonders if this could skew the search--by giving Acosta coverage in the mainstream media, it converts him into a favorite. Dan also suggests it could cause political problems for us if he is not hired.

I take mainstream media coverage of a dean search much as I would take most mainstream media coverage of judicial proceedings; I generally find the latter unwatchable because so much is reported incorrectly or inaccurately. And I think the same of these articles. Both stories are trying to convert a niche event (making an academic appointment) into something for mainstream consumption (a political appointment potentially involving a well-known local public official), and as with trial reporting, something often is lost in the translation. In fact, I am pretty sure the papers would not have reported the story at this point but for Acosta's name. I do not believe that mistranslation will affect how our faculty, search committee, or (hopefully) provost will act in the search such that it skews the outcome. I would agree that it might skew some non-academic responses to the outcome--but that is not unlike what happens with media reports of court cases. Acosta obviously also is a unique candidate, which makes his inclusion of some public interest. But what is not discussed in the story is what is relevant to the academic niche (i.e., our faculty and students) that really cares about the story: Acosta brings a very different set of skills and experiences to the position, so his inclusion, along with other experienced academics, suggests something about multiple thought processes as to the school's institutional direction.

And, in the meantime, the discussion over the admittedly strange news stories obscures the fact that we have a pretty good group of potential candidates as the search committee starts to pare them down. Since I do not have to do any real work to do on this at this point, I must admit to a sense of excitement and optimism at the prospects.

Teaching Self-Awareness

We have all seen the reports about how unhappy many lawyers are, how many people drop out of the profession, describe themselves as "recovering lawyers," and so on. And we know that lots of law students are unhappy, stressed, and confused about what law school is supposed to be doing. It seems that wherever you find someone who hates what she is doing, you also hear, "I thought this was what I wanted, but I didn't want this." So in line with a recurrent theme here at Prawfs, what role should law schools play in teaching students to know what they want and exposing them to what the real world is going to be like?

Personally, I think we play a big role in both, which is why I often require my students to do some kind of reflection exercise, sometimes the same exercise, at least once during the semester. My favorite is also a good icebreaker for seminars or other meetings. I ask the students, "If time, money, and skill level were no object (in other words, you have enough of all of that), what would you be doing with your life and why?" Not surprisingly, almost no one says, "going to law school," but the answers can tell the students a lot about what they need out of a career. And knowing what they need out of a career can help them tailor their law school experience towards those attributes, which will make the law school piece (and hopefully the career) much more fun or at least easier to tolerate. And this question can create a lot of productive internal dissonance for people not used to reflecting. For example, recently one woman I asked got very agitated when I told her that she could not consider obligations or other people's expectations in her answer. But the point was, how do you know what you want or need if you're always doing things based on what others want or need?

So, if time, money and skill level were no object, I think I'd be working at a specialty cake bakery like the one featured on Food Network's Ace of Cakes. Each cake is a single project with a beginning and an end, the environment is full of of really creative people, the work is very tactile, you can see your progress, and the end product is so beautiful and often visually calming, with smooth curves and symmetrical patterns. Plus, who doesn't like cake?

What about you?

Developing a law faculty: diversify, or build on strength?

I guess I held out pretty well on my New Year's resolution to stop blogging. But now that I've fallen of the wagon, I hope to start posting more again.

Anyway, as a member of my school's appointments committee this year, I've been thinking about how a law school should set its general agenda for hiring. Of course there are a lot of factors to consider, but what I'd like to focus on is how a school can best improve itself as a producer of scholarly writing. (Schools might do this out of a desire to improve the substance of their scholarly output, or a desire to improve their reputation, or both.)

My particular question is this: should a school pursue "breadth" or "depth" in its faculty? Is it better to have a faculty that represents a boradly diversified portfolio of interests, subject areas, methodologies, ideologies, etc., or to have more uniformity along one or more of these axes, thus developing a core strength or a "personality"? If the second of these, should the school simply build on its existing strengths to solidify a comparative advantage, or should it try to anticipate future trends?

