Friday, July 15, 2016
Old Man Yells at Cloud, First Installment
I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship. This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece. I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points: these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed. On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).
For the first installment, I wanted to focus on a glaring error that I see more and more: Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.” It is as if those last three words don’t really matter, so they can be cut out. I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form. I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back. But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.
The difference between a concurring opinion and one concurring merely in the judgment is an important one. For one thing, a concurrence in the judgment is often more like a dissent than a straight concurrence. Take, for example, the recent case of United States v. Jones, 132 S.Ct. 945 (2012), which addressed whether government officials conduct a “search” for purposes of the Fourth Amendment when they attach a GPS device to a vehicle and track its movements for 28 days. The Justices were unanimous that this was a search but split 5-4 over the reasoning. The Court held this to be a search because the government physically intruded upon a private space, by placing an object onto personal property, for the purpose of gathering information. Justice Alito, joined by three of his colleagues, sharply disagreed with this “trespass theory” of the Fourth Amendment but concluded that tracking the suspect’s movements with a GPS device for so long infringed upon his reasonable expectation of privacy in his movements. Justice Alito spends the bulk of his separate opinion criticizing the Court’s return to the old “trespass” doctrine, with much less space devoted to why the government’s conduct violated Jones’s reasonable expectation of privacy. The opinion is much more dissent than concurrence but, of course, because he and his three colleagues would have come to the same result as the Court, it is a concurrence in the judgment. To mischaracterize it as a “concurrence” is to make much more than a simple technical error; it is to mislead the reader into thinking that Justice Alito essentially agreed with the majority and simply wanted to add his two cents or try his hand at explaining what the majority was really saying.
By contrast, Justice Sotomayor wrote a true concurrence in Jones. She joined the majority and agreed with its reasoning but wrote separately to indicate her agreement with much of what Justice Alito wrote in his separate opinion and to call into question some more general aspects of Fourth Amendment search doctrine. Thus to call both what Justice Alito wrote and what Justice Sotomayor wrote “concurrences” conveys a false impression about the two opinions and their relationship to the majority.
Another context in which the distinction really matters is where there is no majority opinion. Take, for example, Missouri v. Seibert, 542 U.S. 600 (2004), in which the Court addressed whether, where the police deliberately first obtained un-Mirandized statements from a suspect during custodial interrogation, later adherence to the Miranda warnings-and-waiver protocol rendered admissible a suspect’s subsequent statements. A plurality of the Court said that the subsequent statements were inadmissible, even though they followed Miranda warnings and waiver, because the initial statements had been un-Mirandized. However, the plurality looked to a number of factors – “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first” – to determine when such mid-stream warnings and waiver would render subsequent statements admissible.
Justice Kennedy wrote a separate opinion concurring in the judgment, agreeing with the outcome, but relying on only one factor: that the police deliberately obtained the first set of statements without adhering to Miranda in order to “soften up” the suspect into waiving her rights on the second go-round. Had the same police conduct occurred inadvertently, Justice Kennedy presumably would have come out the other way.
Here, the distinction between a concurrence and a concurrence in the judgment is critical. Had Justice Kennedy written a straight concurrence, presumably he would have joined the plurality, making it a majority. Anything he wrote in such a concurrence would be important inasmuch as it explains the majority opinion from the perspective of the necessary fifth vote, but it would not have the force of law. By stark contrast, the opinion as a concurrence in the judgment takes on much more significance. Pursuant to the Court’s Marks rule, where there is no majority opinion, one must discern the narrowest point on which five Justices agree. In many cases, this means that a concurrence in the judgment is the law because it represents that narrowest point. In Seibert, that conclusion is more questionable, given that Justice Kennedy’s focus on the good or bad faith of the police seems to have been rejected by seven other Justices. Lawyers, judges, law students, and academics have struggled to figure out what, if anything, is the holding of Seibert. Mischaracterizing Justice Kennedy’s separate opinion in that case as a “concurrence” misleads the reader into thinking that she need not engage in that struggle because Justice Kennedy agreed with and joined his colleagues’ multi-factor analysis. But he didn’t. A mere concurrence might be enlightening but it is rarely as critical as a concurrence in the judgment when there is no majority opinion.
So “concurring in the judgment” does not mean “concurring.” Authors and editors need to stop pretending that it does.
Thursday, August 27, 2015
Get "PRACTICE READY." Get set. Go!
The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship). This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.” The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.”
Creating experiential learning opportunities for students is a great idea. But mandates that law schools produce “practice ready” graduates seem incompletely thought out. Fundamental questions about “practice ready” graduates remain and will continue to plague the system:
- What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?
- What sorts of skills, efforts, and methods are required to make a law student “practice ready”? Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
- Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
- Epistemically, how can you judge anyone’s “practice readiness” to begin with?
- Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training! For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
- Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
- And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness?
Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.
These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, “Practice Ready Graduates”: A Millenialist Fantasy”.
First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. Condlin characterizes practice readiness as today’s fad – as something without true substance or understanding. Lawyers, after all, must not just be “ready” to practice upon admission to the bar, but must be prepared for “a lifetime of professional growth and service under conditions of challenge and uncertainties.” Are we better off focusing on the long-term rather than the short-term “readiness” of our graduates? Maybe teaching students how to teach themselves in whatever varied area of law they practice now and in the future is more worthwhile than teaching any specialty-specific skill set.
Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified. Every hour spent teaching a student how to ask a question in a client interview is an hour that the student does not spend pondering the underlying values related to personal autonomy in our contract law, for example. Condlin admits that “skills instruction” is not in itself impoverishing, but points out that law schools and law students have limited time, money, and resources. There are thus significant opportunity costs from a shift in focus that prioritizes lawyering “motor skills” over thinking skills.
Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. Socializiation and disposition take longer than a semester (or two) to develop. Even a law school clinic class, which is something Condlin says comes the closest to preparing students for the reality of practice, is of limited efficacy, principally because of its short window (13 weeks, usually). Furthermore, because practice readiness depends on the type of practice, and it is simply impossible to prepare all students for all types of practice, efforts spent could be misapplied in a context where some or all students will not know in law school precisely what sort of law job they’ll eventually have. Even if you could come up with a list of the required “practice readiness” skills for all possible legal jobs, Condin asserts, that list would be too long to be achievable.
Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job. The loss of legal jobs in 2008 and beyond was not a function of lack of graduates’ practice-readiness. In spite of its implicit promise, in reality, it isn’t lack of skills training that is leaving new graduates unemployed. Condlin explains: The legal job market shifted in the early part of this century because of forces outside of it. At its core, the legal system, like many other sectors of our society, is now struggling under the twin problems of shrinking demand for labor and growing student debt. Legal jobs in particular were hit hard with the post 2007 economic downturn, client demands for lower fees, increased competition from non-law-firm service providers, and technology changes. None of these problems were caused by law school graduates’ level of skills preparedness or by law schools’ pre-2008 curricular focus. Furthermore, Condlin asserts that “[p]lacing students in jobs is principally a function of a school’s academic reputation, not its curriculum.” He points out the unfortunate reality that the massive overhaul in Washington & Lee’s third year curriculum, to emphasize practical skills over study of doctrine led to a decrease rather than an increase of their graduates’ rate of employment. (See story on this here.) Perhaps the reason a “practice ready” focus doesn’t necessarily translate into better employment is because it doesn’t really work. An ABA study recently found that although 71% of new graduates believe they have “sufficient practice skills,” only 21% of lawyers who work with them believe that this is true.
Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”
Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have. I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools. Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.” Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).
For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, “The New Normal” . Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2nd year associate or an unsupervised solo practicioner. It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way. Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads). Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.
I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools. But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice. I find it natural and effective to integrate the practice context into teaching. In a 1L Contracts class, for example, I do believe that students should read actual contracts, struggle with actual interpretation disputes, and try their hand at drafting clauses or even entire documents. In upper division courses (such as Real Estate Transactions), there are still more opportunities to use glimpses into practice as ways to give context and meaning to legal doctrines. But of course in a mere 39 hours of a law school course, there is insufficient time and no client reality – so these experiences may firm up a students foundation for practice, but that doesn’t necessarily make him or her “practice ready” (again, this all comes back to what this phrase means to begin with!).
Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice. But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.
It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice.
Tuesday, August 11, 2015
Kids Today (or "I don't know about you, but I'm feeling 22")
Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself. In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month. For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.
- World/National Events Context:
- Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV. RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”). RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7. RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time. Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
- Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16. Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
- Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise). Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24. And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate. (Discuss.)
With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.
RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media. She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”).
- Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.
- Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).
- Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.
- Labor Law? For RLS, the only significant labor disputes have been professional sports-related.
- International Law? In RLS’s experience and memory:
- Prisoners have always been housed at Guantanamo Bay.
- There has never been Apartheid in South Africa.
- The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
- Hong Kong has always been part of China.
- It was Pres. George W. Bush (not his father) who sent troops to Iraq.
- The currency in Europe has always been the euro.
- Health Law? Cloning has always been a scientific reality. AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least). Adults have been debating the role that the government should have in providing public health insurance since her birth.
- Pop Culture Context: For RLS,
- It has never been a big deal to see women kissing women and men kissing men on television.
- The term “wardrobe malfunction” has been widely understood since RLS was 10.
- Ellen and Oprah have always been first-name-only TV talk show hosts.
- Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
- The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18).
RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!). RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.
As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV. If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school!
Do you feel old yet?
Or are you “Feeling 22” too?
Wednesday, July 29, 2015
The Virtues and Vices of Casebook Supplements
My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.
As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.
I. The Virtues of Casebook Supplements
- Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve.
- Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
- Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
- Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.
II. The Vices of Casebook Supplements
- Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
- Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
- Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment.
III. Closing Reflections
I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...
Tuesday, June 30, 2015
Strange Bedfellows #12: Closing Thoughts on The Science of Learning
This post is part of the Strange Bedfellows series.
In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together. But is it any more than a parlor game?
For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher. The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems. I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach. This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.
The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.
In Make It Stick: The Science of Successful Learning (2014), authors Peter Brown, Henry Roedinger, and Mark McDaniel describe a study that compared different methods to teach students how to identify works by different painters:
Researchers initially predicted that massed practice in identifying painters’ works (that is, studying many examples of one painter’s works before moving on to study many examples of another’s works) would best help students learn the defining characteristics of each artist’s style. Massed practice of each artist’s works, one artist at a time, would better enable students to match artworks to artists later, compared to interleaved exposure to the works of different artists. The idea was that interleaving would be too hard and confusing; students would never be able to sort out the relevant dimensions. The researchers were wrong. The commonalities among one painter’s works that the students learned through massed practice proved less useful than the differences between the works of multiple painters that the students learned through interleaving. Interleaving enabled better discrimination and produced better scores on a later test that required matching the works with their painters. The interleaving group was also better able to match painters’ names correctly to new examples of their work that the group had never viewed during the learning phase.
Similar results occurred in a study teaching people how to identify different families of birds, how to hit different kinds of pitches, and how to solve different kinds of math problems. These tasks strike me as similar to what we expect law students to do: transfer the knowledge gained through study of past cases to help identify, categorize, and resolve issues when they arise in previously unseen circumstances.
However, the studies showing the power of interleaving also reveal a cognitive illusion: students who learn interleaved material routinely underestimate their progress when compared to the silo method. This is largely because the advantages of interleaving tend to reveal themselves slightly later in time. From Make It Stick:
The learning from interleaved practice feels slower than learning from massed practice. Teachers and students sense the difference. They can see that their grasp of each element is coming more slowly, and the compensating long-term advantage is not apparent to them. As a result, interleaving is unpopular and seldom used. Teachers dislike it because it feels sluggish. Students find it confusing: they’re just starting to get a handle on new material and don’t feel on top of it yet when they are forced to switch. But the research shows unequivocally that mastery and long-term retention and are much better if you interleave practice than if you mass it.
