Tuesday, June 10, 2014
What teaching issues are you thinking about this summer?
Our faculty is having a lunch discussion this week about teaching. I simply love to teach. And, as a newly tenured professor who recently went through the tenure process, I have been reflecting a lot on my teaching. There are many areas where I could improve. In particular, this summer I have been thinking about the following three issues. While these matters have been previously discussed, I am interested in your current thoughts on each (and any other teaching issues on your mind this summer):
1. Unprepared Students: To this day, every time I call on a student, my heart skips a beat in hopes that the student is prepared. Sometimes I think I am as nervous as the students before I call out a name. I do feel that it is essential students learn that they must be prepared. I have heard of different ways to deal with unprepared students. Some professors wait for the student to read the case during class. Others assign reading panels for the week. Others call on students in alphabetical order. I am old school - I randomly cold call. If I do call on a student who is unprepared, I require them to call on another student to cover for them (like a life line). My hope is that the fear of being forced to put another student in the hot seat is scarier than coming to class unprepared. I have had moderate success with this approach. I have also toyed with counting unprepared students absent for the day. I would be interested to hear what others do.2. Internet Use During Class: I think I may have somewhat given up on this. I try to call on students who are obviously surfing the web during class discussion. But, to be honest, when I was a law student I attempted to multitask in class too - I just didn't have the internet, but I did have crossword puzzles, letters and notes to write, readings for other classes to catch up on, etc. So, sometimes I feel a little hypocritical when I make too big of a deal about surfing the web during class. In one small seminar class, I didn't allow computers, and for that small class it worked very well. I had the most engaging student discussions when laptops were closed. I haven't tried the no computer rule with a big class yet. I am hesitant to do so because I often use the web during class discussion to look up statutes and other materials. Also, students have case briefs and other prepared materials on their computers and need access to them. But, I have toyed with the idea of a "no computer week." Has anyone done this and was it successful?
3. Taking Too Many Notes: This point is somewhat tied to #2 above. Recently, there was an interesting study that determined that students do better when they handwrite lecture notes rather than typing them. Basically, the study pointed out that people tend to type faster than write, so they are less judicious in what they type than what they write. Until I read this study, I hadn't given this matter a lot of thought. Perhaps I should be encouraging students to handwrite class notes.
Wednesday, July 24, 2013
Things you ought to know if you're about to teach criminal law
I realized a few weeks ago that people may have forgotten about our pedagogical series, Things you ought to know if you teach X. Of course, I'm only now reminding you, and I hope it will be helpful for the group of rising professors among our readership, or for those undertaking new preps.
Oddly, we didn't have a criminal law version of this post, so I informally took a stab at drafting one for Facebook, and here's what I've got. I've appended some of the comments from fellow prawfs (without attribution) in the event that a few extra perspectives are helpful.
Dear Crim prof friends:
A friend who's a rising crim prof wants to know what she should know as she enters the legal academy and begins teaching crim/crim pro. Here's an opinionated stab at what I wrote her, but let me know what else you'd add in terms of conferences, resources, opinions about casebooks, etc.
So, for crim law's basic class, I'd highly recommend using the Dressler casebook. If you want to make casebook costs very cheap for your students I'd use the 5th edition. In the chapters I teach, there's basically no difference b/w the 5th and 6th edition, and that would make the cost go down substantially. That said, at the very least there will be a secondary market for the used 6th edition this fall so if that's enough, you could do that. With apologies to friends who have their own casebooks, I'll just say that I've never had a complaint about the Dressler casebook in teaching this casebook over ten times. Also, there's a very good teacher's manual, Dressler has a good hornbook, and there are lots of folks who can give you their notes/outlines,etc. Also, Joshua and Steve are very good about servicing the casebook meaning that they respond to emails quickly.
For crim pro, I teach only bail to jail and I used Marc Miller and Ron Wright's excellent book, Criminal Procedures, most of my career. Last year I experimented with the Allen/Stuntz casebook and I found it unsatisfying for reasons that it is a) too Supreme Court focused, b) too federal focused and c) here, i'll get in trouble, but I found it too Stuntzian in the embrace of perversity and fantasy in the interpretation of criminal procedure. (Yes, Bill was a prince of a guy, teacher and colleague; still, the work has largely been over-valued imho--sorry, friends). That said, it is probably easier to teach/test material from that casebook than the Miller and Wright one. Both have very good teacher's manuals and support from the casebook authors. Your choice on this matter should probably turn on whether you're interested in crim pro II as an extension of con law stuff, or whether you're interested in, you know, criminal procedure in all its legal and policy diversity. There are important and interesting reviews of these casebooks back in the day by Bob Weisberg and Stephanos Bibas.
Regarding intellectual networks: if you're interested in crim law theory, I co-run a colloquium up in nyc (usually at nyu) that meets once a month or so during the academic year and I can put you on that list. If you're interested in presenting crim-related papers, there's a shadow conference at Law and Society that Carissa Hessick and I run. There also used to be a junior crimprof workshop that met once a month. I'm not sure if that's still up and running.
There's a crimprof listserv: I think the way to get on it is by emailing Steve Sowle at Chi-Kent.
There's a crimprof blog you might want to bookmark:
And Doug Berman's sentencing law blog is indispensable too:
For reading generally, you might want to make sure you get the Ohio State Journal of Criminal Law, which is excellent, and consider perusing some other "specialty" peer-edited journals, such as the New Criminal law review, Punishment and Society, and Criminal Law and Philosophy.
From the FB thread: some people chimed in to say they agreed on Dressler, and liked Dressler's crim pro book with Thomas; others liked Paul Robinson's crim law casebook b/c of its emphasis on statutory interpretation; some liked Chemerinsky and Levinson for criminal procedure (my recollection is that this would be a heavily doctrinal scotus kind of book); and some liked Kadish/Schulhofer et al or Kaplan Weisberg for crim. I had heard complaints before about Kadish/Schulhofer as too dense but the revised editions seem quite good. The best advice is to order them all and see what fits your teaching priorities. The next tidbit: be leery of over-assigning. I only assign 20 pages or so per 80 minutes class. Better to do what you can well rather than over-reach and be scattered. Keep in mind that criminal law is a class that students have lots of priors about and so you want to make sure you can exploit that level of interest by having rich discussions rather than racing through the material. Of course, YMMV.
Please feel free to use the comments for signed and substantive contributions, especially with respect to criminal procedure (cops and robbers), which I've not taught and which might have other networks and nodes of which I'm scarcely aware.
Sunday, June 30, 2013
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack
Saturday, June 29, 2013
Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters
I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful.
Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.
What Exactly Is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible.
In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.
Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding” - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.
This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.
How the Court Narrowed ICWA
It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her.
(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)
The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.
For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked.
Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack
Thursday, October 18, 2012
F-Words: Fairness and Freedom in Contract Law
I am participating in a online symposium on Concurring Opinions, where we are discussing Larry Cunningham's fantastic new book, Contracts in the Real World, and where you should check out the rest of the commentary.
As I read "Facing Limits," Larry's chapter on unenforceable bargains, I had to pause and smile at the following line:
People often think that fairness is a court's chief concern, but that is not always true in contract cases (p. 57).
I still remember the first time someone used the word "fair" in Douglas Baird's Contracts class. "Wait, wait," he cried, with an impish grin. "This is Contracts! We can't use 'the f-word' in here!"1 Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is "fair," we might think that "all contracts are enforced as made," but as Larry points out, "that is not quite right, either" (p. 57).
Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don't mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases.
As I mentioned, the chapter on Facing Limits is in part about the difficulty of balancing fairness, or equitable intuitions, against freedom of parties to be bound by their agreements. Larry pairs In re Baby M, a case where the New Jersey's highest court invalidated a surrogacy agreement with Johnson v. Calvert, a case where the California Supreme Court upholds such an agreement. As I discuss after the break, I'm troubled that the Court in Baby M could be on the wrong side of both fairness and freedom.