The "depth" or "concentration" model makes some degree of intuitive sense, since having several faculty members with overlapping expertise, or using similar approaches, can create synergies that might make their collective work better than otherwise. (On the other hand, modern communications technology might obviate the need for such people to be in the same location.) Certainly some top schools are "stacked" in specific subject areas, and some other schools (e.g., George Mason) seem to have done relatively well for themselves by specializing to some degree. U of Chicago might be an example of the benefits (reputational or otherwise) of having a "personality," though it also seems to me that Chicago's faculty is presently more diverse in various ways than the "Chicago school" label suggests, and maybe after a school has established something like the "Chicago school" identity (real or perceived), it can have a hard time stepping out of its own shadow. And perhaps it's hard to be an "outsider" at a school with a large contingent of people working in a certain area or doing things a certain way, or "insiders" might become a coalition with disproportionate political clout they may not wield to the school's benefit.

On the "breadth" side, a school might specifically feel the need to have "coverage" in a scholarly area (not just a teaching area) where it currently lacks a presence -- not only "we need someone to teach Property," but "we need a law and econ person," or a critical race theorist, or what have you. I sometimes hear people on my faculty expressing views of this general sort, though they don't always agree on what the holes are that we need to fill. Of course, this approach might create positive spillover too, if one person's work benefits from the insights or critiques of someone with a distinct view or approach. (But as an empirical matter, how often do people share their work with colleagues in completely unrelated fields? I observe that happening more with junior faculty than with more established scholars, though I'm sure it varies depending on schools and individuals.)

Do other people have thoughts about this? And do your schools' faculties have conversations about hiring at this level of generality or long-range thinking? I get the sense that for a lot of schools, the hiring process is more ad hoc, responding to (perceived) immediate teaching needs, among other things. Are resource constraints, or the likely levels of disagreement among faculty members about these general issues, such as to make the larger conversation a waste of time?

Also, is either model noticeably better or worse in terms of students' educational experience? Maybe students benefit from exposure to intellectual diversity, but maybe they also benefit by self-selecting into an institution that focuses on the subjects, skills, etc., that they want.

More thoughts on classroom technology

With the new semester upon us, let me start it off with several thoughts on classroom technology.

First, after much talk, I finally banned laptops from my classroom for the coming semester--favorable tenure votes are almost as good as alcohol for giving one courage. I will audio record every class and post the MP3 file on the class blog (a practice I began last semester) for those who want to re-listen and get more detailed (i.e., transcribed) notes or just to fill-in any holes. I pitched this as roughly equivalent to a trial or deposition--you go through a trial day without a computer in front of you; you participate and engage in the trial, taking brief notes where necessary, but not staring only at the computer or typing non-stop; then you get a full, verbatim transcript a day or so later. I will write more about how this goes throughout the semester, especially whether my experience is as favorable as those of everyone else who has experimented with banning laptops.

Second, one of my colleagues gave another great real-world-litigation explanation for why law students must develop the ability listen and take quick-short-but-accurate handwritten notes without the crutch of the computer and verbatim transcription. Many pretrial proceedings are done informally and off-the-record (status conferences, settlement conferences, discovery conferences), but often issues will be decided or worked out and the judge will tell the attorneys to write up what was decided into an order for the judge to sign. If the attorneys were not paying attention and taking notes--in a situation where they cannot sit there typing every word on a computer and never will get a transcript--they are not going to be able to perform this necessary function. And the judge is going to be none-too-pleased. My (federal) judge used to resolve most discovery disputes by phone (again, off the record) and would have the law clerk draft an order. But other federal judges do not have their clerks involved in this way. And in state court, where trial judges typically do not have elbow clerks, this falls entirely on the attorneys. In other words, there is a genuine educational (my colleague's husband hates the word pedagogical) benefit to their learning to work and take notes without computers.

Third, a colleague in another department banned laptops (which, by the way, seem to be far less pervasive among undergrads than law and grad students, at least at FIU), expecting to find students looking up more. Instead, she found them looking down--at their iPhones, Blackberries, etc. So we have to get specific about exactly what is forbidden in the classroom.

But this raises interesting issues as far as the arguments for a laptop ban. iPhones, etc., have no legitimate use in class; students only use them to surf, text, IM, etc., all non-class-related/not-paying-attention uses. For those who relied on not-paying-attention as the justification for a laptop ban, the response always had been "do a better job of teaching and holding their attention and they won't surf."* The pro-ban reply was that laptops are uniquely distracting, because everyone around the surfing student can see what she is looking at. Well, that reply goes away with iPhones or Blackberries. Like the crossword puzzles, doodling, and Bingo that students did in my day (by the way, my day was only 13 years ago), no one else is going to see or be distracted by what that student is doing.