In my experience, students actually do not dislike the type of interleaving described in these blog posts and in my casebook, so long I am transparent with them about the logic. A few months into the semester they can feel the benefits of better comprehension and retention as they solve problems across silos. By the end of a semester, they know they are further ahead than they would have been, despite the initial feeling of unfamiliarity.
One advantage of interleaving is that it forces some delays and spreads given material over a larger stretch of time. Instead of studying everything about the Commerce Clause in a one week silo, it is studied a bit at a time over several weeks or months. Repeated work with a topic over time, with enough lapse between exposures for a little forgetting to occur, improves a student’s ability to later retrieve and apply the knowledge. This passage from Make It Stick describes some of the research:
For a vivid example [of the benefits of spacing out lessons] consider this study of thirty-eight surgical residents. They took a series of four short lessons in microsurgery: how to reattach tiny vessels. Each lesson included some instruction followed by some practice. Half the docs completed all four lessons in a single day. … The others completed the same four lessons but with a week’s interval between them.
In a test given a month after the last lesson, those whose lessons had been spaced a week apart outperformed their colleagues in all areas—elapsed time to complete a surgery, number of hand movements, and success at reattaching the severed, pulsating aortas of live rats. The difference in performance between the two groups was impressive. The residents who had taken all four sessions in a single day not only scored lower on all measures, but 16 percent of them damaged the rats’ vessels beyond repair and were unable complete their surgeries.
Why is spaced practice more effective than massed practice? It appears that embedding new learning in long-term memory requires a process of consolidation, in which memory traces (the brain’s representations of the new learning) are strengthened, given meaning, and connected to prior knowledge—a process that unfolds over hours and may take several days. Rapid-fire practice leans on short-term memory. Durable learning, however, requires time for mental rehearsal and the other processes of consolidation. Hence, spaced practice works better. The increased effort required to retrieve the learning after a little forgetting has the effect of retriggering consolidation, further strengthening memory.
In addition to Make It Stick, interested readers can consult two free online books about the science of learning:
- Susan Ambrose et al., How Learning Works: Seven Research-Based Principles for Smart Teaching (2010)
- Victor Benassi et al., Applying Science of Learning in Education: Infusing Psychological Science Into The Curriculum (2014)
Monday, June 29, 2015
Strange Bedfellows #11: Subsequent History Surprises
This post is part of the Strange Bedfellows series.
Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.
It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.
But I confess that I have not had the stomach to tell my students about some of them. Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?
Cooper v. Aaron
The issue in Cooper was whether the Little Rock School District could postpone further compliance with a court-approved desegregation plan. The tumultuous experience with the Little Rock Nine during the 1957-58 academic year involved so much “chaos, bedlam and turmoil” (in the words of the trial court that granted a postponement in Cooper) to justify a cooling-off period. SCOTUS unanimously disagreed. Desegregation must proceed as previously scheduled for 1958-59, and Governor Faubus and the segregationist legislature must get nowhere with their noises about not being bound by Brown v. Board of Education. State obedience to SCOTUS’s interpretations of the US Constitution is “indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us.” Score one for the federal judiciary.
Except that the desegregation plan did not proceed in the 1958-59 school year. Instead, the legislature authorized the governor to shut down any school if “an efficient educational system cannot be maintained because of integration of the races.” Using this power, the governor shuttered the four Little Rock high schools that were scheduled to desegregate, and the Arkansas Supreme Court upheld the order. Garrett v. Faubus, 230 Ark. 445 (1959). The postponement that Cooper refused to authorize occurred anyway.
The end came not through direct enforcement of Cooper, but through the political process. After a year without high schools, Little Rock began to rethink its commitment to segregation now that white families were personally experiencing the costs of maintaining it. In early 1959, an extreme segregationist who had joined the school board was removed from office through a recall election. The Little Rock Chamber of Commerce issued a statement urging the District to reopen its schools because continuing the controversy would be bad for business. The four closed high schools reopened in fall of 1959, and the desegregation plan slowly resumed.
This political process was no doubt affected by Cooper, but teaching Cooper as the end of the story paints a misleading picture. With its surprising subsequent history taught as part of the case, Cooper works better as a demonstration of how complex the constitutional system can be, rather than as a demonstration of the supremacy of judicial interpretation. As a result, Cooper strikes me as a case worth teaching with its subsequent history, or not at all. It may well be worth it for the next few years, since a potentially significant story will be whether Obergefell (and perhaps the Obamacare cases) end up generating political backlash comparable to that following Brown.
Palmore v. Sidoti
By contrast, I have not had the heart to use Palmore v. Sidoti to teach a related lesson about the limits of litigation.
In Palmore, a Florida family court awarded custody of a girl to her father because the mother had entered into an interracial relationship. The Supreme Court found this to be an invalid consideration: even if community prejudice might make a placement with the mother and her new husband stressful for the girl, the law cannot “directly or indirectly” give effect to private biases. (That point is similar to the reasoning in Shelley v. Kraemer, as discussed in a previous post.)
SCOTUS reversed the custody ruling and remanded the matter to the Florida state courts to make a ruling untainted by invalid racial considerations, but by that time, the father had remarried within his race and moved to Texas with the daughter (as allowed by the Florida custody award). The state trial court in Tampa relinquished jurisdiction to Texas, and the decision to close out the Florida action was affirmed on appeal. 472 So.2d 843 (Fl. App. 1985). I have been told that the Texas courts decided in unpublished opinions that it would be in the best interests of the child to remain with the father.
Assume for purposes of discussion that the Texas court considered only questions of family stability and not race. Nonetheless, one may wonder if the same result would have been reached had the Florida courts not originally removed the daughter from the house for constitutionally improper reasons; stability may have favored the mother in that alternate universe. The subsequent history makes Palmore a story about the limitations of individual rights litigation, and not about its glorious aspirations. This could be a valuable discussion, but I have been loath to tell my students how all of a lawyer’s principled hard work may not ultimately benefit the client, who sometimes becomes a martyr with little to show for her Pyrrhic victory.