Facing Limits on Surrogacy Agreements
In re Baby M was arguably the first case on surrogacy agreements to reach national prominence. The court found unenforceable a surrogacy agreement between William and Elizabeth Stern, who hoped to raise a child that Elizabeth could not bear, and Mary Beth Whitehead, who wanted to give another couple "the gift of life" and agreed to bring William's child, Baby M, to term. Mrs. Whitehead and her then-husband Richard were in tight financial straits, and the surrogacy deal promised $10,000, "on surrender of custody of the child" to the Sterns.
Once she gave birth, Mrs. Whitehead found it difficult to part with the baby girl she called Sara Elizabeth, but the Sterns planned to name Melissa. To avoid relinquishing the child, the Whiteheads fled to Florida with the baby. When Baby M was returned to the Sterns and everyone made it to court, the trial judge determined that the interests of the baby were best served by granting custody to the Sterns. The Supreme Court of New Jersey agreed with that assessment, but on its way to that conclusion, rejected the validity of the surrogacy contract itself, in which all parties stipulated, prior to the birth of Baby M, that it was in the child's best interest to live with the Sterns.
The Supreme Court's decision ostensibly turned on the unenforceability of the contract because, even in America, "there are, in a civilized society, some things that money cannot buy" (p. 55). But the decision is full of language suggesting that, in the Court's opinion, Mrs. Whitehead didn't know what she was doing. In the very paragraph that the Court assumed that she could consent to the contract, the Court marginalized her capacity to consent.
The Court bought into two tropes often trotted out by those who aspire to protect the poor from themselves: the coercive effects of money, and the inability of the poor to fully understand the consequences of their decisions. The Court was troubled that Mrs. Whitehead, "[t]he natural mother," did not "receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime." The Court was perhaps suspicious she could not. After noting the distressing state of her financial circumstances, the Court posited that "the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary."
Fairness and Freedom
It strikes me as unfair to conclude that a mother of two is incapable of considering what it might mean to give birth to a third. Holding the surrogate to the bargain can seem unfair at the difficult moment where she hands over the baby, but I struggle to see how it is any less unfair to allow the parents to invest their hearts and energy into planning for a baby that will come, but will not become theirs.
Turning to the question of the coercive effect of money, the problem with paternalistic protections is they often protect the neediest from the thing they ostensibly need the most. Many interested parties find ways to make money on adoption and surrogacy. It's puzzling, if we are truly serious about protecting the needy, that we would protect them from also acquiring some of the money that we seem to assume they so desparately need.
Here's another way to make the same point: in the wake of Baby M, some states allow surrogacy contracts, and some don't. Hopeful parents who can afford to enter into surrogacy contracts will go to states, like California, where those contracts are enforced. Surrogacy providers who hope to make their money as an intermediary will focus on markets where their contracts will survive judicial scrutiny. Our potential surrogates, however, are more likely to be tied to the jurisdictions in which they reside, at least if the assumptions about poverty in the Baby M opinion are generalizable. So altruistic surrogates will be able to carry a child to term in every state, but those who desire to make a bargain can do so only in those states willing to recognize them. To me, that sounds neither free nor fair.
Larry takes some comfort in the common law inquiry into the best interests of the child, and with that I take no issue. In a case where the contract and the child's interests are at loggerheads, it seems appropriate in the abstract for the best interests to be a heavy thumb on the scale, or even to trump the prior agreement. I'm just not sure that In re Baby M -- a case where the Court knocked out the contract even though the contract terms and best interests were essentially in line -- is a case where the value of the best interest test are best brought to light.
1 I may have slightly dramatized this exchange, although my classmates assure me I did not invent it from whole cloth.
Wednesday, May 16, 2012
Fair Use and Electronic Reserves
For several years Georgia State was involved in litigation over the fair use doctrine. Specifically a consortium of publishers backed by Oxford, Cambridge and Sage sued Georgia State over copyright violations by many of the faculty. Many of my colleagues in the department were specifically named in the suit. A decision has now been rendered. You can read abou the decision here, and you can read the decision here.
The Court backed Georgia State in almost every instance, finding no copyright violation. However, the Court did lay down some rules - in particular you can use no more than 10% or one chapter, whichever is shorter, of any book.
Oh, and my colleagues were all found to have not violated copyright laws. For two of them the Court found that the plaintiffs could even prove a copyright.
Wednesday, March 21, 2012
Things You Oughta Know If You Teach Federal Courts
At Dan's request, I thought I'd put together the following thoughts for those prawfs who are either new to, or contemplating jumping into, Federal Courts. At the outset, let me just say something that I think most teachers of Federal Courts believe: It is at once the hardest and most interesting class I teach, and I constantly encounter greater challenges--both substantively and pedagogically--in this course than in any of my other classes. That could just be me, though, so please take what follows below the fold with however many grains of salt such an opening warrants.
I. What Is Federal Courts?
No two people will answer this question the same way, and yet it will necessarily drive virtually every aspect of how you structure the course, which materials you use, what kind of pedagogical approach you pursue, etc. To my mind, there are three classical views of the course:
- as an advanced civil procedure course, with special focus on some of the nastier and more intricate questions of subject-matter jurisdiction, removal jurisdiction and procedure, "complete preemption," appellate jurisdiction and procedure, class actions, the jurisdiction and procedure of the U.S. Supreme Court, etc.
- as an advanced constitutional law course, with special focus on justiciability doctrine (different schools cover this to varying degrees in the intro con law course(s)), the constitutional scope of federal jurisdiction, the constitutional limits on federal jurisdiction, Congress's power over federal jurisdiction, the constitutional relationship between federal and state courts, the constitutional rules governing non-Article III courts, etc.
- as a federal remedies course, with special focus on federal common law, implied causes of action, Bivens remedies, § 1983, sovereign and official immunity, abstention doctrines, and habeas.
I very much doubt that any Federal Courts class sticks entirely to one of these three conceptions. But a lot of how you structure the course and which materials you use will depend on how heavily you want to borrow from each of these models. To similar effect, different Federal Courts casebooks work to differing degrees based on your own comfort level with (and attraction toward) each of these models.
My own view, as will become apparent, is to teach Federal Courts as primarily models (2) and (3)--that very little of the class is merely about how particular statutes are actually applied. Instead, I've always seen Federal Courts as a far deeper inquiry into the unique role and constraints on the federal courts within the federal system, and so I've gravitated in that direction. Put another way, if most public law classes in law school (including constitutional law) are Calculus, in which students merely apply the structural rules (e.g., the Fundamental Theorem of Calculus), Federal Courts is Analysis, in which we prove why those rules are. Here, that means the course is devoted to explaining both why the Federal Courts are such an integral part of the federal system (including why federal courts can play roles that state courts cannot), and how the Federal Courts preserve their ability to continue to play that role going forward. But again, that might just be me...
II. Three Credits or Four?
Although a handful of schools (e.g., Harvard) offer a five-credit Federal Courts class (a boy can dream...), the far more realistic issue most of us will confront is whether the course should cover three or four credits. I'm horribly biased here, but I think that, virtually no matter how you answer Question I, above, it's difficult to squeeze all this material into three credits. That said, if you don't have a choice, I think a three-credit Federal Courts class will necessarily either (1) stick to only one of the models described above; or (2) borrow far less heavily from each, and be more of a survey course.