Finally, a note on PowerPoint (PP), which Dan described a couple years ago as the prawf equivalent of the laptop. My wife taught an undergraduate public policy course at FIU last semester. For the first half of the semester, she used PowerPoint slides (mainly to save time having to write an outline on the board); in the second half, she used only the board f. At the end of the semester, she asked the students (who will be in the second half of the course with her this semester) which they preferred and it was unanimous that she use the board and not PowerPoint. Several students re-emphasized the point in their written evaluations.

I found this surprising (especially since I usually get a few written comments each semester demanding PowerPoint). One explanation was that she was not giving them the slides, meaning they had to take notes on what was on the slide, which they found difficult (especially since you can put more info on a PP slide than onto a dry-erase board) and distracting in itself. And I learned this summer at a civ pro teaching panel that the debate between giving slides and not giving slides is almost as unending as the debate between to PP or not to PP. So perhaps PowerPoint is useful (and popular with students) only if they get the slides at the end. If that is the case, then PP (with slides made available) begins to look a lot like my making the audio available--it enables students to pay attention and genuinely engage during class while taking only relatively minimal notes, knowing they can get complete information after the fact. Which is exactly what we want.

The difference, though, is that with PP, the incentive remains for students to tune out during class, knowing they can get everything they (think they) need off the slides with no additional work or thought. That incentive is absent with my audio-after-the-fact approach. Listening to the audio is functionally the equivalent of reliving class, so why not pay attention the first time and just use the audio to fill-in the gaps, rather than to tell you all you need to know.

• An argument I do not accept, because students are messing around even with the best, most dynamic, most engaging profs.

Exam fun

When I include multiple-choice questions in my exams, I like to sprinkle into the mix a few just-for-kicks questions to give my students a mental breather. I’m enjoying the responses and thought I would share a couple.

Here’s one:

If the South Carolina School of Law faculty had a theme song, which of the following would it be?

(1) "Insensitive Stone Age Guys," Geoff Bartley

(2) "Everything Reminds Me of My Therapist," Nancy Tucker

(3) "I Can See Your Aura And It's Ugly," Mark Graham

(4) "I’m Interested in Apathy," TISM

(5) "Shiny Happy People," R.E.M

** Happily, answer choice (5) was the most popular selection, with (2) as a distant runner-up.  Here’s another (in our grim economic times, I deemed it wise to seek some career advice in the event of the unspeakable):

If Professor Susan Kuo were RIF’d (alternatively stated as "laid off," "fired," "terminated," or "sh*tcanned") from the faculty, what song title presents the best alternative career for her?

(1) "(Workin’ at the) Carwash," Rose Royce

(2) "Paperback Writer," The Beatles

(3) "Frontier Psychiatrist," The Avalanches

(4) "Bright Future in Sales," Fountains of Wayne

(5) "Cocaine Traffickin’," Ghostface Killah

** Over half of the class chose (2) for me, but (4) and (5) tied for second place. Good to know that I’ve options.

Fictionalizing the Shoah, or Why tenure remains important

I came late to the story of Herman and Roma Rosenblat, two survivors of the Shoah (he at Schlieben, a sub-camp of Buchenwald, she pretending to be Christian and living on a nearby farm). The tale they told for a decade until last weekend is that during seven months in the winter of 1945, Roma (then nine) met Herman (then a teen) at the camp fence and tossed food to him over the barbed-wire fence. They then met on a blind date in Coney Island in 1957, told their stories of the War and realized who the other was; they fell in love and married and remain together, retired near Miami. This love story landed them two appearances on Oprah and a book contract with Berkley Books (a division of Penguin Group); their story was the subject of a children's book published last fall and of a movie, titled Flower of the Fence, scheduled to go into production in March.