After Carolene Products, the Filled Milk Act has been remembered in the Con Law canon as the paradigm of a law that has a rational basis. Except that as of today, it officially doesn’t.
As explained in Geoffrey P. Miller, The True Story of Carolene Products, 1987 Sup. Ct. Rev. 397 (1987), the Act was held to be irrational in Milnot Co. v. Richardson, 350 F.Supp. 221 (S.D. Ill. 1972), a case brought by the Carolene Products Company’s successor corporation. The government did not appeal. As a result, filled milk is now readily available online. No semester is complete without me drinking a can of filled milk while my students clutch their stomachs and gasp in fear for my nutritional safety. (Your students will never forget Carolene Products after that bit of show and tell!)
It’s been a hard choice, but I have chosen to keep the demise of the Filled Milk Act a secret from my students—it would cause too much cognitive dissonance. Yet it makes a potentially valuable exploration of how constitutional judgments can change—and whether they should. In Carolene Products (the famous one), Justice Stone said that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” Evidently they did. The later invalidation of the Filled Milk Act can potentially be an interesting counterpoint to Shelby County v. Holder (2013), which similarly found that changed facts made a statute unconstitutionally irrational.
I’d be interested to know if you dare to share these subsequent histories with your students. And if there are other similar stories we should consider teaching.
Thursday, June 25, 2015
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.
Wednesday, June 24, 2015
Strange Bedfellows #9: The Frame Game
This post is part of the Strange Bedfellows series.
The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”
My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?
The frame game inevitably reveals itself in many canonical substantive due process cases, but it can also be woven into discussions of cases arising under many different doctrines.
Framing can be a battleground in equal protection cases where the court must decide which groups to compare against each other. Goesaert v. Cleary, 335 U.S. 464 (1948), sometimes taught as an example of the bad old days, involved a frame that strikes most modern students as bizarre. A Michigan statute would grant bartender’s licenses to two kinds of applicants: (a) a man or (b) a woman who is “the wife or daughter of the male owner” of a tavern.* For Justice Frankfurter, writing for the majority, the statute distinguished between two classes of women: those who are close relatives of bar owners and those who are not. The legal question was whether Michigan was “play[ing] favorites among women without rhyme or reasons.” Frankfurter tipped his hand that his choice of frame controlled the outcome, saying: “To ask whether [the state may distinguish] wives and daughters of owners of liquor places and wives and daughters of nonowners, is one of those rare instances where to state the question is in effect to answer it.” Indeed. The dissent asked a different question: could the state justify discrimination “between male and female owners of liquor establishments?” The dissenters answered that question (in the negative) in two quick paragraphs. Other, even crazier, frames are possible on the Goesaert facts. The statute discriminated against corporations who own taverns, because they are not "male owners" capable of having a "wife" or a "daughter." The state is facilitating cheaper labor for certain sole proprietors, but owners who exercise their Citizens United right to assemble in the corporate form must hire from a slightly smaller and hence more expensive all-male labor pool.
* (As noted in an earlier post, alcohol pops up Con Law teaching more often than one might expect.)
All disparate impact cases are a variation on the frame game. Did the law in Geduldig v. Aiello (1974) classify along the lines of male v. female or, as the majority thought, “pregnant women and non-pregnant persons?” Did the law in Personnel Administrator v. Feeney (1978) classify between veterans and non-veterans, or between men and women?
The frame game is inescapable in substantive due process cases where the task is to define the relevant unenumerated right. Did the terminally ill plaintiffs in Washington v. Glucksberg (1997) seek to enforce “a right to commit suicide which itself includes a right to assistance in doing so” or “the right to a humane death” or “freedom from pain and indignity”? Did the biological father in Michael H. v. Gerald D. (1989) seek “parenthood” or “parental rights [of] the natural father of a child conceived within, and born into, an extant marital union [to which he is not a party]?” And as we await a result in Obergefell v. Hodges, one can ask whether the couple in Loving v. Virginia (1967) sought the right to enter into “marriage” or into “interracial marriage.”
Finally, one may consider an often explicit choice among legal frames, with the most common nominees in individual rights cases being freedom and equality. This is likely to arise in Obergefell, which is a case about the freedom to marry and about equality among marriages. While abortion rights were framed as a matter of freedom of reproductive choice in Roe v. Wade (1973), pro-choice advocates also argue that legal abortion is necessary for women to have the same options as men. In many such cases, the frames would not necessarily generate opposite answers; this is seen in an earlier post about jury selection cases, where the right of a juror to be seated correlates with the right of the defendant to a representative jury. In these situations, students can develop the lawyering skill of choosing which frame to emphasize.
Monday, June 22, 2015
Strange Bedfellows #8: Precedential Floors and Ceilings
This post is part of the Strange Bedfellows series.
The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.
A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?
The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office. Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal. Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted. (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.) In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding. For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well. For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”In Ingraham v. Wright (1978), the plaintiff secondary school students argued that their public school district’s use of corporal punishment amounted to cruel and unusual punishment. All of the previous SCOTUS decisions decided under the Cruel and Unusual Punishment Clause involved criminal defendants objecting to their sentences or the methods by which the sentences were carried out. For the majority, the precedents represented a ceiling, indicating that the Clause would protect no more than the criminal defendant, and hence offer nothing to a public school student. For the dissenters, the precedents were a floor: they meant that, at least, cruel and unusual punishments could not be inflicted on criminal defendants, but perhaps others were protected against them as well. (Ingraham is an excellent showcase for a number of other methods of interpretation, including disagreements over the meaning of text, history, consequences, values, and constitutional structure; for this reason I have had good success starting my courses with it, and now my casebook.)
Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989).