III. To Hart & Wechsler or Not To Hart & Wechsler?
There are a lot of Federal Courts casebooks out there, and many of them are quite good by almost any standard. But I think the question of casebook choice is still best framed as Hart & Wechsler vs. the field, especially if you gravitate toward a combination of models (2) and (3) from above. As I tell my students every year,
Hart & Wechsler . . . is a wonderful book for everything except teaching. It is maddeningly rhetorical, hyper-dense, and includes far too much significant material in the notes after cases . . . and footnotes . . . . That being said, it is a simply invaluable reference and the gold standard when it comes to federal courts casebooks — the entire field of federal courts owes much of its origins to the first edition, published in 1953. By the end of the semester, you may come to hate the book, but I truly believe that it is the best way to fully appreciate the (often endless) complexities of the questions that we will be studying.
And year after year, I pay for that choice in my student evaluations, most of which express deep frustration at a casebook that provides plenty of questions, but no answers (of course, it does provide answers, but that's the point). Having tried teaching the course once from another book, though, it's been my experience that there's an upside to Hart & Wechsler, too--that students develop a deeper appreciation for the nuance that infects most serious Federal Courts issues, and that they realize how much the "law" of Federal Courts is defined by negative inference from the subtleties of what the Supreme Court has not done and/or never said.
That said, there are compelling reasons not to adopt Hart & Wechsler. Its density makes it hard to cover as much material in the same amount of time; it's much harder for us as professors in the classroom, because we have to spend far more time helping the students divine the "rules," such as they are, from the Federal Courts canon; and it makes for unhappy (or at least overworked) students, who, no matter how hard you try to convince them otherwise, will remain convinced that you're a sadist for choosing that book, as opposed to its competitors. My own experience has been that, all that said, the pros outweigh the cons, but it's a decision every Federal Courts prawf has to make for themselves. And if you go with the field, it's a fantastic and deep bench; then, I think the real key is finding the book that hews most closely to your intuitive sense of both scope and order of coverage.
IV. To Habeas Or Not To Habeas?
Regardless of which book you use, there are a ton of difficult coverage questions in Federal Courts, because you just can't cover everything. But the one coverage question that looms above all others is whether or not to cover habeas. These days, if you choose to teach jurisdiction-stripping, you almost have to spend some time on habeas, thanks to Boumediene (if not St. Cyr, Rasul, and Hamdan). But covering post-conviction habeas as a remedy is a unit unto itself, and there's just no way to do it quickly (unlike, say Bivens or Supreme Court review of state courts). I've tried lots of different tacks, but have never been able to squeeze post-conviction habeas into fewer than four classes. Even then, that's one session on the Suspension Clause and its historical understanding; one session on Brown v. Allen and Fay v. Noia; one session on procedural default and retroactivity; and one session on AEDPA. It's almost professional misconduct to try to cover procedural default and retroactivity in one 110-minute session, to say nothing of covering AEDPA in that time. But then the question is whether to not cover habeas at all, since the alternative is to let it swallow up one-third of the syllabus.
My own answer, going forward, is to not cover post-conviction habeas in Federal Courts; it's just not useful to teach it at the level of superficiality that I inevitably have to in condensing it to four sessions. But I'm long-winded. There may be ways to do so, or to cover it adequately in six or seven sessions. Either way, I think this coverage decision has to come early on, because a lot of "smaller" coverage decisions will follow.
V. External Resources for New and Aspiring Federal Courts Prawfs
Finally, in addition to a link to my materials from the last time I taught the course, I'd be remiss in not noting that there is an amazingly helpful, thoughtful, and friendly cohort of Federal Courts professors, especially those on the more junior-ish side. About five years ago, Amanda Frost and I started the "Junior Federal Courts Faculty Workshop" as an opportunity for up-and-coming Federal Courts prawfs to get to present work with senior commentators, and also to come see what our colleagues are up to. We're both extremely gratified (and excited) to see that the Workshop has taken on a life of its own, and Tara Leigh Grove at William & Mary has already begun putting together the fifth annual gathering, scheduled for October 25-27, 2012, in Williamsburg.
The AALS Section on Federal Courts is also a good group to get involved with. As evidenced by the fact that I'm the Chair-Elect, we're not a very hierarchical bunch, and we usually put on pretty Federal Courts-nerd-satisfying programming @ AALS--including a panel discussion at AALS 2013 on "Non-Article III Courts: Problems of Principle and Practice." The inestimable Don Doernberg at Pace Law School maintains a listserve for Federal Courts issues, which, in what must be a rare complaint for such lists, could stand in my view to be more active.
There are also some great blogs to follow if you're so inclined, especially the "Civil Procedure & Federal Courts Blog," run by Robin Effron (Brooklyn), Cynthia Fountaine (Southern Illinois), Patricia Moore (St. Thomas), and Adam Steinman (Seton Hall).
I actually think we could stand to have more such resources in the Federal Courts world, but it's certainly the case that new and aspiring Federal Courts prawfs have plenty of places to look for help, guidance, and support, when jumping into the "organic chemistry" of law school.
But I'm curious if folks disagree with any of the above, or would add other observations. The (e-)floor is yours!
Friday, March 16, 2012
Things You Ought to Know If You Teach Trial Advocacy
A friend who's vapping now asked me to put up some crowdsourced resources regarding teaching fed courts and trial advocacy. For fed courts, I knew I could easily ask our in house guru, Steve Vladeck, to lead off a post and it will be up soon. But I admittedly don't know many trial ad teachers, so please use the comments to weigh in with suggestions for what new folks teaching trial ad should know about in terms of teaching and scholarly resources.
Saturday, October 29, 2011
Generosity on the students' dime
Greetings from a snowy(!) New York City. I'm delighted to be back for another stint of blogging here on Prawfs. Thanks to Dan for the opportunity.
I want to start with something small, but maybe illustrative of a bigger issue. As I was in the back of a taxi on the way to the airport after a conference last week I started calculating the tip as we pulled onto the airport grounds. I think I'm a good tipper (though I also think I'm a good driver, as an impossibly large percentage of Americans do). At least let's assume I tip well. The question then hit me, should I really be tipping generously on a fare that students are ultimately going to pay for?
It was an interesting moment of "on the one hand, but on the other hand" thinking. On the one hand, I think service people generally work hard for little pay; as long as the person is doing her best I'm inclined to be generous. On the other hand, some of that generosity is, I think, based on some intuitive sense I have that I've been very fortunate and I really shouldn't scrimp when it comes to compensating people who work hard and make (a lot) less than I do. But that reason doesn't apply to my students, at least not now in their lives. Of course, the loans won't come due until they have jobs and are earning decent salaries. But of course in this economy some of them may not be getting those salaries for quite a while. And anyway, who am I to be making that calculus for them? But of course I have to do something -- the driver is waiting. ...
Anyway you get the idea. Of course, it goes without saying that we should all be a little -- OK, a lot -- more careful about how we spend our students' money in this economy. But assuming the cab ride or the restaurant meal or the hotel porter help (or the conference travel generally) is justified, what's appropriate for the discretionary part of the bill when it's our students paying for it?
Thursday, September 01, 2011
Attending the 'Conducting Empirical Legal Scholarship Workshop'
When I had a few weeks to kill the summer before I started college, I decided that I needed a bike. My brother suggested that I get a used bike, some tooks and recondition it myself. After borrowing a how-to guide, I stripped my new (used) bike down the bearings and I never saw bikes in the same way again.
It was in that spirit that I attended the Conducting Empirical Legal Scholarship Workshop at Northwestern Law last May. I was on a sabbatical, had a few days to kill and wanted to learn more about the internal process of empirical research. The workshop is run by Lee Epstein and Andrew Martin, who provide a tremendous amount of information. My field is intellectual property with a heavy emphasis on patents, in which new empirical scholarship is very frequent and very informative.
What surprised me most about the conference was that, in addition to the volume of information about the mechanics of designing and conducting empirical research, both Epstein and Martin provided a wealth of information about the academic standards that should be employed while doing so. To test myself, I brought an article that I had read several months earlier. At the time that I originally read the piece, I had one (basic) level of understanding of the work. After finishing the Epstein/Martin workshop, I re-read the same article in its entirety. I found virtues and flaws that I simply never seen before. Although at that moment I was several months away from designing my own project, I found that I was able to assess empirical research in a far more informed way.