But Ken Waltzer, a Holocaust expert and the director of the Jewish Studies program at Michigan State, looked into the story and began calling it into question. So did Deborah Lipstadt of Emory University, an appointee the United States Holocaust Memorial Council. The New Republic did an extensive investigation, including talking to other Schlieben survivors, some of them members of Rosenblat's family, who denied the story. Last Saturday, Berkley canceled the book after Rosenblat admitted to Harris Salomon (the film producer), his agent, and the press that the story was false. Roma was, in fact, in hiding in a different part of Poland, 200 miles away; Herman did not go to the fence to get food every day for months on end. TNR coverage here, here, here, and here. Comments from Waltzer here and here and from Lipstadt here and here.

I want to touch on two points in this story--one on the merits of the memoir controversy and one closer to the academic focus of this blog.

On the merits, I agree with the argument that falsified stories about the Shoah are troubling. But not because I think that enough small falsifications leave room to deny the entire thing. Rather, my problem is that this event was so horrific and that horror is lost amid false stories that humanize the events and, in the course of humanizing, make them seem more benign. The detail that caused scholars to question the story was that the only space along the fence at Schlieben where such an encounter could have occurred was right by the SS barracks; no prisoner and no Jew in hiding would or could deliberately walk that close to an electrified, barbed-wire fence, much less to the barracks and to the SS on a daily basis. A story, purporting to be true, that suggests otherwise makes the SS, and everyone's situation, appear less dangerous.

Waltzer sharply criticized the "culture makers"--Oprah, Berkley Books, producer Salomon--for failing to investigate or even question the veracity of a story that was on the "far end of implausibility" to begin with. He argues that the willingness to accept the story "shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust." His suggestion is that the culture makers fail when they try to sugarcoat the Shoah for Middle America, resulting in miseducation rather than education. The flip side, as expressed to TNR by film-producer Salomon, is that the "candy-coated message" gives the story resonance with middle America and "can do more to teach people about the Jewish experience during the Holocaust in a way nothing before has done."

Count me on Waltzer's side of the fence (so to speak) on this one. I do not believe that we can teach about the Jewish experience during the Holocaust (or any experience, frankly) by presenting a story so sanitized that it presents a false (not just fictitious, but false) image of reality. Quite the opposite--we disserve the Jewish experience by giving it an impossibly pleasant veneer. Interestingly, Salomon for now plans to go forward with the movie, which he says was to have been a fictionalized "based on" story, rather than a true-to-life translation of the memoir. Salomon apparently sees this story, fictional though it may be, as much like the recent film The Boy in the Striped Pajamas in depicting a friendship between people on opposite sides of the camp fence. But, as the TNR story pointed out, that at least acknowledged that it was a work of pure fiction. (See here for a taxonomy of Hollywood Holocaust plots).

Now on to the academic point: This story suggests something about the continuing need for tenure. It is quite common to question that institution, given the negative incentives it provides. Or it is used to protect scoundrels, those who use it to write and say outrageous and offensive things (something that I am all for as a general matter, but not all people and not all universities are). But sometimes tenure still is necessary to protect scholars who are doing the right thing.*

As Waltzer's skeptical investigation, and the reportage by TNR, intensified, there was pushback from "culture makers" with a vested interest in this project going forward, most notably from producer Salomon. One move was to contact the dean at Michigan State to question and complain about Weltzer's research. Salomon also called it "bloody repugnant" that Weltzer spoke with TNR. Salomon also went after Lipstadt via e-mail, suggesting that she was slandering Rosenblat by questioning the story, that he (Salomon) knew more about the Shoah than she did, and that her questioning of the story is a "sin to the memory of all those who perished so long ago."

Of course, in neither situation did anything happen beyond sharp criticism of the scholars--which is, of course, completely fair game. And in neither situation did the University decline to support the professor fully and there is no reason to think they would not have done so had it come to that. But a university granting tenure is Ulysses tying himself to the mast--a precommitment that it saves it from even the possibility of its lesser tendencies. Perhaps the University never even will be tempted and perhaps scholars never will "need" to rely on tenure (I frankly never expect to have to). But it continues to serve a purpose, even if it only is wielded in the rarest and most exceptional circumstances. If I am Ken Waltzer, I feel better and safer entering into this fray knowing that I have tenure behind me.

* Yes, I recognize the subjectivity of those last two sentences.

