Friday, February 13, 2015
People have been wondering when law schools would close in the new reality. Here comes a sort-of closure: William Mitchell College of Law and Hamline University School of Law are merging, forming Mitchell/Hamline School of Law as stand-alone not-for-profit with a "strong and long-lasting affiliation to Hamline University." The joint announcement from the associate deans at both schools is reprinted after the jump.
We write to share the news that our two law schools have announced plans to combine, to further our shared missions of providing a rigorous, practical, and problem-solving approach to legal education.
The combination will occur following approval by the American Bar Association. Until then the two schools will continue to operate their current programs, while taking steps to ensure a smooth transition for students when ABA acquiescence is obtained.
Once combined, the law school will offer expanded benefits for its students, including three nationally-ranked programs: alternative dispute resolution, clinical education, and health law; an array of certificate and dual degree programs, and an alumni network of more than 18,000.
The combined school will be named Mitchell|Hamline School of Law and will be located primarily on William Mitchell’s existing campus in Saint Paul. Mitchell|Hamline School of Law will be an autonomous, non-profit institution governed by an independent board of trustees, with a strong and long-lasting affiliation to Hamline University.
Thursday, February 12, 2015
LSAC Report on Best Practices
A report recommending to LSAC best practices on accommodating LSAT test-takers with disabilities has issued from a panel convened pursuant to a consent decree between LSAC and DOJ. Here are the Executive Summary and the full report. (H/T: Ruth Colker (Ohio State), the sole lawyer on the panel).
Wednesday, February 11, 2015
Introducing Skills Training in the Doctrinal Classroom: An Overview and a New Coursebook
For several years—decades now!—there have been clarion calls for changes to law school pedagogy. Buzzwords like experiential education, practical learning, skill building, problem solving, and others have been thrown around with increasing frequency. These calls have only grown louder as the market for legal services has experienced both cyclical and structural changes.
Many law school professors want to answer these calls and to include skill-building in the doctrinal classroom. Sessions devoted to this topic at annual law conferences (like SEALS) are typically among the best-attended; the topic comes up repeatedly in chatter on blogs and listservs; and faculty members are constantly sharing notes and ideas. Yes, it is clear: the demand for appropriate teaching materials is high.
Unfortunately, until the past couple of years, professors have not been able to find much, as authors and legal publishers have been unsure of how to meet the demand for this new pedagogy. In the absence of published solutions, some professors developed their own materials, much to the benefit of their students.
However, many professors have expressed frustration with the difficulties inherent in developing such materials for the doctrinal classroom. Which skills should I focus on? What makes for a “good” simulation? How should I review and discuss case documents with students? How can I naturally integrate these novel materials? How do these materials fit alongside the traditional casebook that the course is built around? Do I really have to invent all of this from scratch? How do I give useful feedback? How do students work collaboratively in class while receiving individual grades? Should I ask students to do research? Write memos? How much time will it take? What will I have to sacrifice in terms of substantive course coverage? How do I explain to students the purpose and use of this “extra” material so that they buy in? Will students rebel?
Since I began teaching in the doctrinal classroom six years ago, I have been committed to developing practical lawyering materials for each of my courses (Legislation and Statutory Interpretation, Civil Procedure, Constitutional Law II, Administrative Law, and Education Law and Policy). I took an everything-including-the-kitchen-sink approach, introducing new materials every year, tweaking old assignments, and tossing whatever hadn’t worked the first time around and couldn’t be salvaged.
In introducing these materials, I always (1) explain to students the purpose of each assignment, (2) am transparent about the experimental nature of the material, and (3) request anonymous feedback for everything. I have found students to be remarkably open to the experimentation, appreciative of my effort to help prepare them to be better lawyers, and insightful in their feedback. Even when an experiment fails and/or places unfamiliar and time-consuming demands on students, they unfailingly express gratitude at the attempt. I suspect that some are simply bored with traditional law school teaching by their second or third year; others never liked it in the first place; others simply appreciate a variety of teaching techniques; and others very much want more skills training. In any event, the response from students has been overwhelmingly positive. Most rewarding of all have been the emails I receive from students in summer or post-graduation jobs (sometimes years later) recounting how they impressed a supervisor or were particularly prepared for an assignment thanks to something we did in class.
I discovered early on that some of my courses are more naturally given to this kind of experimentation than others. My Legislation and Statutory Interpretation class, which focuses on statutory interpretation but also covers legislative and regulatory processes, proved to be a natural fit. As I introduced more and more practical lawyering materials, students began to ask me to replace the casebook altogether with my own materials. After five years of teaching the course, I finally felt ready to tackle the challenge. West Academic Publishing, which has been making a concerted effort to publish practical lawyering materials (primarily, but not exclusively, with course supplements), quickly accepted my proposal.
The result is Statutory Interpretation: A Practical Lawyering Course, a new paperback (and thus comparatively affordable) coursebook that serves as a standalone text for any course anchored to statutory interpretation, though it also includes materials suitable for related courses, like Legislation or Leg/Reg. It covers the leading cases and doctrines, but it also offers a variety of experiential and skills-building exercises. The teachers’ manual includes a sample syllabus, case summaries, points for discussion, and perhaps most importantly, detailed suggestions for how to successfully use the exercises. It offers guidance for exercises geared to improving students’ skills in negotiating and drafting legislation, strategizing, organizing arguments, responding to counter-arguments, conducting legal research, writing briefs, and more. My plan is to refresh the book every two years in order to keep the cases and assignments current.
The central innovation of this book (I hope) is that it brings practical lawyering skills into the framework of the doctrinal classroom without casting off the benefits of traditional law school pedagogy. It explains why students are asked to do some things that may be unfamiliar to them, and it makes explicit the connections between the traditional doctrinal and case-based materials, the novel materials and exercises, and the role of the attorney in the real world. In addition, it gives professors substantial freedom to work with these materials as they see fit.
Publishers have finally begun to respond to the demand for these kinds of materials by offering a variety of products. We are in an exciting period of innovation in law school teaching, and I am thrilled to be a part of it.
Monday, February 02, 2015
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Friday, January 30, 2015
In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error
This is probably my last non-game theory post, and I haven’t picked any really good fights all month! That clearly won’t do.