If my experience is any guide, it's well worth your time and you'll never see an empirical piece the same way again. If you are considering taking a course, I'd recommend doing so (sooner rather than later, depending on your field). Epstein has just moved to USC, it may be that the course will move as well.
Tuesday, August 02, 2011
Bossypants: Can Tina Fey Teach You to Give a Workshop?
I just finished reading her new book Bossypants. (Actually, I listened to the audio version which I highly recommend because she narrates it herself). In one of the chapters she discusses her time learning Chicago school improv. No, that does not mean Improv and Economics -- it is a type of improvisational theaterdeveloped by Del Close at the Second City in Chicago.
Fey discusses the rules of long-form improv and how they are generally good rules to follow in work and in life. Since giving a workshop (or even teaching) is a type of improv, and is definitely a performance, I thought I'd see how Fey's advice holds up.
Rule 1. Start with Yes
Actor: “Freeze, I have a gun!”
Bad improv response: “No you don’t, that’s your finger.”
Good response: “The gun I gave you for Christmas? You jerk!”
This is a great starting point. Saying "no" shuts down a talk in the same way it shuts down an improv scene. Now, I trust most Prawfs readers are sophisticated enough not to answer a workshop question with an outright "no" and stop there. But let's explore more of what this means. Often, the "no" answer in a workshop takes the form of some version of the phrase "I don't accept your question." The presenter then clarifies that answer with either an explanation of why (s)he doesn't accept the question, or simply answers the question that (s)he wished the questioner had asked. Both of these are a form of "no," and they don't advance the workshop. Yes, the person probably asked you a question completely out of left field that has nothing to do with your paper. But that's why this is a workshop. If everything needed to be "within the scope of this paper," then we'd all just read the paper. (oh, I forgot, no free sandwiches when you just read the paper...)
Now, like improv, this requires delicate balancing on the part of the presenter. While it's true that you want to say "yes" and you want to be open to all sorts of questions, there is the very real possibility that the workshop will veer off in a direction that is not only unwanted, but prevents you from making the points that you want to make. Keeping control of a scene while "saying yes" is a big component of mid- and upper-level improv classes. And it's something that with time, practice, and observation of others, we can all come closer to mastering in the workshop context.
Rule 2. Say “Yes, and —–”
Actor: “I can’t believe it’s so hot in here.”
Bad improv response: “Yeah.”
Good response: “I told you we shouldn’t have crawled into this dog’s mouth.”
"Yes, and --" is a fundamental premise of improv. Your scene is at its best when you accept the premise of your scene partners and contribute something new for them to play off of. This is how you can deal with those pesky "off topic" questions from Rule 1. Start your answer "yes" and then the "and --" is how you add to the discussion by introducing something new. The big caveat here is that the "yes" in "yes, and--" must be genuine. I have seen many a workshop and improv scene where the "yes" is nominal, and the "and" actually introduces a very clear "no."
Rule 3. Make statements – Don’t ask questions all the time
Bad improv: Who are you? Where are we? What are we doing here? What’s in that box?
(This puts pressure on the other actor to come up with all the answers.)
Good improv: Here we are in Spain, Dracula.
There are two distinct workshop points from this rule. Again, I know that most Prawfs readers are unlikely to make many interrogative statements in a workshop. But, the questions are there, even if they're not stated as such. They most often take the form of answering a question with, "that's a great question!" and refusing to really engage with what the answer to that question might be. You should be confident enough in your paper to make statements instead of asking questions. Some questions are obviously OK. If you really don't know something, or have really, really not thought about an idea, it's probably not a good idea to make things up. But, part of giving a workshop is thinking about what Lisa Bernstein calls your "zone of defense." You will inevitably be asked questions that are not addressed in your paper, but you should be ready to answer them, and/or to be familiar enough with basic schools of thought to engage with the questioner.
There's a second point here, just for the ladies. Sometimes our statements sound like questions simply because of the way in which we speak. Women tend to raise the pitch of their voice at the end of a sentence. So it sounds kind of like this? Right? Especially when we're nervous? That means that even if you are making declaratory sentences, they sometimes sound like questions, or as if you're asking the listener for approval. Try recording yourself giving a presentation to see if this is a trope in your speaking pattern.
Rule 4. There are no mistakes, only opportunities
This one speaks for itself. Don't let the perfect become the enemy of the good in your presentation. A little slip up here and there is a chance for humor, which can often bring a wandering listener back to your speech. Other mistakes are learning opportunities, and your audience will be forgiving. For the most part, they will learn with you. In many cases, hearing myself make mistakes during a talk is a big clue into the parts of a paper that I need to clarify for myself as a well as the readers of my article.
And a few addenda:
Rule Alpha: Yes, Giving a Workshop is Improvisational
I've added this one myself, to remind us that giving a paper goes much, much better when you (a) don't bring more than a page or two of notes to the podium; (b) do not read directly from your notes; (c) do not try tomemorize your talk as a substitute; and (d) trust yourself to do (a), (b), and (c).
Rule Beta: "Say Yes" and "Yes, and--" might need more nuance in teaching
I am a big fan of "yes, and--." I brought it with me from my improv class days several years ago, and I do find it very valuable. That being said, I have learned to curb my "yes, and--" enthusiasm while teaching. It is very hard to say "no" to a student in class. They are nervous and hope to impress (or just survive), and I want to do everything in my power to make them feel confident and successful. That being said, sometimes a "yes, and--" response to a student, in which I try to take a teeny kernel of what they say and make it into a correct answer is not the best approach. Students can start to find it confusing to sort out correct from incorrect information. Attempts to accommodate every student thought can lead to the dreaded "class went off on too many tangents!" comment.
So, the lesson of "yes, and--" for teaching is to communicate the most accurate information without "shutting the student down." Much easier said than done, but, hey, isn't that true of everything else in this post?
So, Prawfs readers, is Tina Fey right? Do the lessons of improve hold some great kernels of wisdom for us? Or am I just happy because I had the equivalent of 6 hours of 30 Rock in my iPod?
Saturday, October 23, 2010
Do 1Ls or Upper-Level Students Need / Benefit From Midterms More?
At various points in the past, different folks have posted on Prawfs about the costs and benefits of giving midterm exams, and the various approaches to doing so (for example, see Colin Miller's posts here and here). I've always given midterms in my two "big" classes -- Constitutional Law and Federal Courts -- because I think they're pedagogically useful in (1) requiring the students to put things together earlier in the semester; (2) giving the students two different opportunities to show their stuff / have a bad day (my midterm is usually worth half of the grade; the final worth the other half); and (3) reducing the otherwise massive amount of material for which students in both classes would be responsible on the final exam, which, in light of the midterm, is non-cumulative.
Here's my problem: Next spring, I'm slated to teach both classes in the same semester. And I know myself well enough to know that it's going to be extremely difficult to grade 175-200 midterms in anywhere near a reasonable amount of time -- and that it might even be unfair to the students to try. Moreover, the academic calendar is such that it would be difficult to give a midterm in both classes and not have them overlap with each other, such that the slowness of grading issue is difficult to cure (unless I give all-multiple-choice exams, which I won't do). So the question is whether, if I am forced to choose between my two classes, a midterm is "better" for second-semester 1Ls in Constitutional Law, or 2Ls and 3Ls in Federal Courts? Below the fold, I offer my own set of pros and cons, but I'd welcome yours, as well.
Reasons to Offer Midterm in Federal Courts Rather than Constitutional Law:
- I cover a lot more material in Federal Courts than I do in Con Law.
- In lots of ways, I think the material in Federal Courts is more dense and more difficult than the material in Con Law, such that the more the students can narrow their focus, the better.