Pacing Classes

The semester-interregnum is the period of grading, planning for next semester, and (hopefully) doing a little writing, as well as whatever holiday and family festivities we have. It also is a good time to look back at the prior semester, figure out what we did right and wrong, and think about how to carry those lessons into the next semester and to the next time we teach that class (often a year later).

Once again, my biggest problem last semester was the pacing of my classes. In Fed Courts, we got through jurisdiction, 11th Amendment, justiciability (although not Political Question Doctrine), and abstention (but not Rooker-Feldman). I did not get to jurisdiction stripping, Boumedienne and the War on Terror, or congressional control over the courts--the fun, theoretical stuff that I save until the end. In Civil Rights, we basically had about 1/2 a class of lecture on civil rights injunctionsThe last time I taught civ pro in a single semester (spring 2007), I was able to do only one day on the basic principle of Erie and I am trying to figure out how not to repeat that mistake next semester.

My problem is that I do not organize my courses by days--we will do one day on this topic, two days on this topic, etc. Instead, I organize by topic. And we stay on a topic until I get them the information and detail I want them to have and until they "get it" (or at least until there is no one left raising her hand and saying "I don't get it"). The inevitable consequence is that we spend a longer period on the material early in the semester and rush through (or do not reach) some stuff towards the end. And this has gotten worse as I have become more "Socratic" (danger quotes intentional) the more times I teach a course. When material leads to free-wheeling discussions, we stay on a topic that much longer--and I confess to not being very good at cutting off or reining in discussions.

So I would like to hear about how folks control the pace and coverage of courses. Any thoughts and suggestions?

What makes a law professor "successful"?

Having submitted my tenure application two weeks ago, I've been thinking a little about how to measure one's "success" as a law professor, partly in the context of contemplating how (and how well) the tenure process gauges one's performance, but much more in the context of contemplating the next 30-plus years of my career.

It's easy and, I think, natural at the beginning of one's prawf career to set clear, practical goals, namely: get a job; get tenure. And I guess one can keep those same goals later as well, either by focusing on getting a "better" job somewhere else, or by focusing on tenure even after one has it (i.e., "mission accomplished; now begins the idle walk toward an even more idle retirement and, finally, the long, blissful sleep of death").

But those possibilities don't really speak to me. I like my job. I'm not itching to leave, and I'm not itching to stop. In fact, and perhaps this goes against my consequentialist inclinations, I expect I'll be perfectly content to keep doing what I'm doing even if I can't point to any great practical accomplishment from doing it. Even so, I also think that accomplishing something is better than accomplishing nothing, and you're more likely to accomplish something if it's the thing you're trying to do. So, I ask: what exactly should I be trying to accomplish with the rest of my career? When I look back at what I've done (or haven't), how should I go about assessing whether I've been a success?

Maybe the obvious answer is to focus on the 3 things my tenure application focuses on, namely: teaching, scholarship, and "service" (the last of these is in scare quotes because it goes by different names and seems to have an amorphous meaning). But does it make more sense to spread one's efforts across all 3 of these things, or to focus one's efforts on what one does best? Perhaps a school's faculty is best if it maximizes its collective excellence in these 3 categories, which is not the same as having each individual member pursue all 3.

Anyway, whether one is pursuing any or all of these 3 things, I'm not sure what the best metrics are to measure one's performance in any of them. For now, I'd like to focus on scholarship, perhaps as it intersects with an aspect of service (in this case, one's relation to and impact on the broader legal community). What makes a scholar successful? Placing many articles in "top tier" journals seems like a weak criterion, to put it mildly (more on that, perhaps, in another post). It seems one should want to reach some audience, but who is that audience? Practitioners, political actors, other academics? Contemporary legal scholars seem almost determined to avoid having their published work speak to practicing lawyers, though of course maybe that's a mistake. As for politicians, it seems to me fairly rare that legal academics manage to have a direct impact on the shape or development of the law, and when that does happen, it seems to happen more via direct participation in some reform effort than via one's scholarship. Am I wrong about that?

If not, then I guess that when we law profs write, we're writing almost entirely to and for other scholars. Do others agree? And if so, are we then basically the same as most literature or sociology professors? The comparison is not intended to be pejorative: my wife's mom is a Thomas Mann scholar and her dad is a Max Weber scholar, and I'm hardly trying to insult my in-laws right before the holidays. Yet I suspect many law professors would read it as a put-down, because we often flatter ourselves that what we do somehow has more real-world import than what humanities professors do. I include myself in this; I sometimes feel a certain hauteur about being a legal scholar as opposed to some truly irrelevant ivory-tower type, though I can't articulate any basis for that feeling, especially since my career to date has done nothing to indicate that any non-academic will ever take my professional advice about anything.