Once you have sensitized students to how different judges can approach precedential ceilings and floors, you can then see a very similar contrast of interpretation with regard to the text of the Constitution itself, particularly with regard to enforcement of unenumerated principles. If the two precedents from Caperton are a ceiling, limited to their facts, then perhaps Bill of Rights should be read the same way: as precise enumerations of narrow principles without Griswold-style penumbras that form a subterranean rational continuum. And the same could be said for the various Art. I, §10 limitations on state commerce regulation: they mean only what they say (no duties of tonnage, no non-essential imposts on imports or exports), and do not contribute to a larger rule against state laws that impose burdens on interstate commerce in unenumerated ways.
Sure enough, one often sees exactly this combination: Justice Scalia opposes broad applications of the dormant commerce clause doctrine and substantive due process, and frequently reads precedents narrowly as well. The reverse combination is usually true for Justice Breyer.
Wednesday, June 17, 2015
Strange Bedfellows #7: Liberty Lists
This post is part of the Strange Bedfellows series.
To enumerate rights or not to enumerate them? Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected. The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Enumerate away!
The story’s not quite that simple, as the disagreement between plurality and dissent in this week’s Kerry v. Din shows. But as a teaching tool, it can be useful to compare and contrast the decision to enumerate rights in the constitution with the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom. These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.
Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty. The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).The most famous early liberty list is Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823), a trial court opinion rendered by Justice Bushrod Washington while riding circuit. The question was whether New Jersey had violated Art. IV, section 2 by wrongly failing to extend to a citizen of another state a “privilege and immunity” available to New Jersey citizens.
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.
The majority opinion in The Slaughterhouse Cases (1872) applauded Corfield’s list, saying that the rights protected by the Art. IV Privileges And Immunities Clause embrace “nearly every civil right for the establishment and protection of which organized government is instituted.” The punch line is that the right sought in Corfield—to engage in oyster farming in state waters on equal terms with a state resident—was not fundamental, the breadth of the Corfield list notwithstanding.
Crandall v. Nevada, 73 U.S. 35 (1867), involved a state law imposing a tax on exit from the state, a law found unconstitutional because it interfered with the ability of US citizens to travel to and access federal facilities. Crandall was decided before the Fourteenth Amendment was ratified; it reached its conclusion based on general principles that Slaughterhouse called “implied guarantees of the Constitution.” Just by being a US citizen, one automatically enjoyed the Crandall rights:
[The citizen] has the right to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.
Once attention shifted to the Due Process Clause as the textual home for most of the unenumerated rights, two frequently-quoted lists appeared in majority opinions. Allgeyer v. Louisiana, 165 U.S. 578 (1897), generally viewed as the first SCOTUS case to invalidate a state statute for violating an enumerated right under a substantive due process theory, described it this way:
The “liberty” mentioned in that [Fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.
Described this way, the right reached the ability to purchase life insurance from an out-of-state company. A reformulation of the list, this time emphasizing non-economic rights, appeared in Meyer v. Nebraska, 262 U.S. 390 (1923):
While this court has not attempted to define with exactness the liberty thus guaranteed [by the Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
The right to send one’s children to a private school to learn the German language fit comfortably in this list.
An interesting contrast to the Allgeyer and Meyer liberty lists is the formula from Bolling v. Sharpe (1954), the companion to Brown v. Board of Education that used reverse incorporation to find that the Fourteenth Amendment Equal Protection Clause should be binding on the federal government. Here, the Court offered no list (only a principle), and then concluded that the asserted right fit within that principle. It is not widely remembered today, but Bolling may offer the most expansive (or is it the most circular?) definition of liberty of any SCOTUS opinion.
Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.
So who might lose under a modern application of the liberty lists? For one, the untenured college professor in Board of Regents v. Roth. After quoting the Meyer list, and citing Bolling for the proposition that “in a Constitution for a free people” the meaning of liberty “must be broad indeed,” the court proceeded to find that no liberty was implicated when the professor’s one-year contract was not renewed. For another, the alien children held in immigration detention centers in Reno v. Flores, 507 U.S. 292 (1993). They might have thought they did not need to rely on a liberty list, given the universal agreement that “freedom from bodily restraint” was protected. The majority concluded that this right was not implicated by the facts of the case—only “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.” Turns out that one isn’t on the list.
And now, in Kerry v. Din, a plurality would hold that a US citizen with a foreign spouse has no liberty interest in that spouse receiving a visa to enter the country (not even enough of a liberty interest to trigger procedural due process). Justice Scalia’s opinion for a three-justice plurality offers its own liberty list that is limited to what Lord Coke perceived within the Magna Carta. The opinion goes on to expressly rejects the entire American judicial tradition of liberty lists:
To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: "Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience" Meyer v. Nebraska (1923). But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases.
Monday, June 15, 2015
Strange Bedfellows #6: Streams of Commerce
This post is part of the Strange Bedfellows series.
Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.
These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.
During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states.
The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation. As Justice Holmes opinion said:
When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.
This ruling was only ten years after SCOTUS had ruled in United States v. E.C. Knight Co., 156 U.S. 1 (1895) that federal antitrust laws could not reach the purportedly local activity of operating a sugar refinery. The tension between the two rulings was fairly obvious. In both cases, an economic combination (monopolization in E.C. Knight, price fixing in Swift) affected customers in other states with regard to their purchase of a commodity food item, yet only one could be federally regulated. After decades of back and forth over where the “stream of commerce” began and ended, NRLB v. Jones & Laughlin Steel, 301 U.S. 1 (1937) put the entire framework to rest:
We do not find it necessary to determine whether these features of defendant’s business dispose of the asserted analogy to the “stream of commerce” cases. The instances in which that metaphor has been used are but particular, and not exclusive, illustrations of the protective power which the government invokes in support of the present act. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce.
Now consider the stream of commerce as used in modern personal jurisdiction decisions. World-Wide Volkwagen v. Woodson, 444 U.S. 286 (1980), said in widely quoted dicta: “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” The opinion did not cite to any Commerce Clause decisions, but instead to a well-known Illinois Supreme Court decision—Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961)—that did not use a riparian analogy, but noted that goods had passed from one state to another “in the course of commerce.” The image of a stream helpfully captured the idea for a jurisdictional context. If a person poured poison into a river in one state, knowing that it would be carried downstream and cause injury in another state, personal jurisdiction in the second state ought to be proper. So too for pouring injurious items (like malfunctioning automobiles or radiator parts) into the stream of commerce.