- My Federal Courts syllabus admits to a more obvious "break" between one half of the semester and the other than Con Law does.
- Students would choose to take Federal Courts knowing that there is a midterm, whereas Con Law students wouldn't have a choice (even if they have midterms in other classes or other commitments).
- In my anecdotal experience, upper-class students are, as a group, less likely to stay on top of the material on a class to class basis than their 1L colleagues, such that a midterm might have a greater effect on their overall handle on things.
Reasons to Offer Midterm in Constitutional Law Rather than Federal Courts:
- 1Ls are more likely than 2Ls and 3Ls to benefit both directly and indirectly from additional in-semester evaluation of their work.
- Constitutional Law is, in some ways, a sharper break from what 1Ls are used to than Federal Courts is from other upper-level courses.
- A midterm in Constitutional Law would allow me to test on deeper issues than I'd be able to if covering the whole course in one four-hour exam.
- 1L grades may be more significant than 2L/3L grades, and to the extent they are, it's better (fairer?) for them to be based on more differentiated evaluation than upper-level classes.
- Unlike Federal Courts, I do give some multiple-choice questions on my Constitutional Law exams, and so the more of these to which the students are exposed, the better (both for my class and for the MBE--which is why I do it in the first place).
I'm sure there are other reasons, and I'm sure readers will dispute / disagree with some of those I've offered above. So, I open it to you: if you were me, and you could only offer a midterm in one of these two classes (I know--the "right" answer is to offer a midterm in both), which one would you choose and why?
Friday, October 22, 2010
Things You Oughta Know If You Teach Tax
As a new tax professor, you have joined an active and friendly community. Tax law professors are a diverse bunch, but because we are bound together by a love incomprehensible to many others--love of the tax code, of course--we are, I think, an unusually cohesive and supportive group.
You will find many resources for tax professors on the internet.
The most important set of tax prof internet resources is maintained by Paul Caron, of the University of Cincinnati. Because of Paul, you can:
- Read TaxProf Blog. In addition to providing constant updates on the most current tax news and tax scholarship, TaxProf Blog offers many useful links, including a list of the blogs of various tax professors and of tax colloquia around the country.
- Join the active (and almost always on point) TaxProf mailing list.
- Draw on the resources of the TaxProf exam bank.
- Examine other tax professors' syllabi in the TaxProf syllabi bank.
More generally, as you probably already know, the weekly publication Tax Notes, and its daily counterpart, Tax Notes Today, are incredible resources for tax news. The website is by subscription only, but I believe you can also access Tax Notes through Lexis (or perhaps you can ask your library to subscribe to the Tax Notes website). Tax Notes also keeps an amazing and free tax history archive, which includes many presidential tax returns. I find these to be not only fascinating browsing, but also useful for teaching.
In the real world:
You might want to check out the ABA Section of Taxation's Committee on Teaching Taxation. This active committee has nearly 300 members and sponsors various programs at ABA meetings throughout the year.
Try to sign up for the Junior Tax Scholars' Workshop, which is held every summer. The number of participants is limited, but people get tenure every year, so there are always slots opening up. You get to talk tax nonstop for two days, plus it's a great way to get to know your fellow junior tax scholars. (Here is the call for papers for the most recent workshop, and here are the two days' schedules.)
Finally, you should take every opportunity to talk to other tax professors, especially local tax profs. You might find out, for example, that tax folks in your area meet for informal lunches every now and then, or that a regional tax prof conference meets a few times a year. Or maybe there's a local coffee shop that has a special tax professor discount (or maybe not).
Anyhow, welcome to the tax professor community. As our numbers grow, we come ever closer to world domination which, is, of course, our ultimate goal. So we're happy you're on board!
(I look forward to corrections and additions in the comments.)
Tuesday, August 10, 2010
Want to Improve Your Teaching?: Watch This
This video of a lecture by Dr. Robert Duke explains many precepts of good teaching that too many law professors are unfamiliar with or ignore. Here's one of my favorite quotes from the video: "If you're teaching something that has to do with change, it is probably interesting. If you're teaching something static, it is probably not." Another is: "Testing teaches [whether it means to or not.]."
On a related note, I would argue that the relevant research suggests that it is pedagogically unsound to administer one exam per semester to evaluate students, and yet almost all law professors continue to do it anyway, in part because we can't withstand the pressure to do otherwise. I am not claiming any moral superiority in this regard. Though I've begun administering a series of quizzes in Torts, I still only administer one final exam in my upper-level courses. But I have a growing sense that it is very wrong, and I expect to change it soon.
Monday, August 02, 2010
Something You Ought To Know if You Teach a Class that Sounds "Sexy"
If you teach a class like Mass Media Law, or Entertainment Law, or Sports Law that sounds "sexy" or "fun" to students, you owe it to the students and yourself to go in the first day of class and dramatically lower students' expectations before the class begins. In Mass Media Law, for example, I give a speech that goes something like this.
Mass Media Law is about the law that affects the mass media as a business. This is not primarily a media policy class. We will discuss new technologies and the changing role of mass media in society, but only as it relates to legal developments. You will leave this class having been administered a heavy dose of First Amendment law and First Amendment theory, so if you hated Constitutional Law, you will probably hate this class, too. You will read Supreme Court cases as difficult and complicated as any of those you've studied in law school so far. So I don't want to hear any complaints that I didn't warn you when we are piecing our way vote by vote through long and complicated constitutional cases. On the other hand, if you are taking this class because you love Constitutional law, you may be disappointed to find out that you will have to learn about several other bodies of law, too. Media Law, for example, has a heavy tort law component. Some of the torts we will study, such as defamation, are more complex and convoluted than any you studied in your first-year Torts class. Again, don't say I didn't warn you when we get there. And if you are happy with the torts and constitutional law aspects of Media Law, you may be disappointed that we will also address various other bodies of law, including statutes and administrative regulations that affect the media. Finally, at the end the day, if you do find you love Media Law as much as I do, you'll probably be depressed to find that there are very few jobs in the area. That said, Media Law will definitely improve your ability to analyze constitutional cases. For some of you, it will be the only First Amendment Law you ever study in law school. And a number of the things we will discuss may appear on the Bar exam in some way, shape or form. But that's really all I can promise.
By the time I've finished this grim speech, I've no doubt driven a number of students to drop/add. The remaining students and I then get to have all the fun!
Wednesday, July 28, 2010
Jeff Lipshaw: Things You Ought To Know If You Teach Contracts
I'm going to follow Paul Horwitz's lead and mix resources with opinion. This is simply one person's view; reasonable minds may differ and I invite debate!
- Contract creation (offer and acceptance, reliance, electronic contracting)
- Contract performance and interpretation (parol evidence, implied terms)
- Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)
I'm not a coverage junkie, but even in a four-credit course, I'd try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.
2. Consideration or remedies first?
The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach "legal enforceability" or "remedies" first. This is right up there with other crucial decisions like "paper or plastic." There's a rationale for each: teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all. Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests. Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)
3. How much UCC and CISG?
This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane's, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course. This is a matter of personal preference; there are some contracts professors who eschew much of "classical" contract law in favor of the UCC, even in the regular contracts class. I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).
I'm going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a "nice to do" but not a "gotta do." This is a somewhat politically incorrect view.
4. How much real world?
I'm also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law. You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc. That is far less true of contracts. First, contract law as taught is really about contract litigation, not contract creation. Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc. I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don't really teach the business world, and you don't really teach traditional doctrine. No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.
I do not have a good answer for this. My inclination still is to disabuse students of the idea that what they are learning maps on the real world. It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction." Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).
Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea. There is a burgeoning industry in such exercises; see Resources below.
- Sign onto the list serv of the AALS Section on Contracts. Carol Chomsky at the University of Minnesota is the list serv administrator.
- Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen. You can only use one casebook, but the other books are rich with resources.
- Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).
- Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country. Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.
- The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC. (Note: the Cornell license doesn't include the comments so you have to get them elsewhere).
- The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.
- Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.
- Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley. I don't have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).
- Plan to attend Suffolk University Law School's March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried's iconic "Contract as Promise. After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion. Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.
- You may or may not want to get familiar with some of the supplements. Brian Blum's Examples and Explanations (Aspen) is very popular. Keith Rowley's Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions. I know there are lots of other good ones, and invite recommendations in the comments. (I try to keep an arm's-length relationship with the supplements, mainly because I don't want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.) One huge benefit of getting on the desk copy mailing list is that you get these resources as well.
- One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or "pair-square-share).
Tuesday, July 27, 2010
Colin Miller: Things You Oughta Know If You Teach Evidence
The following is a list of resources which you might want to consult if you teach Evidence:
·EvidenceProf Blog is a blog maintained by Colin Miller of The John Marshall Law School. Co-bloggers are Joelle Moreno of the Florida International University College of Law, Myrna Raeder of the Southwestern Law School, and “blogger emeritus” David Leonard, formerly of Loyola Law School Los Angeles. The blog contains entries regarding recent precedent, scholarship, and laws relating to evidence. You can keep up with new posts by following the blog’s Twitter feed.
·The Federal Evidence Review is a monthly electronic legal journal that highlights recent federal evidence cases and developments for subscribers. You can subscribe by clicking here (subscriptions are $295). The Review also maintains the free Federal Evidence Blog, which highlights recent cases and issues involving the Federal Rules of Evidence and other topical evidence matters.
·The Confrontation Blog is a blog maintained by Richard D. Friedman of the University of Michigan Law School. The blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004), and the Confrontation Clause.
·Tillers on Evidence and Inference is a blog maintained by Peter Tillers of the Benjamin N. Cardozo School of Law. The blog covers news and developments relating to evidence, legal theory, and legal education.
·The Evidence listserv is maintained by Roger Park of the University of California Hastings College of the Law. On the listserv, Evidence professors discuss current issues relating to evidence law. To subscribe, send an e-mail message to firstname.lastname@example.org. The message should have no subject line. In the body of the message, include: “subscribe evid-fac-l [your first name] [your last name]”. Make sure there is a single space between each word, and do not include the brackets.
·Snitching Blog is a blog maintained by Alexandra Natapoff of Loyola Law School Los Angeles. The blog is a comprehensive resource on criminal informants: legal developments, legislation, news stories, cultural reactions, commentary and more….
·The Teaching Materials Network is a contact list of law professors offering to share their teaching materials with peers teaching a class for the first time. The Network is maintained by Susan D. Rozelle of the Stetson University College of Law. Several evidence professors have offered to share their materials on the Network.
·SSRN has an Evidence & Evidentiary Procedure eJournal. Its current Editor is Chris Sanchirico of the University of Pennsylvania Law School. The eJournal’s scope encompasses the traditional concerns of Evidence scholarship, including hearsay evidence, character evidence, expert witnesses, and privileges. You can subscribe by going to SSRN’s page of Journal Offerings, scrolling down to Evidence & Evidentiary Procedure eJournal, and clicking on the “Subscribe” tab.
·The International Commentary on Evidence is a peer-reviewed journal on evidence law and theory. Its Editor-in-Chief is Craig Callen of the Michigan State University College of Law. You can subscribe by filling out this form (subscriptions are $175).
More things to know if you teach civ pro
Scott's post on civ pro provides great information about the many resources for civ pro professors (and scholars) to learn the subject, keep up with new developments, meet fellow travelers, and publicize work and ideas in the area (all stuff I wish I had had in one spot when I started). In the spirit of Paul's post on organizing and teaching con law, I want to offer some additional "what you should know" thoughts, focusing on organizing and teaching civ pro.
1. Much depends on how much time you have. Your teaching experience will vary greatly depending on where you are teaching and how civ pro is structured. Civ pro seems to be the course that has not yet fully made the transition to the typical one-semester/4-credit course across the board but is rapidly moving that way--judging from my time at the AALS Mid-Year meeting, this is a subject over which civ pro professors spend a great deal of time fretting. You may have anywhere from 4-7 required hours in one or two required semesters; you may have 4 required hours and a strongly recommended 3 hours in a second semester. You may have to cover both Rules/Procedure and Jurisdiction, or you may only have to cover one or the other. Jurisdiction may be required or may just be part of the optional second course.
2. Rules v. Jurisdiction first does not matter, students will complain either way. The other never-ending debate in civ pro teaching (particularly in the compressed 4-credit class) is whether to start with pleading/rules or jurisdiction (and, if jurisdiction, subject matter or personal). At the end of the day, I am not sure it matters. I have heard good pedagogical arguments for each way. And students complain about either one. I am a rules-first guy, because I think it is more important for them to get the overall framework of litigation, then to fill-in the content of the rules. I am swayed by that and so are many others. Others think choice-of-forum should come first because that is the first consideration when filing (students are swayed by this one). Others (including one of the best teachers I know) believe that personal jurisdiction, grounded as it in reasonableness, is a good, instinctive place for 1Ls to begin. Again, I am not sure there is a right answer. So do what you feel comfortable doing.
3. A little history does not go as far as it used to. Trying to cover history is essential, but increasingly difficult in the shorter course. There no longer is time to get into long details about the evolution from causes of action to code pleading to notice pleading. But some overview remains necessary. Similarly, just as Paul suggests that one cannot understand modern Commerce Clause doctrine without talking about pre-Lopez cases, one cannot understand modern pleading doctrine without talking about pre-Twiqbal cases. And consider how important is it to teach Pennoyer and pre-International Shoe (or even pre-World Wide) cases in depth, in light of these new time constraints. For what it's worth, I do a quick overview of Pennoyer and Shoe, then get into the real meat with World Wide. This is a balance. Some history is necessary, but probably not as much as in the past.
4. Find a practical balance. When teaching the rules, some practice orientation is necessary and more effective than using cases. Use sample pleadings to show what complaints look like--how they are structured, what joinder of claims and parties looks like, how much detail to include, etc. Distribute discovery documents (production requests, interrogatories, etc.). Distribute summary judgment motions and supporting documents. You can do this with independent documents or by using a case companion ("A Civil Action" or one tied to Jones v. Clinton). Use big in-class hypotheticals (even if unrealistic) to show how the various joinder rules fit together--I use a great one from Glannon's. This is a central concern underlying the uncasebook that I former GuestPrawf Hillel Levin and I have discussed.
5. Make use of the opportunities to teach statutory interpretation (especially if you are do the rules first). At the very least, impress on them the importance of, you know, bringing the rulebook, having it open to the applicable provision, and reading along during the conversation (surprisingly hard to get them to do). Impress on students that preparing for a class with statutes/rules means reading and parsing the text of the rule--it means reading so they can explain, in plain English, what the rule/statute means and how it operates. It can be a good introduction to some principles of statutory interpretation. And you can emphasize the connection among statutory text and interpreting decisions--and the difference between statutory interpretation and common law rulemaking. Civ pro is a unique opportunity to teach this--one of the few such opportunities in the 1L curriculum.
6. Rely on other parts of the curriculum to fill-in gaps. Civ pro is a spring-semester class at FIU, so I get the benefit of the second semester of Legal Writing, where the students do summary judgment motions and appellate briefs, based on a full record created by the professors in the program, including sample pleadings, depositions, etc. So they see sample litigation documents through this class. Similarly, rely on other courses to cover stuff that has been pushed out by the shrinking of civ pro. For example, I cover Federal Question jurisdiction only in broad overview in civ pro; I save the detailed stuff (Grable, complete preemption, etc.) for my Federal Courts class. Some have argued for saving Erie for Conflicts (I don't, but that is because I like teaching Erie).