Should I accept that I'm writing things for other law profs to read, and try to write things they will appreciate and learn from? Should I write for the sake of learning things myself, either for my own edification or so that I can teach students about what I learn? Or should I try to write for a "broader" or "mainstream" audience, and if so, what exactly would be the point of doing that? Or should I try to engage directly in law-reform efforts (as I did, with head-against-a-wall futility, before retreating to the academy)? Or should I do something else entirely, like spend my time trying to help my students get jobs? If tenure stamps a professor as "good enough," what makes a tenured professor as good as s/he can be?

Legal education bubble?

Staggering year-to-year price increases fueled by easy access to credit (partly as a result of government subsidization), followed by a resounding crash ... does this describe the legal academy's not-too-distant future, as well as the housing industry's immediate past?

I deliberately phrase this post as a question, because I have no particularly strong (and certainly no particularly informed) sense of this, but I'm wondering whether other people have thoughts about (1) whether legal education is (over?)due for some sort of "market correction," and if so (2) what form it might take, and (3) whether that would, on the whole, be a bad thing.

It's no secret that increases in law-school tuition, and tuition for secondary education generally have outpaced overall inflation for some time. Is this sustainable? Here are a couple of questions or considerations (others are welcome to note additional ones):

• The usual story I hear about law schools and the business cycle is that legal education is countercyclical, at least in one regard: applications tend to go up when the economy heads south. But though a bad economy lowers the opportunity cost of going to school, you still have to pay the, um, cost cost of going to school, and maybe that will get harder now. Will the recent tightening of credit extend to law-school loans? It seems likely that government loan programs will continue, but access to private loans may become more difficult. If this happens, it might threaten the ongoing ability of law schools to increase their tuition at the rates they have done so in the past.
• Will the downturn affect the "law sector" of the economy, thereby also affecting legal education? As Brian Tamanaha and Bill Henderson (and others) have pointed out, job prospects for many law-school graduates were less than stellar even before the recent economic difficulties. Will prospective law students increasingly conclude that the costs of the degree are not worth the benefits?

If it seems likely that there will be some sort of impact on the legal academy, then what form(s) might it take?

• Will all, or most, law schools be affected in roughly similar fashion, or will there be starkly different effects on public v. private; or based on geography; or "top tier" v. "lower tier" (whatever those terms are thought to mean); or relatively rich v. poor schools (might correlate with previous category); or independent schools v. those affiliated with a larger university; or other factors?
• Alfred Brophy at Faculty Lounge has advanced the likelihood of reduced hiring and increased teaching loads for those who remain, and perhaps a broader shift away from a focus on scholarship and toward teaching. (He raised these issues even before the economy collapsed.) Other possible "supply side" effects: heightened (or otherwise changed) tenure standards and/or less tenure-track hiring; reduced salaries/raises/benefits; increased use of adjuncts; larger class sizes, including more "distance" learning. Which of these seem most plausible? Other possibilities?

Finally, perhaps most provocatively, if there's a contraction of some form in the legal-education market, might that be a good thing? Should government student-loan support promote, say, graduate engineering education rather than legal education? Are we producing too many lawyers? Should more students realize that the odds do not favor their obtaining high-paying employment after law school?

Few if any of these questions/issues are new, of course, but I'm curious to hear what people think.

A Quick Tip for New Prawfs

Here's a little piece of advice to you new prawfs that you may not have heard before.  If your school is one of those where the students put on a musical every year to poke fun at law school life, including the professors, it is in your best interest to take affirmative steps to avoid being portrayed in a negative light during the show.  Believe me, you do not want to be tagged as the "sweaty" professor, or the "smarmy" professor, or the professor who loves to hear himself talk (like a prawf I've heard about who was portrayed singing, to the tune of the Divinyls hit song, "When I think about law, I cite myself").  To avoid this unfortunate fate, I recommend that you early on adopt a very obvious and hopefully charming (or at least harmless) affectation that the students will have no choice but to seize upon when depicting you in their musicals.  I started doing this right away and have done it successfully ever since.  At first, I made sure to always be seen around the law school playing with a slinky.  Now I never go anywhere without a roll of Smarties, the delicious sweet-tarty candy to which I am completely addicted.  I have to say that, although no students really know who I am and so never portray me in their musicals at all, I am quite confident that if they ever do put me in one of their plays, they will totally overlook all my negative characteristics and simply show me as a guy popping Smarties. 