Since World-Wide Volkswagen, SCOTUS has not been able to clearly articulate when a manufacturer has a legitimate “expectation” that its goods will be purchased in the forum state, and hence whether it has been properly introduced into a stream of commerce that predictably flows there. Fractured decisions in Asahi Metal Industries v. Superior Court, 480 U.S. 102 (1987), and J. McIntyre Machinery Ltd v. Nicastro, 131 S.Ct. 2780 (2011), have left confusion about how the concept should be applied.
The stream of commerce under the Commerce Clause is not regularly taught, since it has been successfully interned. The stream of commerce remains a live topic in Civil Procedure. Some useful comparisons can nonetheless be made.
Both lines of “stream of commerce” cases involve a similar problem: when should a person’s local activity, having effects elsewhere, give rise to legal consequences outside the home state? Both also involve line-drawing problems: where should the stream of commerce be declared to begin and end? In both settings, the stream of commerce concept seems to have been introduced as a way to soften an otherwise draconian rule that prevented the government from taking action desired by the political branches. And in both settings, the concept has been an unreliable guide to deciding concrete cases. In response to the doctrinal confusion, Justice Kennedy’s plurality opinion in Nicastro sought to inter the stream of commerce metaphor, but unlike Jones & Laughlin, there was no majority willing to take that step. If Justice Kennedy’s view in Nicastro prevails, the stream of commerce concept would be banished from personal jurisdiction because a conservative court perceived that it allowed governments to do too much—contrasting with Jones & Laughlin, where the stream of commerce was be banished from the Commerce Clause because a newly liberal Court perceived that it forced government to do too little.
Thursday, June 11, 2015
Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)
This post is part of the Strange Bedfellows series.
Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage). For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed: Plyler v. Doe (1982).
Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully. The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect. Free public education for youth was sort of, but not really, a fundamental right. The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event). There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix. Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.” The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”
When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny. But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies. Yet upon reading Windsor, I felt as if I was reading Plyler 2.0.The majority in Windsor portrayed federal DOMA as a statute that sort of, but not really, shifted control over marriage policy from states to the federal government. Marriage was spoken of in grand terms, but its role as a fundamental right was not really the basis of the opinion. The opinion implied that discrimination on the basis of sexual orientation was objectionable, but not really suspect. These various sort-of considerations allowed the majority to conclude that the statute was motivated by animus, obviating the need to undertake the usual examination of legislative means and ends. The dissenters decried the result and also criticized the majority for offering “rootless and shifting” justifications: for coloring outside the lines.
Time will tell if Windsor heralds a revival of Plyler’s approach to equal protection. If it is not, then Plyler remains one of the one-offs among the canonical Con Law cases—good teaching decisions whose results are in no real danger of being overruled, but whose reasoning never shaped the mainstream. The most prominent of the one-off decisions is Shelley v. Kraemer, which held that judicial enforcement of racially restrictive real estate covenants violates equal protection. Almost all instruction on Shelley includes discussion of why its approach to state action didn’t ultimately carry the day; not every instance of contract enforcement is treated as state action subject to the Equal Protection Clause.
For what it’s worth, Shelley makes more sense to me if viewed less as a state action decision but as a precursor to Brown v. Board of Education (if formally neutral law like “courts should enforce contracts” may violate the Equal Protection Clause, then so may a formally neutral segregation law) and Palmore v. Sidoti (1984) (the child custody case most often quoted for the notion that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”). Viewed in that frame, Shelley is not the one-off that its reputation suggests.
I’d be interested to hear other nominees for one-off decisions, whose reasoning we are unlikely to see again, but that are nonetheless part of the current Con Law canon. My other suggestion is the Spending Clause holding from NFIB v. Sebelius.
Tuesday, June 09, 2015
Strange Bedfellows #4: Jury Selection All Over The Place
This post is part of the Strange Bedfellows series.
Jury selection appears often in the Con Law canon. The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool. Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool. Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses. Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine. More recently, the first US Court of Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications. SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).
These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course. Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.
Trial by jury is one of the few individual rights enumerated in the original constitution (in Art III, §2), and then reiterated and expanded in the 6th and 7th Amendments. Strauder considered jury service so important that it described ineligibility in terms usually associated with the badges and incidents of slavery: statutory exclusion from the jury pool “is practically a brand on them, affixed by the law, an assertion of their inferiority, and a stimulant to racial prejudice.”
Conversely, jury service can be seen as a badge or incident of citizenship. The jury allows ordinary citizens to control the workings of the judiciary in a way not possible for the legislative or executive branches. Although Art. III judges are not selected through popular election, the jury makes the courtroom a site of self-government in action. This deep connection between jury service and voting explains why in most jurisdictions, one is eligible for jury service only if one is eligible to be an elector (voter). Indeed, in 1887 the women in the state of Washington lost their statutory right to vote as a result of a criminal defendant’s challenge to the practice of seating women on the jury. See The History of Women’s Jury Service in Washington (2005).
Cases involving jury selection can be a useful opportunity to consider the role of chance in the law. I like to begin my Civil Procedure courses by identifying four main ways one might resolve private disputes: (a) negotiated agreement, (b) binding decision by third parties; (c) violence; and (d) chance. Our system privileges voluntary agreement; it provides a judicial system as a backstop if agreement does not emerge, in hopes of avoiding reliance on violence and chance. But just as the system cannot entirely eliminate violence (those judgments are ultimately executed through the threat of incarceration), it does not entirely eliminate chance, either. Among the main ways the luck of the draw affects litigation is in the assignment of a judge, the summoning of a jury pool, and the selection of a petit jury. In these settings, chance is tolerated, even if it might predictably result in deviations from the mean in any given case. Chance has constitutional implications as well, as seen in the majority’s reasoning in Washington v. Davis (1976). Because we allow the occasional all-white jury as a natural consequence of a jury system that involves random selection, there must obviously be no constitutional bar to facially neutral government policies with racially disparate impact.