7. Introduce and overview concepts in the details of other cases. Again, this is a product of the shrinking civ pro class. For example: I cannot cover post-trial motions in real detail. But one of the major Erie cases, Gasperini v. Center for Humanities, involves the appropriate standard for Motions for New Trial in diversity cases. So I start teaching the case by providing an overview of the post-trial processes; students at least are introduced to FRCP 59 and have heard of it, even if we cannot get into a lot of detail. Similarly, you can teach personal jurisdiction through an enforcement-of-judgment case and talk about the process and limits of enforceability.
Things You Ought to Know if You Teach Constitutional Law
I have been teaching constitutional law for about eight years now, both a long version (two semesters, six credits) and a shorter version. Herewith I offer some opinionated views about what one may want to know before teaching constitutional law. Unlike Scott's post on civil procedure, this one will be light on resources and heavy on opinions. Others may differ in their views, and I welcome comments. This post is intended primarily for new teachers of constitutional law rather than experienced ones. In the interest of discouraging folks who have Googled "Alanis Morissette," I have used "ought to" rather than "oughta" in the title.
1) Your class goals should be same as the goals for other classes. The most frequent complaint I hear from law students, and not just those in my class, is that after one semester or one year of law school they have gotten a sense of how the law and legal doctrine work, and constitutional law has nothing to do with any of that. In the other classes, they learn "the law." In constitutional law, they learn history, political science, political theory, and so on. Anything. Everything. Just not the law. They're wrong, God love 'em, but it's important for new constitutional law teachers to understand and respond to this complaint. Law students don't always realize just how much "law" is thrown into constitutional law along with all the highfalutin theory; and they don't always realize how much theory is implicit in what they learn in other courses, although the long and seemingly stable course of common-law development in those courses may lead them to think that there is a single "law of torts" or "contract law." You might tell your students that just as the law in those fields developed slowly over time, such that it now often seems relatively stable, but along the way took on and continues to deal with many basic policy and theory disputes, the same thing is true of constitutional law, albeit at a rate that is so rapid by comparison that the policy debates float more visibly on top. Still, what they're doing in this class is still "law," whatever the hell that is.
2) But, um, different.
On the other hand, as a structural foundation for the government that underlies and makes possible much of the rest of the law school curriculum, constitutional law is also particularly a forum for discussion of fundamental and conflicting values. To understand that, it is useful to think about it in terms of broader questions of government structure, history, and political theory. That doesn't mean that those who start with no such background are at a tremendous disadvantage; that gap narrows pretty quickly. But students who want to understand constitutional law as a matter of legal doctrine need to understand some of the competing values that launch the whole enterprise. Those students may be comforted to know that the time they spend on those kinds of questions will pay off in a better ability to engage in doctrinal analysis, especially in close cases.
3) Avoid cynicism. Because of law students' (false, in my view) belief that other areas of law have a clear and stable doctrine while constitutional law is just politics by other means, it is easy for them to become cynical about constitutional law. That's fine and reasonably well-deserved, but a little cynicism goes a long way. Constitutional law is about politics, but it's a constrained form of politics. Those students who think it's all made up should at least realize that it is not made anew every day. The same fundamental arguments and premises come up again and again, recurring in different contexts. I am still not crazy about the second chapter of the Sullivan/Gunther casebook, which just teaches McCulloch and U.S. Term Limits, the results of the latter case having almost nothing to do with anything else we learn in class. But they do serve as evidence that the same questions and positions about sovereignty manage to survive and go at each other as much today as they did 200 years ago. Don't pretend to your students that constitutional law is devoid of politics -- of course, it isn't -- but don't encourage them to achieve heights of cynicism that aren't yet merited by their relative lack of knowledge and experience.
4) Choose your book wisely, although it won't help. Complaints about the casebook are legion in constitutional law as they are in most subjects. I won't say "ignore them," but I will say don't worry about them. But do think carefully about what kind of constitutional law course you want to teach, because the casebooks vary widely in their approach. Do you want to teach a historically oriented course? One that takes place largely inside the courts or one in which constitutional law is also something that takes place and is shaped outside the courts? Do you want lots of cases or just a few? Lots of scholarly references or almost none? Students tend to prefer case-based coursebooks that are light on note cases, squibs, comments, theory, and so on. In short, they prefer Chemerinsky or Cohen/Varat. There are benefits to taking that approach. But you must decide what you think is important for teaching con law and choose your casebook accordingly. The Brest et al. casebook does some of the best work of mixing constitutional law with constitutional history, for instance, and both Gunther/Sullivan and Stone/Seidman/et al. are terrific on references to other cases and to theoretical discussions. Figure out who you are and what you want out of the course before you select a book -- and then live with the inevitable student complaints. As a Chemerinsky-related addendum, most students love his treatise, and for good reason. But please remind them that it's their job to learn your course as you see it, not as he sees it, and that his treatise, although fair, certainly has a point of view.
5) In your beginning lies your ending. In keeping with the eternal return of standard themes in constitutional law, you should figure out what themes or issues or explanations you think tie together the constitutional law course, and bring them up early and often. Con law students read a lot of cases and many of them can seem disparate. It's up to you to impose some order on the material so that your students are engaged in a process of cumulative learning and can see how one case and one theme relates to the next across different areas. Choose a starting point that reflects this. I have found for the past two years that Heller, although overemphasizing history for my purposes, is a good introduction to many of the issues we touch on in my course. I then turn to the Articles of Confederation and the constitutional text itself. Please, please devote at least one class session to the constitutional text, if for no other reason than to point out occasionally how little of the rest of the course has anything to do with it.
6) Beating up John Marshall is not an effective use of class time. Of course, the starting point for many con law classes is Marbury v. Madison, and for years a debate has raged among con law professors about whether that case ought to be taught at all. There are obvious reasons to teach it, but really I blame William Van Alstyne, whose article on Marbury is an invaluable lifeline and must-read resource for con law professors teaching Marbury for the first (or third or fourth) time. Despite subsequent work calling into question some of his premises (see, e.g, Pfander's work), Van Alstyne still provides a perceptive and helpful guide to the many problems with Marbury. It can be fun, especially for an insecure beginning con law teacher, to spend a class session or more using Van Alstyne to beat up on the problems and inconsistencies with Marshal's opinion. There's something confidence-building about this exercise, for students but especially for new teachers. But it takes up a lot of class time, and it's not clear to me anymore that it's worth it. Among other things, it risks missing the forest for the trees: seeing what's lousy about Marbury and not what's great (or terrible) about it. I'm not saying (yet) not to teach Marbury, but don't let it define your course or swallow your time. And remind students that any exam answer that discusses Marbury is probably a canned answer and a waste of everyone's time. At this point, I think we can take judicial review for granted, more or less.
7) Rights are boring. Many constitutional law scholars got into the field so they could write about individual rights. I certainly did. But it turns out that, at least in my view, the rights cases are slightly more exciting to teach than stereo instructions. I recall early on in my teaching career talking to a colleague who was teaching Lawrence v. Texas and described quickly running into a point where he felt there was little of value to say; he might just as well have thrown up his hands and walked out of class. I appreciate that point a lot more several years later. The structure cases are where it's at, at least from a teaching perspective. Don't slight them. And don't treat them as distinct from the rights cases -- in many respects they raise the same issues, and of course are themselves at a meta-level about rights too. If the rights cases are interesting at all, they may be most interesting as occasions to discuss the capacities and limits of courts, not for broader discussions about what individual rights we ought to enjoy or about contested issues of personal liberty. In a short-form con law course, consider teaching fewer rights cases, and skipping the First Amendment altogether.