Jon Hanson, my beloved former torts professor at HLS, has this big project that he calls “situationism,” which is essentially about highlighting the ways that people’s behavior is less caused by their individual dispositions and more about the circumstances they find themselves in. Many psychologists call the opposite tendency the “fundamental attribution error"---the tendency to make, essentially, self-serving attributions of agency. (My successes are all about how awesome I am and how hard I work, and my failures are all about the environment! Your successes are all about the environment, and your failures are about your personal deficiencies!)
Last month, there was a long discussion on this blog about the way in which students allegedly have “become worse” since the economic collapse, essentially because so few jobs = so few people wanting to go to law school = lowered admissions standards across the board = prawfessors at every level observing dumber or lazier or less well-prepared (the most charitable claim in that thread!) students. I confess, that post and the comment thread that followed really cheeved me off. Even though many of us are skeptical of the worth of standardized testing, can highlight all kinds of biases in things like the LSAT, we still seem to think that lowered LSAT scores equals a meaningful drop in competence, and that we can observe this with classroom results.
I, as you might imagine, am highly skeptical about that that hypothesis. Can we be Hansonian situationists about it? Suppose we look for an alternative hypothesis to explain observed declines in classroom results (both exam performance and in-class discussion) as attributable less to personal qualities of the students and more to the situation our students find themselves in. Well, here’s one idea. Students are less engaged/it takes more work on our part to interest them in our courses, because they see them as less meaningful to their long-term well-being. And they see them as less meaningful to their long-term well-being because the job market has been terrible, and so they have lowered expectations for a fulfilling and successful career in which they are to use the knowledge we provide to them. Moreover, because it’s so much harder for them to get a job than it used to be, they prefer receiving information that is directly relevant to getting jobs (“what’s the rule! how do I get a good grade and pass the bar exam!”), and disprefer having their and effort time taken up by information that is less relevant (“what are the policy considerations here! what’s the deep jurisprudential theory in play!”).
It’s about situational incentives. When you have to hustle your butt off to get a decent job, you don’t have the luxury of thinking about “making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways.” Unfortunately, that’s what we law professors tend to care about most, and what we (rightly) tend to associate with the kind of skill development that will serve lawyers well throughout their whole careers. But in a terrible job market, our students have good, rational, reason to care less about their whole careers and more about getting that first job and paying off the student loans. Not because they’re dumber, lazier, or less well prepared (and even if I'm wrong, shouldn't we pretend that I'm right, because aren't our students more likely to respond well if we have high expectations for them and respect their ability and motivations?). Because the economic environment they find themselves in gives them reason to discount their career futures, and reason to invest more in short-term needs. (This leads to an empirical hypothesis. Schools with better job placement rates should have better scores on the Law School Survey of Student Engagement, after controlling for LSAT and UGPA. Memo to Indiana folks: run this regression! Or give me the data, and I'll run it!)
So our job is to find a way to make it rational for them to be willing to invest in the “deeper-level thinking” that they will need to learn in the long term, in a way that will also benefit them for the short term job market. Such a strategy has the potential to improve student engagement, and, thereby, student performance, and thereby, make their lives as well as ours better.
Concrete plans? I don’t have many yet, but it seems to me that we need to at least entertain the idea that we have to do better on the job front to do better on the classroom front; that “deeper-level thinking” cannot be carried out when you’re worried about where the rent money will come from a couple years down the line; and that we have to sell “deeper-level thinking” not just to students but also to the people who employ them.
Monday, January 26, 2015
Submission angsting: Spring 2015
If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Thursday, January 15, 2015
Fair Grading in a World of Curves? Concepts and an Algorithm...
Tuesday, December 30, 2014
With the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law. There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate. There are a few articles here and there with advice for those who may wish to opt out, but not many. Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice. This figure includes many, if not most, law professors. Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?
Monday, December 29, 2014
Going to the Dogs
It seems that things have become so stressful for some law students that therapy dogs are in order. Certainly, spending time with a pooch can be a great stress reliever, but to what extent should law schools provide this relief? Does “dog rental” go too far?
Have Law Students Become Worse Students in Recent Years?
Over at his blog Excess of Democracy, Derek Muller (Pepperdine) has a provacative post titled "NCBE Has Data To Prove Class of 2014 Was Worst in a Decade, And It's Likely Going to Get Worse." Derek recounts that the overall bar passage rate across the country for the July 2014 sitting was down as compared to previous years, and he posits that the lower results were caused by "student quality and law school decisionmaking." He believes that the data suggests that lower quality students, and educational decisions of law schools, are producing graduating classes that are less qualified overall, in turn resulting in lower bar passage rates.
In essence, students come into law school having done worse on the LSAT, and they leave law school doing worse on the bar exam.
Are they doing worse while in school as well?
Reflecting on the past few years, I wonder if Derek is on to something, particularly with respect to law student quality. If he is correct, then we should expect to see lower student performance while students are in law school. Is the day-to-day classroom discussion, or their final exam performance, worse now than it was a few years ago?
My own experience suggests that the answer is...probably yes. But unlike LSAT scores or bar passage rates, performance while in law school is much harder to measure.
My students continue to be bright, inquisitive, and engaging. Further, Kentucky's bar passage rate, at over 90% for the past several years, remains high, even though, much like most other law schools, the LSAT scores of our incoming class has dropped. But there might be something intangible -- something that professors might notice in the classroom or on an exam -- that suggests that law student quality may be lower than even a few years ago.
Without suggesting that any particular student has been weak (I love you all!), upon reflection I have noticed that as a whole it takes longer now than even a few years ago to teach deep legal reasoning. What I mean is that students from the past few semesters, as compared to several years ago, seem to have a harder time making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways. I have spent more time recently going over material more than once or walking students through the basics of legal analysis. Moreover, their writing, at least when they begin law school, seems less advanced than in previous years. (I have an early semester writing assignment in my Civ. Pro. class so I have a sense of their writing toward the beginning of their 1L year. Luckily, our excellent LRW professors can, and have, improved their writing dramatically while they are in school.)
Regarding their exam performance, I again find that as a whole the students have not been as strong in deep and complex analysis. (And I can assure you that it had nothing to do with this year's Civ. Pro. fact pattern involving prisoners. I'm talking about their analysis on the actual Civ. Pro. issues based on the call of the question, such as personal jurisdiction.)
Of course, the problem could lie with me as a teacher. Maybe I am not connecting with this crop of students as well as I did previously. Maybe my exam was harder this year than in previous years.
I hope, however, that with each year I become a better teacher than I was the previous year. And I don't think the exam was materially more difficult than previously.