Finally, viewing jury selection as an independent constitutional topic can help show how any one case might involve more than one individual right—and indeed, how multiple constitutional guarantees can interact with each other to create an entire ecosystem of rights. As the Batson cases recognize, jurors have a right (as well as an obligation) to serve, while litigants have a right to trial by a representative jury. The combination of these two principles were ultimately needed to overrule the holding in Hoyt, which rejected an Equal Protection Clause challenge to a statute that excused all women from jury service. Hoyt’s reversal involved two steps. The first nail in Hoyt’s coffin was Taylor v. Louisiana, 419 U.S. 522 (1975), which held that a similar law violated the Sixth Amendment right to trial by a fair cross-section of the community; this defendant-centered case effectively overruled the result in Hoyt without addressing its equal protection reasoning. The right of women to serve as jurors as a matter of equal protection was finally announced in J.E.B. v. Alabama, 511 U.S. 127 (1994), which held that an attorney’s use of peremptory strikes to eliminate women violated Batson.
Monday, June 08, 2015
Strange Bedfellows #3: Alcohol All Over The Place
This post is part of the Strange Bedfellows series.
For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.
The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).
Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching. One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam. As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia. Did you know that the 18th Amendment is the only amendment to be repealed in full? Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures? Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals? (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)
One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins.Section 1 of the Amendment repealed the 18th Amendment, returning the Constitution to its pre-prohibition state, but Section 2 seeks (somewhat inartfully) to guarantee the power of a state to stay dry if it wishes: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Does this represent no more than a federal ban on individuals violating state liquor bans (essentially constitutionalizing the similar federal statute upheld in Clark Distilling Co. v. Western Maryland Railway (1917))? Or does it mean, as Justices Brennan and O’Connor argued in their Dole dissents, that Section 2 is designed to give states broader control over alcohol policy? Under this reading, the textual references to transportation and importation connote a broader control. One can ask similar questions about the 19th Amendment: perhaps it should have been read to guarantee a wide range of equal rights for women—as argued by the majority in Adkins v. Children’s Hospital (1923) and the dissenters in West Coast Hotel v. Parrish (1937)—instead of limited to its text, as occurred in practice.
Students would readily see the pattern of the modern alcohol cases: a state relying on a 21st Amendment argument will always lose. To harmonize two arguably competing provisions of the Constitution, the Court routinely gives the 21st Amendment a narrow reading, where it essentially means that states may regulate alcohol so long as they do not violate any other provision of the constitution, be it enumerated rights (like equal protection, due process, religion, speech) or unenumerated structural concepts (like the dormant commerce clause), and subject to override by federal laws enacted under the commerce power that have preemptive effect. But must the harmonizing always come at the cost of the 21st Amendment? Take Craig v. Boren, which privileged the Equal Protection Clause over the 21st Amendment. Given that Section 2 of the 21st Amendment was enacted decades after the Equal Protection Clause—and given the canon of construction that a later, narrower enactment should control over an earlier, more general one—perhaps the harmonization should operate in the other direction, so that a state may not discriminate on the basis of sex unless it is in the course of exercising its reserved power over alcohol. That approach is legally possible, but unpalatable to our heirarchy of values. Sex equality is simply more important than alcohol regulation, and so is freedom of speech, religion, and so on. But how is the importance of a constitutional value recognized, and should that be the business of the courts?
In a unit focusing on the 21st Amendment, the 5-4 decision in Granholm v. Heald would have special pride of place, since it explains how the language of Section 2 was designed specifically to interact with the Supreme Court’s then-existing dormant commerce clause doctrine. If Granholm is taught as an example of the dormant commerce clause in a unit without a focus on alcohol, it would likely be drastically edited down to size. But the case’s clash of values—and of interpretive methodologies—breathes more freely when one thinks about Granholm as an alcohol case as well as an interstate commerce case.
Thursday, June 04, 2015
Strange Bedfellows #2: Eugenics All Over The Place
This post is part of the Strange Bedfellows series.
It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws. But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).
To best see the connections, it helps to know some of the history of intelligence testing. Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low. The two original terms were idiot and imbecile. An idiot was pre-verbal, with no more intelligence than an infant. An imbecile could use language, but had the intelligence only of a pre-pubescent child. Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid. They might be good for factory labor, but they tended to be "immoral" and prone to "criminality." These were the morons. When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons. And she wasn’t one of those either. See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985). The blanket category for idiots, imbeciles, and morons was feeble-minded.
The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today. Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test. Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command. The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings. Their alarming conclusion: the United States was “a nation of morons.”
Their conclusions were based on draftees’ responses to questions like these:
The Orpington is a kind of:
An air-cooled engine is used in the:
Why is beef better food than cabbage? Because
A. it tastes better
B. it is more nourishing
C. it is harder to obtain
Researchers at the time did not recognize that their questions tested culture, not native intelligence. An extremely bright draftee raised in poverty on a farm in the 1910s might be forgiven for not poring over the advertising copy for cars he could never afford and committing their features and brand names to memory. Yet many were convinced that the nation would be better off if we could extirpate from future generations the morons who failed this and similar tests.
The nation’s flirtation with eugenics appears fleetingly on the surface of Cleburne and Loving. In Cleburne, a city denied a zoning variance to a group home that fit within the city code’s definition of a “hospital for the insane or feeble-minded.” As Justice Marshall’s carefully-researched dissent explained, this term was drawn from a Dallas zoning ordinance from 1929, during the thick of the eugenics movement. 473 U.S. at 467 n. 19. The opinion in Loving indicates that Virginia’s then-existing statutory ban on interracial marriage was found in the Racial Integrity Act of 1924, a law “passed during the period of extreme nativism which followed the end of the First World War.” The eugenic sterilization law upheld in Buck was passed by the Virginia legislature during the same legislative session, and for the same purpose: to ensure that future generations of Virginians would fit the current generation’s vision of genetic adequacy.