Any ideas for good affectations our new prawf readers can adopt?

Being junior yet senior

Thanks to Dan for allowing me to spend the Holidays on Prawfs and greetings from Milwaukee on a cold Sunday. I am one of those people who came to legal academia on a full time basis after a lengthy career in practice. For that reason, I read Jeffrey Lipshaw's paper on "How Not to Retire and Teach" in the same way that our incoming students read books like "One L" and "Ivy Briefs."

My experience differs from Jeff's in some rather significant ways but, in the middle of my second year here at Marquette, I have some observations, mostly consistent, with Jeff's perspective.

Jeff states that it may be rather insulting to legal academics for experienced practitioners to say that they would like to retire and teach. I'll leave it to others to thrash that out. I want to tell all my old colleagues in practice who may want to go back to school that the life of a legal academic - at least an engaged one - bears little resemblance to what most people call retirement. I work harder now than at any time since my first year of law school, including my time as an associate and partner in a big firm. The difference from practice is that, with the exception of grading, I do almost nothing that I don't love to do. You may want to teach but forget the part about retirement. This wasn't a surprise to me and it shouldn't be to anyone else either.

Jeff also points out that hiring committees are concerned about the way in which the demands and language of practice may diminish one's ability to think like a scholar and that "twenty-five years of practice is debilitating, so it is thought, to the academic cranial synapses, and almost disqualifying."

While this may be a form of disrespect for practitioners and is often held by hiring committees as a prejudice rather than a concern, there is a substantial truth here. One of my areas of interest is law and theology. Last Friday I gave a talk at a CLE seminar about a paper that is forthcoming in the Mississippi Law Journal in which I address the doctrinal question of whether worship can be excluded from limited purpose public forums. That's a lawyerly question and was presumably of interest to the practitioners in attendance at the seminar which was entitled "Contemporary and Practical Issues of Church and State."

But the way I go about addressing the question (the answer, by the way, is "no") is by, among other things, applying Hugh Oliphant Olds taxonomy of worship. I argue that the various forms of traditional worship - forms that he calls kerygmatic, epicletic, prophetic and wisdom doxology - all tend to involve communication among the congregation (rather than communication to a deity), are unlikely ever to be safely characterized as, in the words of a recent district court decision, "mechanical praise," and are very likely to make claims about temporal matters. Thus worship will almost always will fit within the scope of most limited purpose public forums.

Now I don't think this approach is impractical at all. I think it helps us answer a difficult "real world" question. But it's not the way practitioners talk to one another and I could see them stretching (or maybe they were recoiling) as I tried to explain why James Cone's views on the role of worship in African American as an challenge to the authority of segregated society is relevant to answering a "contemporary and practical" question of church and state.

Nor do I think that the ability to think like a scholar is irrelevant to teaching. There is, of course, a way in which the scholarly mind can fail to convey what students need to know. As Jeff points out, legal academics don't talk about the law solely as "a self contained ssystem in which rules established in prior cases may be induced to new facts." But for most of our students during most of their careers that is what it will appear to be. The analogy isn't perfect, but think of the difference between classical and quantum physics. The former isn't quite right but it works for most purposes.

On the other hand, law school isn't a three year course of CLE. Our students don't yet know the language and instincts of practitioners and we have assumed correctly that they need to learn the "why" as well as the "what." Being encased in the assumptions of practice can get in the way of that. In class last week, a student correctly argued that certain evidence would come in under the doctrine of "curative admissibility." "You are absolutely correct, Ms. xxxx," I said, "but,in practice, you will simply say that 'they opened the door.'"

One of the reasons that I wanted to make this career change is that I wanted to think creatively about the law. That creative thinking (if we  manage to accomplish it) is expressed in scholarship, but I think it helps in teaching as well.