Again, let me emphasize that many, many students performed quite strongly. Yet I still have the sense that for many of them the analysis was not as deep or nuanced as it could have been, and their raw point scores on their exams showed it. The students did well spotting issues and giving a surface-level interpretation, but for many, complexity was lacking.
Luckily for us at Kentucky, our excellent faculty can (and has) overcome these kinds of challenges -- as our high bar passage rate reflects. But I am still left with the question that forms the title of this post: are law students, who potentially have worse credentials coming in than in previous years, and who may be having a harder time with the bar exam, doing worse in the classroom? And if so, what should we do about it? Are there innovative teaching techniques we should employ to account for this trend? Should our overall grades reflect poorer student performance by lowering the curve (if, in fact, that is warranted by lower quality performance)? Are there systematic changes we should make?
In the end, I am confident that my students, while perhaps coming in with lower numerical credentials, are still excellent students overall and will make fine lawyers, even if their classroom and exam performance has changed somewhat over the years. But Derek's post makes me wonder whether there is something more we should do in the classroom to account for lower-credentialed incoming students. If bar passage rate is the measure of success, then across the country our outputs have diminished. Derek points to the inputs (incoming student credentials) as at least once source of the problem, and my anecdotal evidence backs this up, at least somewhat.
What can we do for students to improve the outputs given the (potential) new reality of lower inputs? All law professors have the responsibility to spend significant time and energy contemplating this question.
Saturday, December 27, 2014
Finding what is emotionally charged
Mike Dorf posted his most recent Con Law exam (he writes great exams). The question touches on mandatory vaccinations and the rights of those who oppose or reject vaccinations, religious accommodations, non-religious accommodations, and the possibility of genetic and biological differences among different ethnic groups. Plus, compulsory broccoli consumption.
Emotionally charged? Likely to offend? Insensitive to some sub-section(s) of students? Otherwise inappropriate as an exam question?
Tuesday, December 23, 2014
Teaching emotionally charged subjects, ctd.
The conversation, promptly most prominently by Jeannie Suk's New Yorker piece, is turning to trigger warnings, at least according to this piece from Slate/Inside Higher Ed. Shorter version from most of the people interviewed: "Of course we should teach sexual assault and other sexually related subjects, but let's be sensitive." "Sensitivity," among many of those interviewed, seems to entail some combination of not cold-calling or providing trigger warnings. Note that the conversation is not only about sexual assault; it also is about "discrimination," which means, if taken seriously, a trigger warning for any Con Law, Fourteenth Amendment or Employment Discrimination course.
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Friday, December 19, 2014
Civ. Pro. is the New Black
And...they're off! My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black." Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern. Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick. Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers. Various other prisoners attempt to intervene. I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.
I always feel nervous while my students are taking their exams. Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.
In this way, I suppose the exam is also an assessment of me as a teacher. Here's to hoping I pass!
Thursday, December 18, 2014
Unlikely Holiday Films
One of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983). This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best. It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus. Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity). What are some other great films set during the holiday season that have useful clips for the classroom?
The '60s, ctd.
Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.
In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).
Another Con Law exam that same year, this from Prof. Kaufman (beginning on p. 341 in the link), asked students whether, as clerk to a court of appeals judge, they would recommend joining an opinion affirming rejection of a Fourteenth Amendment challenge to a municipality closing all its swimming pools. It later asked students to evaluate the constitutionality of a federal statute permitting students to transfer out of segregated schools and requiring public payment of transportation expenses for students to attend other schools.
* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.
So we have the Black Panthers and incitement during a civil rights protest, state efforts to avoid desegregation in places of public accommodation, and federal efforts to ensure integration, including bussing. Surely these were no less controversial or emotionally charged in May 1970 than Ferguson/police shootings is today. In fact, the pace of legal change (as opposed to just social disruption) was significantly greater then compared with now, so the times were even more unstable and even more likely to draw visceral reactions from students of varying political and identity stripes directly or indirectly affected by these issues.
Were these questions insensitive or inappropriate? One could argue that because there were far fewer students of color at Harvard in 1970 compared with at most schools today, there was less need for sensitivity to possible disparate emotional impact. Or, more precisely, less understanding of the need for sensitivity; Obecause we are more aware and more understanding of these issues and how they affect different students differently, we should be more willing to take that into account in drafting exams. In other words, we should not in 2014 emulate what law schools did int the benighted 1970s.
Civil Procedure "Creativity" Extra Credit
Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course. About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!" I show all of the projects at the beginning of the review session the day before the exam (earlier today). In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices. They often do things well beyond what I expected. Below the jump I've posted some of my favorites from this year. Enjoy!
Civil Procedure rap video (warning: there's a swear word at the beginning) (Alex Magara, Pete Rosene, Brandon Wells):
Hilter Rant Parody on International Shoe (Myranda Cotant and Emily McClure):
Civ. Pro. Cartoon (Ashley Angello):
Twas the Night Before the Civ. Pro. Exam (Catie Coldiron and Mary Tanner, performed wearing tacky Christmas sweaters!)
1. ‘Twas the night before Civ Pro, and all through finals hell,
2. Not a creature was stirring, not even a 1L
3. The outlines were made so no one need cram
4. In hopes that 28 USC §1367 would be on the exam
5. The 1Ls were nestled all snug in their beds
6. While visions of A pluses danced in their heads
7. And everyone still wearing their thinking cap
8. Had just settled their brains for a long winter's nap,
9. When all of a sudden, someone’s brain shuddered
10. The rules of 28 USC §1367 began to be muttered:
11. Where district courts have initial jurisdiction
12. All related state claims in the action
13. Give district courts supplemental jurisdiction
14. United Mine Workers of America v. Gibbs
15. Clarified when a district court does have dibs:
16. A state law claim gets into court when it reacts
17. From a common nucleus of operative fact
18. I knew in a moment there was more to the rule
19. So I asked friends for help so I’d keep my cool
20. And I whistled, and shouted, and called them by name:
21. "Now, Dasher! now, Dancer! now Prancer and Vixen!