8) Teach arguments, not results. Law students often believe that they are learning what tort or contract law "is" in their other courses. I doubt they're right. In any event, con law is less about learning particular results than it is about learning methods of acceptable constitutional argument -- the difference between forms of argument that will be accepted in court and those that will be ignored or laughed out of court. That lesson should start from day one of your class. Whether you're talking about formalism vs. functionalism or about Bobbitt's modalities of constitutional argument, what you're teaching is how students can use existing methods and lines of argument to frame ideas and desired results in a way the courts will understand and incorporate. The results are strictly secondary. I think that is more true in the other courses than they realize, but it is certainly true for con law.
9) Pre-Lopez matters. When I learned constitutional law (from the great Professor Louis Henkin), the story of congressional power was a simple morality tale that focused on the pre-New Deal era and ended in the triumph of flexibility and expanded constitutional power, with everyone joining hands and dancing in a circle. Lopez purported to ruin that narrative, in emphasis if not in reality. The pre-1995 cases are ever more compressed in the casebooks. But it's difficult to understand what goes in in Lopez and the cases following it unless you understand what went on before them (again, constitutional law is fundamentally the story of the eternal return). That's especially true because, most of the time, the law that decides a Commerce Clause case will only nominally be about Lopez; really, it will be about New Deal-era precedents and premises. Alison Eid has a lovely article on why the pre-Lopez cases matter, and I urge you to read it and recommend it to students. Another thing I'll say about the Lopez and post-Lopez cases is that law students often want to see Lopez as announcing a sharp four-part test (once you get to the substantial effects portion, at least) that is as firm as anything they learn in their private law courses, something they can apply mechanically. This can lead to a false sense of security and fairly absurd results on exams. All law is about learning some practical judgment in applying doctrine, and the Commerce Clause is no different. Caution your students against the idea that Lopez gives them a test they can apply mechanically, and advise them to see it as being as much about attitudes (and signaling to Congress) as it is about specifics. Finally, the Commerce Clause materials are just the beginning of a long set of cases dealing in broad terms with the question how many escape hatches Congress has for unfettered lawmaking, and whether and how much the Court is willing to close off those escape hatches. By the time they get through the CC, the Tenth Amendment cases, the Spending Clause (especially the Spending Clause!), the Eleventh Amendment, and then finally the congruence and proportionality cases, they ought to be thinking about all of these cases as pieces of one puzzle. There ought to be a "Prestige" moment (viz. the Christopher Nolan movie) where all of these pieces come together and the broader outline of what is going on becomes clear. John Noonan's book on these subjects, despite whatever flaws it may have, remains useful in guiding you in this endeavor.
10) There are three branches, not one. Again in keeping with law students' path-dependence and desire for doctrinal certainty, the tendency is for law students to focus on what is going on in the courts. This has ruined many a student's study of separation of powers, in particular; case-focused separation of powers teaching just doesn't work that well. Students should be aware just how much constitutional law takes place outside the courts and just how many areas of constitutional law are unlikely ever to be seriously or usefully discussed by the courts. If they have absorbed some of the basic themes of the course, they ought to be comfortable applying those themes to any con law issue, including those that arise outside the courts (although it is not clear that methodologies developed for use by courts are necessarily the best or only methodologies to use outside the courts). And they ought to develop some sense of how courts -- and other branches -- are likely to respond to these issues: in an iterated series of relationships with and messages to each other, a series of near-confrontations that never quite end up in an actual judicial opinion, let alone resolution. Although I betray my generally non-textualist and non-originalist views here, students ought to be comfortable with thinking of the Constitution not in terms of what it says in absolute terms, but what it sets in motion. Nor need they stop at the three branches! Constitutional law also takes place elsewhere -- in public debate, in the role of mediating institutions, and in other places.
11) Your students are probably more libertarian than you are (the usual suspects excepted). Unless your name is Ilya or Randy, I'm guessing your students will take a more libertarian approach to constitutional law than you do. It may be a generational thing or a regional thing, although I've taught in many parts of the country. But it does seem true to me. Certainly most law students don't resemble my classmates at Columbia in the early 90s, who had fairly conventional triumphalist views about state (by which I mean federal) power; nor do they resemble the standard caricature of students arguing in rights cases on a liberal-vs.-conservative line, ie. pro- or anti-affirmative action. I have no particular problem with those politics, and it always makes Wickard fun to teach. But it can also sap the life out of the class. If the answer to everything is always "no," or always "yes" for that matter, the discussion doesn't really fully come to life. Happily if inconsistently, many of your libertarian students will also be populists and semi-judicial skeptics. They need not think that the government ought to be able to do everything or that it ought to do anything in particular. But they should be encouraged to think about the law in terms of "who decides" -- the courts, the duly elected legislatures, "the people" (whatever that means), and so on. Outcomes, again, are boring. Who gets to determine those outcomes, why, and on what absolute or comparative basis, is much more interesting, and those questions need not break down in terms of libertarian views or their alternatives.
I hope this is helpful for new con law teachers. Additions, reservations, praise and criticism are all welcome. For what little it's worth, feel free to contact me if you're starting to teach con law and have further questions.
Friday, July 23, 2010
Scott Dodson: Things You Oughta Know if You Teach Civil Procedure
Monday, July 05, 2010
Things You Oughta Know if You Teach Intellectual Property
Alanis Morissette is here, to remind you ... that the fair-use rationale for using her image is kinda weak, weak, weak ...
(Isn't it ironic?)
There are some things you should know if you teach Intellectual Property. As a new IP prawf, it took me some time to get wise to some of this stuff. So I thought it would be helpful to collect key tidbits here. Let's make this an open thread for whatever I've left out.
- The Georgetown IP Teaching Resources Database is the place to get photos, movie clips, sound clips, illustrations, and other AV materials from real cases to use in your class. The database is the work of Georgetown prawf Rebecca Tushnet. You'll need a password, but if you are teaching IP, Rebecca will set you up. (Tip: Definitely show your students the clip of the infringing Snuggle the Fabric Softener Bear being hunted down by a tank in the video-game ad. Your students will love you for it.)
- There is an IPProfs listserv; it's maintained by Franklin Pierce prawf Tom Field. You'll need to be approved as a bona-fide IP prawf to join.
- There is also a Cyberprof listserv maintained by Stanford prawf Mark A. Lemley. Similar dealio.
- The IP Scholars Conference is a general recurring conference for workshopping papers, and it's held in early- to mid-August. It rotates among its sponsoring schools Cardozo, Stanford, DePaul, and Berkeley. Expect the submission deadline to be in or around April.
- To find other relevant upcoming conferences and calls for papers, go to IP and IT Conferences, a blog dedicated to posting these announcements. It's maintained by University of Pittsburgh prawf Michael Madison.
- Finally, you oughta know that there is a free IP casebook – unlimited downloads from SSRN. No joke. You don't have to choose it – tastes vary – but you should at least be aware it exists, since you won't get a review copy in the mail. It's written by Field, the same guy who has the listserv. Thanks to the concisely edited cases, I'd use it even if it cost money. But it doesn't. So, why is Field giving it away instead of obtaining monopoly rents by selling copies? Hmmm. Discuss. And, why should you care if you save your students money? Ah, externalities. Discuss. At least you oughta know your students' feelings on the subject: Everytime they spend their scratch on someone else's book, they hope you feel it. Well can you feel it?
Updatedly, you oughta know:
- Mike Madison additionally has an always-evolving list of IP law faculty around the world and Lost Classics of Intellectual Property Law, a list of older scholarship that newbie IPers ought to know about.
- Several people have weighed in on what should be on your reading list via PrawfsBlawg's Research Canons post on intellectual property.
- UConn prawf Steven Wilf has amassed slideshows, cases, and other materials on his site An Introduction to Intellectual Property.
- Yours Truly has created an online Compendium of Materials for Intellectual Property, which contains, among other things, demand letters that make for interesting reading for students. Related is my Compendium of Materials for Media & Entertainment Law