 

The Cult of the Wireless Clicker

For those in need a holiday gift idea for a law prawf...

Look no further than the wireless "clicker."  This handy gadget has changed my life.  Gone are the days when I was tethered to a laptop computer by the need to hit return to advance to my next powerpoint bullet or slide.  Instead, I can Oprah my way up the aisles in the classroom, tsk-tsk-ing facebook surfers and solitaire combatants.  A built in laser-pointer allows for jittery emphasis from vast distances and can also be a useful way to blind yourself before starting your lecture.

Any other gadgets that law prawfs can't do without?

Hello and what's your laptop policy?

Hi, folks, and thanks to Dan for inviting me to join the December chorus!

I'll start out with a question that was raised in a meeting today:  How many law schools require incoming students to own a laptop? We (the South Carolina "We") adopted a mandatory laptop purchase policy a few years ago and are now reaping the full benefits and detriments that accompany laptop use in the classroom.  On the positive end, students are able to type their notes during class and more easily transform those notes into outlines.  They can research cases and explore other course-related materials under the direction of their instructors.  They can use their laptops to type their final exams.  On the negative end, students are also playing video games, eBaying, and viewing internet porn.  They instant message and email one another.  Even worse, in my opinion, they are less engaged in class and more engaged in transcribing my every expressed thought, word for word.   

This semester, I and my fellow first-year section colleagues prohibited our students from using their laptops in our classes.  The results were intriguing (see my rhapsodizing here).

But, understandably, our students fear that the anti-laptop contagion will spread and question the ability of faculty to ban laptops from their classrooms in light of the laptop purchase mandate.  We have since established that there are excellent, non-classroom reasons for our mandatory laptop policy, but are curious to know whether other schools require their students to have laptops.

Thanks in advance for any and all thoughts on this matter.

The Scariest Moment of any Class Meeting

. . . is always the very first one.  I love teaching, and the interaction I have with students is without a doubt the most satisfying part of the job for me.  Once a class gets going, I almost always really enjoy it.  But the very first second--that moment where I am forced to say "ahem" or whatever--where I make the transition from private guy, standing there thinking about whatever it is I'm thinking about, maybe it's pizza or a crush I had in eighth grade or last night's House, to public guy who is in charge of running a class about some serious topic for the next two hours or so, is always, quite frankly, a bit terrifying.  There's no going back, once you do the "ahem."  You can't really start talking about the Clean Water Act for five minutes and then say, "umm, do you mind if we stop class for a few minutes so I can think just a little bit more about that crush I had in eighth grade?"

For this reason, I sometimes delay the beginning of the class a little longer than I probably should.  Just a minute or two, but still.  I rationalize this to myself by figuring that I want to make sure everyone who's coming has a chance to come in and sit down, or some other something or other, but really I'm just nervous.  I often wonder (and indeed occasionally pose this question to the class): What would happen if I just stood in front of the class silently, leafing through papers or whatever, for five minutes . . . ten minutes . . . a half an hour after the class is supposed to start?  At what point would the students start to leave?  Would they say anything, or just get up and go?  Would they call the Dean?

Does anyone else feel this way?

"Education and Soulcraft"

Paul discussed, a few months ago, Stanley Fish's new and much-remarked book, "Save the World on Your Own Time."  The review of Fish's book in a recent issue of First Things magazine, by Gilbert Meilaender ("Education and Soulcraft") got me thinking more about Fish's argument that the task of university teachers is instruction, not formation.  "I haven't the slightest idea," Fish says, "of how to help students become creative individuals.  And it is decidedly not my job to produce citizens for a pluralistic society or for any other. . . .  To be sure, some of what happens in the classroom may play a part in the fashioning of a citizen, but that is neither something you can count on . . . nor something you should aim for." 

As a good right-winger, I suppose I should be delighted by a Fishian take-down of hyper-PC modern-university follies and academics' self-importance.  Still . . . I cannot deny that, when I reflect on what I see as my "vocation" as a law teacher, I *do* aspire to (among other things) contribute helpfully to the formation of my students and to the integration of their lives.  Obviously, self-awareness and humility are required here.  Still, am I wrong?  (For what it's worth, and for my own "take" on the connection between education and "soulcraft," take a look at this essay.)

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