22. On, Comet! on, Cupid! on, Donner and Blitzen!
23. There is still more to say so my grade does not fall
24. Now lets recite 1367 in all:
25. Unless there’s an exception, as already stated,
26. Supplemental claims are in if sufficiently related;
27. If a claim is based just on diversity
28. There is an exception: we’ll explain so that you see—
29. There’s no jurisdiction for certain defendants
30. Rule 14, 19, 20, 24 get no pendant
31. This rule extends to plaintiffs on occasion–
32. 19 and 24 may have no relation
33. But now there’s another exception afoot:
34. Supplemental claims can still be caput!
35. There are four situations in which to apply;
36. It can make district courts seem very sly
37. If novel or complex, the state law issue at hand,
38. The court may decline, and thus would remand;
39. If the secondary claim is too much to bear
40. The court can decide it need not be heard there;
41. If the district court has dismissed all other claims
42. The secondary cause can go down in flames;
43. The final reason a district court can decline
44. It’s more broad in definition and can seem asinine.
45. In exceptional circumstances a court can refuse,
46. Their supplemental jurisdiction in this case to use
47. It’s really quite simple once all in your head
48. There’s really no reason to feel any dread;
49. So now you can see supplemental jurisdiction is a breeze
50. You are able to ace this exam with great ease,
51. So in the morning when you awake from slumber,
52. To school you will skip, not drag, moan or lumber;
53. Your fingers will fly, your brain quick as a whip
54. And nary a problem which you must skip.
55. At the end of the final you realize with delight—
56. “Happy Christmas to all, and to all a good night!”
(The) Personal Jurisdiction (a play on The Raven) (Whitney Grider and Grant Sharp):
Once upon a Civ Pro class, while I pondered, weak and weary,
Over many concepts and cases of forgotten lore—
While I nodded, nearly napping (not true), suddenly there came a “Miss Grider,”
As of some one gently calling, calling my name, heart hitting the floor—
“Tis my day to be called on,” I muttered, “calling my name, heart hitting the floor—
Hopefully this time and none more.”
Ah, distinctly I remember it was in the Mid-September;
And each classmate sighing that it was not their name called.
Eagerly I wished the morrow;—vainly I sought to borrow
From my casebook, I thought in sorrow—sorrow for the loss of Pennoyer—
For the forgotten about Mitchell and Neff whom because of Pennoyer—
Nameless here for evermore.
“Pennoyer!” said I, “thing of evil!—still making students learn you!—
Whether by the Professor, or whether tossed at thee from attorneys before,
Desolate the ideas of Pennoyer, deserted lands—
In this jurisdiction—is there minimum contacts? –tell me—tell me, I implore!”
Quoth the Jurisdiction “Nevermore.”
“Be the minimum contacts needed for personal jurisdiction!” Mr. Sharp shrieked,
“Be continuous and systematic and related to the claim!”
An unrelated and isolated and infrequent contact is unconstitutional!
Leave Pennoyer in the past!—quit referring back to the forgotten lore!
Take the International Shoe doctrine, and take it out the door!
Quoth the Jurisdiction “Nevermore.”
And Jurisdiction, never flitting, still needed, still needed
In every case or otherwise not constitutional
And first look for minimum contacts,
And look for if they offend traditional notions of fair play and substantial justice;
New Law Teachers' Workshop at SEALS
This year, in addition to the terrific New Scholars' Colloquia (early-morning panels of papers from new scholars, with each presenter assigned a mentor/reviewer), the Southeastern Association of Law Schools (SEALS) will be offering a New Law Teachers’ Workshop. It will include a variety of panels designed to prepare the new (or newer) law professor for his/her new career. This also is in addition to the Prospective Law Teachers' Workshop, which does mock job talks and interviews for people (usually VAPs/Fellows) about to his the market.
Details (courtesy of SEALS macher Russ Weaver) after the jump.
Several things to note about the SEALS workshop. First, it is relatively inexpensive ($150 registration fee for faculty from member schools and $175 fee for faculty from non-member schools which is a fraction of the cost of other comparable programs). Second, in addition to being able to attend the New Law Teachers’ Workshop, attendees will have access to the entire SEALS meeting, including a rich variety of programs on pedagogy, research, publishing opportunities, etc., (see below) as well as programs on an array of substantive topics. Included in the general SEALS programming are specific programs designed specifically for legal writing and clinical faculty. Finally, and again for the same $150 fee, faculty from institutional member and affiliate schools will have the opportunity to participate in the New Scholars Workshop. This latter workshop allows young faculty to present a work in progress, to have a mentor, and to receive feedback on their scholarly projects.
Listed below is the rich tapestry of programs available to SEALS attendees. For this particular workshop, we will include the following panels:
Teaching Students Born In the Digital Age
As students get younger, and we professors age, the phrase “mind the gap” becomes increasingly pertinent. The panelists have ideas on how to connect with the newest generation to attend law school, from differing uses of mobile learning, such as pod casts, to using the Internet and multimedia in the classroom, videos, flipping the classroom, new technologies, and much more.
Speakers: Professor Brannon Denning, Samford University's Cumberland School of Law; Professor Michael Rich, Elon University School of Law; Professor Maggie Thomas, Louisiana State University Paul M. Hebert Law Center; Professor Laurie Zimet, University of California, Hastings, College of the Law
Becoming a Productive and Fulfilled Scholar. (Panel and Breakout Groups).
This panel of experienced scholars will discuss a variety of topics, including what a “scholarly agenda” is and how to develop one; alternate routes to tenure and self-fulfillment; using colleagues and research assistants in productive ways; the art or luck of publishing “well;” the importance of presenting at conferences; and how to enjoy, not dread, the scholarly process. The discussion will include the “nuts and bolts” of writing – where, when, what, and why. The panelists will then lead a breakout group to discuss these topics with participants in more depth in a roundtable format.
Moderator: Professor Colin Marks, St. Mary's University School of Law
Speakers: Professor Linda D. Jellum, Mercer University Law School; Professor Ronald Krotoszynski, The University of Alabama School of Law; Professor Nancy Levit, University of Missouri-Kansas City School of Law
Discussion Group: Advice for Newer Law Professors from Law School Deans
Building on the success of last year, this Discussion Group will bring together a panel of experienced deans to give their perspective on issues common to newer professors. These include things like juggling multiple service requests, navigating faculty meetings, setting reasonable expectations of availability with students, and evaluating advice from all the many people who will want to provide it. The discussion group will have ample opportunity for individual questions and for breaking into smaller groups.