The connection to eugenics appears nowhere on the surface of Washington v. Davis, but to my mind it is equally strong. That case challenged the Washington DC police force’s reliance on Civil Service Test 21 as part of its application process, even though the test was not validated to measure competence as a police officer and had disparate impact on the basis of race. The opinion does not describe Test 21 in any detail. My casebook includes some of the questions, which bear an obvious similarity to the WWI intelligence tests:
Of the following reasons, the one that best explains the continued sale of records in spite of the popularity of the radio is that the:
A) records make available the particular selections desired when they are desired
B) appreciation of records is more widespread than appreciation of radio
C) collection of records provides an interesting hobby
D) newest records are almost unbreakable
E) sound effect of records is superior to that of the radio.
Laws restricting hunting to certain regions and to a specific time of the year were passed chiefly to:
A) prevent people from endangering their lives by hunting
B) keep our forests more beautiful
C) raise funds from the sale of hunting licenses
D) prevent complete destruction of certain kinds of animals
E) preserve certain game for eating purposes
PROMONTORY means most nearly:
Such questions are about as well-suited for the task of selecting police officers as the question about the Orpington (it’s a kind of chicken) was suited for selecting military officers. Next time you get pulled over by the highway patrol, be sure to use “promontory” in a sentence; the officer will sense a kinship and let you off with a warning. Although Test 21 was never used as a tool for shaping genetics, the DC Police Department shared a eugenicist’s assumption that a unitary form of intelligence can be detected and precisely ranked as a basis for making important life decisions.
Scores on employment tests also appear in the facts of Griggs v. Duke Power (1971), Personnel Administrator v. Feeney (1979) and Ricci v. DeStefano (2009), but the opinions do not describe the questions asked. If anyone knows the contents of those tests, please share them!
Wednesday, June 03, 2015
Strange Bedfellows #1: Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette
This post is part of the Strange Bedfellows series.
For those accustomed to the silo method, this collection of cases will seem really weird. “Barnette is a First Amendment case! Skinner is a fundamental rights case! Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny. Do some types of cases deserve more intense judicial review than others?
In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine). Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases. Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.
Reading Skinner (1942), the Internment Cases (1943 and 1944), and Barnette (1943) as part of this same question helps make sense of the choices made in those decisions. Barnette, in particular, loses much of its power if it is saved purely for a First Amendment discussion. The bulk of Justice Jackson’s opinion is devoted not to First Amendment reasoning, but to the propriety of the Court ever enforcing individual rights. In stirring language, the majority concluded that judges were required to enforce the bill of rights vigorously. Justice Frankfurter’s dissent is premised on the notion that the Constitution does not award the Supreme Court “greater veto power when dealing with one phase of ‘liberty’ than with another.” It's a case about judicial review that only happens to involve freedom of speech and religion.
Skinner (a eugenic sterilization case) is the first appearance of the term “strict scrutiny” and hence is a natural for any exploration of the rise of different levels of scrutiny. The debate between the majority’s choice of an equal protection framework and the concurrence’s preference for a due process framework can be explained in part because the majority wanted to apply a stricter scrutiny, and felt that the Equal Protection Clause, rather than the Due Process Clause, made it possible.
My casebook also includes the Japanese Internment cases as part of this debate. In Hirabayashi (upholding a curfew applicable to persons of Japanese ancestry), the Court expressly looked only for a rational basis behind the law. Korematsu, a year later, expressly said that racial classifications are “immediately suspect” and subject to “most rigid scrutiny.” That decision is widely viewed as a misapplication of strict scrutiny, but its choice of that frame was momentous.
In my experience, students make the connections quite readily. The interleaving of multiple doctrines (speech, due process, equal protection) as a way to explore a larger legal concept (levels of scrutiny) poses no problems. In particular, it does not harm their later ability to properly cite the right case for the right principle in an exam. Given that these cases all arose in the same historical time frame, there are huge benefits in combining them into a single unit.
Guest Blogging: Strange Bedfellows
Thanks to the PrawfsBlawg for welcoming me as a guest for June 2015!
Early summer is a good time to think broadly about how we structure the courses we teach, before the daily and weekly deadlines start to constrain our choices. In that spirit, I will devote this month’s guest posts to the theme of Strange Bedfellows in the Constitutional Law Curriculum: cases that are not ordinarily taught together, but could be.
For many courses that rely on the case method, case selection can be a major outlet for a teacher’s creativity. When teaching, say, the intentional tort of battery or the proper operation of Rule 11, one can find good vehicles from literally thousands of cases from dozens of jurisdictions. This is less of an option for US Constitutional Law, which by its nature largely devoted to teaching a single text interpreted through a canon of famous (and infamous) cases. If a Con Law teacher isn’t entirely happy with the facts or reasoning of Brown v. Board of Education as a teaching vehicle, it can’t simply be replaced with another opinion that better matches the teacher’s pedagogical goals.
The major creative choice in this course is to decide which relationships to emphasize among a basically fixed set of cases. The usual approach structures the course into a series of doctrinal silos—e.g., begin with judicial review, then move to powers of Congress explored one at a time, then individual rights explored one at a time—with the cases assigned to the best-fitting silo. Among the problems with this approach is that almost all of the important Constitutional Law cases involve more than one silo. US v. Windsor (the DOMA case) is about Congress’s power over marriage and about fundamental rights and about equality and about the proper role of the judiciary and about methods of constitutional interpretation. If we reduce our reliance on the silos, a case like Windsor (and virtually any other really important canonical case) contains many opportunities for comparison among cases that aren’t ordinarily conceptualized together.
The inspiration for this blogging project came while working on my new casebook, An Integrated Approach to Constitutional Law (out now! don’t delay!). The writing process made me realize that I am by nature a lumper, not a splitter. I hope you will enjoy reading about some differently-structured lumps.
[To see the various posts that make up the series, click on the "Teaching Law" link below, and then scan the posts from June 2015.]
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 email@example.com. 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