Moderator: Professor Jennifer Bard, Texas Tech University School of Law
Discussants: Dean William Adams, Deputy Managing Director, American Bar Association, Section on Legal Education; Dean Luke Bierman, Elon University School of Law; Dean Nora Demleitner, Washington and Lee University School of Law; Dean Daisy Floyd, Mercer University Law School; Dean Jon Garon, Nova Southeastern University, Shepard Broad Law Center; Dean Richard Gershon, The University of Mississippi School of Law; Dean Danielle Holley-Walker, Howard University School of Law; Dean Ian Holloway, Calgary Law School; Dean Alicia Ouellette, Albany Law School; Professor Elizabeth Pendo, Saint Louis University School of Law; Dean Christopher Pietruszkiewicz, Stetson University College of Law
Creating Successful Methods of Assessment, Including Essays and Multiple Choice Questions
The panelists for this session will explore formative and summative assessment tools, especially in light of the future implementation of A.B.A. Standard 302, Learning Outcomes. The tools include writing a meaningful exam and creating efficient formative assessments during the semester. Topics will include the basic mechanics of exam-writing, constructing useful formative tools, and related matters such as cultural implications, the relevance of disabilities, and the rationales behind open and closed book exams.
Moderator: Professor Joel Mintz, Nova Southeastern University, Shepard Broad Law Center
Speakers: Professor Doug Chapman, Elon University School of Law; Professor Michael Coenen, Louisiana State University Paul M. Hebert Law Center; Professor Eang Ngov, Barry University, Dwayne O. Andreas School of Law; Professor Nancy Soonpaa, Texas Tech University School of Law
Designing Effective First Year Courses and Upper Level Elective Courses
The panelists, who have spent many years designing effective courses and seminars,, will discuss syllabus design, how to make decisions about the allocation and amount of coverage, the selection of texts and supplemental reading material, the amount of reading to assign, setting outcomes for the course or seminar, and overall teaching philosophy. Each panelist will then lead a breakout group to discuss these issues in-depth with participants in a roundtable format.
Moderator: Professor Susan Klein, University of Texas School of Law
Speakers: Professor Kathy Cerminara, Nova Southeastern University, Shepard Broad Law Center; Professor Howard Katz, Elon University School of Law; Professor Ben Madison, Regent University School of Law
Putting Your Teaching Philosophy to Work In the Classroom
The panelists, all dedicated and excellent teachers, will discuss their teaching philosophies and the differing methods they use to implement those philosophies. The panelists also will discuss concrete issues, such as the role of different learning styles, the best methods of controlling the classroom, time management, coverage of material, and teaching respect, professionalism and cultural awareness in the classroom. Each panelist will then lead a breakout group to discuss these issues with participants in depth in a roundtable format. Some of the breakouts will focus on nuts and bolts; other groups will pursue broader issues such as teaching philosophy.
Speakers: Professor Enrique Armijo, Elon University School of Law; Professor Olympia Duhart, Nova Southeastern University, Shepard Broad Law Center; Professor Susan Kuo, University of South Carolina School of Law; Professor Connie Wagner, Saint Louis University School of Law
Wednesday, December 17, 2014
Paul rightly links the request by some students to delay exams in light of events in Ferguson, New York, Cleveland, etc., to the '60s, when students were similarly protesting about the war, civil rights, etc.
Let me ask a different question that relates back to the issue of exams and coverage on hot-button subjects and contexts: How did professors handle discussing and testing on the subjects that ruled the day 40-50 years ago and how did students react? After all, just as students then were similarly too busy protesting the war to deal with exams, they were also similarly emotionally invested/triggered by these issues (after all, many of them were a student deferrment away from maybe fighting in the jungle). So did profs feel free to ask questions about protesters and demonstrators getting arrested? What about the constitutionality or wisdom of US conduct in Vietnam or Cambodia? What about the constitutionality of the Voting Rights Act or C/R/A of 1964? And did students object to such questions when they appeared on tests? And if not, what should we make of that difference?
The Price is Right
December marks the start of the season for faculty job offers – as few and far between as they may be in this economy. In the “old” days, salaries and perks were likely much more flexible. Is there much room for negotiation, or will candidates jump at the chance to accept any offer, just to have a foot in the door? In our current economy, what can one realistically ask for and receive?
Suk, "The Trouble with Teaching Rape Law"
Adding to the conversation about teaching and testing on controversial or emotionally charged subjects, here is Jeannie Suk (Harvard) this week in The New Yorker. (H/T: My FIU colleague Eric Carpenter). Of course, sexual assault fits into the first category, in that the subject itself is emotionally charged regardless of the context in which it is presented or tested. Obviously, I share Suk's conclusion that it is too bad that we are moving in this direction--and that it is bad not only for law students, but also for law and legal reform.
Tuesday, December 16, 2014
Let’s Make a Deal
Negotiation is a skill that every attorney needs to have in his or her tool box, but it is not a required course in any law school of which I am aware. As one who is certified in ADR from one of the best programs in the country, I can honestly say that I use these techniques on a daily basis – on and off the clock. Although this topic is non-doctrinal and is not tested on any bar exam, it is a skill that every law student should learn before entering practice. Should it be a required third-year course? Why or why not?
Sunday, December 14, 2014
Promissory estoppel in emotionally charged contexts
1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.
2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.
3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.
So where does this framework leave us? Category # 1 presents the easiest case--students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.
Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his "crime" to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).
Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.
I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only "get their lawyer on" (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.
Friday, December 12, 2014
[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]
Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:
Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.
And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.
But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*
* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.
Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?
I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).
Thursday, December 11, 2014
Most large law firms have marketing departments, but the practice of marketing legal services is not always popular among lawyers. We have attorney advertising guidelines, and there are still plenty of ads in the yellow pages, but the idea of selling one’s services can be uncomfortable. Traditionally, lawyers thought their work should speak for itself. It still should, but marketing assists with spreading the word. As David Packard once said, “Marketing is too important to be left to the marketing department.” That being said, should marketing techniques be considered a necessary skill in the modern practice of law? Should they be addressed in law school?
Tuesday, December 09, 2014
Who Would Hire Kingsfield?
Over the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty. It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set. With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers? Are seasoned lawyers wasting their time by going on the market? If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?
Faculty Teaching Loads
This semester I am serving on an Ad Hoc Committee to consider the University of Kentucky's teaching loads. Specifically, we are looking at whether there is a disparity in how much each of us teach.
To that end, it would be helpful to hear what other schools do to allocate teaching resource. In the comments, would you be kind enough to share whether your teaching loads are based on:
-Credit hours taught
-Student contact hours (credit hours times number of students)
I'll start: at the University of Kentucky, each faculty member generally teaches two courses per semester, regardless of credit hours or student contact hours.
Thursday, December 04, 2014
Tone Deaf (or Deft)?
I wonder if fledgling law students still watch films like “The Paper Chase” to see what to expect from the law school experience. Certainly, there are more modern examples, but all tend to include frightening faculty who, these days, might be viewed as uncivil, particularly with respect to their tones, mannerisms, and treatment of students. Sometimes, these images have their very real counterparts. I have known of actual professors who prided themselves on mirroring Professor Kingsfield. To be sure, the Soccratic method has its place, but I sometimes wonder whether students learn to treat words and questions as weapons in law school, or, conversely, whether law school may attract those who like to argue.
With recent discussions of the importance of civility within the practice of law, just where (if anywhere) can anything but the sweetest of tones be inserted? Are lawyers allowed to raise their voices and argue fervently anymore, or are we instead expected to immerse all professional disagreements in a bath of saccharine pleasantry that appears insincere in spite of its veiled civility? Where is the balance between civility and healthy (but heated) debate?
Tuesday, December 02, 2014
Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors
Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time. During the election season I published a few Op-Eds on various issues involving the electoral process. Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press." Why do some professors welcome media inquiries or write Op-Eds? And what value should our schools give to that activity?
In my view, there are several benefits to using the popular press to share our expertise. Of course, there's the inherent "wow" factor in seeing one's name in a major publication. But that's purely self-serving. I think there more signfiicant instutitional and prudential considerations for being quoted or writing an Op-Ed.
First, it brings publicity to one's law school. Especially given that I teach at a public institution, I believe it is my duty to explain complex election law problems to the general public. It provides institutional goodwill, giving the state's taxpayers some additional value for employing me.
Second, it helps expose more people to my work. In an age when judges and others question the value of legal scholarship, using the popular press shows the world how scholarship relates to the "real world" and can have an actual impact.
Third, I think it makes me a better scholar. When I have to distill a concept from a law review article into a quote or Op-Ed, it inherently makes me refine and shape the overall argument.
Fourth, it assists my teaching. Law students are generally not "experts," and one goal of classroom instruction is to explain complex topics in easy-to-understand ways. The more we practice this technique, whether in the classroom or in the media, the better we are at what is often a very difficult task.
But this discussion raising an intriguing question: what value should this kind of activity have in our assessments? It's not obviously teaching, scholarship, or service, although it fits in with all three activities. Should law schools value this activity more? Or is the inherent excitement of being known publicly as an "expert" enough?
I'm not sure. I engage in these activities because, as noted above, I believe it is my public duty, and because I think it makes me a better scholar and teacher. Plus, I have tenure now, so does it matter anyway?!
The People’s Law School (Revisited)
Back in 2012, I posed a question about what a law school for “the people” would look like, and I specifically asked how it might compare to schools already in existence. This question produced a fruitful discussion. Since then, there have been many discussions throughout the legal academy about the need for law schools to produce “practice-ready lawyers,” with many recommendations for improvement that focus on nut-and-bolts skills training (as opposed to doctrinal topics). My question today is, how far have we come since 2012, and what will it take to reach the goal of either creating law schools for the people or practice-ready lawyers, or both?
Monday, December 01, 2014
Did You Hear the One About the Lawyer…
…who brought home a shoplifter for Christmas? This is the premise for one of my favorite “lawyer” holiday films – “Remember the Night” (1940) – and one that almost made the final cut for my book (please pardon the plug) that employs classic films to demonstrate important lawyering skills. What’s interesting is that, despite its warm and gentle premise, this film likely never would have been made today – or, conversely, it would now be made much differently. This film is airing on TCM later this week. For those who show film clips in their classes, there are many here to consider using, especially the trial scenes.
Speaking of films, I plan to spend my visit this month focusing on classic films and professionalism in the law. I am honored to visit again in our shared effort to keep this wonderful Blog thriving in Dan’s memory.
Friday, October 31, 2014
Tenure standards and recruiting
A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?
Thursday, October 30, 2014
Scholarly productivity, generational change, and empirical data
Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.
* Who also chides me for not bringing data to bear in my original post.
** For what it is worth, she did not find them inversely correlated.
But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.
I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.
Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.
Wednesday, October 29, 2014
Kentucky Law Journal: Exclusive Submission Window
Tenure's "New Normal"
Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?
The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*
* So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.
Thursday, October 23, 2014
More scholarly outlets?
Zak started a conversation and Bridget Crawford asks a follow-up: When did it become the case that one post-law school is not sufficient to make one a viable candidate and that 2-3 post-school pieces are the norm? One possibility (raised by Bridget and Glenn Cohen in the comments to Zak's post) is the rise of the VAP and the time and writing expectations it provides.
I want to connect it several changes in scholarly publishing (which may be complementary to the VAP explanation):
1) There are more outlets for scholarship. Most schools have several journals and the number seems to be rising. The number of speciality journals has increased, including "law-and-policy" journals that publish the same type of public-law stuff that already plays well in general law reviews.
2) The "typical" article is shorter than it was 10-15 years ago, prompted by the guidelines adopted by several of the t14 reviews. The typical piece is 15-20k words, as opposed to 25-30k. This means, I suppose, that you can write two articles in roughly the time you used to be able to write one.
3) The rise of on-line supplements and similar outlets for shorter scholarship provides an incentive and opportunity to publish one big piece and one small piece in a year.
I am not looking at FAR forms this year, so I do not know if any of these explanations is empirically supported. But I do know that all 3 have affected how and what I write. So it makes sense that they also might affect what VAPs and others planning for the market do (especially if they are getting advice from people in roughly the same position as me).
The Slow Writing Movement
Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.
In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.
I tend to think that, as a general matter, we write too much, too quickly. Sure, there are execeptions, freaky people who pound out amazing stuff at an intimidating pace. But I've always admired the folks who take their time a little, who publish more like every other year. These folks tend to workshop the junk out of their stuff. They road test, reflect, restructure, rewrite.
One impact of VAPs on entry-level hiring is that new professors come to schools with writing habits/tendencies already built in. I have always felt that I am more a scholarly creature of my VAP than my home institution. My mentors during my VAP years pushed quality over quantity. Quality and quantity aren't mutually exclusive. But there's something to be said for beating the crap out of a paper before publishing it.
There are other factors at work here, to be sure. Sometimes tenure policies specify a certain amount of output. Other times there are social norms that dictate a specific level of productivity. Tenure matters, and you have to do what it takes to get tenure. But if there is wiggle room, slow down.
Rather than cranking to submit in your first year, another option is to write and reach out. Orin is correct that faculties value productivity. But only when it's good. Rather than impress your colleagues with your speed, make your paper the absolute best it can be. Engage your colleagues, ask for advice, get their feedback on what you've done.
For the slow writing movement to take hold, however, faculties have to be on board. If newly-hired faculty members don't submit a paper in their first year, rather than whisper behind their backs about productivity, take them to lunch. Engagement is a two-way street.
Tuesday, October 21, 2014
Another voice on classroom technology
From Clay Shirky, a professor media studies at NYU. I especially appreciate the point that student distraction by technology is a biological inevitably; as he writes, "[h]umans are incapable of ignoring surprising new information in our visual field, an effect that is strongest when the visual cue is slightly above and beside the area we’re focusing on." This is important on two levels--one personal, one professial First, it gives lie to the "if you'd be more interesting in the classroom, they'd pay more attention" trope. Second, I can use it to explain to my wife why my eyes always move to watch sports on a tv screen in a restaurant.
Tips for First-Year Law Professors
I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching. Everyone has a different perspective, of course, and if I go astray, I hope others will respond in the comment thread. But if this is your first year of tenure-track law teaching, here are some tips you might consider:
1. Send out an article in the spring submission window of your first year. When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar. Now they're watching you to see if their bet was correct. Prove them right by sending out an article in the spring of your first year. You'll benefit in lots of ways. First, your colleagues will be very pleased to see you off to a good start. Second, tenure will look (and be) so much easier with a new article already under your belt. And third, it will get you into the habit of sending out an article in the spring submission window. My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.
2. Invite your senior colleagues out to lunch. Your senior colleagues can be a tremendously useful source of wisdom and insight for you. They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined. Plus, some of them are even really nice people. (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops. Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're particularly prominent scholars -- and invite them each to lunch. Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can.
3. Don't assign too much reading. It's common for new law professors to assign a lot of reading for class. In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way. And in many cases, more reading means more students unprepared for class. I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark. If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester. Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.
4. Lay low in faculty meetings, with one possible exception. New profs usually don't know of any long-running tensions on the faculty. If you're lucky, the tensions will be very minor. Still, it's best to stay away from fault lines if you can, especially before your tenure vote. Given that, you should plan to stay out of any particularly contentious faculty debates that might come up your first year. Go to faculty meetings and pay close attention, but mostly stay out of controversies for now. A possible exception is entry-level appointments. Having just been through the appointments process yourself, you're particularly well-suited to weigh in on entry-level hires. You may know the candidates personally, and as a peer you'll be familiar with their accomplishments in a way that more senior faculty won't be. So consider weighing in on entry-level appointments as your one area of participation.
5. Consider guest-blogging, at least at some point. This advice is probably more for second-year or third-year professors than first-year professors. But relatively early in your academic career, consider guest-blogging for a month at a general-law-blog site like Prawfs. Ideally, write a handful of posts connecting your scholarly work and scholarly interests to some news story or issue of interest to the broader readership. This is a great way for your work to come to the attention of other law professors. Sites like Prawfs are widely read by legal academics, especially among more junior scholars. A few blog posts introducing your work is an effective and relatively easy way to promote your work within the academy.
Thursday, October 16, 2014
In praise of being a white belt
My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.
1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?
Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.
Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in. In beginner-ness is there is no shame, and only potential.
2. Practice makes you better, and practice involves failure.As a beginner, your job is to try something you never have before or do something in a new way. You will fail in some way. But you will learn from the way that you failed and will try something different the next time. And that time, you will fail in a new way. And the process will continue.
Performance of some skill can really only be learned this way, through demonstration, attempts, failures, analysis of the failures, and new attempts. Learning how to be a lawyer is learning to perform a set of skills. Because many people come to law school thinking that they will be only gaining knowledge, i.e. memorizing rules, they aren't prepared for this reality. They don't always realize that they are learning how to perform or how to show they are engaging in the right process. And we are not always clear that the process is what we are teaching them.
3. Perseverence. Being successful means continuing to try and learning from those failures. It sucks to fail in new and exotic ways. But working through that is necessary not just to succeed in law school but to succeed in practice, too. As we are frequently reminded Grit Trumps Talent and IQ when it comes to success.
4. Perspective. In school and in practice, unlike tae kwon do, people aren't always trying to kick you in the head, at least not literally. But even when they are, you've got your equipment and learned how to evade and block those kicks. In addition, you can learn to live with a little bit of anxiety, learn to accept that for what it is and not let it paralyze you. Finally, I have lots of bruises from all of those kicks, bruises that I cover up with long sleeves and pants, so people can't see them. This helps me remember that everybody has bruises that don't show. Some of them are literal, and some are emotional. I have to be careful to recognize the potential of these bruises in my interactions with students, dealing with difficult topics in the law or aspects of their performance in school.
5. It is awesome to kick stuff and break things when you read, talk, and think for a living. Need I say more?
Tuesday, October 14, 2014
Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.
Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)
Monday, October 13, 2014
Law School Centers
Many law schools have centers or institutes, most of which seem to be ways to carve out market niches, to attract students, to help graduates market themselves, and to attract scholars in a particular field. We have three of them at SLU (the Center for Health Law Studies and the Center for International and Comparative Law), and I am the director of one: the William C. Wefel Center for Employment Law. This center has been a part of the law school since 1987, and in that time has served as an institutional home for our employment and labor law concentration and provided a way to coordinate interesting programming and bring in outside speakers. The center has also provided a way to connect faculty who teach, write, or provide legal services in related areas.
For many years, the center was supported by the efforts of one or two faculty members, simply added onto their other full teaching and research responsibilities, with occasional help from one of the faculty support staff. Now, as a result of some new educational programming and shuffling of staff, the center has more support, including a full-time program coordinator. Additionally, we are in the midst of developing metrics and processes to evaluate our programs, as many law schools are, in line with the ABA's learning outcomes standard, a standard that has been required by other educational accreditors for some time. As a result, we are exploring what our center could be.
We are surrounded by some useful examples. Our own Center for Health Law Studies has been very successful in that field, bringing together researchers, advocates, students, and those who work in health law settings. The Institute for Law and the Workplace at Chicago-Kent, which Marty Malin wrote about for a recent symposium we held on teaching labor and employment law, is an example in the labor and employment arena. In addition to being home for a certificate program, the ILW has business, union, and law firm members, which contribute to the center and participate in its programming. There are opportunities for students (experiential and scholarships), a peer edited law journal and Illinois public sector newsletter, and a number of workshops, conferences, and events with outside speakers.
Our main focus is to provide the best educational and experiential program for our students. We already have a solid curriculum, including the opportunity to spend a semester in Washington, DC, working full-time for an agency that works in the area. We also want to be able to focus on the needs of our community, and provide a home for research, both of which we have made some forays into. So what else might we consider for our center? Are there any centers or institutes you know of that are doing interesting and important things? Have there been difficult tradeoffs in centers or institutes you know about? I'd be interested in any thoughts in the comments.
Monday, October 06, 2014
And then Ferguson
The start of the semester is always a bit of a frenzied mess. I'm usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public's demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.
After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.
So now, let me highlight some of the important contributions that lawyers and students in the St. Louis community have made.
1. Arch City Defenders. Last year, Eric Miller highlighted the work of this 501(c)(3) entity, which provides holistic civil and criminal legal services to low income people in connection with other social services. In August, they issued a white paper, describing both abuses that violate the law in municipal court proceedings, and the way that the system of municipal violations and municipal court proceedings "push the poor further into poverty, prevent the homeless from accessing the housing, treatment, and jobs they so desperately need to regain stability in their lives, and violate the Constitution." This white paper addresses several root causes of the alienation that led to the protests in Ferguson.
2. SLU Clinical faculty Sue McGraugh (see her Twitter feed @slewzq for excellent updates), John Ammann, and Brendan Roediger have represented protesters, lobbied for a number of reforms of the municipal court system, sponsored forums educating members of the public about their legal rights, and supported student advocacy work at city council meetings and other public forums. A more full list of activities is here.
3. Justin Hansford, an assistant professor, is an active leader on the ground, helping the U.S. Human Rights Network prepare a report to the United Nations and collaborating with the Advancement Project, NAACP Legal Defense Fund, National Lawyer's Guild and other national legal groups with associated legal efforts.
4. Students . . . lots of students have been active in the work of the clinics, in voter registration drives, as legal observers in the protests, educating the public about their legal rights, developing ongoing strategies for reform and education, surveying the legal needs of the Ferguson community, and more.
5. Bill Freivogel (St. Louis Public Radio, Director of the Univ. of Southern Ill. School of Journalism and Professor in the Paul Simon Public Policy Institute) has been collecting and publishing general information for the public on the legal issues related to the shooting and subsequent protests. Relying on a cast of many sources, his articles have focused on the rules about deadly force, why the officer wasn't immediately arrested, the grand jury process, the prosecutor's plans after this grand jury returns (or refuses to return) an indictment, the federal investigations related to Ferguson, and how changing police practices could help bring justice to the community.
I'm sure that I am leaving out people whose work I chose not to highlight or don't know enough about.
One takeaway to leave you with is a cautionary note. Ferguson is a relatively sleepy suburb, which is why the size of the protests and police response were both so surprising. There are people who are fairly disillusioned with the system and who feel relatively powerless there, but they have, by and large, reacted by protesting and not resorting to violence. There are other parts of the metro area with larger concentrations of people in poverty, larger numbers of people affected by systemic racism, people who feel more alienated, and who may see no reasonable alternative to violence, places like North St. Louis. Depending on the results of the grand jury proceeding and the police response in anticipation of violence upon news of those results, there is a lot of possiblity for things to get much worse. I hope they don't.
Wednesday, October 01, 2014
Life is short
Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.
I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:
Living is no joke,
you must live with great seriousness
like a squirrel for example,
I mean expecting nothing except and beyond living,
I mean living must be your whole occupation. . . . .
Tuesday, September 23, 2014
Teaching current events
Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.
On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.
Wednesday, September 03, 2014
First, by way of introduction, I am an associate professor at Barry University Dwayne O. Andreas School of Law in Orlando, and I teach Torts, Business Organizations, Health Care Law, and several Health Care Law Related Seminars. I write about topics at the intersection of science and the law, most recently in areas related to contraception in the Affordable Care Act, egg freezing, surrogacy, and prenatal testing ( SSRN author link here). I hope to write about some of the new issues cropping up in these areas over the next few weeks.
As most you can empathize, the beginning of the semester is extremely busy. I am chairing our Appointments Committee again this year--but the other reason for the hecticness is because I decided to switch my Torts and Business Organizations books this fall. This is my sixth year of teaching Torts and this is the third Torts book I have used (I switched to Farnsworth and Grady). This is my fifth year of teaching Business Organizations and this is the first time I have switched books (I am now using Smith and Williams). Of course, my grand plan was to prep the entire semester for both courses over the summer--and big shocker, that did not happen.Many colleagues warned me about the time suck of switching books and how much work it would be, and they were right. BUT I am loving the new books I am using--and it has made the material fresher and more interesting to me (and hopefully--as a result to my students). (By the way, I have no affiliation with either book or authors but I am enjoying teaching from them very much--and I know there are a lot of other excellent Torts and Business Organizations books out there as well) As someone who had gotten used to my old material, switching books has also allowed me to try out new teaching methods--especially incorporating many more problems into each class--to which the students seem to be responding really well. The new books are forcing me to be a student again-- I am rediscovering the material and it has been great. Don't get me wrong--if you find me up at midnight preparing for class, I am not always this positive. Some of my colleagues -(like Dan O' Gorman--perennial Professor of the Year at Barry and Fred Jonassen -who have similarly been unhappy with the books they were using) have written their own self published Contracts books that they, of course, love (and they are shopping it to publishers by the way) --but for those Prawfs who lack the time and/or motivation to do that--and don't completely adore their textbooks, I think the effort to review some examination copies of new textbooks - to see if something really fits one's teaching style and law school's student body better-is totally worth it. Now back to prepping for class...
Monday, August 18, 2014
Dean Frank Wu on Rethinking Law School
There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.
I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.
Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).
I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt." I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man. After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."
The "transition" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method"). It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone." The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated. (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)
Wednesday, August 13, 2014
Even football coaches are banning laptops
Tuesday, August 12, 2014
Leiter on FAR forms
Brian Leiter offers six thoughts/pieces of advice on completing FAR forms. I agree with all six of his points, especially these two: 1) In listing courses, "be who you are, and not someone else," and do not try to game the system, and 2) Do not use the Comments, especially for something vacuous, like "I'm committed to being an excellent classroom teacher."
Monday, August 11, 2014
Tips for New Law Teachers
If you are teaching law for the first time, you may be interested in this list of tips for new law professors. Best of luck!